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Student Pub. Interest Research Group of N.J. v. P.D. Oil & Chem. Storage, Inc.

ELR Citation: 16 ELR 20517
Nos. No. 84-340, 627 F. Supp. 1074/23 ERC 1894/(D.N.J., 01/13/1986) Ruling on standing & liability

In a Federal Water Pollution Control Act (FWPCA) citizen enforcement suit, the court holds that plaintiffs have standing, there is no applicable statute of limitations, laches does not apply, and the violations of defendant's national pollutant discharge elimination system (NPDES) permit may not be excused as upsets. Defendant owns a tank farm located in the heavily industrialized area adjacent to the Kill Van Kull in Bayonne, New Jersey. The company receives bulk liquid commodities, stores them, and loads them onto trucks, railway tank cars, and ocean-going tankers. Spillage, overflow, and condensation are gathered in a collection system and discharged to the Kill through a single pipe. Defendant has an NPDES permit for the discharge, but its discharge monitoring reports indicate that it has violated the terms of that permit 154 times since June 1, 1977.

The court first holds that plaintiffs have standing. Plaintiffs have demonstrated that they have suffered injury-in-fact, since many of plaintiffs' members stated that they use the waterway in question or would use it, if it did not look and smell so bad, for activities such as jogging, fishing, boating, and bicycling. The members' recreational, aesthetic, and health interests are adversely affected by the condition of the waterway, a condition which according to plaintiffs is partially attributable to defendant's excess pollution. Relying on two previous decisions from this court, the court rules that plaintiffs' injuries can be traced to defendant's discharges into the waterway. The court rules that the FWPCA does not require plaintiffs to show that a specific percentage of the total pollution adversely affecting their interests can be traced to defendant; as this would effectively bar them from suing any polluter and would defeat the purpose of the FWPCA. Defendant's argument that the substances it discharges into the waterway are not pollutants is misplaced, since Congress has determined what effluents are to be considered pollutants under the Act. Lastly, the court rules that plaintiffs' injuries would be redressed by holding defendant liable. The purpose behind §505, FWPCA's citizen suit provision, is to allow plaintiffs such as these to enforce the Act for the general public interest and to deter continued violations of the Act.

The court next rules that the three-year statute of limitations in 24 U.S.C. §2415 does not apply to FWPCA citizen suits. Defendants cite a labor union case in which the governing substantive statute did not provide a statute of limitations and the Supreme Court chose to adopt a federal one. This court distinguishes that case, noting that the Supreme Court had stated that substantive federal policies may dictate that no limitations period applies. No limitation period would apply to the Environmental Protection Agency (EPA) if it were bringing an enforcement action and the purpose of §505 was to give citizens the same power to bring enforcement actions held by the states or EPA. Moreover, defendant has not demonstrated that it will suffer any prejudice if no statute of limitations is applied. The court declines to abstain in the case to let state administrative action take its course. Congress intended for private citizen actions to supplement state administrative enforcement, and specified that the latter should not preempt citizen suits. The court also holds that plaintiffs are not estopped from bringing the action. Since some of the alleged violations occurred in the 1970s, defendants contend plaintiffs should be barred under the laches doctrine. The court rules that citizen enforcers operating under the FWPCA benefit from the principle that laches is not defense to an action brought in the public interest or to enforce a public right. Congress' goal in the Act was to improve the quality of the nation's waters and to provide increased opportunity for citizens to participate in the process. In any case, since under the citizen suit provision citizens are private attorneys general, they should not have fewer rights to enforce the statute than governmental agencies, against which laches may not be used. The court rejects as being completely without merit defendant's contention that plaintiffs instituted this suit in bad faith.

Turning to the substantive issues, the court holds that defendant is not eligible to assert an "upset" defense. The defense is available where there is unintentional noncompliance with technology-based effluent limitations due to circumstances beyond the permittee's control. The defense is not available, under either EPA or New Jersey regulations, to violations of water quality-based effluent limitations, and defendant's NPDES permit is based in part on state water quality standards. Nor is defendant entitled to the defense for violations occurring prior to the promulgation of the EPA upset regulations in 1979. Prior to the promulgation of the regulations, EPA allowed regional administrators to include upset provisions in specific NPDES permits but the burden is on defendant to show that such an upset provision existed in its permit at that time, and it has not done so. Defendant has also made a blanket assertion that all its alleged violations qualify as upsets, notwithstanding that EPA's regulations require that all individual elements of the upset definition be satisfied. EPA compliance inspection reports in which an EPA employee stated that some of the permit violations were due to upsets is not equivalent to a formal agency finding of upsets.

The court rules that a strict liability standard for violations of permit requirements applies under the FWPCA. Moreover, defendant's reliance on several inspection reports indicating compliance ignores numerous letters from EPA and New Jersey enforcement personnel indicating repeated warnings of enforcement action for noncompliance. The court also rules that the discharge monitoring reports (DMRs) do not misstate the permit requirements and are valid evidence of violations. Defendant's NPDES permit included two sets of effluent limitations for certain pollutants, technology-based standards and stricter standards calculated to achieve state water quality standards. Both EPA and the state have made clear that the more stringent of the two standards is applicable. The court denies a request by defendant for an on-site inspection, finding that one is not needed to determine whether defendant violated its DMRs. The court rules that the DMRs may be used as admissions of liability, and grants plaintiffs summary judgment on liability.

The full text of the opinion is available from ELR (6 pp. $2.00, ELR Order No. C-1350).

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

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

Counsel for Defendant
Nathan M. Edelstein
Edelstein & Bernstein
Bldg. 1-B, 3131 Princeton Pike, Lawrenceville NJ 08648
(609) 896-0999

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]