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Student Pub. Interest Research Group of N.J. v. Hercules, Inc.

Citation: 19 ELR 20903
No. No. 83-3262, 29 ERC 1417/(D.N.J., 04/06/1989)

The court holds that Federal Water Pollution Control Act (FWPCA) § 309(d)'s list of factors to be considered in assessing civil penalties, added by the 1987 FWPCA amendments, may be applied in assessing penalties for violations before 1987, and the court assesses the maximum penalty of $ 10,000 each for 168 violations of a National Pollutant Discharge Elimination System (NPDES) permit. The maximum penalty for pre-amendment violations, however, remains $ 10,000 rather than the increased limit of $ 25,000 added by the 1987 FWPCA amendments. The court first observes that the 1987 FWPCA amendments' list of factors to be considered summarizes the policies set out in more detail in the Environmental Protection Agency's Civil Penalty Policy, and involves two components: the economic benefit gained by violator because of the violation, and an additional amount depending on the gravity of the violations to deter future violations. The court first finds that the economic benefit from the violation was just under $ 500,000. This amount will not cause any undue economic hardship, based on the violator's assets, net earnings, and sales. The court next holds that in determining what additional amount to assess according to the gravity of the violations, it looks to the degree of harm to the environment, the history of violations, and the severity of the deviation from the NPDES permit. In light of these factors, the court holds that the appropriate penalty is the maximum allowed by law.

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

Counsel for Defendant
Joseph F. Falgiani
McCarter & English
Four Gateway Ctr., 100 Mulberry St., Newark NJ 07102-4096
(201) 622-4444