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Public Interest Research Group of N.J. v. New Jersey Expressway Auth.

Citation: 23 ELR 20420
No. No. 91-1701, 822 F. Supp. 174/(D.N.J., 12/05/1992)

The court holds that a § 505 Federal Water Pollution Control Act (FWPCA) citizen suit, seeking statutory penalties against a wastewater treatment plant for its nearly 5,000 violations of its national pollutant discharge elimination system permit, is not precluded by the state's prior enforcement action, which resulted in a memorandum of understanding (MOU). The court first holds that the action is not moot. Although the plant is no longer violating its permit, it did continue to commit violations after the filing of the complaint. The court holds that the plaintiff citizen group has standing to sue, because it satisfied all three prongs of the test for standing in Valley Forge Christian College v. AmericansUnited for Separation of Church & State, Inc. Its members suffered injury to their aesthetic, recreational, and health interests in bodies of water downstream from the plant that are fairly traceable to the plant's discharges, despite there being no surface water connection between the plant and the downstream bodies of water. Water quality reports evidence the groundwater connection between the plant and the downstream bodies of water. Moreover, the group's injury is likely to be redressed by a favorable decision. The court holds that the citizen suit is not precluded under the FWPCA by the prior enforcement action of the New Jersey Department of Environmental Protection (NJDEP) for these violations. FWPCA § 505(b) is inapplicable, because the NJDEP never commenced an action in court against the plant. Further, § 309(g) is also inapplicable, because no state administrative enforcement action was ever formally commenced. The court holds that the plant's compliance with the FWPCA must be measured according to the permit itself, and that the MOU between the state and the plant did not constitute a legal modification of the permit under New Jersey law or under the antibacksliding provision of FWPCA § 402(o), because the MOU's effluent limitations were less stringent than the permit's.

Counsel for Plaintiff
Bruce J. Terris, Monica Wagner, Robert D. Parrish
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Edward Lloyd
Rutgers Environmental Law Clinic
Rutgers University
15 Washington St., Rm. 334, Newark NJ 07102
(201) 648-1766

Counsel for Defendant
Joseph G. Gindhart
One S. New York Ave., Ste. 202, Atlantic City NJ 08401
(609) 345-3050