Student Public Interest Research Group of New Jersey v. Monsanto Co.

No. 83-2040 (D.N.J. December 6, 1983)

After holding that a Federal Water Pollution Control Act (FWPCA) citizen suit is not barred by a pending Environmental Protection Agency (EPA) enforcement action or the doctrines of primary jurisdiction or standing, the court grants plaintiffs partial summary judgment declaring defendant in violation of its national pollutant discharge elimination system (NPDES) permit.

First, the court rules that § 505 bars citizen suits only if an action has commenced in court. Congress' definition of court, the fact that EPA can only obtain penalties and injunctive relief by petitioning a district court, and the inability of plaintiffs to intervene before the Agency indicate that EPA is not a court. Next, the court holds that the doctrine of primary jurisdiction does not bar the suit. Uniformity and EPA expertise, which would justify limiting enforcement responsibility to the Agency, are factors in permitting and setting pollutant limits but not in this action where plaintiffs only ask the court to compare permitted and actual discharges. Further, defendant's pending permit modification request does not dictate EPA jurisdiction in an enforcement dispute on an already-issued NPDES permit. The court finds no merit in defendant's motions to dismiss for lack of standing and failure to join allegedly indispensable parties. Plaintiffs' allegations that some of their members reside in the area where defendant discharges pollutants satisfy the sufficiently particular injury requirement of standing. As to the joinder issue, the court rules that relief can be accorded and no interest will be impaired if EPA and the state environmental agency are not joined.

Based on 234 permit violations occurring over several years and documented in discharge-monitoring and noncompliance reports, the court grants plaintiffs' summary judgment motion declaring that defendant operated its facility in violation of its NPDES permit, and so violated FWPCA §§ 301 and 402. The court rules that the reports, which must be kept by law, can be used as admissions of liability. It further holds that because of the strict liability provision of the Act the court need not consider defendant's intent or good faith. The court rules that standing and jurisdictional requirements for the motion are met. It also holds that defendant's retroactive permit modification request does not raise liability issues barring summary judgment, because a pending modification request does not stay existing permit requirements and modifications are not retroactively applicable. Also, permits issued before EPA established best practicable technology and based on EPA's best engineering judgment are enforceable.It holds that citizen suits may be used to seek penalties for past violations. Finally, the court rules that EPA's long abeyance of defendant's request for a permit modification does not estop the Agency or plaintiffs from claiming permit violations.

[The court issued its opinion from the bench. The editor has taken liberties with punctuation of the transcript.]

Counsel for Plaintiffs
Bruce J. Terris, Carolyn A. Smith
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 662-2100

Counsel for Defendant
Robert F. Bloomquist
Davis & Riberkenny
P.O. Box 5459, Cherry Hill NJ 08002
(609) 667-6000

From the Bench

[14 ELR 20229]

Gerry, J.:

With relation to the defendant's Motion to Dismiss, upon which I have already indicated I would deny it, and for the following reasons, in support of its Motion to Dismiss, the defendant puts forth a multitude of arguments for the court to address.

(A) First, it is argued the terms of Section 505, that's 33 U.S. CODE, Section 1365, bars citizens' suit where, as here, there is an EPA enforcement action in progress. The statute in pertinent part states as follows, and I quote:

No action may be commenced by a private citizen if the Administrator or State has commenced or is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with the standard, limitation, or order.

The defendant argues that we should ignore the plain wording of the statute and rule that an enforcement proceeding within the administrative agency satisfies the terms of the statute. In support of its position, Monsanto urges that in reliance on BALLANTINE'S LAW DICTIONARY we find an agency which has initiated enforcement action to be a court. However, Congress has chosen to explicitly define the word "court" and the definition (see 28 U.S. CODE, Section 451) is not so broad as BALLANTINE'S. Bound as this court is by the definitions Congress enacted, we must reject the attempt to characterize an agency as a court.

The plaintiffs have diligently researched the legislative history of the Water Pollution Control Act Amendments of 1972 and have brought to the Curt's attention the fact that Congress did contemplate the possibility that agency action, if adequate, might serve as a bar to a citizen action. See SENATE REPORT NUMBER 414, 92nd Congress, 1st Session, 1971. The Third Circuit in Baughman, to which counsel has made reference in their arguments, versus Bradford Coal Company, Inc., 592 F.2d 215 [9 ELR 20147], construing the similar citizen suit provision of the Clean Air Act held that there may be instances where agency enforcement action could constitute court action and thus bar citizen suits. But the Baughman court there held that a state agency in that case was not a court because it lacked the full remedial powers available to a traditionally defined "court" under the Clean Air Act and because it did not provide the full opportunity for citizen intervention available in courts under the Act. The plaintiffs argue that these same considerations apply here. Section 309 of the act requires that the EPA seek penalties and injunctive relief in a district court, thus making the agency enforcement action undertaken inadequate. And the plaintiffs have not been afforded an opportunity here to intervene before the agency. The court agrees with the plaintiffs that under these circumstances it would be inappropriate to demonimate [sic] the EPA a court such that a citizen suit could not be brought. See also Sierra Club v. SCM Corp., Civil Number 82-1076T in the Western District of New York, filed as recently as October 26, 1983 [14 ELR 20183].

The Court agrees with the plaintiffs that the Congress intended the citizen suit provision to be a useful supplement to the EPA's enforcement powers and if necessary an antidote to agency inaction. Here the EPA, following notice of suit, has finally begun some enforcement. And I repeat following notice of suit, and this enforcement activity after, the plaintiff's allege, some six years of violations. But the May 9 "Enforcement Order" does not seem calculated to produce the results the plaintiffs seek to bring about. Rather, it seems to be only a preliminary step towards eventual elimination of violations. Thus, this Court will not defer to the agency because of its dubious status as a court. The Court also notes that Section 505 gives the EPA the right to intervene in any citizen suit. Should the EPA feel that this suit interferes with its attempts to secure compliance with the Act, presumably it would avail itself of that right.

(B) Next, the defendant argues that the non-statutory doctrine of primary jurisdiction should serve as a bar to the bringing of this action. The doctrine, like the final agency action requirement of the Administer Procedure Act [sic], is designed to give agencies the first opportunity to decide questions about which they have the greatest competence. Some reasons commonly cited for the doctrine are the necessity for administrative uniformity as, for example, in the setting of rates: and the need for special skill, commonly to be found only in a body of experts, particularly where intricacies of fact are involved.

This Court does not believe that the doctrine is applicable to this case, such that jurisdiction ought to be yielded. Uniformity is not at issue here: whatever uniformity the EPA hoped to achieve presumably was expressed through the issuance of permits. Moreover, the agency's special skill went into the setting of pollution limits. This Court in this suit is not called upon to itself delve into the complex questions of what quantities of pollutants are safe or what various industries can be expected to accomplish in reducing pollution. All the Court here is called upon to do is compare the allowable quantities of pollution listed in the permits with the available statistics on actual pollution. This comparison seems no more complicated than much other work the Court does, if I say so immodestly. The cases cited by the defendant do not seem to mandate that we yield to the agencies. Loveladies Property Owners Association v. Raab, 430 F. Supp. 276, out of this district, merely stands for the proposition that plaintiffs must comply with the technical notice requirements of 33 U.S. CODE, Section 1365. Sierra Club v. Train, 557 F.2d 485 [7 ELR 20670], out of the Fifth Circuit, was a suit brought to compel agency enforcement action. The suit was dismissed since the court ruled that Section 1319 enforcement action was discretionary. Here, by contrast, the plaintiffs are not seeking to compel agency action. Rather, not satisfied to rely on the EPA to institute suit, they're bringing the suit themselves.

[14 ELR 20230]

Finally, Montgomery Environmental Coalition v. Washington Suburban Sanitary Commission, 607 F.2d 378, as the title would suggest, out of the D.C. Circuit, is a case where the plaintiffs sought to enjoin the release of pollutants at the very time that NPDES permit proceedings were pending before the EPA. Under that circumstance, the court invoked the doctrine of primary jurisdiction. Here, however, the permit has already been issued and the plaintiffs merely seek to enforce it. We believe that Friends of the Earth v. Carey, 535 F.2d 165 [6 ELR 20488], out of the 2nd Circuit, a case cited by the plaintiffs, furnishes us with proper guidance. That case under the Clean Air Act involves citizen action to enforce a state implementation plan. The court ruled that EPA efforts to negotiate consent orders vis-a-vis the plan were not a significant reason to dismiss the suit. Rather, the court reminded the EPA of its right to intervene. The defendant appears to argue that as in the Montgomery Environmental Coalition case there is, in fact, a pending agency action on the permits. This is because since 1976 the defendant has sought modifications in the pollutant levels authorized by its NPDES permits including retroactive modification. The EPA has held these requests in abeyance for seven years. Incidentally, no question the permit requirements were never held in abeyance and there should be no confusion about that. But the plaintiffs are seeking penalties for past violations. The pendency of a modification proceeding does not excuse violations of a permit prior to actual modification. A modification request does not stay existing permit limitations. See 40 CFR 124.16(c)(1); also, Menzel v. County Unilities Corp., 712 F.2d 91 [14 ELR 20251], out of the Fourth Circuit.

And to the extent the plaintiffs seek prospective relief, such relief is only calculated to secure compliance with the NPDES permits whatever their contents of [sic] the plaintiffs do not seek to challenge the validity of the modification requests or have the Court set pollution limits. Such relief, if sought, might be subject to the doctrine of primary jurisdiction. Here however, there is no basis for deferring to the EPA.

(C) Next, the defendant urges dismissal because the plaintiffs lack standing to bring this suit. And I've already ruled on this, but I'll continue on for my reasons. The Court considers this argument entirely devoid of merit in setting out the standing requirements of citizen suits. The act defines a citizen rather broadly: "Citizen means a person or persons having an interest which is or may be adversely affected."

This in [sic] Section 1365(g). This definition, the legislative history of the Act indicates, is intended to reflect the Supreme Court's definition of standing in Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192], a definition allowing that injury may be aesthetic, conservational, or recreational, as well as economic. Under of [sic] the Sierra Club case, plaintiffs must demonstrate more than a generalized interest in conservation, however. They must show a connection with the geographical area that is the subject of the suit. An environmental organization whose members are sufficiently affected may sue on their behalf. Here the allegations of the complaint, which, on a motion to dismiss, as I've indicated, must be accepted as true, establish the requisite interest in the portion of the Delaware River into which the pollutants are placed. Paragraphs 7 and 9 properly allege that members of the two plaintiff organizations "reside in the vicinity of or own property or recreate in" the portion of the Delaware River into which the defendant discharges pollutants, and that these members are being and will be adversely affected by the discharges with regard to their "health, economic, recreational, aesthetic and environmental interests."

These allegations are sufficient to confer standing. The fact that the plaintiff environmental groups may have other members who do not reside along the affected portion of the river or that there is an overwhelming preponderance of their membership who do not have the same requisite standing as do the members upon which those organizations rely, is of no legal consequence to this Court or the disposition of these motions before the Court today. Certainly those factors do not disqualify the groups from litigating on behalf of their affected members. Wherever and at whatever number of the defendants, also [sic].

And before passing from this, the Court, in deference to and in accommodation of the request of defendant's counsel, will look upon it in the alternative as a summary judgment motion under Rule 56. And when considering the extrinsic facts submitted, either in part and independent of, or in addition to, I should say, the factual allegations of the pleadings, the Court also finds that the defendant's Motion for Summary Judgment on the issue of standing should also be and is hereby denied.

(D) The defendants argue that the complaint should be dismissed for failure to join an indispensable party under Rule 19. It is claimed that this action cannot proceed without the participation of the EPA and the New Jersey Department of Environmental Protection and we do not agree.

Rule 19(a) names persons to be joined in an action iffeasible. Joinder should be affected where: (1) in a party's absence complete relief cannot be accorded among the already existing parties; or, (2) the party claims an interest in the action such that disposition in his absence may impair his ability to protect that interest, or disposition in his absence may subject existing parties to multiple or inconsistent obligations by reason of his claimed interest.

Rule 19(b) states that if a person of the type named above cannot be joined, the court should determine whether the action should proceed in his absence or whether the action should be dismissed. The Court does not believe that Rule 19(a) circumstances are applicable in the instant case. There is no reason why complete relief cannot be accorded in the absence of the federal and state agencies. Section 1365 permits the district courts to enforce the provisions of the Act and to impose civil penalties with or without the presence of agencies. Moreover, the Court cannot see what interest of the agencies might be impaired by enforcement of the permits they issued, or how the defendant could be exposed to multiple liabilities. The agencies, after all, are not free to condone violations of permits they issued while those permits are still in effect, as here. We again note the right granted the EPA to intervene in any citizen suit. Presumably if the EPA felt that its interest would be prejudiced in its absence, it would be free to intervene here.

For all of the reasons given above, the defendant's Motion to Dismiss, or in the alternative a Motion for Summary Judgment, will be denied.

Moving now to the plaintiffs' Motion for Partial Summary Judgment.

Plaintiffs' motion is a limited one. All the plaintiffs now seek is a declaratory judgment as to the effect that between July 1, 1977, the date when compliance with permits was mandated, and September 21, 1983, the defendant operated its Bridgeport Facility in violation of the terms and conditions of its NPDES permit, and that such activity was in violation of Sections 1311 and 1342 of the Act. This present motion does not seek injunctive relief, civil penalties or costs, including attorneys' fees or not including attorneys' fees.

The plaintiffs' arguments in support of its motion is a very basic one. Materials submitted by the parties indicate that the EPA issued to the defendant an NPDES permit on November 21, 1974. On July 18, 1975, the EPA and the defendant entered into a stipulation under which certain terms and conditions of the permit were modified. This permit expired January 31, 1980, but remains in effect by operation of law, as under 40 CFR 122.6. On March 6, 1981 the New Jersey Department of Environmental Protection, having been authorized to assume responsibility for the permit program, issued a New Jersey NPDES permit which authorized the defendant to continue its discharges in accordance with the previously issued NPDES permit. The permits require the defendant to submit monthly discharge monitoring reports and non-compliance reports within five days of the defendant's becoming aware of non-compliance with the permit standards. The plaintiff has furnished us with these reports and shown the Court 234 instances where the defendant exceeded the discharge limits permitted. Each such instance violates 33 U.S. CODE, Section 1311 and 1342, and makes a defendant subject to civil penalties under Sections 1319 and 1365. The plaintiff submits that the information presented above contains no genuine issues of material fact.

Regarding entitlement to judgment as a matter of law, the plaintiffs put forth the following arguments, all of which we accept:

Reports or records which are required to be kept by law, such [14 ELR 20231] as the DMR's and the NCP's, may be used as admissions to establish a defendant's civil liability.

Summary judgment is appropriate on the issue of liability for violations of the Act, particularly since NPDES enforcement actions are based on strict liability, thus making intent and good faith which might otherwise provide problems, irrelevant to the issue of liability. U.S. v. Earth Sciences, Inc., 599 F.2d 368 at 374 [9 ELR 20542], and others. The defendants have put forth a variety of factual and legal defenses to this summary judgment motion.

The defendant again raises the issue of the plaintiffs' standing to bring this suit. Since this issue now comes up on the plaintiffs' summary judgment motion, rather than on the defendant's Motion to Dismiss, or in the alternative for summary judgment, we may not assume the truth of allegations contained in the complaint. Little different twist. However, the plaintiffs' affidavits and answers to interrogatories do set forth facts sufficient in this court's judgment to confer standing on the plaintiff organizations.

The defendant again raises a question of jurisdiction in light of the recent enforcement action of the EPA, but as the Court has indicated, the EPA's action is not directed towards the imposition of civil penalties for past violations, the subject of this motion. Rather, the EPA's action is calculated to secure further compliance with the permits. Since we do not regard the EPA action as a matter of law as within the diligent prosecution provision of 33 U.S. CODE, Section 1365, we reject the defendant's argument on this issue.

Next, the defendant raises the question of the effect of its request for permit modification on its obligation to meet its NPDES permit limitations. The defendant first made the request for permit modification on November 15, 1976. The request was based on the defendant's belief that his facility was built in accordance with the best practical technology currently available standards mandated by the Act. And that the existing NPDES permit limitations were too stringent. The permit issued prior to the EPA's issuance of BPT guidelines had been based on the EPA's best engineering judgment of what the Act required, rather than on BPT limitations later developed. By the spring of 1977, the EPA told the defendant that its request for hearing on modification would be held in abeyance pending the submission of additional data. This communication from the EPA did not state that the permit standards were being held in abeyance, only that the request for modification was being stayed. Six years passed. And finally in 1983, the defendant renewed its request for permit modification, including retroactive modification. The defendant maintains that in view of the possibility of retroactive modification, and in view of its uncertain obligations between 1977 and 1983, summary judgment is inappropriate.

This issue also may be resolved as a matter of law. The question is: Does the correspondence between defendant and the EPA serve to absolve the defendant of liability for violations of the permits which have continuously been in effect since 1975? The Court believes the answer is no. We have indicated earlier in this opinion that permit requirements are not stayed pending a modification hearing and that modifications are not applied retroactively.Furthermore, there is authority to indicate that NPDES permits based on best engineering judgment are as enforceable as permits based on BPT limitations. See U.S. v. Cutter Laboratories, Inc., 413 F. Supp. 1295 [6 ELR 20742], out of the Eastern District of Tennessee. Accordingly, we believe the defendant's contention to be without merit. As stated earlier, strict liability attaches to permit violations. The defendant's argument is more appropriately addressed to the question of the penalties to be assessed, an issue not before the Court here on this day.

The defendants next argue that summary judgment is unwarranted because most of the permit violations occurred before January 1, 1982, and that the citizen suit provisions of the Act were primarily intended to effectuate prospective relief. It is contended that suits to exact penalty for past violations should be left to the government. The plain language of Section 1365 indicates, however, that civil penalties may be addressed in citizen suits under the Act. The cases the defendant has submitted do not stand for the proposition that civil penalties are unavailable under § 1365. Rather, those cases deny a private right of action for damages to plaintiffs in citizen suits.

The defendant next argues there is an issue as to whether prospective relief is justified in view of its improved compliance with the permit limitations. This is correct but is beyond the scope of plaintiffs' motion.

The defendant further urges that the EPA's handling of the request for permit modification may estop the agency, and hence the plaintiffs, from claiming permit violations. Heavens! But the regulations promulgated pursuant to the Act estop the defendant from claiming reliance on the agency's conduct and from claiming that its permit obligations were uncertain. The remaining contentions regarding the total suspended solids parameter of the permit are also not meritorious. The defendant's own reports indicate excessive discharges. The affidavit of an employee at Monsanto that the discharges were not toxic and presented no harm to the public is beside the point. The defendant must comply with the NPDES permit, which presents the EPA's judgments concerning toxicity.

The Court is cognizant of the improvements the defendant has managed to achieve over the last several years, and it is to be applauded, of course, for that. But Congress, and the EPA in promulgating regulations based on its understanding of congressional intent, has chosen to give lower priorities to this factor in order to promote a healthy environment. The defendant's concerns may be properly dealt with at a hearing to assess relief.

Plaintiffs' Motion for Summary Judgment will be granted.