15 ELR 20964 | Environmental Law Reporter | copyright © 1985 | All rights reserved
Student Public Interest Research Group of New Jersey v. Anchor Thread Co.No. 84-320 (D.N.J. October 1, 1984)
In a citizen enforcement suit, the court holds that defendant has raised no valid defense against liability for violations of the Federal Water Pollution Control Act. After reviewing the framework of the Act and plaintiffs' allegations, the court holds first that plaintiffs have standing. It rejects defendant's argument that plaintiffs must show a special interest in the creek into which defendant discharges. Plaintiffs' allegations that some of their members live and recreate in the area and suffer health, economic, recreational, aesthetic, and environmental harm is sufficient. The court next holds that the creek in question is a navigable water under the Act, relying on the state's categorization of the creek in its reports to the Environmental Protection Agency. It alternatively holds that because defendant did not raise the navigability issue when it sought its discharge permit, it is estopped from raising the issue now. Defendant cannot claim refuge in the Act's §§ 301(i)(2) and 309(a)(6) exemption provisions, for though it may qualify for an exemption, it has not applied for one nor has one been granted. Neither can defendant claim that it has a waiver of some sort from enforcement officials. Defendant has failed to prove that a waiver was given, and even if the government had waived enforcement, that would not bind citizens wishing to bring suit. The court holds that the suit may seek redress for past violations and that no statute of limitations applies. Further, defendants have failed to raise a genuine issue about the accuracy of their discharge monitoring reports (DMRs), on which plaintiffs rely to establish violations.
Counsel for Plaintiffs
Bruce J. Terris
1121 12th St. NW, Washington DC 20005
Counsel for Defendant
Stephen W. Miller, Douglas Smilie
Clark, Ladner, Fortenbaugh & Young
32nd Fl., 1818 Market St., Philadelphia PA 19103
[15 ELR 20964]
Full Text of Transcript of Proceedings
The case at bar arises out of a complaint filed by Student Public Interest Research Group of New Jersey and Friends of the Earth on or about January 24, 1984, alleging that defendant, Anchor Thread Co., repeatedly violated the terms and conditions of its National Pollution Discharge Elimination System/New Jersey Pollution Discharge Elimination System (NPDES/NJPDES) permit number NJ 0004821 in violation of Section 301(a) of the Federal Water Pollution Control Act hereinafter occasionally referred to as the Act, as amended, 33 U.S.C. Section 1365. Plaintiffs seek declaratory judgment, injunctive relief, the imposition of civil penalties and the award of costs, including attorney's fees and expert witness fees for the defendant's alleged repeated violations of the NPDES/NJPDES permit. Jurisdiction is based on Section 505(a) of the Act.
The present motion seeks partial summary judgment, asserting that defendant violated Sections 301 and 402 of the Act. Defendant's motions do not include the other remedies asserted in the complaint. If summary judgment is granted, plaintiffs will subsequently request a hearing related to the appropriate relief.
The facts as to which there is no genuine dispute are as follows. Defendant operates a facility for the dying of thread, located in Groveville, Mercer County, New Jersey. On April 26, 1976, the Environmental Protection Agency's Regional Administrator, pursuant to Section 402 of the Act, 33 U.S.C. Section 1342, issued a National Pollution Discharge Elimination System Permit (NPDES), authorizing defendant to discharge limited quantities of pollutants [15 ELR 20965] into Crosswicks Creek. The permit provided for effluent limitations, effective May 31, 1976, until 60 days after the availability of a Sewage Treatment Plant, or May 31, 1981, whichever was earlier. Defendant, according to the permit, was required to contract with a sewage treatment plant by December 28, 1976. A New Jersey Pollutant Discharge Elimination System (NJPDES) permit was also issued to defendant on March 6, 1981, upon implementation of the New Jersey Water Pollution Control Act. NJSA 58:10A-1, et seq., authorizing defendant effluent discharge in accordance with the NPDES permit and state regulations.
Although defendant's NPDES/NJPDES permits expired on May 31, 1981, the permit remained in effect by operation of law until a new permit could be issued or until defendants connect into a sewage treatment plant. 40 CFR 122.6, NJAC 7.14A-2.3.
A brief reference to the statutory history, as I contemplate it, is in order at this time.
The Federal Water Pollution Control Act was enacted by Congress in 1972. As noted by the Court in SPIRG v. Fritzche, Dodge and Olcott, 579 F. Supp. 1528, 1530-31 [14 ELR 20450] (D.N.J. 1984):
The focus of water pollution legislation was on containing pollution through water quality standards; subsequent to 1972, the emphasis is placed on controlling pollutant discharge through "effluent limitations," rather than on the quality of the receiving water, to achieve the national goals of the Act, including elimination of all pollutant discharge into navigable waters by 1985. See 33 U.S.C. Section 1251(a). The 1972 amendments require that a direct discharger such as defendant, adopt "best practicable control technology currently available" (BPT) by July 1, 1977, and "best available technology economically achievable" (BAT) by July 1, 1983-1987, depending on the category and class of point source. See 33 U.S.C. Section 1311(b). Both of these statutory guidelines are to be defined by regulations issued by the EPA Administrator. See 33 U.S.C. Section 1311(b), 1314(b), 1314(d); National Association of Metal Finishers v. EPA, 719 F.2d 624, 633-34 [13 ELR 21042] (3d Cir. 1983).
The basic mechanism for enforcing the effluent and water quality standards applcable to direct dischargers is the NPDES, a permit system whose function is to define the discharger's obligations under the Act by translating the national effluent standards into limitations designed for the discharger's particular operation. As explained in EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S. Ct. 2022, 2025, 48 L. Ed. 2d 578 [6 ELR 20563] (1976) (citing 33 U.S.C. Sections 1319, 1365), "An NPDES permit serves to transform generally applicable effluent limitations and other standards . . . into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits." Accord EPA v. National Crushed Stone Association, 449 U.S. 64, 69-72, 101 S. Ct. 295, 299-301, 66 L. Ed. 2d 268 [10 ELR 20924] (1980).
Plaintiffs assert that there do not exist any genuine issues regarding the material facts set forth in this motion and, as such, partial summary judgment should be granted. Plaintiffs allege that based on defendant's own effluent sample reports submitted to the EPA, Anchor Thread violated the effluent limitations of Section 301 of the Act, 33 U.S.C. Section 1311, 138 times between September 1977 and September 1983.
Plaintiffs claim that defendant has admitted in its own DMR's (Discharge Monitoring Reports) that its discharges have exceeded permit limitations and that "courts have long approved the use of reports or records which are required by law to be kept as admissions in establishing civil liability." Shapiro v. U.S., 335 U.S. 1, 17, 35 (1947). Plaintiffs cite United States v. Ward, 448 U.S. 242 [10 ELR 20477] (1980), where the court held that the defendant's report on an oil spill into navigable waters as required by Section 301(b)(5), could be used to establish defendant's liability for civil penalties under Section 311(b)(6) of the Act. Plaintiffs assert that the law clearly establishes that a discharger whose effluent exceeds its permit limitations has violated the Act. Section 301(a), 33 U.S.C. Section 1311(a), provides:
(a) Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.
Thus, the violation of a permit limitation is automatically a violation of the Act.
(Plaintiff's brief at page 16.)
In light of these alleged violations, plaintiffs contend that partial summary judgment should be granted. Pursuant to Sections 309 and 505 of the Act, the EPA and private citizens are permitted to bring suit for violations of any condition/limitation of NPDES/NJPDES permit, subject to the imposition of civil penalties.
Plaintiffs assert that defendant is strictly liable for any discharge, since the statute does not require any intentional action on the part of the discharger. As plaintiff's brief further notes, "Even if the defendant has made a good faith effort to comply, this may only be considered in assessing the amount of penalty and in determining what other relief is appropriate." Plaintiffs conclude by indicating that courts have recognized that summary judgment is appropriate on the issue of discharges in excess of permit, and have granted summary judgment based on DMRs submitted to the EPA. Brought to this Court's attention are such decisions as United States v. Louisiana Pacific Corp., 18 ERC 2020 (N.D. Calif. 1982), United States v. Velsicol Chemical Corp., 438 F. Supp. at 949, United States v. Crown Simpson Pulp Co., 18 ERC 1071 (N.D. Calif. 1982), NJPIRG v. Monsanto, D.N.J. Civil No. 83-2040, NJPIRG v. FDO, 579 F. Supp. 1528 [14 ELR 20450] (D.N.J. 1984).
In this very district, in NJPIRG v. Monsanto, supra, and NJPIRG v. FDO, supra, Judges Gerry and Stern granted partial summary judgment (to the same plaintiffs) based on DMRs showing violations of NPDES permit limitations. In Monsanto, Judge Gerry Stated:
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. * * *
Reports or records which are required to be kept by law, such as the DMR's and the NCR'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, and others.
In NJPIRG v. FDO, Judge Stern also granted the same plaintiffs partial summary judgment based on the DMRs submitted by defendant, demonstrating 237 instances where defendants had exceeded permit limitations. Judge Stern agreed with Judge Gerry's holding that DMRs may be used admissions to establish a defendant's liability and that any issues concerning defendant's intent to commit permit violations are irrelevant under that Act. SPIRG v. FDO, 579 F. Supp. 1528, 1538 [14 ELR 20450] (D.N.J. 1984). In addition to these holdings, plaintiffs assert that the present facts also require the granting of partial summary judgment since defendant's own DMRs demonstrate violations of the NPDES permit.
Defendant Anchor Thread opposes the present motion on various grounds. As a preliminary matter defendant asserts that plaintiffs lack the requisite standing to maintain this action. Defendant asserts that plaintiffs must demonstrate a special interest in the waterway they are seeking to protect, Sierra Club v. Morton, 405 U.S. 727, 735 [2 ELR 20192] (1972), and that without a concrete showing that members of the plaintiff groups have a special interest in Crosswicks Creek and have sustained some injury in fact, there can be no standing under Article III. Plaintiffs allege that the supporting affidavits of 15 of their members submitted are clearly sufficient to maintain standing in the present case. Plaintiffs again cite NJPIRG v. Monsanto, supra, and SPIRG v. FDO, supra, where both courts held "identical allegations of injury in similar citizen suits under Section 505 are sufficient to confer standing," again quoting from plaintiff's brief. The present plaintiffs, (who are the same plaintiffs as in Monsanto and FDO), have submitted affidavits which allege that some of their members "reside in the vicinity of or own property or recreate in" the Crosswicks Creek area. As Judge Gerry stated in Monsanto, and I quote from his opinion again, "these members are being and will be affected by the discharges with regard to their 'health, economic, recreational, aesthetic and environmental interests,' and found these allegations sufficient to confer standing." This Court agrees that there can be no question that plaintiffs have alleged the necessary injury in fact suffered by its members and required to confer Article III standing.
Defendant also contends that this Court should deny plaintiff's motion for summary judgment since no evidence has been submitted to establish that Crosswicks Creek is "a navigable water." Defendant fails to provide any evidence that Crosswicks Creek is not a navigable water. In contrast, plaintiffs persuasively demonstrate the navigability of the Creek. Plaintiffs first provide that Section 305(b), requires of each state the submission to the EPA of reports describing the quality of all navigable waters "within its boundaries" analyzing the extent that such waters will achieve the goals of the Act. The State of New Jersey has submitted reports which describe Crosswicks Creek and analyze the progress, leading us to the conclusion that it is a "navigable water."
Plaintiffs also assert that the Act provides that NPDES permits are required by those who discharge pollutants into navigable waters. Plaintiffs claim that the fact that defendants applied for and were issued a NPDES permit is "conclusive proof that defendant discharges pollutants" into "navigable waters." Plaintiffs are correct that had defendant believed that the Creek was not a navigable water, it could have challenged its permit and would have been afforded administrative review, including a hearing on the record. 40 C.F.R. 124.71-124.128. However, defendant failed to challenge its permit and clearly cannot raise the invalidity on the navigable waters issue.
Defendant asserts that under Section 301(i)(2), 33 U.S.C. Sections 131(i)(2) and 1319(a)(6), it is exempt from compliance with the effluent limitation of its permit, or, in the alternative, that numerous factual questions exist precluding summary adjudication on liability before discovery is complete. Defendant has failed to prove either prong. Defendant asserts that pursuant to Section 1311(i)(2)(a) and (b), it is exempt from the effluent limitations as set forth in its NPDES permit. However, as plaintiffs assert, defendant has failed to provide any evidence which would establish that the defendant applied for and was granted an extension by the EPA. Rather, defendant merely asserts that it meets the requirements for an extension. However, that Act does not provide for automatic extensions merely upon a discharger's "meeting" of the statutory requirements. A discharger must apply for and be granted an extension by the EPA. Clearly, such is not the case here — since defendant has not provided any proof of an extension by the EPA. Furthermore, the defendant has failed to provide any proof that it has failed to provide any proof that it has requested or has been issued an order by the EPA pursuant to 33 U.S.C. Section 1319(a)(6). Defendant has not offered any proof to demonstrate that it ever made such a request. Plaintiffs correctly state that even assuming "arguendo the existence of such a request by defendant, EPA has not issued the order required by Section 309(a)(6) . . . ." Plaintiffs reply at 23. Accordingly it does not appear that defendant is exempt from complying with the effluent limitations of its permit.
Defendant further contends that the EPA and NJDEP waived any enforcement of violations of the permit's effluent limitations, pending the availability of the township's sewer system, thereby estopping private citizens, acting private attorneys general, from suing in their place. Defendant asserts in an affidavit from Joseph R. Comley, III, president of Anchor Thread, that it relied on the advice/representations of the federal/state environmental agencies that "nothing could be done to cure all discharges of pollutants into Crosswicks Creek before the on-line availability of the Hamilton Township sewer system, and that no enforcement action would be pursued. This understanding was relied on by the defendant," quoting from defendant's brief at this point.
In spite of defendant's assertions, however, defendant again fails to provide any evidence of federal or state "authorization" for non-compliance with the NPDES permit. The sole letter submitted by Alfred W. Valencia, Supervising Environmental Technician for the NJDEP, does not suggest any type of "waiver" by agency officials and rather appears to request information as to when defendant would "tie" into the Hamilton Township Sewer System. In addition, the letter is dated July 31, 1979 and it would be ridiculous to think that Mr. Valencia would permit almost five years of permit violations simply because it would be difficult to comply with the permit regulations. Furthermore, if private citizen plaintiffs were estopped from maintaining a suit because of waivers or inaction by government officials, the effectiveness of Section 505 of the Act (33 U.S.C. Section 1365) would be drastically curtailed and its purpose defeated. As reported in the legislative history:
It should be noted that if Federal, State and local agencies fail to exercise their enforcement responsibility, the public is provided the right to such vigorous enforcement action under the citizen suit provisions of Section 505." Senate report number 414 at 64; 1972, U.S. Code, Congress and Administrative News at 3730. See particularly 33 U.S.C. Section 1306(b)(1)(B). Certainly no action or inaction by either federal or state officials in this case can or should raise an estoppel against the present private plaintiff. Accordingly, this Court rejects defendant's contentions that citizen plaintiffs should be estopped from maintaining the present suit.
Defendant argues that claims cannot be maintained by citizen plaintiffs based upon past violations by defendant. This argument is unpersuasive. Among the relief which a private plaintiff may seek (and which plaintiff seeks in this case) is the imposition of civil penalties. 33 U.S.C. Section 1365(a), Section 1312(d). To be effective, those penalties must be permitted to relate to days in the past upon which violations occurred. This Court, per Judge Gerry, has so held, and I agree. NJPIRG v. Monsanto, supra, 14 ELR at 20231.
Defendant argues alternatively that if past violations can support a claim for penalties, the two-year statute of limitations for enforcement of penalties under the New Jersey law (NJSA2A: 14-10(a)) should be employed in partial bar of plaintiff's claims. While it is true that the Federal Water Pollution Control Act contains no statute of limitations and that under general principles one would look to "borrow" a state's statute of limitations governing an analogous course of action, that argument is unpersuasive inthe present matter. Section 505 contemplates that a citizen plaintiff here assumes the role of a private Attorney General, stepping in "if the administration or state has (not) commenced and is (not) diligently prosecuting a civil or criminal action . . ." in the present case the United States would not be affected by any statute of limitations (whether federal — such as 28 U.S.C. Section 2462; or state). In order that Congressional policy by fully implemented, such a restriction should not limit the effectiveness of a citizen attorneys-general suit either.
Defendant asserts that it is clear from the affidavit of Mr. Joseph Comley that there is a dispute as to the accuracy of the DMRs. However, defendant fails to assert just what such inaccuracies are, especially since the reports are defendant's own submissions. Plaintiffs correctly assert that the defendant has failed to even submit a rule 56(f) affidavit justifying its failure to present evidence to support the issues of fact which it asserts. Defendant has not raised a genuine issue of material fact on this point.
In conclusion, plaintiffs have clearly demonstrated that defendant has violated its NPDES/NJPDES permits, such is in violation of the Federal Water Pollution Control Act. The present case is almost identical to the recent cases Monsanto and FDO where Judges Gerry and Stern both granted the same plaintiffs partial summary judgment upon demonstration that defendants had violated NJPDES permits. While Anchor Thread attempts to rebut plaintiff's allegations, their violations are in "black and white" in the DMRs submitted by them to the EPA. Defendant fails to rebut the accuracy of the DMRs and cannot avoid liability on this issue. Accordingly, this Court shall grant plaintiff's motion for partial summary judgment, as requested.
15 ELR 20964 | Environmental Law Reporter | copyright © 1985 | All rights reserved