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Student Pub. Interest Research Group of N.J. v. American Cyanamid Co.

ELR Citation: 16 ELR 20517
Nos. No. 83-2068 (JWB), 23 ERC 2044/(D.N.J., 11/06/1985)

The court holds that plaintiff environmental group has standing to bring a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA), and may sue for past violations, and that no statute of limitations applies. Plaintiff brought this citizen suit claiming that defendant violated the effluent limitations in its national pollutant discharge elimination system (NPDES) permit and now seeks summary judgment on the issue of liability. Defendant's fertilizer and chemical plant had discharged to the Arthur Kill in New Jersey under a state consent order from 1972 to 1977 when the Environmental Protection Agency (EPA) issued the first NPDES permit for the facility. The consent order was modified to incorporate the permit conditions. The order was further modified in 1981 to reflect changes in the operation of the plant. Although due to expire in 1981, the 1977 permit was still in force in 1982 when the state took over NPDES authority and in 1983 when plaintiff gave notice of intent to sue. A 1983 consent order indicated that the state would not seek penalties for past violations. In 1984, the state issued a new permit, which stated defendant's effluent limitations in terms of concentrations, instead of mere amounts. Plaintiffs allege that defendant's discharge monitoring, noncompliance, and lab reports reveal 383 violations of permit effluent limits from 1977 to January of 1985.

The court first observes that granting partial summary judgment is appropriate in FWPCA citizen suits because discharge monitoring reports are available to establish a defendant's liability. The court holds that plaintiff has standing to bring the citizen suit because it satisfied both requirements of §505. Plaintiff established an interest in the proceedings under §505(a) by alleging that the recreational activity of one of its members is adversely affected by defendant's discharges. Also, plaintiff's suit is not barred by §505(b)(1)(B) because EPA and the New Jersey Department of Environmental Protection (NJDEP) have not been "diligently prosecuting" a civil action to enforce the effluent limitations. Although a series of consent judgments were entered in a New Jersey court, the subsequent administrative actions taken by EPA and the NJDEP are not the functional equivalents of court action under §505(b)(1)(B). That the NJDEP has sought to enforce the permit without imposing any civil penalties on defendant further demonstrates that it has not been "diligently prosecuting" a civil action. The court next rejects defendant's argument that a citizen suit may only be brought to enforce permits in effect at the time the suit is brought, and rules that plaintiff may sue for past violations. Imposition of civil penalties has an important deterrent function in enforcement of the Act. The court rules that no state statute of limitations applies to FWPCA citizen suits, nor does the five-year statute of limitations in 28 U.S.C. §2462.

Turning to defendant's contentions that genuine issues of material fact exist to defeat plaintiff's motion for summary judgment, the court first rules that whether the cyanide limitations in defendant's permit are for free or total cyanide is a question of law and defers to the NJDEP's interpretation that the permit governs total cyanide. Likewise, the interpretation of the daily average limitations in defendant's permit is an issue of law. "Daily average" is clearly defined in the permit. The court next holds that the "upset" defense, under which certain exceptional incidents of noncompliance are excused, does not apply to violations under defendant's 1977 EPA permit. That permit established only two defenses, bypass and power failures. Further, the upset defense does not apply to permits issued prior to the 1980 effective date of the regulation establishing it and only applies to permits specifically referencing the defense. The court holds that defendant is not liable for certain violations that plaintiff concedes it double counted, but that plaintiff did not double count alleged violations. The court holds that defendant is liable for violations that plaintiff calculated using pollutant concentrations recorded by defendant and minimum flow data, instead of actual flow data, which was unavailable. The figures generated by using the minimum flow data represent the lowest possible estimates of the actual weight of pollutants discharged and each is in excess of the permit limits. That plaintiff is unsure by how much defendant violated its permit does not preclude summary judgment for these violations. The court refuses to excuse violations as de minimis, ruling that the Act prescribes sanctions for any violations. Finally, the court rejects defendant's argument that test results within the range of probable error of the test methodology cannot establish permit violations. The test results recorded by defendant more likely than not establish violations and are therefore sufficient to establish liability.

The full text of the opinion is available from ELR (9 pp. $2.00, ELR Order No. C-1349).

Counsel for Plaintiff
Bruce J. Terris
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Charles D. Hellman, Michael D. Rodburg
Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700

Bissell, J.