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Public Interest Research Group of N.J. v. Ferro Merchandising Equip. Corp.

ELR Citation: 18 ELR 21368
Nos. No. 86-4741, 680 F. Supp. 692/26 ERC 1850/(D.N.J., 10/06/1987)

The court holds that unanticipated deficiences in a sewer system do not excuse violations of a Federal Water Pollution Control Act (FWPCA) consent decree, and a good-faith effort to comply with the court's order is not a defense to contempt. The court first holds that it will not reconsider its previous finding of contempt for defendant's violations of a consent decree in which defendant agreed to operate its facility in compliance with FWPCA pretreatment standards. A good-faith effort to comply with a court order is not a defense to contempt. The defendant has not met the burden of showing a factual impossibility defense, since defendant admits that compliance was possible prior to some subsequent violations. Defendant cannot claim its inadequate and poorly maintained sewer system as an excuse for its violations. The court holds that defendant is precluded from arguing that the terms of the consent decree are more burdensome or expensive than it had anticipated. That defendant did not anticipate the deficiencies of its sewer system does not excuse its violations of a consent decree voluntarily assumed. The court holds that the defendant is liable for violations of the FWPCA pretreatment standards occurring subsequent to the consent decree. The court rules that the owner or operator of a source that operates its facility in a fashion that provides the primary causal link in a violation of its permit violates FWPCA §307(d), and holds that the defendant so operated its facility. Although defendant's facility was not in operation on the dates of alleged discharge, defendant failed to demonstrate that the discharges did not originate from its facility earlier. A narrow construction of the word "operate" would significantly hinder enforcement efforts, and defendant was certainly "operating" when it allowed toxins to accumulate unabated. The court holds, however, that the defendant is not in contempt of the consent decree for the subsequent violations. The goal of a contempt action is to achieve full compliance, and monitoring incorporated into the court's earlier order indicates that defendant has been in compliance. Another finding of contempt would only serve to punish the defendant for acts that are unlikely to be repeated.

Counsel for Plaintiffs
Kathleen Millian
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Todd Sahner
Hannoch Weisman
4 Becker Farm Rd., Roseland NJ 07068
(201) 535-5300