Public Interest Research Group of New Jersey v. Witco Chemical Corp.

No. 89-3146 (D.N.J. May 17, 1990)

The court holds that a preexisting state environmental enforcement action and a civil penalty assessment against a chemical company do not bar a citizen suit under § 505 of the Federal Water Pollution Control Act (FWPCA) for alleged violations of the company's pollutant discharge permit. The court holds that enforcement of a consent decree arising from the state action does not immunize the company from suit. The state's role on a committee created under the consent decree to monitor the plant's remediation program was not comparable to that of a prosecuting agency. Further, although the state maintained the right to bring subsequent enforcement proceedings, the court concludes that the state began to prosecute the company's environmental violations only when the state actually brought penalty proceedings. The court further holds that the state's civil penalty assessment was untimely and therefore does not preclude the citizen suit. The state served the penalty assessment only after the citizen group filed notice of its intention to sue. The court holds that abstention from asserting jurisdiction is not appropriate. The FWPCA anticipates duplicative proceedings by allowing simultaneous litigation and penalty assessments, and the company is attempting to use its prior violations as a shield to further liability. The court holds that the citizen group's use of the waters into which the company discharged pollution is sufficient to establish standing. The court also holds that the federal five-year limitations period under 28 U.S.C. § 2462 applies because the plaintiff who brings a citizen suit effectively represents the United States, and the doctrine of laches does not apply because it is not a defense to a suit to enforce a public right.

Counsel for Plaintiff
Edward Lloyd
15 Washington St., Newark NJ 07102
(201) 648-5576

Counsel for Defendant
Alfred C. Constants III
Carella, Byrne, Bain & Gilfillan
6 Becker Farm Rd., Roseland NJ 07068
(201) 994-1700

[21 ELR 20820]

Sarokin, J.:

Opinion

In this environmental action under § 505 of the Federal Water Pollution Control Act ("the Act"), 33 U.S.C. § 1365, defendant Witco Chemical Corporation ("Witco") moves to dismiss the complaint or stay this litigation in light of a subsequent administrative enforcement assessment initiated by the New Jersey Department of Environmental Protection. Public Interest Research Group of New Jersey, Inc. and Friends of the Earth (collectively "plaintiff") cross-move for partial summary judgment and injunctive relief. For the reasons expressed below, the court denies defendant's motion, grants plaintiff's motion for partial summary judgment, and shall reserve on the question of the appropriateness of injunctive relief, pending further submissions of the parties.

In recognition of our nation's vital need to protect its waters, Congress conferred the right upon citizens to institute litigation alleging illegal discharges of pollutants. Such authorization arose from congressional understanding that governmental agencies which are charged with this primary responsibility might not adequately enforce the laws prohibiting such pollution. Senate Report No. 92-414 reprinted in, 1972 U.S. Code Cong. & Admin. News 2668, 3745 (92nd Cong. 1972).

As a result, Congress granted citizens and citizen groups permission to act where the appropriate governmental agency had failed to do so after the giving of appropriate notice and, in effect, demanding action. Congress, having conferred such authority, did not intend for this right to be suspended by belated government action. As in the case at bar, an alleged polluter may be subject to duplicative proceedings as a result, but this court concludes that such consequence is certainly one which Congress anticipated.

Background

The Permit History

On January 11, 1978, the Environmental Protection Agency ("EPA") issued a permit pursuant to § 402(a), 33 U.S.C. § 1342(a). The National Pollutant Discharge Elimination System ("NPDES") permit NJ 0029483 authorized Witco to discharge limited quantities of pollutants into Spa Spring Creek through outfalls 001 and 002, in accordance with the conditions of the permit. Pl. Exh. 4.

The 1978 permit expired on February 28, 1981. EPA regulations, however, provide that the terms of an expired permit remain in effect until the effective date of a new permit. 40 C.F.R. 122.6. The permit remained in effect until January 15, 1984. On April 13, 1982, EPA delegated responsibility to the Department of Environmental Protection for the State of New Jersey ("DEP") for administering the NPDES program in New Jersey. 47 Fed. Reg. 17331 (April 13, 1982). On December 5, 1983, DEP issued permit no. 0029483 to defendant extending between January 15, 1984 and January 14, 1989 ("the 1984 permit"). Pl. Exh. 5. In addition to limiting discharges through outfalls 001 and 002 as in the 1978 permit, the 1984 permit also regulated outfall 003, through which defendant discharges waste water to the Perth Amboy publicly owned treatment works. The 1984 permit contained a compliance schedule for defendant to construct a waste water treatment plant. Id. at 20.

Defendant sought to negotiate modifications in the 1984 permit, in part because of the pending litigation between Witco and DEP, described in more detail below. While Witco belatedly requested an adjudicatory hearing on the permit, see, Constants Aff., Exh. K, a hearing never occurred.¹ Correspondence between DEP and Witco representatives indicates that the parties attempted to establish alternative effluent limitations. See, e.g., Letters from Mr. Edward Post, Section Chief of the Industrial Permits, Water Quality Management Section of the DEP, id., Exh. L and M. The permit was never formally modified.² Instead, on February 11, 1985, Witco provided to the EPA a copy of what Witco claimed was the revised and effective permit limitations. Id., Exh. P. The revised schedule provided for higher limitations on discharges of certain pollutants and claimed that no limitation applied to polychlorinated biphenyls ("PCBs"), in light of the ongoing litigation. Defendant sent a similar letter to the Bureau of Permits Administration of DEP. Id., Exh. Q.

The 1983 DEP Litigation

Prior to issuing the 1984 permit, on January 20, 1983, DEP commenced a civil action against defendant, alleging that defendant was discharging PCBs and other pollutants into surface water and the Perth Amboy sewer system through outfalls 001, 002, and 003. DEP claimed that the discharges violated its discharge permit and the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1. See, Complaint, Decl. of Edward Malley, Exh. A. After two years of litigation Witco and Dep entered into a stipulation of settlement on September 10, 1985. Decl. Malley, Exh. B.

The parties in the action now before the court dispute the subject matter of the 1983 Complaint. Defendant contends that the complaint covered all violations of the discharge permit. Plaintiff argues that the enforcement action was limited to illegal discharges of PCB to municipal sewers (Outfall 003) and surface waters (Outfall 001 and 002) and discharges of other pollutants which had blocked municipal sewers (through Outfall 003), causing an overflow of PCB-contaminated material.³ The court concludes upon its review of the 1983 Complaint that the scope of the Complaint was limited as plaintiff has [21 ELR 20821] described. The Complaint repeatedly refers only to the discharge of PCBs into the Perth Amboy Sewerage and Spa Spring Creek, See, id., P4-13. The only mention of other pollutants is in the Sixth Count of the Complaint in which DEP alleged that Witco discharged "solids and other industrial wastes in violation of its permit conditions into the city's sewer lines" which have "caused PCB contaminated sewage to spill over. . . ." Id., at 20.

As a result of the 1985 stipulation, the parties created a Site Action Committee ("SAC") to monitor the plant's remediation program. Pursuant to the agreement, DEP appointed three of the five members, including the committee chair. Witco further paid a fine of $ 1.5 million. The stipulation required the SAC:

to conduct Remedial Investigations/Feasibility Studies (RI/FSs) to determine the nature and extent of the contamination by polychlorinated biphenyls . . . and other hazardous substances at the Witco plant site which is the subject matter of this litigation and various areas in and about said plant site and the City of Perth Amboy's sewer system and in various areas which have been the subject of overflows and/or discharges from the said sewer system.

Id., P1. The penalty was "in satisfaction of claims for civil penalties up to the dates of this Stipulation." Id., P18. Upon Witco's compliance with the settlement agreement, DEP promised "not to require Witco to undertake additional remedial work at the Witco plant site with respect to the presence and risk, as actually known to DEP as of the effective date of this settlement agreement, of PCBs or other priority pollutants." Id., P22.

The Commencement Of This Action

After complying with the notice requirements of Section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365, see, op. (1/30/90), plaintiff commenced this action on July 26, 1989. Plaintiff seeks declaratory, injunctive, and monetary relief for violations of the 1978 and 1984 permits. Complaint, Exh. B.

On the day plaintiff filed its complaint, DEP served Witco with an Administrative Order and Notice of Civil Administrative Penalty Assessment ("Penalty Assessment") in the amount of $ 1,120,750. Decl. Malley, Exh. C. DEP ordered compliance with the 1984 discharge permit and assessed a fine for violations it identified in its findings. Witco requested a hearing on the Penalty Assessment.

On December 29, 1989, DEP issued a renewal permit effective February 1, 1990. Pl. Exh. 6.

Discussion

I. Defendant's Motion To Dismiss

The Clean Water Act bars a citizen suit if it would duplicate court proceedings initiated by either a state or federal agency. 33 U.S.C. § 1365. In order to preclude a citizen suit the defendant must establish that "the Administrator [of the EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation or order. . . ." 33 U.S.C. § 1365(b)(1)(B). In 1987, Congress amended Section 505(b)(1)(B), codified as 33 U.S.C. § 1365, by requiring preclusion under an additional provision, Section 309(g)(6), codified as 33 U.S.C. § 1319(g)(6). 29 U.S.C. § 1365(a).

Section 1319(g) authorizes the EPA to assess administrative penalties. 33 U.S.C. § 1319(g). It also prevents a plaintiff in a citizen suit from seeking a penalty if "a State has commenced and is diligently prosecuting an action under a state law comparable to this subsection." 33 U.S.C. § 1319(g)(6)(A)(ii). In contrast to § 1365, if the state or EPA commences an administrative action after plaintiff gives "notice of an alleged violation of section 1365(a)(1) of this title" and plaintiff fully complies with the notice requirements of § 1365, then this bar on civil penalty actions will not apply. 33 U.S.C. § 1319(g)(6)(B)(ii).

In this motion to dismiss, defendant contends that the 1983 action, consent decree, and subsequent monitoring through the SAC, as well as the 1989 civil penalty assessment, require the dismissal of this citizen suit. On a motion to dismiss for failure to state a claim under Rule 21(b)(2), Fed. R. Civ. P., the burden is on the moving party to establish that no set of facts exists to support plaintiff's claim. Conley v. Gibson, 435 U.S. 41, 45-46 (1977). To the extent that this motion requires the court to make findings concerning the scope of the 1983 litigation, the court will treat this motion as one for summary judgment. In order to prevail, defendant must establish that no genuine issue of fact exists and that, viewing the facts in the light most favorable to plaintiff, defendant will prevail on its claims as a matter of law. Fed. R. Civ. P. 56.

Plaintiff argues that the limited scope of the 1983 action coupled with the failure of DEP to diligently prosecute it requires this court to deny this motion. Plaintiff alleges that because DEP commenced the 1989 assessment after the filing of the complaint, the court may not dismiss the complaint based on the most recent DEP penalty proceedings.

A. Whether The 1983 Action Precludes The 1989 Complaint

In order to be entitled to a dismissal of the 1989 Complaint, defendant must establish that the 1983 lawsuit included the identical claims, that DEP diligently prosecuted the claims, and that the prosecution occurred in a court proceeding. 33 U.S.C. Sec. 1365(b)(1)(B). It is undisputed that DEP vigorously prosecuted the initial 1983 action in state court. This court, however, must determine the scope of the preclusive effect of that action.

In general, the claims adjudicated in a consent decree rather than the allegations of the underlying complaint define the extent of the adjudication. SPIRG v. Georgia-Pacific Corp., 615 F. Supp. 1419, 1432 [16 ELR 20039] (D.N.J. 1095); Hudson River Fishermen's Ass'n v. County of Westchester, 686 F. Supp. 1044, 1051-1053 [18 ELR 21451] (S.D.N.Y. 1988). In the case before the court, however, the stipulation implicitly was co-extensive with the DEP Complaint. Decl. Malley, Exh. B. The court concludes that the 1983 Complaint and stipulation, therefore, adjudicated claims concerning discharges of PCB through outfalls 001, 002, and 003, as well as discharges of solids and industrial wastes into the Perth Amboy sewer system through outfall 003 through September 10, 1985.

The court concludes that following § 505(b)(1)(B) permit violations 8, 11, 12, 13, 18, 19, 24, 34, and 39 must be dismissed, without prejudice to defendant's right to establish that other pre-1985 violations were covered by the 1983 Complaint.

Defendant maintains that the activity of the SAC precludes a civil penalty action of § 1319(g)(6)(A). Even assuming that continued enforcement of a consent decree could constitute an administrative penalty action, defendant must prove that DEP was diligently prosecuting defendant's permit violations. In Atlantic States Legal Foundation, Inc. v. Tyson Foods, 682 F. Supp. 1186 [18 ELR 20924] (N.D. Ala. 1988), the United States District Court for the Northern District of Alabama held that an administrative order issued by the Alabama Department of Environmental Management addressing violations identical to a plaintiff's complaint constituted diligent prosecution. Id. at 1188-1189. The court, however, did not consider the extent to which the agency was monitoring the enforcement of that order. By contrast, in Student Pub. Interest Research v. Georgia-Pacific Corp., 615 F. Supp. 1419 [16 ELR 20039] (D.C.N.J. 1985), Judge Brotman held that DEP's monitoring of a consent decree did not qualify as diligent prosecution. The court explained that the preclusion provisions should operate "only when comparable action by an administrative agency is underway, not whenever an agency sees fit to approve the actions of private parties subject to its jurisdiction."⁴ Id. at 1427. The court concluded:

Defendant's interpretation of the Act would render citizen suits impossible when they are required most: instances where an agency encourages a polluter to believe its unlawful behavior will go unpunished.

Id. Following Georgia-Pacific this court must examine the conduct of the SAC in order to determine whether the SAC was engaged in diligent prosecution of defendant's violations.

Based on the allegations before the court, the court cannot find that the activities of the SAC immunize defendant from suit. Even accepting defendant's version of the fact, the creation of the SAC resulted in the appointment of DEP as joint managers of defendant's environmental discharges. The court concludes that DEP's role on the SAC was not comparable to that of a prosecuting agency. Although under the consent decree DEP maintained the right to bring subsequent [21 ELR 20822] enforcement proceedings, the court concludes that only when DEP actually brought penalty proceedings on July 26, 1989, did DEP begin to prosecute defendant's environmental violations. See, SPIRG v. American Cyanamid Co., 23 ERC 2044, 2049 [16 ELR 20517] (D.N.J. 1985) (finding that a consent judgment does not preclude a citizen suit and that DEP must seek penalties to diligently prosecute environmental violations).

B. The 1989 Penalty Assessment

Because DEP served the Penalty Assessment after the filing of plaintiff's notice of its intention to sue pursuant to § 1365(b)(1)(A), the penalty assessment is not timely under § 1319. Section 1319 cannot, therefore, preclude plaintiff's action. The question for the court is whether Section 505(b) of the Clean Water Act, § 1365, also applies to administrative penalty proceedings. If the court were to find § 1365 applicable, the court would have to consider whether DEP initiated the assessment in a timely manner so as to bar all or part of this action.

Prior to the 1987 amendments which created § 1319, the circuit courts were divided as to whether an administrative proceeding satisfied § 1365's requirement that the ongoing prosecution occur in federal or state court. Based on the plain language of § 1365, the Courts of Appeals for the Second and Ninth Circuits held that the preclusive effect of this section extends only to judicial, not administrative enforcement actions. Friends of Earth v. Consolidated Rail Corp., 768 F.2d 57, 63 [15 ELR 20674] (2d Cir. 1985); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 [18 ELR 20237] (9th Cir. 1987). See, Lykins v. Westinghouse Electric Corp., 715 F. Supp. 1357, 1359 [20 ELR 20191] (E.D. Ky. 1989); Maryland Waste Coalition v. SCM Corp., 616 F. Supp. 1474, 1481 [16 ELR 20158] (D.C. Md. 1985). This Circuit, however, held that an administrative enforcement action may qualify as an action "in a court" within the meaning of Section 505(b)(1)(B), § 1365. SPIRG v. Fritzsche, Dodge, & Olcott, Inc., 759 F.2d 1131 [15 ELR 20427] (3rd Cir. 1985); Baughman v. Bradford Coal Co., 592 F.2d 215 [9 ELR 20147] (3rd Cir. 1979), cert. denied, 441 U.S. 961 (1979). In the two Third Circuit cases, however, the court held that the administrative proceedings that were involved were not tantamount to a court action. Fritzsche, 759 F.2d at 1139. Baughman, 592 F.2d at 218-219.

In 1985, Congress gave the EPA the power to impose administrative penalties through Section 309(g) of the Clean Water Act, 33 U.S.C. § 1319(g). In 1987, Congress amended § 505 as follows:

Section 505(a) is amended by inserting "and section 309(g)(g)" after "Except as provided in subsection (b) of this section" [33 U.S.C. § 1365(b)(1)(B)].

P.L. 4, 100th Cong., Section 314(c), 101 Stat. 49 (1987). The amendment clarified that both Section 1365 and Section 1319 may preclude a citizen suit. The court is persuaded that the enactment of Section 309(g)(6) indicates that Congress did not intend for Section 505(b)(1)(B), 33 U.S.C. 1365(b)(1)(B), to apply to both judicial and administrative actions. See, Atlantic States Legal Foundation, 682 F. Supp. at 1188. Given the enactment of a special provision addressing the preclusion to be given to administrative actions, this court concludes that the holdings of Baughman and Fritzsche do not survive the addition of Section 309(g) to the Clean Water Act in 1987.

Were the court to accept defendant's view that Sections 505(b)(1)(B) and 309(g)(6) both define circumstances under which an administrative enforcement action can preclude citizen suits, then the addition of Section 309(g)(6)(B) would serve no purpose. The preclusion under Section 505 is greater than that of Section 309. Only civil penalty proceedings are barred under section 309, and plaintiffs may continue to sue if an administrative action is commenced after notice has been served but before a complaint has been filed. If defendant is correct that any administrative action against a violator commenced prior to the filing of a citizen suit complaint bars the suit, then Section 309(g)(6)(B)(ii) would never apply, since the broader prescription in Section 505(b)(1)(B) would always bar the citizen.

Because defendant's arguments make subparagraph (ii) of Section 309(g)(6)(B) surplusage, the court holds that only Section 309 can preclude a citizen suit. Since the 1989 assessment was not filed in a timely fashion according to that section, the court denies defendant's motion to dismiss the complaint based on the Penalty Assessment.

The exception afforded by § 309(b)(6) permits duplicative proceedings in instances such as the case at bar.⁵ The court is convinced, however, that in drafting § 309 to permit actions seeking equitable relief even when a citizen suit mirrors an administrative proceeding, Congress recognized and was sensitive to the fact that administrative agencies cannot provide relief completely comparable to that of a court.

Even under the prior decisions of this circuit holding that a penalty proceeding may be equivalent to a court action, this court concludes that the 1989 Penalty Assessment does not satisfy the requirements of Baughman and Fritzsche. In Baughman the court reasoned that the policies behind preclusion dictate that an administrative action may bar a citizen suit if the governmental agency is "empowered to grant relief that will provide meaningful and effective enforcement" and has the "power to afford relief which is the substantial equivalent of that available to the EPA in federal court. . . ." 592 F.2d at 218-219. In order to preclude a suit based on administrative action, defendant must also establish that the agency action relies on similar procedures as a court. Id.; Fritzsche, 759 F.2d at 1137.

Applying the first of this two part test and examining the capacity of DEP, the court notes that the agency lacks the power to afford injunctive relief or enforce its orders, N.J.S.A. 58:10a-10(e), two factors necessary for comparability.⁶ Baughman, 592 F.2d at 218-219; Fritzsche, 759 F.2d at 1138.

Second, considering the DEP procedures the court is also persuaded that the procedures afforded are insufficient for this court to find the DEP proceeding comparable to a court action. The Third Circuit has emphasized the importance of a citizen's right to participate in administrative proceedings. Baughman, 592 F.2d at 218-219; Fritzsche, 759 F.2d at 1138. The New Jersey statute contains no provision requiring notice to the public of an administrative enforcement action against a polluter, while providing for notice to the violator before assessing a penalty. N.J.A.C. 7:14-8.4. Plaintiff has no standing to intervene in the assessment unless defendant opposes the penalty assessment, therefore, foreclosing plaintiff's right to contest the amount of the proposed assessment. N.J.A.C. 7: 14A-8.14. In fact, defendant is disputing the assessment, but were defendant to settle the assessment action with DEP, plaintiff would have no right to challenge the terms of that settlement or seek judicial review. The court, however, is satisfied that in other respects the DEP proceeding by providing for an independent decision maker and the right to conduct discovery and present evidence does afford the parties essential procedural rights. N.J.S.A. 52:14B-10(a) and (c). Cp., Fritzsche, 759 F.2d at 1139 (citing the lack of these procedural ingredients in an EPA enforcement action). The court nevertheless concludes that the DEP proceedings do not meet the standard of Fritzsche and Baughman both because of the limited powers of DEP and because citizens possess only a limited right of intervention and have no power to expand the relief DEP seeks. Assuming Section 505 continues to apply to administrative proceedings, the court concludes that the administrative action in the case at bar is not comparable to one brought in a state or federal court.

Defendant's Motion For A Stay

Defendant moves to stay the proceedings in this court during the pendency of the administrative proceedings based on the doctrine of primary jurisdiction. This doctrine "is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties." United States v. Western Pacific Railroad Co., 352 U.S. 59, 63 (1956). It applies "whenever the enforcement of the claim will require the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. . . ." Id. Defendant alleges that exercising jurisdiction disrupts the state's effort to establish a coherent [21 ELR 20823] pollution control program. This court, following other decisions of this district, concludes that permitting plaintiff to enforce the Act does not in any way encroach on DEP. SPIRG v. Fritzsche, 579 F. Supp. 1528, 1537 [14 ELR 20450] (D.N.J. 1984), affirmed, 759 F.2d 1131 [15 ELR 20427] (3d Cir. 1985); O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 642, 647 [12 ELR 20239] (E.D. Pa. 1981). See also, SPIRG v. Monsanto Co., 22 ERC 1137, 1139 [15 ELR 20297] (D.N.J. 1985) (finding doctrine inapplicable because agency's expertise applies to setting effluent limit, not to enforcing it). The issues that this court must resolve in this motion are legal questions that do not rely on the special expertise of DEP.⁷ See, Western Pac. R. Co., 352 U.S. at 64.

Alternatively, defendant argues that the court should abstain from asserting jurisdiction. Because this action is based on federal question jurisdiction and the resolution of this matter does not depend on state law, the court concludes that abstention is not appropriate in this matter. Railroad Comm. of Texas v. Pullman Co., 312 U.S. 496 (1941). Burford abstention counsels abstention when a state provides a regulatory system with judicial review to resolve state policies. Burford v. Sun Oil Co., 319 U.S. 315, 327, 334 (1943). The court finds that Burford is inapplicable because the scope of the case at bar exceeds the issues raised by the penalty assessment. New York PIRG v. Limco Manufacturing Corp., 697 F. Supp. 609, 612 (E.D.N.Y. 1987). See, Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 26-27 (1983) (court should consider adequacy of state court action). In addition, the court cannot find that the issues before DEP are primarily ones of state policy, in light of the national interest in a clean environment. See, Cone, 460 U.S. 23-26; Brewer v. City of Bristol, 577 F. Supp. 519, 526-527 (E.D. Tenn. 1983). Finally, plaintiff need not exhaust the administrative process when the Act permits plaintiff to file the action in the first instance in federal court. Western Pac. R. Co., 352 U.S. at 63.

While the court recognizes that defendant has spent substantial sums of money and made progress in reducing the discharge of pollutants since DEP commenced its suit against defendant in 1983, the court is mindful that defendant has in seven years failed to comply with its permit limits. Even though the Act imposes strict liability on polluters, defendant persists in its attempt to use its prior violations as a shield to further liability. See, Atlantic States Legal Foundation v. Tyson Food, Inc. No. 89-7322, slip op. at 2308 [20 ELR 20788] (11th Cir. 1990); United States v. City of Hoboken, 675 F. Supp. 189, 197 (D.N.J. 1987); Mumford Cove Ass'n, Inc. v. Town of Groton, 640 F. Supp. 392, 395 [16 ELR 20911] (D.Conn. 1986). In light of the serious charges of ongoing violations and because the Act, as construed above, anticipates duplicate proceedings by permitting simultaneous litigation and penalty assessments, this court will deny defendant's motion.

II. Plaintiff's Summary Judgment Motion

Plaintiff seeks partial summary judgment as to 1,735 alleged violations of the discharge limits and of monitoring and reporting requirements in permit 0029483, issued pursuant to § 402 of the Act. Plaintiff also seeks permanent injunctive relief.

Unless authorized by Section 402 or other limited sections of the Act, "the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a). Compliance with a Section 402 permit immunizes a defendant from liability under 33 U.S.C. § 1311.33. 33 U.S.C. § 1342(k), 1344(p). Failure to comply with the terms of a discharge permit constitutes noncompliance. 33 U.S.C. § 1344(s)(1-3). As a condition of all permits, the EPA requires the recipient of a permit to maintain records and to monitor discharges by filing Discharge Monitoring Reports ("DMRs") at intervals specified in the permit. 40 C.F.R. 122.41(1)(4).

Based on DMRs from January 1984 to September 1989 and laboratory reports which set forth the underlying data for DMRs, plaintiff claims that defendant violated the discharge limitations in its permit on 721 occasions. Pl. Exh. 9. Of these violations, plaintiff seeks summary judgment for an additional 417 violations for failure to report the violations in its DMRs. Pl. Exh. 10. Plaintiff further seeks summary judgment for 597 violations of the monitoring and reporting requirements of the permits. Pl. Exh. 11, 12.

A. Standing

Defendant claims that plaintiff lacks standing to bring action because plaintiff's affidavits do not establish that defendant has caused the conditions of which plaintiff complains. Plaintiff need not establish liability in order to meet the standing requirement. See, SPIRG v. Georgia-Pacific, 615 F. Supp. 1419, 1424 [16 ELR 20039] (D.N.J. 1985). Plaintiff's use of the waters into which the defendant discharged pollution is sufficient to establish standing under the Act. Friends of Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 [15 ELR 20674] (2d Cir. 1984); Sierra Club v. SCM Corp., 747 F.2d 99, 107 [14 ELR 20890] (2d Cir. 1984); SPIRG v. American Cyanamid Co., 23 ERC 2044, 2048 [16 ELR 20517] (D.N.J. 1986). Plaintiff's affidavits, Pl.Exh. 1, 19, establish use of the waters and potential injury by that use when read in light of the permit violations plaintiff alleges. The Act only requires that a plaintiff bringing a citizen suit "may be adversely affected" by a defendant's discharge. 33 U.S.C. 1365(g). The court concludes that plaintiff does have standing to bring this suit.

B. Statute Of Limitations And Laches

Defendant claims that the federal five year statute of limitations, 28 U.S.C. § 2462, applies to this citizen suit and bars any alleged violations prior to July 26, 1984. 28 U.S.C. § 2462 provides:

Except as otherwise provided by act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued . . . .

This limitation applies to suits for civil penalties under the Clean Water Act. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521 [18 ELR 20237] [(9th Cir. 1987); United States v. SCM Corp., 667 F. Supp. 1110, 1123 [18 ELR 20073] (D.Md. 1987) See, National Wildlife Federation v. Consumers Power Co., 657 F. Supp. 989, 1010 [17 ELR 20801] (W.D. Mich. 1987) (applying period to citizen suit under the Act), rev'd on other grounds, 862 F.2d 580 [19 ELR 20235] (6th Cir. 1988).

The issue of whether 28 U.S.C. § 2462 applies to Clean Water Act citizen enforcement suits is currently before the United States Court of Appeals for the Third Circuit in PIRG v. Powell Duffryn Terminals, Inc., no. 89-5831, 89-5861. Every court in this district which has considered this issue has held that the five year period is inapplicable to citizen suits. SPIRG v. Anchor Thread Co., 22 ERC 1150, 1154 [15 ELR 20964] (D.N.J. 1984); SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 1084 [16 ELR 20517] (D.N.J. 1985); SPIRG v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1203 [15 ELR 21051] (D.N.J. 1985); PIRG v. United States Metals Refining, 681 F. Supp. 237, 240-241 [18 ELR 21253] (D.N.J. 1987); SPIRG v. Monsanto, 600 F. Supp. 1474 [15 ELR 20294] (D.N.J. 1985); SPIRG v. Tenneco Polymers 602 F. Supp. 1394, 1399 [15 ELR 20309] (D.N.J. 1985); SPIRG v. American Cyanamid Co., 23 ERC 204, 2050 [16 ELR 20517] (D.N.J. 1986). These courts have also held that no state statute of limitation applies to citizen suits. Id.

In AT&T Bell the court reasoned that since DEP actions under the State Water Pollution Control Act, N.J.Stat. Ann. 58:10A-10 have no statute of limitations, the policy of promoting state enforcement would be threatened by imposing a five year limitation on citizen suits. 617 F. Supp. 1190, 1203. See, U.S. Metals, 681 F. Supp. at 241 (emphasizing the primacy of promoting state enforcement). In other cases, the courts expressed concern about the waiting period [presumably referring to the 60 day notice provision] before a citizen suit may be brought. Id.; Tenneco Polymers, 617 F. Supp. at 1399.

Despite the lack of a limitations period on DEP actions under New Jersey law, this court concludes that the five year limitations period should apply because the plaintiff who brings a citizen suit effectively represents the United States:

Any benefit from the lawsuit, whether injunctive or monetary, inures to the public or to the United States. The citizen suit provision was designed to supplement administrative enforcement, not to provide [21 ELR 20824] a private remedy. Under these circumstances it seems most appropriate that the same statute of limitations applies to a citizen action as to a federal administrative action.

Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 449-450 [15 ELR 20785] (D.Md. 1985). Accord, Sierra Club v. Simkins Industries, Inc., 617 F. Supp. 1120, 1124-1125 [15 ELR 21012] (D.Md. 1985). A plaintiff suing under the citizen suit provisions of the Act seeks a federal remedy to a federal statute. To hold that no limitations period should apply in the face of a federal statute that implicitly recognizes the value of repose is contrary to the broad language of 28 U.S.C. § 2462. The citizen suit provision does not authorize the adoption of state statute of limitations. While the district courts have held that the statute should not borrow from state law, by the reasoning of these courts, they nonetheless effectively borrow the state limitations period (and, in this case the lack of limitations).

This court agrees with the United States Court of Appeals for the Ninth Circuit's conclusion that § 2462 should apply to citizen suits because "a citizen enforcement suit is also an 'action . . . for the enforcement of [a] civil fine.'" Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521 [18 ELR 20237] (9th Cir. 1987). See, Atlantic States Legal Found. v. Al Tech Specialty Steel Corp., 635 F. Supp. 284, 287 [17 ELR 20125] (N.D.N.Y. 1986); Connecticut Fund for the Environment v. Job Plating Co., 623 F. Supp. 207, 213 [16 ELR 20596] (D.Conn. 1983).

The court holds that a plaintiff's cause of action accrues at the time defendant files its Discharge Monitoring Reports because the filing of the DMR is the earliest time when the public can be deemed to have notice of a permit violation. See, Friends of the Earth v. Archer Daniels Midland Co., 24 ERC 1993, 1995 (N.D. N.Y. 1986); Atlantic States, 635 F. Supp. at 287. The court further holds that the statute of limitations was tolled by the service of the 60 day notice letter because it gave defendant notice of plaintiff's claims. Atlantic States, 635 F. Supp. at 288.

Plaintiff argues that because the Act does not preempt more rigorous state requirements, even if the court finds the five year statute of limitations applicable, the court must apply New Jersey's more stringent state law. Pl. Reply Br. at 23. As explained above, however, the courts are unanimous in concluding that the citizen suit provision does not borrow a state statute of limitation. Plaintiff also notes that the EPA permits states to opt for certain state procedures over federal ones, citing 40 C.F.R. 123.25(a). The court cannot conclude that a statute of limitations is a procedural rule. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99 (1945).

As to claims not barred by the statute of limitations, defendant argues that laches should bar all of plaintiff's claims predating the September 1985 Stipulation of Settlement. The United States Supreme Court has held that laches is no defense to a suit to enforce a public right. United States v. California, 332 U.S. 19, 39-40 (1947); United States v. Summerlin, 310 U.S. 414, 416 (1940). See, United States v. RePass, 688 F.2d 154, 158 (2d Cir. 1982). In addition, numerous courts have found laches inapplicable to citizen suits under this Act. See, Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 [11 ELR 20053] (9th Cir. 1980); SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 1085 [16 ELR 20517] (D.N.J. 1987); SPIRG v. Georgia-Pacific Corp., 615 F. Supp. at 1428. Even if laches could in theory apply to a citizen suit, Connecticut Fund for the Environment v. Upjohn Co., 660 F. Supp. 1397, 1414 [17 ELR 21137] (D. Conn. 1987), defendant has not demonstrated prejudice from the timing of the filing of this suit. Id.

C. Res Judicata and Preclusion Based On The DEP Litigation

The court need not determine whether the formal doctrine of res judicata applies given that § 1365 bars relief for violations that were prosecuted in a prior proceeding. As discussed in Part I of this opinion, 28 U.S.C. § 1365 bars any claim adjudicated by the 1983 action and consent order. The court concludes that the scope of the order includes discharges of PCBs at Outfalls 001, 002, and 003, as well as discharges of pollutants at 003, causing an overflow of PCB contaminated material. The court, therefore, will not grant summary judgment as to pre-settlement claims related to these issues or claims barred by the statute of limitations. Unless the parties can agree upon which actual violations are precluded, the court will hold a factual hearing to determine whether plaintiff is entitled to summary judgment on any of the pre-1985 violations.

D. The Validity Of The 1984 Permit

Defendant contends that its version of the 1984 permit, quoted above, was "accepted and ratified by DEP." Def. Opp. Br. at 48. Alternatively, defendant alleges that the SAC suspended Witco's permit limits. Id. at 32-33.

Although not entirely clear from the papers, defendant implicitly contends that DEP may ratify a permit modification by silence. The record is entirely devoid of any evidence suggesting that DEP, in fact, ever accepted the schedule of limitations described previously. The 1989 Penalty Assessment is clear evidence that DEP did not regard the 1983 permit as having been modified to reflect defendant's schedule of February 11, 1985.

Defendant also argues that the 1985 stipulation which does not refer to any permit immunized defendant from liability for discharging PCBs. The only evidence supporting defendant is that the Penalty Assessment did not assess any penalty for PCBs. DEP has, nevertheless, taken the position that it has authority to make such an assessment. Pl. Exh. 6.

Because the court concludes that no genuine issue of fact exists on the question of modification, the court need not reach the issue of whether DEP had the power to modify a permit by ratification or implicitly by settlement, in a manner completely contrary to the applicable administrative statutory requirements. See, N.J.A.C. 7:14A-8.9; N.J.A.C. 7:14-7.5. See, SPIRG v. Hercules, Inc., 23 ERC 2081, 2087 (D.N.J. 1986). See also, SPIRG v. Anchor Thread Co., 22 ERC 1150, 1153 [15 ELR 20964] (D.N.J. 1984) (holding defendant cannot escape liability by showing that it could have met statutory exemption without evidence that it applied and was granted an extension to comply with Act).

The court concludes that no issue of fact exists as to whether DEP adopted the permit limitations contained in defendant's letter of February 11, 1985, or in any other way modified the 1983 permit. Turning to the question of the effect of the activities of the SAC, defendant has no authority to support its claim that, as a matter of law, DEP has the power to entirely suspend all discharge permits, much less the SAC. Without any discharge permit, all of defendant's emissions would be prohibited by the Act. 33 U.S.C. § 1311(a). The court concludes that a committee established pursuant to a stipulation does not have the power to authorize the discharge of pollutants in violation of a permit.

E. Other Defenses

Defendant contends that plaintiff is seeking summary judgment by duplicating violations. The court concludes that defendant may incur liability for excessive discharges, failure to report violations, and failure to monitor its discharges in accordance with the permit since defendant incurs each of these duties to comply in accepting a permit. See, Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1115, n.9; SPIRG v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1539, n.14, aff'd on other grounds 759 F.2d 1131 [15 ELR 20427] (3d Cir. 1985).

Defendant also argues that because it has taken samples more frequently than required by its permit, it should only be held for violations based on the minimum number of samples required. This court finds that the fact that defendant monitored samples with greater frequency than required does not excuse defendant from liability. SPIRG v. P.D. Oil & Chemical Storage, Inc., 29 ERC 1131, 1132 (D.N.J. 1987). See, SPIRG v. American Cyanamid Co. 23 ERC 2044, 2051 [16 ELR 20517] (D.N.J. 1986); SPIRG v. AT&T Bell Laboratories, 23 ERC at 1214. This conclusion is inescapable given that the permit itself imposes a duty on defendant to report additional monitoring results. Pl. Exh. 5, Part I at 3.

III. Motion For A Preliminary Or Permanent Injunction

The court having determined that plaintiffs are entitled to summary judgment as to all post-settlement violations must determine whether to grant a preliminary or permanent injunction. In acase involving the Act, the United States Supreme Court explicitly rejected the notion that an injunction follows as a matter of course upon a finding of a statutory violation. Weinberger v. Romero-Barcelo, 456 [21 ELR 20825] U.S. 305, 316 [12 ELR 20538] (1982). See, Town of Huntington v. Marsh, 884 F.2d 648, 651 [19 ELR 21350] (2d Cir. 1989).

Plaintiff has clearly established irreparable injury and actual success. Defendant alleges that a permanent injunction will not serve the public interest because it may result in disrupting planned remediation and may exacerbate PCB contamination. The questions defendant raises go only to the scope, not to the appropriateness of an injunction. The court, therefore, orders the parties to submit forthwith proposed orders concerning the scope of the relief that this court should order.

Conclusion

For the foregoing reasons, defendant's motion to dismiss or stay this action is denied. Plaintiff's motion for partial summary judgment as to the post-settlement violations is granted. The court will, if necessary, hold a hearing on the issue of pre-settlement violations. The court will determine what injunctive relief is appropriate upon receiving detailed submissions from the parties by June 1, 1990. Plaintiff is directed to submit a proposed form of order consistent with this opinion forthwith.

1. Witco formally sought to modify the 1984 permit only in a March 13, 1990, letter to the Bureau Chief of DEP requesting that the permit limitations be suspended under the 1985 stipulation.

2. Defendant claims that Mr. Post agreed to an extension of the permit limits in a May 21, 1984 letter. In fact, Mr. Post offered to modify the final permit "[p]rovided that Witco also confirms in writing that the preceding revised compliance schedule will resolve this hearing issue." Constants Aff., Exh. M. Defendant has produced neither a confirming letter nor the formal promised modification. Defendant has similarly failed to explain the absence of these additional documents. Reading the letter in the light most favorable to defendant, the court interprets the Post letter as an offer to modify the permit. Based on the evidence before it, this court can only conclude that defendant did not accept this offer.

3. Outfalls 001 and 002 are discharges from defendant's facility to surface waters, i.e., Spa Spring Creek. Outfall 003 is the point of defendant's discharge to the Perth Amboy city sewer lines. Pl. Exh. 5, Part IV, at 13-16; Part V at 24.

4. Although Georgia-Pacific predates the 1987 amendments to the Clean Water Act and considers only preclusion under Section 505, 33 U.S.C. Sec. 1365, the definition of diligent prosecution is identical under Section 1319.

5. Of course, even under Section 505, a citizen suit is not precluded by subsequent litigation brought by the EPA or a state enforcement agency.

6. Defendant argues that since DEP has the power to fine defendant for up to $ 50,000 per violation per day, N.J.S.A. 58:10A-10, the case at bar is distinguishable from Baughman. Baughman involved a hearing board with the authority to fine polluters $ 12,500 per day. 592 F.2d at 219. While the court acknowledges that the power to levy greater fines increases the deterrent for failing to comply, in light of the factors discussed above, the court concludes that this potential for large monetary sanctions does not by itself dictate a finding that the administrative action is comparable.

7. The recently filed application to modify the DEP permit does not affect the questions before the court concerning past violations. See, SPIRG v. Fritzsche, Dodge & Olcott, 579 F. Supp. 1528, 1537 [15 ELR 20427] ("We see no justification for weakening the effectiveness of the section 505 citizen's suit by finding that the mere filing of a renewal application ousts the district court's jurisdiction for the time that EPA spends considering the application.") (footnote omitted).