ELR Citation: ELR 20152
No(s). 84-340 (D.N.J. Sep 19, 1989)

The court imposes a $3.205 million civil penalty in a Federal Water Pollution Control Act (FWPCA) citizen suit against a company for illegal and excessive discharges from its wastewater treatment plant. The court had previously determined that between 1977 and 1988, the bulk chemical storage and transfer facility violated its state and federal effluent permits 386 times. In 1987, the facility installed a water treatment system that reduced the number of effluent violations substantially, but violations continued. The court first observes that defendant's effluent permit violations harm the environment and that it is reasonable to believe they will continue to occur. The court, lacking records of defendant's effluent flows from 1977 through 1988, used the defendant's environmental consultant's estimates that approximately 66 million gallons of excess effluent were illegally discharged during those years. Further, the court used the same environmental consultant's estimate stating that off-site treatment for those excess gallons would have cost approximately 10 to 11 cents per gallon to establish that defendant enjoyed a considerable economic advantage by not spending those funds and neglecting its permit limitations.

The court next assesses factors surrounding the permit violations to compute the penalty. The court attaches significance to the large number of violations involved and to the toxic nature of the effluents. The court is compelled toward the higher end of the penalty range because all of the plaintiffs' proposed methods for computing defendant's benefit exceed the maximum statutory penalty. The court finds from the evidence that defendant's actions did not rise to the level of "good faith," but for the most part were done with the Environmental Protection Agency's (EPA's) approval, thus militating against imposing the maximum statutory penalty. The court thus reduces the maximum statutory penalty of $4,205,000 million by $1 million for the actions and/or nonactions taken on behalf of EPA and the New Jersey Department of Environmental Protection. The court further rejects defendant's contention that no penalty should be assessed because no adverse impact occurred to the river as a result of the illegal discharges. The court holds that any argument that toxic discharges fail to make the receiving waters measurably worse frustrates the FWPCA's intent to improve the quality of the nation's waters.

Finally, the court imposes a permanent injunction enjoining defendant from violating the terms and conditions set forth in its National Pollutant Discharge Elimination System permit. While plaintiff's earlier request for preliminary injunction was denied for failing to show the imminence of irreparable harm, the defendant's subsequent permit violations no longer satisfy the court that the defendant will comply with its permit absent the issuance of a permanent injunction. If defendant complies with its permit, it will suffer no injury and defendant will face no additional burden not already imposed by the permit. The court holds that the public interest mandates in favor of such an injunction. The court also directs that it retains jurisdiction over the disbursement of these penalties and appoints three trustees for the penalty fund to investigate and recommend to the court how these funds should be used to directly impact environmental problems in New Jersey.

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

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

Counsel for Defendant
Nathan M. Edelstein
Ridolfi, Friedman, Fran, Edelstein & Bernstein, P.C.
3131 Princeton Pike, Bldg. 6A, Lawrenceville NJ 08648
(609) 896-0999