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Student Pub. Interest Research Group of N.J. v. Fritzsche, Dodge & Olcott, Inc.

Citation: 14 ELR 20450
No. No. 83-1605, 579 F. Supp. 1528/20 ERC 1624/(D.N.J., 02/14/1984)

The court holds that plaintiffs may proceed with a citizen suit under § 505 of the Federal Water Pollution Control Act (FWPCA) despite enforcement actions taken by the Environmental Protection Agency (EPA) against the defendant and despite defendant's pending application for modification of its national pollutant discharge elimination system (NPDES) permit. The court holds that the EPA enforcement actions do not bar the suit because they do not constitute diligent prosecution in a court of the United States or a state as required by § 505(b)(1)(B). While noting that an administrative agency may qualify as a court, the court holds that EPA is not a court in this instance because the Agency refused to allow citizen participation in its enforcement negotiations with the defendant. The court holds that EPA's prosecution was not diligent because it resulted in a deficient consent order. The consent order impermissibly extends the deadline for compliance with the best practicable technology (BPT) requirements from July 1, 1977 to December 31, 1984. Defendant does not qualify for the FWPCA exception to the BPT deadline for dischargers that tie-in to publicly owned treatment works, and in any case the exception only extends the compliance deadline to July 1, 1983, a deadline that defendant has already failed to meet. The court holds that the doctrine of primary jurisdiction does not justify a stay of the citizen suit pending resolution of defendant's NPDES permit modification request. Although EPA may have primary jurisdiction over the permit renewal issue, the suit seeks to enforce the existing permit. The court holds that a modification of the existing permit will not retroactively negate defendant's liability for past violations. Finally, the court holds that permit violations recorded by the defendant in its discharge monitoring and non-compliance reports are admissions of liability. The court rejects defendant's claims that its reports were "merely the required reporting of monitoring test results" and may have been inaccurate.

Counsel for Plaintiffs
Carolyn A. Smith, Bruce J. Terris
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Michael Gordon
Welsh & Gordon
25 Valley Rd., MontclairNJ 07042
(201) 746-8004

Kathleen Butler
P.O. Box 528, New York NY 10159

Counsel for Defendant
Joseph E. Irenas, Sara B. Goodman
McCarter & English
550 Broad St., Newark NJ 07102
(201) 622-4444