Public Interest Research Group of New Jersey, Inc. v. Star Enterprise

No. 89-5370 (D.N.J. October 7, 1991)

The court denies defendants' certification motion to bring an interlocutory appeal of the court's earlier ruling that defendant is liable in a Federal Water Pollution Control Act (FWPCA) citizen suit for violating its national pollutant discharge elimination system permit and for permanent injunctive relief. The court previously found defendant liable for 112 violations of its New Jersey pollutant discharge elimination system permit for excess discharges of permitted pollutants into Newark Bay and tidally related waters. In addition, the court previously found a substantial likelihood of repeated violations and permanently enjoined defendants from further discharges. Defendants subsequently brought this certification motion to contest the court's ruling.

The court concludes that there is no substantial ground for difference of opinion concerning defendant's liability or how the court calculated the number of defendant's violations. The court observes that defendant erroneously attacks the validity of the permit, which is before the New Jersey Department of Environmental Protection, not the court. Defendant does not offer any authority contradicting the court's previous conclusion as to liability and violation calculations.

Counsel for Plaintiffs
Bruce J. Terris, Mark V. Dugan
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Edward Lloyd
Rutgers Environmental Law Clinic
15 Washington St., Rm. 334, Newark NJ 07102
(201) 648-5576

Counsel for Defendant
Louis M. DeStefano, Jennifer L. Kapell
Carpenter, Bennett & Morrissey
100 Mulberry St., 17th Fl., Newark NJ 07102
(201) 622-7711

[22 ELR 20101]

Fisher, J.:

Letter Opinion

Before the court is defendant Star Enterprise's motion for an order modifying this court's Order entered July 22, 1991. By that Order, this court granted plaintiffs' motion for partial summary judgment as to liability and permanent injunctive relief. Defendant requests a Certification for the purposes of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Specifically, defendant seeks an interlocutory appeal of this court's finding of liability and its determination of the number of violations giving rise to liability. Defendant has filed a Notice of Appeal with regard to the parts of this court's Order issuing a permanent injunction and granting plaintiffs' motion for summary judgment on the liability issue. For the reasons set forth below, the court denies defendant's motion.

By order entered July 22, 1991, this court granted plaintiffs' motion for partial summary judgment as to defendant's liability for 112 violations of the Clean Water Act and denied defendant's cross-motion for summary judgment or, alternatively, a stay. Of the 112 Permit violations that this court found, fifty-eight were the result of defendant's twice exceeding the monthly average limitation for petroleum hydrocarbons. This court held that the violation of a monthly average limitation constitutes a violation of the limitation for each day of the month. Defendant, on the other hand, asserts that these violations constitute only two violations.

This court also permanently enjoined defendant from violating its New Jersey Pollutant Discharge Elimination System Permit ("Permit"). Defendant is currently challenging the process by which the New Jersey Department of Environmental Protection ("NJDEP") issued the Permit. In pursuing its challenge, defendant is following New Jersey administrative procedures.

Appeals under 28 U.S.C. § 1292(b) constitute a limited exception to rule of appellate jurisdiction that appellate review is restricted to final judgments. 28 U.S.C. § 1291. Interlocutory appeals are permitted only when, in the district court's opinion, there is "substantial ground for difference of opinion" concerning a "controlling question of law" and "an immediate appeal . . . may materially advance the ultimate termination of the litigation. . . ." 28 U.S.C. § 1292(b). The legislative history of § 1292(b) "indicates that it was to be used only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation." United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). See also Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958).

In this court's opinion, there is no substantial ground for difference of opinion concerning defendant's liability. Also, the manner in which this court calculated the number of defendant's violations is not a controlling question of law. As a result, defendant's motion is denied.

Defendant asserts that there is substantial basis for difference of opinion with respect to this court's finding of liability. Defendant argues that a finding of liability was premature because defendant has challenged the validity of its Permit before the NJDEP. In support of its contention, however, defendant attacks the validity of the Permit. The question before this court is not, and never was, whether the Permit is valid. That question is before the NJDEP and may later be considered by the New Jersey Superior Court, Appellate Division.

The question initially before this court was whether defendant could be held liable for violating the Permit before the NJDEP ruled on the validity of the Permit. This court found that defendant could be held liable and did so. Defendant offers no authority contradicting this court's conclusion. In addition, this court sees no substantial basis for the opinion that defendant may ignore the requirements of its permit simply because defendant has challenged its validity.

Defendant asserts that the manner in which this court calculated the number of violations defendant committed is appropriate for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This court disagrees. The manner in which this court calculated the number of violations is not a controlling issue of law.

This court's calculation of the fifty-eight disputed Permit violations controls neither the finding of liability nor the granting of the permanent injunction. In addition to the disputed fifty-eight violations, this court found fifty-four Permit violations. The manner in which this court calculated these fifty-four violations is not in dispute. These violations alone are a sufficient basis for a finding of liability and the granting of a permanent injunction. The calculation of violations is relevant only to the amount of penalty that this court should impose on defendants. Until this court imposes a penalty based on the fifty-eight violations, this issue is not ripe for appeal.

Defendant's motion to amend the July 22, 1991, Order is denied. An order accompanies this letter opinion. No costs.