Student Public Interest Research Group v. National Starch and Chemical Corp.

No. 84-1119 (D.N.J. October 15, 1985)

In a Federal Water Pollution Control Act (FWPCA) § 505 citizen suit to enforce a national pollutant discharge elimination system (NPDES) permit, the court holds that relief may be sought for past NPDES violations, that no state or federal statute of limitations applies, and that defendants are strictly liable for NPDES violations. The court first rejects the defendant's argument that summary judgment is not appropriate, regardless of whether plaintiffs are entitled to damages, as plaintiffs are seeking to enforce the FWPCA. The court holds that plaintiffs in FWPCA § 505 suits may sue for past violations and that defendant's reliance on a Fifth Circuit decision to the contrary is misplaced, since the law in New Jersey is clear. Next, the court holds that no statute of limitation applies to plaintiff's FWPCA citizen suit. Case law has established that neither New Jersey's two-year limitations nor the limitation contained in 28 U.S.C. § 2462 applies. The court holds that the FWPCA imposes a standard of strict liability for violations of NPDES permits. Turning the defendant's factual arguments, the court rules that the NPDES permit provision requiring monitoring and reporting of results only once a month does not excuse defendant from the requirement of daily averages. Questions of interpretation of the permit terms are ones of law, not fact. The court rules that defendant may not challenge the accuracy of its own discharge monitoring reports. Plaintiff need only show under the preponderance of the evidence standard that it is more likely than not that monitoring results violated the permit conditions. Finally, the court rules that the discharge alone of a pollutant in violation of a permit violates the FWPCA and no proof of injury needs to be shown.

Counsel for Plaintiff
Nathalie V. Black
1121 12th St. NW, Washington DC 20005
(202) 526-9179

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

Counsel for Defendant
Charles D. Hellman, Michael L. Rodberg
Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700

[16 ELR 20451]

Bissell, J.:

This is another in a series of citizen suits filed by the Student Public Interest Research Group of New Jersey, Inc. ("SPIRG") [16 ELR 20452] and Friends of the Earth ("FOE") against certain manufacturers for their alleged violations of the Federal Water Pollution Control Act ("the Act"), 33 U.S.C. section 1251, et seq. Named as defendant in this action is the National Starch and Chemical Corporation. The matter is currently before the Court on plaintiffs' motion for partial summary judgment on the issue of National's liability for violations of the Act.

Introduction

Section 505 of the Act, 33 U.S.C. section 1365, provides that after giving 60 days notice of intent to sue, a citizen may file an action to prevent violations of the Act. On March 20, 1984, SPIRG and FOE filed the within complaint against National alleging that National violated and continues to violate sections 301 and 402 of the Act by failing to comply with the effluent limitations in its National Pollutant Discharge Elimination System/New Jersey Pollutant Discharge Elimination System (NPDES/NJPDES) permit.

Defendant National Maintains a production facility located partly in Plainfield and partly in Dunellen, New Jersey where it is primarily engaged in the production of emulsion and solution polymers, various types of adhesives, and starch products. Pursuant to the Act, on May 24, 1974, National received a draft NPDES covering the two locations from which the plant's waste waters enter the municipal storm sewers of either Plainfield or Dunellen. Those locations are designated as Outfalls 001 and 002. On July 31, 1974, National received its final NPDES permit, NJ0001333 (hereinafter "the 1974 permit"). The permit authorized National to discharge limited quantities of pollutants from its facility into the Green Brook and the Bonnygut Brook via Outfalls 001 and 002. The permit was subsequently modified in 1978, 1982, and 1984. In 1982 the authority to issue permits in New Jersey was transferred from the EPA to the New Jersey Department of Environmental Protection (DEP).

Section 308(a)(4)(A) of the Act "requires the Administrator to require permittees to establish and maintain records, to install, use and maintain monitoring equipment to sample effluents and to report to EPA in the manner prescribed by the Administrator." In implementing this section, the Administrator has prescribed regulations which require, as a condition to all permits, the reporting of all monitoring results in a Discharge Monitoring Report (DMR) at intervals which are to be specified in the permit. 40 C.F.R. 122.41(1)(4). The DMR is a uniform, national form devised by EPA for the self-reporting of monitoring results. 40 C.F.R. 122.2.

From 1977 to 1982 National submitted DMRs on a monthly basis. After the 1982 permit was issued, National was only required to report quarterly, although it was still required to monitor its discharge on a monthly basis. Plaintiffs allege that the DMRs submitted by National show that between July 1, 1977 and April 30, 1984, defendant violated its permit a total of 157 times. Relying solely on those DMRs plaintiffs see summary judgment as to liability pursuant to Fed. R. Civ. P. 56(c).

In opposition to the motion for summary judgment, the defendant raises several arguments. First, the defendant argues that there is no basis or necessity for this Court to enter partial summary judgment at this time. Secondly, the defendant argues that a citizen may bring suit under the Act solely as to alleged violations of a permit "in effect" at the time suit is brought and not for past violations. Alternatively, the defendant argues that the statute of limitations bars the plaintiffs' claims as to a majority of the alleged permit violations. Thirdly, defendant argues that there are three material factual disputes. They concern: (1) the proper interpretation of National's permit limits, (2) whether reports and test results within the range of probable error can establish permit violations, and (3) whether or not National discharged any pollutants into waters of the United States and whether the plaintiffs have suffered any injury in fact to their interests in those waters. Finally, defendant argues that, even if there are violations, they are so minimal as to be de minimis.

A review of the record currently before the Court, and an analysis of the case law particularly within this district, mandates that plaintiffs' motion for summary judgment be granted. Violations of NPDES/NJPDES permits are treated as automatic violations of the Act. SPIRGNJ v. AT&T Bell Laboratories, No. 84-1087, slip op. at 31 [15 ELR 21051] (D.N.J. August 8, 1985) ("AT&T") (citing United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 949 (W.D. Tenn. 1976)). Numerous courts within this district have held that absent direct evidence of reporting inaccuracies DMRs may be used as admissions to establish a defendant's liability for violating the Act. See SPIRGNJ v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528 [14 ELR 20450] (D.N.J. 1984), aff'd, 759 F.2d 1131 [15 ELR 20427] (3d Cir. 1985) (hereinafter "FDO"); SPIRGNJ v. Tenneco Polymers, 602 F. Supp. 1394 [15 ELR 20309] (D.N.J. 1985); SPIRGNJ v. Georgia-Pacific Corp., 615 F. Supp. 1419 [16 ELR 20039] (D.N.J. 1985); AT&T, supra; SPIRGNJ v. Anchor Thread Co., 22 ERC 1150 [15 ELR 20964] (D.N.J. 1984); SPIRGNJ v. Monsanto, 14 ELR 20228 (D.N.J. 1983) (hereinafter "Monsanto I"). While DMRs are adequate to establish liability, they are not conclusive, AT&T, supra at 32. Therefore, even though civil suits under the Act are well suited for summary disposition as to liability, AT&T at 31, summary judgment cannot be granted if the defendant raises certain affirmative defenses such as upset or bypass (see 40 C.F.R. sections 122.41(n) and (m)) or if there are genuine issues of material fact. In this case the defendant has raised numerous arguments as to why the plaintiffs are not entitled to summary judgment. Some of those arguments are legal in nature while others are factual. The Court will address defendant's legal contentions first.

I. Is This An Appropriate Case for Summary Judgment?

Defendant argues that summary judgment is not appropriate in this case because the plaintiffs are not entitled to any damages. Defendant asserts that "[w]here the right to damages, as distinct from the unresolved issue of the amount of damages, is in issue, a grant of summary judgment is not proper." (Db at 27; emphasis in original). This argument requires little discussion for, as stated above, it is well established that the granting of partial summary judgment is an appropriate procedure in citizen suits seeking to enforce the Act.

II. Must the Permit Sought to be Enforced be "In Effect" at the Time Suit is Brought, i.e, Can a Citizen Sue for Past Violations?

Defendant next argues that a citizen may bring suit under the Act only as to alleged violations of a permit "in effect" at the time suit is brought and not for past violations. In support of its argument the defendant cites Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 [15 ELR 20385] (5th Cir. 1985).

However, the law in this district is clear. The citizen suit provision of the Act is not limited to prospective relief of ongoing violations. Georgia-Pacific, supra; AT&T, supra; SPIRGNJ v. Monsanto, 600 F. Supp. 1474 & 1479 [15 ELR 20294] (D.N.J. 1985) (hereinafter "Monsanto II"); Anchor Thread, supra; Tenneco Polymers, supra; SPIRGNJ v. Ragen Precision Industries, No. 83-1604 (D.N.J. December 19, 1983).

III. Is There a Statute of Limitations?

Alternatively, the defendant argues that even if it can be held liable for past violations, the statute of limitations bars the plaintiffs' claims as to a majority of the alleged permit violations. Defendant seeks to impose the two year statute of limitations provided by N.J.S.A. 2A:14-10. Again, however, defendant's argument runs counter to the conclusions of law established by prior case law within this district. No state statute of limitations applies to citizen suits brought under the Act. AT&T, supra; Monsanto II, supra; Anchor Thread, supra; Tenneco Polymers, supra. Nor does the five year statute of limitations contained in 28 U.S.C. section 2462 apply. See AT&T, supra; Tenneco Polymers, supra.

IV. Were the Alleged Violations "De Minimis"?

The defendant argues that in viewing the facts in the light most favorable to National and granting it all reasonable inferences therefrom, there is an issue of material fact as to whether National's alleged violations were so infrequent or minimal as to invoke the doctrine of de minimis non curat lex. Again, however, National's argument runs counter to the prior case law in this district. In AT&T, supra, Judge Stern addressed this exact argument. He declined to apply the de minimis doctrine because its application "would be inconsistent with the evident intent of Congress to penalize 'any' discharge of pollutants in violation of permit limitations. 33 U.S.C. sections 1311(a), 1319(d)." AT&T, at 37.

V. Defendants' Factual Contentions

a. Are There Disputed Issues Of Fact As To The Proper Interpretation Of The Permits?

Defendant argues that there is a material dispute centering upon the meaning of the permits' limitations given the permits' reporting [16 ELR 20453] requirements. Specifically, the defendant contends that while the permits required daily averages and daily maximums, the monitoring and reporting of all results was only required once a month. Defendant argues, therefore, that that one test result is neither a daily average nor a daily maximum but reflects only the once monthly figures in fact obtained.

Once again, this issue was addressed by this Court in AT&T:

Defendant . . . claims that there are disputed areas of fact as to the interpretation of the permits. Specifically, the alleged violations include violations of both "daily average" quantities discharged and "daily maximum" quantities. The permits, however, required monitoring and reporting of results only once a month. Defendant's reports of daily average discharges were based on samples taken only once a month, and plaintiffs' alleged violations of the daily average quantity limitations are based entirely on defendant's reports of daily average discharges. Defendant claims there was an inconsistency between the permit limitations and the monitoring obligations, and this inconsistency at least creates an issue of fact about the interpretation of the permits that precludes summary judgment.

Here, defendant raises a question about the interpretation of the terms of the permits that is purely a question of law. All the permits defined "daily average" in a way that made it clear that it was to be determined by dividing the total of the daily samples in a given month by the number of days on which samples were taken. The permits also required monitoring once a month, but they allowed monitoring more frequently. The intention of these provisions is unambiguous. The permits left it up to the permittee to decide how many days per month it monitored so long as it monitored at least once a month. Calculating the average was done the same way on matter how many daily tests were performed: total results were divided by the total days when tests were made. Permittees had flexibility. If a daily test showed a violative discharge level, permittees were free to take more tests in subsequent days in hope the daily average for the month would not violate permit limitations. Whereas this interpretation is perfectly sensible, defendant's argument suggests that all the daily average limitations in all the permits were absurd. We find that the sensible interpretation is correct and that the permit limitations were not absurd. Therefore, this claim will not defeat summary judgment.

Slip. Op. 34-35.

b. Are The Test Results Sufficient To Establish Liability?

The defendant contends that reports of test results within the range of probable error of the test methodology cannot establish violations of the permit limitation. Once again, prior case law within this district has rejected this argument. Judge Brotman in Georgia-Pacific held that "defendants may not avoid summary judgment under the Act simply by challenging the accuracy of the data set forth in DMRs." The Court in AT&T addressed the issue in the following manner:

Defendant proceeds to maintain that the test results were inaccurate for a variety of technical or scientific reasons. Although defendant monitored its discharges itself, chose the private laboratories to analyze the results, and then reported these results on its DMRs and NCRs, defendant suggests there are genuine issues of material fact about the reliability of many of the results that plaintiffs allege to be in violation of permit limitations. We note that no scientific measurement is ever absolutely perfect, however, the preponderance of the evidence standard requires plaintiffs to show only that it is more likely than not that the DMR test results violate permit limitations. To prevail on summary judgment, plaintiff need only demonstrate the absence of any disputed material fact, and that the facts demonstrate the probability of violation. We have reviewed defendants' exhibits and arguments, and we find insufficient possibility of monitoring inaccuracies to escape a motion for summary judgment.

Slip Op. at 35-36.

c. Defendant Contends That The Plaintiffs Have Adduced No proof That National Engaged In Any Unlawful Acts In Violation Of 33 U.S.C. Section 1311(a)

It appears to be National's argument that "[e]ven if this Court can conclude that on specific occasions National's discharges exceeded the permit limits . . . that would not establish that National had added any pollutants to navigable waters at the point of discharge thousands of feet away." (Db at 54). Defendant argues further that "[p]laintiffs have put forth absolutely no evidence indicating that any pollutants actually were added by National to [the] brooks, or even that the test results obtained at 001 and 002 are identical to the physical characteristics of water entering the brooks." (Db at 55).

Defendants' argument fails to raise a genuine issue of fact. The definition of discharge of a pollutant includes:

additions of pollutants into waters of the United States from: surface runoff which is collected or channelled by man; discharges through pipes, sewers or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works.

40 C.F.R. section 122.2.

Since defendant admits that its discharges enter the storm sewer system, which in turn discharges into the two brooks, defendant has discharged pollutants into the waters of the United States.

Should defendant's argument be construed to require that the plaintiffs must prove actual harm to the receiving waters, in addition to demonstraing permit violations, it would also fail. The law is clear that a plaintiff need not demonstrate a nexus between the violations they complain of and an injury to the water in which they assert an interest. Tenneco Polymers, supra; AT&T, supra; Georgia-Pacific, supra. Failure to comply with the permit requirements constitutes a violation of the Act. 33 U.S.C. sections 1311(a), 1342(k).

Accordingly, for all the foregoing reasons, the Court determines that there are no genuine issues of material fact in dispute and, as such, plaintiff is entitled to partial summary judgment on the issue of liability. Plaintiff shall submit an appropriate order either with consent as to form or pursuant to the 7-day notice requirements of Local Rule 22.B.