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Public Interest Research Group of N.J. v. Rice

ELR Citation: 22 ELR 20598
Nos. No. 90-2138, 774 F. Supp. 317/(D.N.J., 09/23/1991)

The court holds that the Air Force violated the discharge limitation and monitoring requirements of its national pollutant discharge elimination system (NPDES) permit at a base in New Jersey and orders the Air Force to build a new wastewater treatment plant on schedule and to take further action to mitigate violations of its permit before the new plant is built. The U.S. Environmental Protection Agency (EPA) and the New Jersey Department of Environmental Protection found that the Air Force has repeatedly failed to adequately maintain its wastewater treatment facility and failed to operate the facility in accordance with federal law. EPA entered into a consent decree with the Air Force that allowed the Air Force to comply with effluent limits less stringent than those contained in its permit and extended the deadline for construction of a new treatment facility. Environmental groups brought a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA) against the Air Force, alleging that the Air Force had committed 955 discharge violations, 659 reporting violations, and 20 monitoring violations in the 17-month period from October 1989 through February 1991.

The court first reserves decision on whether FWPCA §§313 and 505 waive sovereign immunity and permit the court to award civil penalties for violations of the Act by a federal agency, since this issue is before the U.S. Supreme Court. The court next holds that the environmental groups have standing to sue on behalf of their members, since the groups' members have successfully established that they have suffered injury, their injury is fairly traceable to the Air Force's conduct, and the judicial relief sought will redress their injury. Further, the groups have demonstrated that the interests sought to be protected are germane to their purpose and that individual participation by their members is not necessary to maintain this action.

The court next orders the Air Force to comply with its NPDES permit, which sets forth more stringent requirements than the EPA consent decree. The Air Force has admitted that its discharges have exceeded the effluent limitations in its permit, and nothing prevents EPA and the Air Force from agreeing to further put off the deadline for compliance. The court holds that its order involves no encroachment on EPA's area of expertise and finds that the limitations set forth in EPA's consent decree are insufficient to protect the creek into which the Air Force discharges its effluent. The court further holds that the environmental groups' citizen suit is not barred, because EPA has not commenced an action to require compliance with the Act. EPA has not required compliance with the permit, but instead has deferred compliance with it. Recognizing that absolute compliance with the permit is not possible, the court orders the Air Force to come as close as it can to the permit's limits.

The court grants the environmental groups' motion for a permanent injunction requiring the Air Force to build a new wastewater treatment plant and to take further action to mitigate violations of its permit. The groups have demonstrated actual success on the merits, since the court has granted them summary judgment on the issue of the Air Force's liability. The pollutants that the Air Force discharges in violation of its permit have caused, and will continue to cause, irreparable harm. The issuance of an injunction will not cause the Air Force undue harm, since the expenditure of $350,000 at its facility is not excessive to mitigate the damage caused. Congress anticipated that the Act would impose a significant burden on industry, but determined that the objectives of the Act necessitated imposing this burden. Finally, it is in the public interest to prevent further pollution in the creek into which the Air Force discharges its effluent.

Counsel for Plaintiffs
Bruce J. Terris, Kathleen L. Millian, Mark V. Dugan
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Edward Lloyd
Rutgers Environmental Law Clinic
15 Washington St., Rm. 334, Newark NJ 07102
(201) 648-5576

Counsel for Defendant
Barry M. Hartman, Ronald M. Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Michael Chertoff, U.S. Attorney; Irene Dowdy, Ass't U.S. Attorney
402 E. State St., Rm. 265, Trenton NJ 08608
(609) 989-2190