Jump to Navigation
Jump to Content

Public Interest Research Group of N.J. v. Carter-Wallace, Inc.

ELR Citation: 18 ELR 21064
Nos. No. 87-1884, 684 F. Supp. 115/27 ERC 2147/(D.N.J., 04/20/1988)

The court holds that §505 of the Federal Water Pollution Control Act (FWPCA) does not limit citizen groups to suing for civil penalties for permit violations that occurred subsequent to the filing of the complaint. The court rejects the defendant's argument that citizens may seek civil penalties only for those violations that can be the subject of an injunctive order. The Supreme Court's stress in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, on the prospective nature of citizen suits was only intended as a limitation on the jurisdictional basis of those suits, and was not meant to limit the district court's power to impose any penalty appropriate under FWPCA §309(d) for effluent standard violations. The defendant's argument would render the Supreme Court's remand in Gwaltney nonsensical, since injunctive relief was not an issue in that case. The court also holds that plaintiffs may seek penalties for violations of an expired permit only if conditions of the expired permit are carried over to the current permit and thus are currently in force. Never to allow penalties to be imposed for violations of an expired permit would allow dischargers to violate that permit with virtual impunity towards the end of the permit period, given the 60-day notice provision in FWPCA §505(b). Always to allow penalties to be imposed for violations of an expired permit would also be inappropriate given the Gwaltney Court's limitation of citizen suits to those seeking penalties "for violation[s] of a permit limitation 'which is in effect'" under the FWPCA. Allowing penalties where conditions are carried over into a new permit and the government has not enforced the violations in either permit satisfies Gwaltney's concern that injunctive relief and penalty remedies remain intertwined and fulfills the citizen enforcement role envisioned by the Gwaltney Court.

Counsel for Plaintiffs
Edward Lloyd
Environmental Law Clinic
15 Washington St., Newark NJ 07102
(201) 735-8240
Bruce J. Terris, James M. Hecker
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 10005
(202) 682-2100

Counsel for Defendant
Charles F. Gibbs
60 Glen Ave., Glen Rock NJ 07542
(201) 423-1225
Barry L. Malter, Ellen Siegler
Breed, Abbott & Morgan
1875 I St. NW, Washington DC 20006
(202) 466-1100