18 ELR 20999 -- Student Public Interest Research Group of New Jersey, Inc. v. Monsanto Co.

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

No. 83-2040 (D.N.J. March 24, 1988)

The court holds that in a Federal Water Pollution Control Act (FWPCA) citizen suit, civil penalties ordinarily should not be granted for violations committed before the complaint is filed, but the precomplaint violations will be considered in assessment of the overall penalty. In light of the Supreme Court's ruling in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, this court previously ruled that it would not impose penalties for violations prior to filing of the complaint and the notice of intent to sue. The case was tried on that basis, and the court holds that changing its ruling after trial would be unfair. The court denies a motion by the United States to participate as an amicus curiae, because the issue has already been decided. The court notes that it need not determine whether Gwaltney allows imposition of civil penalties only if injunctive relief is granted, because injunctive relief is granted here. The court then holds that, absent unusual circumstances, penalties should be assessed only for continuing postcomplaint violations, since FWPCA citizen suits are primarily forwardlooking. However, the court will consider all the violations, including pre-complaint violations, in assessing the penalty. The court also holds that a violation of a daily average permit limitation constitutes a violation only on the day it is measured, not on every day of that month. The court holds that plaintiffs did not prove a violation of the Kjeldahl-nitrogen limitations in the permit.

The court holds that the total maximum penalty that could be imposed for the post-complaint violations is $ 240,000. Plaintiffs' evidence on economic benefit and gravity of the violations is of limited value, however. Plaintiffs' attempt to establish the penalty that EPA would assess if it were settling an enforcement case fails since this is not an enforcement action or a settlement, the witnesses were not EPA employees and did not use EPA's computer program in their calculations, and those calculations were based on questionable assumptions and changed during the course of the trial. The court notes that the penalty should cancel any economic benefit that defendant gained as a result of noncompliance and impose additional deterrent costs. The court finds that defendant probably gained some unquantifiable economic benefit. Moreover, the violations are substantial and numerous, have spanned almost a decade, and have continued since the lawsuit began. Although the violations were not willful or intentional, defendant could have done more to comply, and could have complied sooner. Its good-faith reliance on outside engineers and consultants is not a defense. The court therefore imposes the maximum penalty of $ 240,000. The court also holds that the burden is not on defendant to justify a lesser penalty. Since the violations may recur, and since a subsequent legal action would be an inefficient and inadequate remedy, the court also grants injunctive relief for the duration of the existing permit. Finally, the court grants plaintiffs their reasonable litigation costs.

[Related opinions are published at 14 ELR 20228; 15 ELR 20294, 20297.]

Counsel for Plaintiffs
Michael Gordon
80 Main St., West Orange NJ 07052
(201) 736-0094

Counsel for Defendant
Ken Roth
Davis, Reber, Kenny & Bramowitz
499 Copper Landing Rd., Cherry Hill NJ 08002
(609) 667-6000

[18 ELR 20999]

VanArtsdalen, J.:

Opinion and Order

I. Background

Plaintiffs filed a citizen suit pursuant to Section 505 of the Federal Water Pollution Control Act, often commonly referred to [18 ELR 21000] as the Clean Water Act, 33 U.S.C. § 1365 (added 1972). The action seeks civil penalties, payable to the Treasury of the United States, and injunctive and equitable relief. Monsanto Company (Monsanto) is alleged to have committed many violations of its National Pollutant Discharge Elimination System (NPDES) permit in discharging wastewater into the Delaware River from its Bridgeport, New Jersey, chemical manufacturing plant.

Honorable John F. Gerry, by order dated December 14, 1983,^[1] entered summary judgment in favor of the plaintiffs on the issue of liability for 236 violations, commencing August 4, 1977, and continuing through September 1983.^[2] In another opinion, in reference to a statutory time limitation on penalties for past violations, Judge Gerry held that Monsanto "is subject to possible penalties for all [236] violations, subject, of course, to 'appropriate' restraint in the imposition of such penalties." 600 F. Supp. 1474, 1478 (D.N.J. 1985).

Of the 236 violations, as determined by Judge Gerry, six occurred subsequent to the mailing of notice of intent to sue that is required by Section 505(b) of the Clean Water Act, 33 U.S.C. § 1365(b).^[3] Plaintiffs contend there have been 35 additional violations that occurred subsequent to those contained in Judge Gerry's decision, based on the Discharge Monitoring Reports (DMRs) that Monsanto submitted, as required, to the various regulatory agencies. Defendant does not dispute the contents of the reports but for several reasons contends that the discharges, for the most part, did not constitute violations of the permit limitations for which a penalty can be imposed. There have been no reported discharges that exceed any permit limitations since May 1, 1986.

Trial was held, nonjury, on the issue of what, if any, monetary penalty should be assessed against Monsanto and what, if any, injunctive or other equitable relief should be granted.^[4] The underlying facts are not in great dispute. The violations as determined by Judge Gerry and the additional violations occurring after September 1983 are based on the DMRs filed by Monsanto. The primary disputes involve issues as to a proper interpretation of the recent decision of the Supreme Court of the United States in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., U.S. , 56 U.S.L.W. 4017 [18 ELR 20142] (U.S. Dec. 1, 1987) (No. 86-473) (Gwaltney), as to the violations for which penalties may be imposed and the methodology and considerations that a trial court should utilize in determining the amount of penalties, if any, and the injunctive and equitable relief, if any, that should be granted.

Both parties have submitted very extensive and detailed proposed findings of fact and conclusions of law. Because the question of the amount of penalties, if any, to be imposed of necessity involves broad judicial discretion, and must depend on the individualized facts of each case, some detail is essential. I will set forth in narrative fashion those facts which I deem to be of significance in determining the ultimate decisions in this case.

II. Factual Determinations

Monsanto is a multinational industrial corporation primarily engaged in the manufacturing of chemicals. Monsanto owns and operates a chemical manufacturing plant situated along the Delaware River at Bridgeport, New Jersey (Delaware River Plant).^[5] The Delaware River Plant opened in 1961. It manufactures various industrial organic chemicals and compounds. The manufacturing operations are continuous, twenty-four hours per day, seven days per week, throughout the entire year, except for a two-week summer recess. The manufacturing processes at the plant produce a substantial amount of wastewater, which, after treatment by a wastewater treatment plant owned and operated on the site by Monsanto, is discharged into the Delaware River. The discharge is permitted under conditions of an NPDES permit.

Joint Exhibit 2, contained in Volumes 2 and 3 of Joint Exhibits,^[6] contains details from Monsanto's records of the studies, investigations and history of the designing and construction of Monsanto's wastewater treatment plant (WTP) at its Bridgeport plant.

Monsanto hired an independent consulting firm as early as 1965 to study the best way to treat and dispose of its wastewater. Commencing around 1969, Monsanto agreed with the Delaware River Basin Commission (DRBC) that it was willing to participate in a proposed deepwater regional sewerage system for industrial and municipal wastewater treatment and discharge into the lower Delaware River. This project was abandoned upon notification by DRBC on March 3, 1972, that Monsanto would not be included in such a system.

By order dated July 26, 1972, the New Jersey Department of Environmental Protection (NJDEP) ordered Monsanto to design, construct and place in operation by August 1, 1975, an industrial treatment facility in accordance with NJDEP regulations and subject to its approval (Joint Exhibit 5(g)). On August 31, 1972, the federal Environmental Protection Agency (EPA) issued a set of "abatement conditions" that set various interim and final effluent limitations, final conditions of which were to go into effect on August 31, 1975, after the WTP was to be in operation (Joint Exhibit 1 (a)). On December 11, 1972, Monsanto provided a letter of commitment (Joint Exhibit 1 (c)) to comply with the interim conditions and to complete the plant in accordance with the time schedule set forth by NJDEP and also as mandated by the DRBC, which had approved Monsanto's "abatement alternative No. 2" (Joint Exhibit 5(f)).

Monsanto hired Enviro-Engineers, an independent consulting firm, to study and recommend the type of wastewater treatment plant that would meet the conditions of its commitment letter as well as all DRBC requirements that would be implemented by the State of New Jersey. Enviro-Engineers recommended the construction of an activated biological sludge treatment plant, substantially the same as that which was thereafter designed and constructed by Monsanto's engineering department. Enviro-Engineers, in a report in January 1973, warned that the proposed activated biological sludge treatment system would "provide an effluent quality satisfactory to meet all present EPA and DRBC limitations with the exception of suspended solids." The report explained that its bench scale tests suggested that the suspended solids that would be discharged would be consistently higher than 100 milligrams per liter (100 mg/1) as allowed by DRBC limitations. Total suspended solids exceeding the allowable limits have been by far the most numerous and intractable of the excess discharges.^[7] Enviro-Engineers recommended that there be further studies to determine how best to remove and reduce the total suspended solids that would be discharged into the Delaware River, but further opined that the anticipated problem could be controlled by addition of alum, "implemented by the installation of a reactor type clarifier down stream from the final clarifier." In a later summary report dated March 23, 1973, Enviro-Engineers stated that "subsequent treatability investigations have shown that this problem [total TSS exceeding 100 mg/1] can be controlled by proper operation of the biological system"; i.e., without chemical additives such as alum. No apparent reasons for this conclusion appear in the record.

Monsanto built the plant, utilizing its own corporate engineering staff, in accordance with the recommendation of Enviro-Engineers. It did not, however, include a chemical treatment unit downstream from the terminus of the activated sludge system. The plant was constructed and placed in operation by August 1975, in accordance with the time schedule mandated by the various regulatory agencies and as committed to by Monsanto.

Initial start-up problems developed. In November 1975, Monsanto modified the aeration basins by raising the effluent weir and lowering the aerators and operating them at full power. In December 1975, Enviro-Engineers (whose name had been changed to Engineering-Science), noting the consistency of the TSS exceeding [18 ELR 21001] permitted limitations, advised that the problem could be corrected by continuous addition of chemical coagulants. Engineering-Science recommended testing inorganic coagulants, such as alum, ferric chloride and lime in conjunction with various polymers. Although Monsanto investigated the possibility of using polymers and inorganic chemicals, it never installed any additional unit (referred to in the testimony and evidence as a tertiary treatment unit) to add chemicals and polymers, because it concluded that polymers would not operate satisfactorily and could actually aggravate the problems and, finally, that by "fine tuning" the system, Monsanto would be able consistently to meet its permit requirements as to TSS by early 1984.

In January 1976, Engineering-Science recommended coagulation through use of chemical additives to achieve the TSS limitations. In April 1976, Jerry N. McGuire of Monsanto's corporate engineering department reported that it might require additional equipment to consistently meet any 100 mg/I TSS effluent limitation. In June of 1976, Jerry Schroy of the corporate engineering department prepared a report as to the best methods of controlling the TSS discharges. He, in substance, recommended: (1) testing the addition of powdered carbon to the aeration basins; (2) installing equalization; (3) building a bench or scale model to study coagulation, flocculation, and/or solids separation system, i.e., the addition of a tertiary unit. He estimated the cost of such a unit to be $ 600,000 as of the date of the report in 1976, with an annual operating cost of $ 310,000. The system was never tested by a pilot scale model and never installed.

Since the WTP commenced operation in the fall of 1975, Monsanto has made extensive modifications in an attempt to have the WTP meet all of the requirements of the NPDES permit. As originally constructed, the WTP included the following unit processes: neutralization, primary sedimentation, "off-spec" lagoon, completely mixed activated sludge, and secondary sedimentation.

In the fall of 1976, tests established that the aeration basins were not being fully mixed. The manufacturers of the aerator mixers recommended the installation of draft tubes. Pursuant to that recommendation, draft tubes were installed in July of 1977 at a cost of approximately $ 9,000.

In October and November 1978, Monsanto installed two equalization basins. One basin was for the raw wastewater, and the other for phenolic chemicals. Equalization basins are for the purpose of equalizing both the quantitative and qualitative flow of the wastewater so that the rate of flow and type of materials contained in the wastewater remain relatively constant. This installation was made in response to several recommendations of Jerry Schroy of Monsanto's corporate engineering department in June of 1976. Mr. Schroy made the study and report as to "how best" to meet the limitations of the NPDES permit. The total capital cost of installing the equalization basin was $ 740,000.

A scum removal system was installed in the final clarifiers. This occurred between September and November 1981. The capital cost of this installation was $ 79,000. Between October 1982 and May 1983, submersible mixers for the sludge mixers were installed. The capital cost was $ 60,000.

Other substantial capital improvements were made to the plant, including installing phosphoric acid meter pumps in December 1981, a permanent system for adding chemicals in September 1983, installing equalization lagoon baffles in September 1984, installation of a permanent ferric chloride addition system in March of 1985, and various other capital replacements with upgraded equipment. The total cost of the various capital expenditures after the original installation was approximately $ 1,661,000 (Defendant's Exhibit 12). In addition, Monsanto made changes in its manufacturing processes that reduced the quantity of pollutants going into the system as well as reducing the total quantity of wastewater discharged into the Delaware River. Some of these changes and/or additions were made, however, for economic and other reasons involving the chemical manufacturing processes of the plant and only incidentally helped to reduce the pollutants entering the Delaware River.

In February 1986, Monsanto closed and completely dismantled the phthalic anhydride manufacturing process at the Bridgeport plant and has no plans to manufacture phthalic anhydride at the plant in the foreseeable future. This has substantially reduced the total quantity of wastewater being discharged into the Delaware River, and has reduced by about 40% the organic wasteload processed by the WTP.

For the period from August 1, 1977, to the present, the applicable NPDES permit has been subject to a TSS limitation of a monthly average of 1,250 pounds per day (570 kg/day) with a daily maximum limitation of 2,065 pounds (936 kg/day). These maximums were originally set by the regulatory agencies in order to meet the DRBC's water quality control standard of 100 mg/I based on an estimated 1,500,000 gallons per day effluent discharge into the Delaware River. The actual flow as established by Monsanto's daily monitoring reports has been consistently and substantially less. Consequently, any amount of TSS discharge exceeding the permitted weight limitations of necessity establishes a concentration of TSS in excess of the DRBC and State of New Jersey standard of 100 mg/I.

Monsanto has made frequent attempts since the issuance of the original NPDES permit to have certain of the limitations revised. In 1974 when the proposed draft of the permit was submitted, Monsanto contested the proposed BOD[5], TOC, oil and grease, total chromium, total phenol, and color limitations. It did not contest the TSS limitations and did not then seek any reduction in TSS limitations. Monsanto was successful in having the final permit modified as to oil and grease and color limitations.

The final permit required that Monsanto conduct specified monitoring and sampling of its effluent. These reports, called Discharge Monitoring Reports (DMRs), were sent to the regulatory agencies and are the foundation for the contention that Monsanto has violated the terms of the permit on multiple occasions. Initially, Monsanto monitored more frequently than required by its permit. Later, because of its own laboratory being certified by the State of New Jersey, it monitored only as required by the permit.

The final permit required monitoring of Total Kjeldahl-Nitrogen, whereas, the permit imposes limits only on Kjeldahl-Nitrogen. Total Kjeldahl-Nitrogen includes ammonia. Kjeldahl-Nitrogen does not contain ammonia. From this, defendant computes (Defendant's Exhibit 10) that it has never violated the Kjeldahl-Nitrogen limitations. The inconsistency between the permit limitation and monitoring requirement was called to the attention of EPA by Monsanto (Joint Exhibit 4 (d)). EPA and plaintiffs have taken the position that the limitation in the permit is for Total Kjeldahl-Nitrogen. There have been three occasions since Judge Gerry's order of December 14, 1983, when there have been reported Total Kjeldahl-Nitrogen samples in excess of the Kjeldahl-Nitrogen permit limitations. Defendant, as above noted, disputes that these reports establish any Kjeldahl-Nitrogen limitation violations.

The permit that was eventually renewed and is now effective was issued by the NJDEP. Under the law, certain state agencies, including NJDEP, are allowed and presently issue the NPDES permits rather than EPA. In the NJDEP permit, effective from May 1, 1985, through April 30, 1990, nitrogen is divided between organic nitrogen and ammonia nitrogen with limitations as to each. The inconsistency therefore no longer exists, and there is no evidence of any violation by Monsanto since the new permit became effective as to either organic nitrogen or ammonia nitrogen.

On November 15, 1976, Monsanto sought a modification of its permit, reducing the limitations on TSS, BOD[5], oil and grease, phenols and fecal coliform. In substance, Monsanto contended that with the proposed permit changes, the existing treatment plant could comply and that the levels proposed were "achievable" (Joint Exhibit 1 (o), attachment c). Defendant contended that the plant was built and constructed in accordance with governmentally approved design, that it was and continued to be the best practical technology available, and that Monsanto therefore should not be held to any limitations that require higher technology. The request for permit modifications was never granted because of Monsanto's proposed modifications to the plant that resulted in constructing equalization basins. After their installation in 1978, no change was made in the permit. The request to EPA for modification of the permit was renewed shortly after this action was filed but, because the licensing authority had been transferred to NJDEP, no action was taken by EPA nor has any been taken by NJDEP. The new permit issued by NJDEP on March 7, 1985 (Joint Exhibit 1 (bb)) contained certain interim limitations, with the final limitations effective as of May 1, 1985.

Of the thirty-five occurrences subsequent to September 1983 that plaintiffs contend the daily or monthly monitoring reports establish violations of the permit, three are for Total Kjeldahl-Nitrogen, two oil and grease, one pH and one total residual [18 ELR 21002] phenolics, and twenty-eight TSS. The TSS reports establish daily maximum loads exceeding the permit limitations on nine different days, and daily average loads on a monthly basis exceeding the permit limitations on six different days. On certain of the days, there were reports of multiple violations of the same limitation.

There have been no reports filed establishing any violation of the TSS limits since January 1, 1985, a period in excess of three years. No violation of TSS has been established since the present NJDEP permit went into effect. Since January 1, 1985, there was one reported pH amount that failed to comply(March 1, 1986), and one total residual phenolic that exceeded the limit (May 1, 1986), and two oil and grease violations.

Although expert witnesses established that any discharge exceeding the permit limitations has a deleterious effect on the purity of Delaware River water, there is no known way to quantify that harm as to specific injury to the water or the fish and biota of the Delaware River. The evidence does not establish that the discharges that Monsanto makes into the Delaware River are directly toxic to any plant, fish or animal life. Discharging any pollutant into the Delaware River is logically harmful, and the permit limitations are to protect the Delaware River from an unacceptable amount of pollutants.

Monsanto has in good faith attempted to comply with the permit requirements. Any violations of the permit limitations have been unintentional. Although Monsanto has not carried out all of the recommendations of every employee or outside consultant who has made recommendations, all have been considered and the course of action that Monsanto has taken in response to violations of the permit limitations and of the recommendations has been reasonable and reasonably prompt.

Plaintiffs have not established that, if the recommendations of their expert witnesses had been carried out, the WTP would have come into full compliance with the permit limitations.

III. Penalties for Pre-Complaint Violations

Plaintiffs seek imposition of very substantial penalties, including separate penalties for each of the 236 violations as determined by Judge Gerry plus penalties for each of the thirty-five subsequent alleged violations, a total of 271 claimed violations, for which the maximum penalties of $ 10,000 each are requested totalling $ 2,710,000. In addition, plaintiffs claim that for any single violation that was for an excess average daily discharge for any month, each day of that month should be found to be subject to a separate penalty of $ 10,000. By this method of calculating maximum allowable penalties, plaintiffs contend penalties of $ 17,210,000 could be imposed (Plaintiffs' Revised Pretrial Brief at 44). Plaintiffs further contend that the minimum penalty should be substantially above the amount the EPA would calculate as appropriate for a civil settlement, which applies a complex, computer-calculated formula that, in plaintiffs' pretrial brief, plaintiffs calculated to be $ 4,387,370 (Plaintiffs' Revised Pretrial Brief at 86). Not surprisingly, defendant contends that no penalty should be imposed in this case.

Before determining the amount of penalty, if any, to be imposed, and the methodology for making such a decision, logically the statutory maximum should first be ascertained.

Judge Gerry's order of December 14, 1983, determined liability as to 236 violations. In a later ruling, he held that Monsanto is subject to possible penalties for all violations, subject to "appropriate" restraint in the imposition of such penalties. This is the law of the case as to liability, but it does not restrict or impinge upon the discretion of the trial judge in determining penalties.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., U.S. , 56 U.S.L.W. 4017 [18 ELR 20142] (U.S. Dec. 1, 1987) (No. 86-473) (Gwaltney), decided after Judge Gerry's decision, but prior to trial on the issue of penalties and equitable relief, as I interpret the decision, radically altered thepenalties that should be assessed in this case. Whether Gwaltney constitutes binding precedent on the issue of penalties for pre-complaint violations, or otherwise constitutes such an exceptional circumstance as to take Judge Gerry's determination out of the law of the case rule as set forth in TCF Film Corporation v. Gourley, 240 F.2d 711 (3d Cir. 1957), need not be reached. Even if penalties may be imposed for all past violations under Gwaltney and Judge Gerry's decision, in light of Gwaltney, I ruled prior to trial that in this case penalties would not be imposed for violations prior to filing of the notice of intent to sue. The case was tried on that basis. Clearly, if my ruling was incorrect, a new trial would have to be granted, or at least the parties would have to be afforded an opportunity to present any additional admissible evidence they deem appropriate.

Subsequent to the Gwaltney decision, but prior to trial, defendants moved for summary judgment arguing (1) because defendant had not violated any NPDES permit limitations since May of 1986, injunctive relief would not be appropriate and the case was therefore moot, and (2) penalties in any event could not be assessed for violations occurring prior to the filing of the complaint. The matter was briefed and oral argument was held on the motion on January 4, 1988, prior to the commencement of the trial. Although no trial transcript has been ordered or filed of record, the transcript of the hearing on the motion for summary judgment has been filed of record. The transcript reveals that the motion for summary judgment was denied. In addition, I stated from the bench:

And therefore, unless there is some controlling authority that comes down to the contrary, I will take the position for the purpose of this trial that any penalties that will be imposed will not include any penalties as such, for any prior violations [committed prior to filing of the complaint and filing of notice of intent to sue]. However, I do agree with the plaintiffs' counsel's argument that, in determining what is an appropriate penalty or penalties to be imposed, that the whole history of the past violation or violations may be taken into consideration. . . .

So we will proceed to trial on this matter to determine what, if any, are the appropriate penalties to be imposed for any post-violation-post-filing of the complaint violations.

To my knowledge and that of counsel, there is no case since Gwaltney that has squarely ruled on whether pre-complaint violations may be subject to penalties upon a citizen suit under the Clean Water Act. The Ninth Circuit in Sierra Club v. Chevron, U.S.A., Inc., 834 F.2d 1517 [18 ELR 20237] (9th Cir. 1987) (decided a few days after Gwaltney), ruled on a statute of limitations issue that citizen suits may seek penalties for past violations within a five-year limitation period.^[8] Although Sierra Club v. Chevron, U.S.A., Inc., mentions Gwaltney, it makes no reference to any effect Gwaltney may have on pre-complaint violations. Presumedly, the court thought Gwaltney did not preclude penalties for pre-complaint violations. Sierra Club v. Chevron, U.S.A., Inc. did not, however, rule that penalties should be imposed for pre-complaint violations.

Prior to Gwaltney, the First Circuit, in affirming the grant of summary judgment for defendant, which dismissed a Clean Water Act citizen suit for penalties, stated by way of dictum:

A plaintiff who makes allegations warranting injunctive relief in good faith, judged objectively, may recover a penalty judgment for past violations even if the injunction proves unobtainable.

Pawtuxet Cove Marina v. Ciba-Geigy Corp., 807 F.2d 1089, 1094 [17 ELR 20374] (1st Cir. 1986), cert. denied, 56 U.S.L.W. 3399 (1987). Gwaltney noted the rule of the First Circuit as to jurisdictional prerequisites for a citizen suit, but did not comment on the First Circuit's dictum on penalties for past violations irrespective of the grant of injunctive relief.

Subsequent to the trial on January 20, 1988, the United States moved to participate as amicus curiae to set forth its position in support of the plaintiffs' contentions that civil penalties may be imposed for pre-complaint violations where there is proper jurisdiction under Gwaltney.^[9]

I have carefully studied and considered the motion and brief filed by the United States, as well as defendant's filed opposition. The motion to "participate" (not to intervene) at this time will nevertheless be denied. In substance, the government seeks reconsideration of an issue which, rightly or wrongly, I decided prior to trial, and upon which the case proceeded to trial. Although the government asserts in its motion that the motion for summary judgment is still pending, this statement is in error. The transcript of the hearing [18 ELR 21003] establishes that the defendant's motion for summary judgment was denied. The issue of penalties for pre-complaint violations as effected by Gwaltney is a case of first impression. To presently alter my ruling after trial would be manifestly unfair to the parties. The United States had ample opportunity to intervene both by right of statute, and even upon express judicial invitation. Now, apparently concerned about a ruling that is not in accord with the present position of the Land and Natural Resources Division of the United States Department of Justice, it untimely seeks to "participate" and cause the court to change that ruling.

This case will most probably be appealed. Consequently, there is little reason to set forth in detail my understanding of Gwaltney as applicable to the civil penalties that may or should be imposed in this case. My reading of Gwaltney leads me to conclude that civil penalties are to be utilized as an adjunct to injunctive relief and that the primary purpose and focus of a citizen suit is to abate ongoing violations. Because injunctive relief will be rendered in this case, it will not be necessary to decide the difficult question of whether Gwaltney would permit any civil penalty absent some form of injunctive relief. Gwaltney strongly suggests, however, that absent some form of injunctive relief, no civil penalties may be imposed.

In contrast, § 505 of the Act does not authorize civil penalties separately from injunctive relief; rather, the two forms of relief are referred to in the same subsection, even in the same sentence. 33 U.S.C. § 1365(a). The citizen suit provision suggests a connection between injunctive relief and civil penalties that is noticeably absent from the provision authorizing agency enforcement. A comparison of § 309 and § 505 thus supports rather than refutes our conclusion that citizens, unlike the Administrator, may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation.

Gwaltney, 56 U.S.L.W. at 4019. The Court further stated:

Our reading of the "to be in violation" language of § 505(a) is bolstered by the language and structure of the rest of the citizen suit provisions in § 505 of the Act. These provisions together make plain that the interest of the citizen-plaintiff is primarily forward-looking. . . .

This definition makes plain what the undeviating use of the present tense strongly suggests: the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past. . . .

It follows logically that the purpose of notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.

Id. The above quotes of short passages from Gwaltney, together with the suggestion that, if it becomes "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," the case would become moot, convinces me that, absent unusual circumstances, penalties should be assessed only for continuing post-complaint violations.

Plaintiffs contend that if the Supreme Court intended to preclude civil penalties for past violations, a remand in Gwaltney would have served no purpose, since injunctive relief had not been granted,^[10] no appeal as to injunctive relief had been taken, and only civil penalties were at issue on the appeal (Plaintiff's Brief in Opposition to Motion for Summary Judgment at 4, 5). Nothing in the Gwaltney opinion refers to these procedural facts and the Supreme Court made no suggestion as to what final disposition the lower courts should make.

The present case was tried on the basis of my pretrial ruling that the maximum civil penalties that I would consider imposing would be the statutory maximum of $ 10,000 per day for each violation occurring after the filing of the complaint. In determining what amount, up to that maximum to impose, the entire history of all past violations would be considered, including the 236 violations as determined by Judge Gerry. The issue as to the liability for those 236 violations was closed. As to the alleged thirty-five violations not included in Judge Gerry's order, the issue of whether they were in fact violations remained open for trial.

Although I ruled, pretrial, that I would not impose civil penalties exceeding $ 10,000 per day for each post-complaint violation, I did not rule that Gwaltney flatly prohibits imposition of penalties for pre-complaint violations. Nothing presented at trial leads me to conclude that in this case any penalties should be separately assessed for pre-complaint violations.

IV. The Claimed 41 Post-Complaint Violations

As noted, Judge Gerry's order of December 14, 1983, determined that there had been 236 violations of the permit limitations, six of which occurred after the filing of the complaint in this action. Because there were no violations shown from the discharge monitoring reports from the date of filing the notice of intent to sue on March 4, 1983, until the filing of the complaint on June 6, 1983, whether, for purposes of imposing penalties, there should be a distinction between post-notice of intent to sue violations and post-filing of suit violations need not be addressed or decided.

Of the six post-complaint violations as found by Judge Gerry, there were two TSS violations, both occurring on June 7, 1983, and one violation each for BOD[5], pH, phenol, and oil and grease. The two TSS violations were both for exceeding the daily maximum limitation, apparently because of two samplings on that date, both of which were required to be reported.

The DMRs subsequent to those considered by Judge Gerry show twenty-eight TSS, three Kjeldahl-Nitrogen, two oil and grease, one pH and one phenolic samples that exceeded permit limitations (Plaintiffs' Exhibits E and Q).

Of the twenty-eight TSS excessive discharges, six were for excessive daily average discharges during a monthly period. As Judge Gerry noted in footnote 1 of his order of December 14, 1983, "daily average discharges" is somewhat of a misnomer. It is computed by averaging all of the samples reported during a calendar month and assumes that calculation to be the daily average during the entire month. The permitted amount was 570 kilograms (1,250 pounds) average per day. The reports show that there were computed excessive daily average discharges for the months of October and November 1983, and February, March, April and May of 1984.^[11] Of the remaining twenty-two TSS discharges exceeding the permit limits, each is for an excess of the maximum daily discharge of 936 kilograms (2,065 pounds) reported on 9 separate days. On certain days, multiple violations of the daily maximum of TSS were reported, presumedly because of multiple samplings taken on those days^[12] (Plaintiff's Exhibit Q).

Plaintiffs contend that a violation occurs on each day of the month that a DMR report shows that the daily average exceeded the daily average allowed for that monthly period. Each violation of any express limitation in the permit may, of course, be treated as a separate violation for the purposes of assessing a penalty. Thus, if on a particular day, based on samples tested, a computation was made that established an excessive TSS discharge and an excessive oil and grease discharge, a penalty of up to $ 10,000 could be imposed on each of the excessive discharges, or a total of $ 20,000 for that day. Likewise, if on a particular day, the DMR samples reported an excessive amount of TSS discharge for both the daily maximum and the monthly daily average, two penalties could be imposed. It does not logically follow, however, as plaintiffs contend, that because a DMR, based on monitored sampling during several occasions during a month, reports an excessive daily average for that month, that an excessive daily average discharge occurred on each and every day of that month. It would be entirely possible that on the basis of a large excessive discharge on a single day (as established by a sample taken on that day), there could be a violation of the [18 ELR 21004] daily average for the entire month. The penalty provision is penal in nature. It should be strictly construed. Although the burden of proof of a violation need only be by a preponderance of the evidence, that burden cannot be met to establish a violation for each and every day for the month that the DMR establishes the daily average exceeded the permit limit. The DMR can only establish a single violation on the day of the monitored report.^[13]

I conclude as to the TSS excessive discharges occurring subsequent to September 1983, maximum penalties of $ 10,000 each may be imposed for the six reported excessive daily average discharges over a monthly period, plus the nine separate days there were reports of excessive daily maximum discharges or a total of fifteen possible penalties for excessive TSS discharges not included in Judge Gerry's order. On those days on which the DMRs reported excessive daily maximum discharges on several occasions during that day (see fn. 11), a single civil penalty "not to exceed $ 10,000 per day of such violation" may be imposed under 33 U.S.C. § 1319(d). Thus, the maximum civil penalties that may be imposed for the TSS violations occurring after Judge Gerry's order are $ 150,000.

It is contended that the DMRs establish three Kjeldahl-Nitrogen excessive discharges not contained in Judge Gerry's order. As heretofore noted in the narration of the facts, the DMRs as required by the monitoring requirements of the permit were for Total Kjeldahl-Nitrogen, whereas the permit limitation itself was for Kjeldahl-Nitrogen. Thus, the monitoring reports do not establish any permit violation as to Kjeldahl-Nitrogen. This is especially so because defendant presented convincing proof that the DMRs as to Total Kjeldahl-Nitrogen were of such quantities as to show that the Kjeldahl-Nitrogen in the discharges werewithin the permit limits on each occasion that a sample was taken and a DMR was filed. This evidence was not contradicted nor seriously challenged. It is also of some significance on the issue of a possible penalty that Monsanto expressly called to the attention of the regulatory authorities that there was a discrepancy between the permit limitation and the monitoring requirements. Because the statute is penal in nature, regardless of what the parties may have subjectively thought or understood, plaintiffs, quite plainly, have not proved by a preponderance of the evidence that Monsanto violated the permit in any discharge of Kjeldahl-Nitrogen subsequent to the date of Judge Gerry's order.^[14]

Concerning the two oil and grease, one pH and one phenolic excessive discharges that occurred subsequent to Judge Gerry's order, although defendant has attempted to establish that they were minor "excursions," accidental, and not the fault of Monsanto, clearly each and every one was a violation for which a maximum penalty of $ 10,000 per day could be imposed. Therefore, maximum penalties of $ 40,000 for these violations may be imposed. That amount added to the $ 150,000 for TSS violations would equal $ 190,000 as the maximum for all violations subsequent to those found by Judge Gerry.

Judge Gerry's order of December 14, 1983, included six violations that occurred after the filing of the notice of intent to sue and after the filing of the complaint. However, of those six, there were two TSS violations exceeding the daily maximum on the date of June 7, 1983. As previously noted, where multiple violations are claimed for a single day, for the same permit limitation, the maximum penalty that may be imposed is $ 10,000. Therefore, as to the violations found by Judge Gerry for the post-complaint violations, a total penalty of $ 50,000 could be imposed. The total maximum penalty that may be imposed for all post-complaint violations, consequently, is $ 240,000.

V. Penalty to Be Imposed in This Case

Despite the pretrial ruling that, for purposes of imposing a penalty in this case, penalties would not be imposed for violations occurring prior to the commencement of this lawsuit, plaintiffs offered voluminous testimony and evidence seeking to persuade me to impose a penalty for all prior and post-complaint violations. Because I had ruled that for purposes of determining an appropriate penalty the entire history of past violations would be considered, this evidence was properly submitted, but it is of minor assistance in determining a proper penalty.

Much of plaintiffs' evidence consisted of witnesses making calculations that were claimed to be in accordance with the methodology that the EPA would utilize in determining an appropriate civil penalty in settlement negotiations arising out of EPA enforcement proceedings. Section 309 of the Clean Water Act authorizes the Administrator of the EPA to bring civil enforcement proceedings for violations of an NPDES permit. 33 U.S.C. § 1319. In such a proceeding, any person violating a permit limitation "shall be subject to a civil penalty not to exceed $ 10,000 per day of such violation." 33 U.S.C. § 1319(d).^[15] In 1977, the EPA established a policy for "Settlement of Section 309(d) Enforcement Cases for Monetary Awards." The policy requires that an estimated judgment figure be calculated, as if the case should go to trial and the EPA won on liability (Plaintiffs' Exhibit EE).

In arriving at an estimated judgment figure, a number of factors are to be considered, including:

(1) the extent to which the defendant may have profited by failing or delaying to comply;

(2) the degree of harm to the public caused by the defendant's failure to comply;

(3) the willfulness of the violation, or the good faith or bad faith of the defendant in meeting its obligation to comply;

(4) the necessity of vindicating the authority of EPA; and

(5) the ability of the defendant to pay penalties.

The policy also explicitly states that "many of the factors will necessarily be quite subjective." The policy further states that: "Perhaps the most important single criterion . . . is an analysis of the economic benefit that accrues to the discharger as a result of noncompliance." Many other factors are to be taken into consideration. In order to calculate the economic benefit component, the EPA has developed a computer model entitled BEN. It is complex.

Plaintiffs, primarily through an economic expert, Dr. Michael Kavanaugh, attempted to establish how the EPA would determine the amount of penalty it would seek in settlement negotiations in this case, if it were an EPA enforcement proceeding. Dr. Kavanaugh's calculations were made to calculate the first criterion of economic benefit derived from delay or failure to comply by allegedly applying the EPA methodology. Another witness, a paralegal in plaintiffs' counsel's law firm, also presented a series of figures and calculations attempting to quantify in a monetary amount the second criterion of the degree of harm to the public, referred to as the "gravity component," allegedly utilizing the methodology and calculations that plaintiffs contend would be utilized by the EPA.

There are problems with attempting to use this methodology in this case. First, this is not an EPA enforcement action. Second, this is not a settlement of civil penalties but rather a determination to be adjudicated after a full trial. Third, the witnesses were not employees of EPA, and their assessment of how the EPA would quantify the figures by applying its methodology is at least questionable. Fourth, no witness attempted to utilize the BEN computer program which plaintiffs conceded would be utilized by the EPA. Fifth, Dr. Kavanaugh's calculations were based on various assumptions that at best are subject to serious doubt. Sixth, many of the calculations that were presented in evidence were later corrected or qualified in substantial respects by the witnesses.

Dr. Kavanaugh testified that based on an economic analysis, Monsanto gained substantial economic benefit by delaying or foregoing certain installations and testing that plaintiffs contend should have been done. As to any such installations or testings that were never undertaken, the evidence does not establish that, if they had been undertaken, Monsanto would have come into compliance with its permit requirements any earlier. As to claimed economic benefits accruing from delays in installations that were eventually incorporated into the WTP, Dr. Kavanaugh had to make certain assumptions as to interestrates and costs of capital and inflation [18 ELR 21005] that were either demonstrated to be inaccurate or at least in serious doubt.^[16]

Dr. Kavanaugh made several substantial changes to his calculations during the trial. In his pretrial report (Plaintiffs' Exhibit D), as to which he testified at trial, he computed an economic benefit in not installing a chemical coagulation unit to be a total of $ 2,724,857 plus $ 301,897 for additional sludge removal that would have been caused by the unit, a total benefit of $ 3,026,754 (Plaintiffs' Exhibit D). At trial on direct testimony, Dr. Kavanaugh testified to slightly different calculations. However, on rebuttal, because he conceded that the delay was less extensive than he had originally calculated, he revised the total economic benefit of not installing this unit to be $ 530,211, plus a proportionately lower figure for additional sludge removal of $ 71,638. This revision was based on evidence that the unit was not recommended by anyone until some years later than Dr. Kavanaugh originally calculated.

Dr. Kavanaugh's economic benefit calculations by reason of delay included a benefit of $ 7,078 for installing draft tubes. These tubes were installed promptly by Monsanto as soon as the recommendations for such installation was made to Monsanto by independent engineers. There was no economic benefit from any delay that could be attributed to Monsanto. Similarly, Dr. Kavanaugh included in his testimony an economic benefit for delay in installing submersible mixers of $ 116,866. Use of submersible mixers was a new technology in this country and was neither available nor recommended prior to the time that Monsanto proceeded to have them installed. In his pretrial report, Dr. Kavanaugh's calculation of the benefit in this delay was $ 121,480. Again, in rebuttal, he revised the figure downward to $ 35,609.

The above review of some of the economic benefit evidence merely demonstrates the practical and theoretical difficulties in accurately calculating economic benefit for delays or failure to install or test that which plaintiffs contend, and defendant disputes, should have been done. As a practical matter, I find all of the evidence as to economic benefit to be of very little, if any, assistance in guiding my discretion in assessing an appropriate penalty.

The calculations submitted by plaintiffs as to the gravity component (i.e., the extent, seriousness, and time of continuation of violations) are of even less value in determining an appropriate penalty in this case. Although the gravity component may be a helpful guide to EPA officials in attempting to quantify a fair settlement figure in an objective manner, the suggested amount testified to by the paralegal assistant was $ 786,000; and, if only violations from the date of the filing of the complaint are considered, the calculation was $ 144,000.

There are, of course, sound policy reasons to take away any economic gain or benefit that a violator of an NPDES permit obtains from delaying or failing to take necessary measures to comply with permit limitations. Any penalty imposed should, to the extent statutorily permissible, remove any such economic benefit. I also agree with plaintiffs' contention that if a penalty does no more than simply take away the economic benefit, it does not, as a practical matter impose any real economic penalty against the violator. To simply equalize the economic benefit with the penalty would serve ill the possibility of discouraging other and future violations. Some additional penalty should be imposed as a sanction.

A penalty should include, beyond consideration of economic benefit to the violator, many other factors which may in general be described as the "gravity" of the violations. Among those factors are at least the following:

(1) History of past violations including time span over which they have occurred and the frequency of the occurrences.

(2) Extent of the violations as to whether the violations were greatly or minimally in excess of the permit limitations.

(3) Type of pollutants discharged and the harm, actual and potential, caused by the discharges exceeding the permit limitations.

(4) Culpability of the violator as to whether the violations were intentional, negligent or truly accidental.

It is quite likely that Monsanto gained some economic benefits by reason of not initially installing all of the equipment presently being used. Some of the improvements, such as the installation of the equalization basins in the fall of 1978 could and should have been incorporated into the system at an earlier date. However, if there was any such economic benefit, the evidence fails to provide any satisfactory method of quantifying such benefit, despite Dr. Kavanaugh's complex calculations.

Considering the "gravity" of the violations, they have been numerous, frequent, spanning almost a decade, and include many discharges that greatly exceed the permit limitations. They continued in substantial numbers after the lawsuit was instituted. Although there is no way to quantify any actual harm to the quality of the Delaware River by reason of the discharges, actual harm need not be precisely proved. Penalties may properly be imposed even absent any proof of deleterious effect. If penalties could otherwise be avoided, there would be little, if any, penalty left in the civil penalty provisions of the Act.

Defendant attempted to provide logical explanations for most of the violations. I do not find that any of the violations were done willfully or intentionally. Although Monsanto tried to comply with the permit requirements, it would appear that more could have been done and sooner. The very explanation that Monsanto finally has been able to comply with the permit limitations by "fine tuning" the system over almost a ten-year span of time suggests some degree of avoidable delay.

Considering the totality of the circumstances of this case, a penalty of $ 240,000 will be imposed, which as heretofore noted is the maximum that could be imposed for all violations occurring after this lawsuit was instituted. A primary consideration in imposing this amount is the long history of substantial and frequent violations prior to the filing of this lawsuit. If Monsanto is now able to comply with its permit, there appears to be no reason why, if it had been properly designed, built and maintained from the beginning, it could not have complied at all times. Even though Monsanto may have in good faith relied upon outside engineers and consultants, Monsanto had the primary responsibility which may not be shifted unto others.

In assessing a penalty of $ 240,000, however, I expressly reject plaintiffs' argument that, in setting a penalty, the court should place the burden on the defendant to establish facts justifying some amount less than the maximum allowed by law. That would, in my view, be a novel and wholly untenable principle to apply to any civil penalty statute. I assess the penalty in this case in part because of the relatively few post-complaint violations in comparison to the number of pre-complaint violations. This, I think, further justifies assessing a $ 10,000 penalty for each post-complaint violation, since none is being assessed for any pre-complaint violation.

VI. Injunctive Relief

Plaintiffs seek injunctive relief. Defendant contends that injunctive relief is not warranted because there has been no violation of any kind since May of 1986, and the last TSS violation was on January 1, 1985. Defendant has argued in its motion for summary judgment that the case has become moot. The evidence, however, does not convince me that "there is no reasonable expectation that the wrong will be repeated." Gwaltney at 4021. Defendant cannot and has not asserted that there is no likelihood of some possible future violation.

Defendant suggests, however, that if there is any future violation, it will be caused without fault on its part. An NPDES permit requires full compliance. It imposes liability without fault. Fault may be a proper consideration in determining what, if any, penalty to impose, but lack of fault does not exempt a discharger from complying with the permit.

The only substantial argument against granting injunctive relief is that there appears to have been no violation of Monsanto's permit since the new permit was issued by NJDEP in 1985. The present limitations are, however, the same as those imposed on the prior NPDES permit. Monsanto has offered no satisfactory explanation as to why it has now come into full compliance, whereas, for a period from 1977 through 1984, there were frequent violations, albeit, in general, with less frequency as time elapsed. The most logical explanation is that Monsanto has torn down its phthalic anhydride processing plant, thereby substantially reducing its total waste water discharges. As heretofore noted, this in and of itself provided Monsanto with substantial leeway to increase the concentration in the flow of suspended solids. This is because the permit limitations were [18 ELR 21006] set in total weight rather than in milligrams per litre. I recognize that the evidence establishes that Monsanto has no intention of rebuilding the phthalic anhydride processing plant, but that alone is no reason to decline to enjoin future violations.

So long as Monsanto continues in full compliance with the permit, the added compulsion of an injunction will cause no harm to Monsanto. Conversely, if there are any future violations and no injunction is presently issued, before any sanction, penalty or abatement could be ordered, another EPA order enforcement action or citizen suit enforcement action would have to be instituted with its consequent expense and delay. Especially in light of my serious doubt that in a citizen suit any penalty can be imposed for pre-complaint violations, plus the Gwaltney requirement of good faith allegations of ongoing violations, either continuous or intermittent, a later legal action, should there be violations, would appear at best to provide inefficient and inadequate remedies, when compared to entering an injunction in this case. The plaintiffs and the public are entitled to be protected by the grant of injunctive relief. Because the terms of the permit may be altered when the present permit expires, the injunction will be made effective only during the term of the present permit (i.e., until April 30, 1990) (Joint Exhibit 1(bb)).

VII. Litigation Costs

Section 1365(d) of title 33 of the United States Code provides that in a citizen suit the court "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, when the court determines such award is appropriate." I determine an award is appropriate for plaintiffs in this case.

Where a statute provides expressly for the grant of litigation costs, absent unusual circumstances, a successful plaintiff should be entitled to such costs. In a case such as this, where the plaintiffs are organizations generally denominated as non-profit public interest organizations, who cannot personally gain monetarily from this litigation, the payment of reasonable litigation costs should, in my view, be routinely granted to successful plaintiffs. Otherwise, the likelihood of citizens suits being instituted would be greatly reduced. Congress thought that citizen suits could serve a valuable public function in the enforcement of the Act. Since any penalty goes to the Treasury of the United States, there is little incentive for a citizen suit beyond a genuine concern for the public welfare. To require such citizens to pay their litigation costs would be a great disincentive to filing suits in the future. If the parties cannot agree as to a reasonable amount, the matter will have to be submitted to the court for adjudication.

Order

For the reasons stated in the accompanying opinion, it is Ordered as follows:

1. The defendant, Monsanto Company, shall pay as a civil penalty for violations of its National Pollutant Discharge Elimination System (NPDES) permit into the Treasury of the United States the sum of Two Hundred and Forty Thousand Dollars ($ 240,000).

2. The defendant, Monsanto Company, is restrained and enjoined until April 30, 1990, from making or causing any discharges into the Delaware River from its Wastewater Treatment Plant for its manufacturing facility at Bridgeport, New Jersey, that exceed any limitation and/or fail to in any way comply with the terms and conditions of the National Pollutant Discharge Elimination System (NPDES) permit issued to and effective as to Monsanto Company, including its present permit (issued by the State of New Jersey, Department of Environmental Protection, on March 7, 1985), any and all additions and/or amendments thereto, and any and all permits that may hereafter be issued and in effect by any agency, state or federal, that is issued pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq.

3. The defendant, Monsanto Company, shall pay to the plaintiffs the costs of litigation including reasonable attorney and expert witness fees. If the parties cannot agree as to the amount of such costs of litigation, plaintiffs shall submit a motion for awarding a specific sum together with appropriate affidavits and documentation in support of the motion on or before April 30, 1988.

1. The opinion accompanying the order was dated November 18, 1983, but was docketed and filed in the Clerk's Office on January 21, 1985. The opinion is reported in 600 F. Supp. 1479 (D.N.J. 1985).

2. There was a violation of daily maximum total suspended solids (TSS) on September 1, 1983, not included in Judge Gerry's order. It will be included as a violation subsequent to the date of Judge Gerry's order.

3. Notice was mailed March 4, 1983; the complaint was filed June 6, 1983. Judge Gerry found five violations on June 7, 1983, and one violation on September 12, 1983. There were no violations from March 4, 1983, through June 6, 1983, inclusive.

4. This case was one of the group of cases specially assigned to District Judges of the Eastern District of Pennsylvania for purposes of trial. By agreement of counsel, the trial was conducted in the federal courthouse in Philadelphia, Pennsylvania.

5. Monsanto operates a total of approximately 166 plants worldwide.

6. By stipulation, fourteen volumes of joint exhibits were received into evidence without objection. In addition, there were over five volumes of plaintiffs' exhibits and another volume of defendant's exhibits received into evidence.

7. Of the 236 violations as determined by Judge Gerry, 191 were total suspended solids violations. Since September 1983, 28 of the 35 alleged violations were total suspended solids violations.

8. This is contra to Judge Gerry's decision in this case that no statute of limitations precludes a finding of liability as to all 236 violations, the earliest going back to August 4, 1977. The complaint was filed June 7, 1983.

9. There is no question as to this court's jurisdiction under Gwaltney. The complaint alleged on-going violations and, in fact, proved at trial continuing violations subsequent to the filing of the complaint.

10. This contention appears not to be entirely accurate. The district court enjoined defendant to the extent, at least, of requiring defendant to provide plaintiff with copies of all reports it thereafter submitted to any regulatory agency relating to its NPDES permits (fn. 4 to plaintiffs' brief in opposition to Monsanto's motion for summary judgment).

11. Each of the DMRs involving excessive daily averages was reported on the first day of the respective months, and appear to be calculations based on the average of the samples reported for the preceding month. Thus, for example, the report of November 1, 1983, of 1,231 kg/day is apparently for the month of October 1983.

12. Two such excessive discharges were reported November 1, 1983, four on December 1, 1983, two on March 1, 1984, seven on May 1, 1984, and three on June 1, 1984. These multiple samples on a single day account for the total of twenty-two reported excessive discharges of the daily maximum permitted amounts on a total of nine separate days.

13. I note that as to each of the six DMRs reporting excessive daily average discharges for the month, the DMRs establish an excessive daily maximum discharge on the same day. On those particular dates (i.e., November 1, 1983, December 1, 1983, and March 1, April 1, May 1, and June 1, 1984) two penalty assessments for TSS violations may be imposed, or a maximum of $ 20,000 on each such day.

14. There were no Kjeldahl-Nitrogen violations found by Judge Gerry that occurred after the filing of the complaint.

15. The citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, likewise authorizes the district court, in a citizen suit, "to apply any appropriate civil penalties under section 1319(d) of this title."

16. By way of example of the difficulties of computing economic benefit from delayed installation: if the inflation rate exceeds the rate of interest and there is no change in the cost of capital, a corporation would acquire a negative capital economic benefit from delay, because the interest that could be earned on the capital would be less than the increased cost caused by inflation during the delay. Of course, during the delay period, operating costs of the installation would be saved.