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Public Interest Research Group of N.J. v. U.S. Metals Ref. Co.

ELR Citation: 18 ELR 21253
Nos. No. 86-2041, 681 F. Supp. 237/26 ERC 2004/(D.N.J., 09/22/1987)

The court holds that no federal or state statute of limitations bars citizen suits under the Federal Water Pollution Control Act (FWPCA), that a smelting and metal reprocessing facility cannot invoke the upset and bypass defenses where it failed to satisfy the prerequisite notification provisions, and that the facility cannot receive violation credits for zero outfall periods. The court first holds that plaintiffs' action is not an improper action to enforce an expired permit. Defendant was still subject to its original permit when this suit was filed, and there is no support for defendant's argument that the expiration of a permit prior to judgement bars relief. The complaint sought relief for the future, as well as past and present violations. That the violations spanned two permits does not change the prospective nature of the plaintiffs' suit at the time it was brought. The court holds that the two-year New Jersey statute of limitations on foreclosure claims recoverable by the government is not applicable to an FWPCA citizen suit, since applying individual state limitation rules would frustrate national policies and hinder national uniformity. The federal five-year statute of limitations in 28 U.S.C. §2462 is also inapplicable. Although application of a federal statute of limitations would address the problem of conflicting state periods, citizen suits addressing ongoing violations could become time barred by the waiting period required by the FWPCA for citizen suits. The court holds that defendant did not satisfy two of the three prerequisites for the bypass defense. Defendant failed to use the available and feasible alternatives to avoid the bypass since it knew its reservoir was near capacity and it could have installed backup equipment. Defendant also failed to notify the Environmental Protection Agency of the occurrence within 24 hours as required by the regulations. The court holds that the upset defense also fails for noncompliance with the 24-hour notification provision. The court holds that by reporting only its highest single violation per month, defendant violated its permit, which requires all exceedances to be reported. That the report form provided by the government has space enough only for one entry does not mean that defendant's permit obligations were altered. Finally, the court holds that defendant cannot receive credit for the period in which it obtained zero outfall when it could have discharged up to its permit limits. Such an "offset" policy would hinder the goals and contradict the purpose of the FWPCA, since it would create an absolute defense for all polluters except those who pollute more often than not.

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

Counsel for Defendant
Linda E. Johnson
Greenberg & Prior
301 Carnegie Center, Princeton NJ 08540
(609) 987-1200