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Student Pub. Interest Research Group of N.J. v. Monsanto Co.

ELR Citation: 18 ELR 20999
Nos. No. 83-2040, 29 ERC 1078/(D.N.J., 03/24/1988) Civil penalty assessed

The court holds that in a Federal Water Pollution Control Act (FWPCA) citizen suit, civil penalties ordinarily should not be granted for violations committed before the complaint is filed, but the precomplaint violations will be considered in assessment of the overall penalty. In light of the Supreme Court's ruling in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, this court previously ruled that it would not impose penalties for violations prior to filing of the complaint and the notice of intent to sue. The case was tried on that basis, and the court holds that changing its ruling after trial would be unfair. The court denies a motion by the United States to participate as an amicus curiae, because the issue has already been decided. The court notes that it need not determine whether Gwaltney allows imposition of civil penalties only if injunctive relief is granted, because injunctive relief is granted here. The court then holds that, absent unusual circumstances, penalties should be assessed only for continuing postcomplaint violations, since FWPCA citizen suits are primarily forwardlooking. However, the court will consider all the violations, including pre-complaint violations, in assessing the penalty. The court also holds that a violation of a daily average permit limitation constitutes a violation only on the day it is measured, not on every day of that month. The court holds that plaintiffs did not prove a violation of the Kjeldahl-nitrogen limitations in the permit.

The court holds that the total maximum penalty that could be imposed for the post-complaint violations is $240,000. Plaintiffs' evidence on economic benefit and gravity of the violations is of limited value, however. Plaintiffs' attempt to establish the penalty that EPA would assess if it were settling an enforcement case fails since this is not an enforcement action or a settlement, the witnesses were not EPA employees and did not use EPA's computer program in their calculations, and those calculations were based on questionable assumptions and changed during the course of the trial. The court notes that the penalty should cancel any economic benefit that defendant gained as a result of noncompliance and impose additional deterrent costs. The court finds that defendant probably gained some unquantifiable economic benefit. Moreover, the violations are substantial and numerous, have spanned almost a decade, and have continued since the lawsuit began. Although the violations were not willful or intentional, defendant could have done more to comply, and could have complied sooner. Its good-faith reliance on outside engineers and consultants is not a defense. The court therefore imposes the maximum penalty of $240,000. The court also holds that the burden is not on defendant to justify a lesser penalty. Since the violations may recur, and since a subsequent legal action would be an inefficient and inadequate remedy, the court also grants injunctive relief for the duration of the existing permit. Finally, the court grants plaintiffs their reasonable litigation costs.

[Related opinions are published at 14 ELR 20228; 15 ELR 20294, 20297.]

Counsel for Plaintiffs
Michael Gordon
80 Main St., West Orange NJ 07052
(201) 736-0094

Counsel for Defendant
Ken Roth
Davis, Reber, Kenny & Bramowitz
499 Copper Landing Rd., Cherry Hill NJ 08002
(609) 667-6000