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

Nos. 89-3146 (HLS), 90-968 (HLS) (D.N.J. October 15, 1990)

The court holds that the five-year statute of limitations in 28 U.S.C. § 2462 does not begin to run in a Federal Water Pollution Control Act citizen suit until the date the defendant files its discharge monitoring reports, and not from the date of violation. A plaintiff's cause of action accrues at the time the defendant files its discharge monitoring reports because the filing of the reports is the earliest time that the public can be deemed to know about the violations. The court holds that unreported violations are not subject to the five-year statute of limitations. Unreported violations are subject to the five-year statute of limitations only from the time that the public could reasonably have known of the violations. Since plaintiff became aware of the unreported violations only during discovery, the five-year statute of limitations does not bar any of the violations before the court.

[An earlier decision is this case is published at 21 ELR 20820.]

Counsel are listed at 21 ELR 20820.

[21 ELR 20825]

Sarokin, J.:

Memorandum Opinion

Before the court is plaintiff's further motion for partial summary judgment in accordance with this court's order of June 18, 1990.

Background

On June 18, 1990, this court entered an order granting plaintiff partial summary judgment as to the "post-settlement" violations. In reaching this disposition, the court determined that a five-year statute of limitations applies to citizen enforcement actions pursuant to 28 U.S.C. § 2462, and that the tolling period begins from the date of the defendant's discharge monitoring reports (DMR's). (May 17, 1990 Opinion, at 23). This conclusion was subsequently confirmed by the Third Circuit. See Public Interest Research Group of New Jersey, Inc. and Friends of the Earth v. Powell Duffryn Terminals, Inc., Nos. 89-5831, 89-5851, 89-5861, Slip op. at 21 [20 ELR 21216] (3d Cir. August 20, 1990) (citizen enforcement actions have five-year statute of limitations, to be tolled from time of DMR filings). The court also concluded that the Complaint and Stipulation of Settlement in the previous state action, New Jersey Department of Environmental Protection v. Witco Chemical Corp., N.J. Superior Ct., No. C-359-83 (hereafter the "state action"), only adjudicated PCB emissions from Outfalls 001, 002, and 003, as well as discharges from Outfall 003 which caused an overflow of PCB contaminated material. (May 17, 1990 Opinion at 25).

In light of its statute of limitations and res judicata determinations, the court requested the parties to agree as to which pre-settlement violations in Appendices A through D to the court's June 18, 1990 Order were barred. If the parties could not agree, the court indicated that it would "hold a factual hearing to determine whether plaintiff is entitled to summary judgment on any of the pre-1985 violations." (May 17, 1990 Opinion at 25). The parties having been unable to agree, plaintiff makes this further motion for summary judgment.

Discussion

The parties dispute: 1) whether the five-year statute of limitations applies to unreported violations (and whether Witco in fact reported violations in its pre-1985 DMRs); and 2) whether the settlement resolved ph and monitoring violations regarding Outfalls 001, 002, and 003.

1. The Statute of Limitations

Defendant argues that the five-year statute of limitations applies to unreported violations as well as to violations reported in the DMRs. Otherwise, defendant argues, "the five-year statute of limitations becomes meaningless and the defendant becomes exposed to a potentially indefinite duration of liability." (Defendant's September 24, 1990 Letter Brief at 4). Plaintiff counters that "defendant should not be permitted to avoid liability for violations which, through its own misconduct, it failed to make known to plaintiffs, the government regulatory agencies, and the public." (Plaintiff's Brief at 6).

This court's May 17, 1990 opinion and the Third Circuit Powell Duffryn opinion both held a five-year statute of limitations for reported violations, to be tolled from the date of the reporting, as opposed to the date of the violation. Both this court and the Third Circuit reached this conclusion by focusing on the issue of notice. (May 17, 1990 Opinion at 23) ("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"); PIRG, Inc. and Friends of the Earth v. Powell Duffryn Terminals, Inc., Slip op. at 21 ("[S]ince the responsibility for monitoring effluent rests with the defendant, 33 U.S.C. § 1318(a)(4)(A), and the public cannot reasonably be deemed to have known about any violation until the permit holder files its DMRs[,] we hold that the five year statute of limitations period does not begin to run until the DMRs listing the violations are filed"). See also, Atlantic States Legal Foundation v. Al Tech Speciality, 635 F. Supp. 284, 287-88 [17 ELR 20125] (N.D.N.Y. 1986).

Based on this rationale, the court rejects defendant's current contention. Unreported violations are only subject to the five-year statute of limitations from the time that the public could reasonably have known of the violations. Plaintiff only became aware of the unreported violations during discovery on this matter. Thus, the five-year statute of limitations does not bar any of the violations before the court on this summary judgment motion.

Defendant argues that, in fact, it did properly report its monitoring. (Defendant's Letter Brief at 4). However, this court rejected that argument in the previous summary judgment motion with regard to the post-October 1985 violations, (see June 18, 1990 Order at P1), and it rejects it now with regard to the pre-October 1985 violations. Thus, defendant is liable for those unreported violations prior to the settlement, and plaintiff's motion for summary judgment pertaining to these violations is hereby granted.

2. The Scope of the 1985 Settlement

Defendant claims that the 1985 settlement bars plaintiff's claims arising from pH violations from Outfall 003 as well as all monitoring and reporting violations related to the previously adjudicated PCB violations. These claims are unfounded.

This court previously ruled that the 1985 settlement adjudicated "discharges of PCBs at Outfalls 001, 002, and 003, as well as discharges of pollutants at 003, causing an overflow of PCB contaminated material." (May 17, 1990 Opinion at 25). The court agrees with plaintiff that pH violations are different from PCB violations, and under the terms of the settlement, these violations were not adjudicated.

Furthermore, this court previously rejected defendant's claim that monitoring and reporting violations are equivalent to emission violations. (May 17, 1990 Opinion at 27) ("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"). Monitoring and reporting violations were not the subject of the 1985 settlement, and thus, those violations are not barred.

[21 ELR 20826]

Conclusion

The court agrees with and adopts plaintiff's position as to the statute of limitations and scope of the settlement disputes. Plaintiff has identified only two violations which are barred as a result of this court's May 17, 1990 opinion: Nos. 27 and 40 in Appendix C to this court's June 18, 1990 Order. The court hereby grants plaintiff summary judgment on all other violations identified in Appendix A through D to that Order.

Order

Upon consideration of plaintiffs' further motion for partial summary judgment pursuant to this Court's Opinion of May 17, 1990, and Order of June 18, 1990, the arguments of counsel, and the briefs submitted by the parties in support or opposition thereto, it is this 15th day of October 1990,

ORDERED, that plaintiffs' further motion for partial summary judgment on the issue of defendant's liability for its violations of the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., is granted as to Nos. 1-119 in Appendix A, Nos. 1-103 in Appendix B, Nos. 1-26, Nos. 28-39, and Nos. 41-194 in Appendix C, and Nos. 1-167 in Appendix D, attached to this Court's Order of June 18, 1990, and it is further

ORDERED, that summary judgment is denied as to violation Nos. 27 and 40 in Appendix C to this Court's Order of June 18, 1990.