Public Interest Research Group of New Jersey v. Magnesium Elecktron Inc.

No. 89-3193 (JCL) (D.N.J. January 23, 1992)

The court holds that a chemical company violated the effluent discharge, monitoring, and reporting requirements of its national pollutant discharge elimination system (NPDES) permit, and that environmental organizations have standing to seek injunctive relief against the company for these violations and are entitled to a permanent injunction restraining the company from continuing to violate its permit. On the issue of standing, the court first holds that interests asserted by members of the environmental organizations are sufficient to show actual or threatened injury, since affidavits submitted by members state that but for pollution, they would swim, drink, and fish in waterways into which the company discharges wastewater. That the members live downstream from the company's discharge point does not affect their standing. The court further holds that the organizations are injured by the company's failure to monitor and report effluent discharges as required by the Federal Water Pollution Control Act (FWPCA). The court finds that the organizations' members have submitted affidavits that establish their interest in the affected waterways. The organizations have provided evidence that the effluents threaten, and may have already diminished, the aquatic life in the waterways. The organizations have also provided evidence that the effluents discharged by the company cause or contribute to the kinds of injuries alleged. The court holds that the organizations' members have a redressable claim, since a favorable decision would force the company to comply with its permit. The court also holds that the organizations' actions to protect their members' health, recreational, aesthetic, and environmental interests in the surrounding waterways and to enforce the FWPCA to obtain cleaner waterways are germane to their organizational purpose. Finally, the court holds that the relief sought does not require the individual participation of the organizations' members, since they seek compliance with the Act and the imposition of civil penalties.

The court next holds that the environmental organizations are entitled to summary judgment on the issue of the company's liability for violations of the total organic carbon (TOC) limitations of its NPDES permit. All the laboratories measuring the samples at issue followed EPA-approved methods to compensate for inorganic carbon and rendered valid measurements of TOC levels, and under these methods the company violated the TOC limitations contained in its permit in samples measured. Also, the company does not challenge the accuracy of the actual measurements performed. The court refuses to determine whether one of the EPA-approved methods for measuring TOC is inaccurate, because this decision is ill-suited for courts. Further, the court notes that by challenging the EPA-approved method of measuring TOC contained in its permit, the company is directly challenging its permit. If the company wished to challenge these procedures, it should have done so through the administrative process rather than in the present enforcement action. The court concludes that once it has been established that the company has discharged a pollutant in excess of its permit levels, unless the company can establish that the testing was inaccurate, summary judgment is appropriate. The court also holds that summary judgment is appropriate as it relates to the company's monitoring and reporting violations, because the company does not oppose the organizations' motion for summary judgment on these violations.

Finally, the court holds that the organizations are entitled to a permanent injunction restraining the company from continuing to violate its permit. Since the court will grant summary judgment on the company's TOC, monitoring, and reporting violations, the organizations have achieved success on the merits. There is a likelihood of irreparable injury if the company is likely to resume discharging its effluent, because EPA reports establish harm to aquatic life and the public health when certain substances discharged from the company's facility are discharged at levels in excess of its permit limitations. Also, the affidavit submitted by the company in support of its assertion that no likelihood of irreparable harm has been demonstrated is conclusory and equates irreparable with irreversible. The court holds that the company is likely to resume discharging its effluents unless a permanent injunction is issued because of the expense to the company of hauling its effluent, its failure to monitor and report its discharges, and its history. The court holds that the balance of harm clearly favors the issuance of injunctive relief, and enjoining the company from discharging harmful effluents is in the public interest, because the purpose of the FWPCA is to protect the public interest in the integrity of the nation's waters.

Counsel for Plaintiff
Susan J. McGolrick, Monica Wagner
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Lawrence A. Salibra II
Alcan Aluminum Corp.
100 Erieview Plaza, Cleveland OH 44114
(216) 523-6800

[22 ELR 20363]

Lifland, J.:

Opinion

Plaintiffs, Public Interest Research Group of New Jersey ("PIRG") and Friends of the Earth ("FOE") (also referred to collectively as "plaintiffs") move for a declaratory judgment that they have standing to litigate this action, and for partial summary judgment on the issue of liability against defendant Magnesium Elektron, Inc. ("MEI").

Background

Plaintiffs are non-profit corporations which seek injunctive relief and civil penalties for MEI's violations of its National Pollution Discharge Elimination System/New Jersey Pollution Discharge Elimination System ("NPDES/NJPDES") permit. This permit was issued pursuant to § 402(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1342(a), (the "Clean Water Act" 33 U.S.C. § 1251 et seq.) (hereinafter "the Act"). MEI is a New Jersey corporation engaged in the business of zirconium chemical production.

The Act was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through strict limits on discharges of pollutants. 33 U.S.C. § 1251(a)(1). The Act prohibits all discharges into navigable waters without a permit, which limits the type and concentrations of pollutants that may be discharged. Compliance with the permit is deemed compliance with the Act. 33 U.S.C. §§ 1342(k) and 1344(p). As a condition of the permit, the permit holder must install and maintain equipment to test its discharges and report the results to the Environmental Protection Agency (or the state agency) on Discharge Monitoring Reports ("DMRs"). 40 C.F.R. §§ 122.41(j) and 122.48 (1989). 33 U.S.C. § 1365 entitled "Citizen Suits" provides:

(a) Except as provided in subsection (b) of this section . . . any citizen may commence a civil action on his own behalf (1) against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . .

In 1976 the EPA issued to MEI permit number 0027537, which authorized it to discharge limited quantities of pollutants into the Wickecheoke Creek ("the creek"). The permit set forth discharge limitations and monitoring and reporting requirements for various pollutants. The EPA thereafter delegated responsibility for administering the NPDES program to the New Jersey Department of Environmental Protection ("NJDEP"). NJDEP issued to MEINJPDES permit number 0027537 in 1984, which authorized MEI to discharge limited amounts of pollutants into the creek. See Plaintiffs' Exhibit 1. This permit expired on November 30, 1989, and no new permit has been issued as of this date. By law, the expired permit remains in effect until a new permit is issued. N.J.S.A. § 52:14B-11, N.J.A.C. § 7:14A-2.3.

MEI discharges wastewater into the creek, which flows into the Delaware and Raritan Canal approximately 8.5 miles downstream from MEI's discharge point. The Creek and the Canal are hereinafter referred to collectively as the "waterways". The Delaware and Raritan Canal is part of the Delaware and Raritan Canal State Park. The New Jersey Water Supply Authority draws water from the Canal to supply potable water to several municipalities in New Jersey. Plaintiffs state that the Canal is a source of drinking water for approximately 1,000,000 people in central New Jersey. MEI does not dispute that the Creek and the Canal are used for recreational purposes such as fishing, boating and swimming. Moreover, the land adjacent to the waterways is used for hiking, exhibits and concerts.

MEI has stipulated to liability for violations from 1984 to 1989, including the following: 41 violations of the discharge limitations for total dissolved solids, sodium, temperature and oil; 76 violations of the monitoring requirements; 4 violations of the reporting requirements; and 2 bypass violations. See Plaintiffs' Exhibit 3.¹ This motion involves 27 alleged violations of discharge limitations for Total Organic Carbon ("TOC"), and MEI's failure to report and monitor as required by its permit, in violation of §§ 301, 308 and 402 of the Act. The permit limits TOC discharges to 20mg/liter to be monitored one day per month and reported to NJDEP no later than the 25th day of the month. See Plaintiffs' Exhibit 1; and Plaintiffs' Exhibit 5 which lists the TOC violations.

Discussion

I. Standing

PIRG and FOE move for a declaratory judgment that they have standing to litigate this action. An organization has standing where:

1) the organization's members would have standing to sue on their own,

2) the interests the organization seeks to protect are germane to its purpose, and

3) neither the claim asserted nor the relief requested requires individual participation by its members.

Public Interest Research Group of New Jersey v. Powell Duffryn, 913 F.2d 64, 70 [20 ELR 21216] (3d Cir. 1990), citing Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343 (1977); Automobile Workers v. Brock, 477 U.S. 274 (1986). In Powell PIRG and FOE brought suit pursuant to 33 U.S.C. § 1365(a) against a permit holder for violations of its operating permit under the Clean Water Act. That defendant opposed [22 ELR 20364] the plaintiffs' motion for summary judgment on liability, in part, on the basis that PIRG lacked standing. The defendant argued that PIRG's members lacked standing on their own under the first prong of the Hunt test. The Third Circuit noted that the Act confers standing to the limits of the Constitution. Id. at 70 n.3. The court stated that individual standing requires that a plaintiff show:

1) an actual or threatened injury suffered as a result of the conduct of the defendant,

2) which is "fairly traceable to the challenged action", and

3) "is likely to be redressed by a favorable decision".

Powell, 913 F.2d at 70, quoting Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982).

A. Individual Standing of Plaintiffs' Members

MEI argues, as did the defendants in Powell, that plaintiffs have failed to establish that their members suffered an actual injury that can be traced directly to its discharge of effluents. MEI argues that its violations are "technical" in nature and too minor to contribute to plaintiffs' injuries, and that any pollution of the waterways is caused by other sources, such as the sun and duck droppings. MEI also asserts that plaintiffs have not established that their injuries would be redressed by a favorable decision.

MEI does not dispute any facts concerning plaintiffs' standing. Rather, MEI contests the legal standards by which standing is determined.

1. Actual Injury

In support of their position that they have standing, PIRG and FOE submit affidavits of their members. See Plaintiffs' Exhibits 1-5. Plaintiffs' members state that they live nearby and use the affected waterways for recreation, that they avoid eating fish or drinking the water that originates from the waterways due to their pollution, that they rely on PIRG and FOE to protect their interest in the waterways, and that they use the waterways and the surrounding land to hike, fish, boat, study nature and swim. One affiant states that he has high blood pressure which requires him to limit his sodium restriction (an admitted effluent). See Exhibit 2 P4-6. This affiant also states that he cannot swim in the polluted waters due to his psoriasis, although he could swim in the waters if they were clean. Id.

Plaintiffs provide reports which state that excess Total Organic Carbon ("TOC") depletes the amount of dissolved oxygen in the water, which in turn affects the survival of fish and other aquatic life. See Plaintiffs' Exhibits 8, 9 and 11 to their Summary Judgment motion. Plaintiffs also provide a report by the New Jersey Department of Environmental Protection which states that the Wickecheoke Creek has been deemed to have "moderately degraded fisheries" due to wastewater discharges. See Plaintiffs' Exhibit 12 attached to their Reply Brief on standing.

MEI characterizes the affiants' injuries as "general and generic environmental concerns" which are insufficient to establish a direct injury. The court disagrees. In Powell the organizations presented affidavits of their members which stated that they resided in the vicinity or owned property or recreated on or near the waterway in question. The members stated that they were bothered by the smell and oily sheen of the water and stated that they would boat, fish or swim in the water if it was cleaner. The Third Circuit held that the members stated sufficient injury to satisfy the Supreme Court's requirement in Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972) (holding that harm to aesthetic and recreational interests is sufficient to confer standing). Powell, 913 F.2d at 71. The Powell court noted that the interests at stake need not be large to be cognizable. Id.

As in Powell, plaintiffs' members have submitted affidavits in which they state that but for the pollution, they would swim, drink and fish in the affected waterways. Chaim and Elaine Gold, among others, stated that their health has been affected by the excess discharge of sodium and oil. Julie Howat stated that she does not drink the water provided to her from the waterways, nor does she eat fish known to come from these waters, although she would if the water were known to be cleaner. These interests are sufficient under Powell and Morton to show actual or threatened injury to PIRG's and FOE's members.

Nor does the fact that the members live downstream from MEI's discharge point affect their standing. As Judge Thompson noted in Public Interest Research Group v. Yates Industries, 757 F. Supp. 438, 443 [21 ELR 20966] (D.N.J. 1991), "it is enough to show that plaintiffs' members have suffered injuries through waters directly affected by any illegal discharges". To hold otherwise would enable a polluter to "avoid suit by controlling all access to some discrete body of water which flows into another waterway, ensuring that no potential plaintiff gained access to the actual discharge point, thus giving the polluter free reign to damage downstream points." Id.

Plaintiffs also argue that they and their members have suffered injuries as a result of MEI's failure to monitor and report as required by its permit. Plaintiffs assert that the purpose of the monitoring and reporting requirements is, in part, to assist the public in enforcement of the statute. Therefore, MEI's failure to monitor and report as required by its permit prohibited plaintiffs from bringing suit. See Plaintiffs' Exhibits 5 and 6. Plaintiffs also argue that due to MEI's failure to monitor and report its discharge levels, plaintiffs were unable to obtain accurate information to conduct research, prepare reports and make proposals and recommendations to the State Legislature, etc. Id.

Violations of the Act include failure to monitor or report as required by the permit and courts have permitted citizen suits to enforce the monitoring and reporting aspects of the Act. See Yates, 757 F. Supp. at 442 and 448; Sierra Club v. Simkins Industries, Inc., 617 F. Supp. 1120, 1132 [15 ELR 21012] (D.Md. 1985), aff'd, 847 F.2d 1109 [18 ELR 21053] (4th Cir. 1988), cert. denied, 109 S. Ct. 3185 (1989); Menzel v. County Utilities Corp., 712 F.2d 91, 94 [14 ELR 20251] (4th Cir. 1983). Therefore, the court concludes that plaintiffs have demonstrated that they are injured by MEI's failure to monitor and report as required by the Act.

2. Fairly Traceable

MEI argues that plaintiffs' injuries are not directly traceable to its violations, claiming inter alia that its effluents did not cause the pollution.

The Third Circuit has held that the causation requirement of the second prong of Valley Forge does not require plaintiffs to show "to a scientific certainty that defendant's effluent, and defendant's effluent alone, caused the precise harm suffered by the plaintiffs". Powell, 913 F.2d at 72. Instead, plaintiffs "need only show that there is a 'substantial likelihood' that defendant's conduct caused plaintiff's harm". Id. quoting Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75 n.20 [8 ELR 20545] (1978). Under the Clean Water Act, this likelihood may be established by demonstrating that:

1) the defendant has discharged some pollutant in concentrations greater than allowed by its permit;

2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant; and

3) that this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.

Powell, 913 F.2d at 72.

Plaintiffs assert that they have established discharge of pollutants in concentrations greater than allowed by MEI's permit through MEI's stipulations of liability and its DMRs, which establish discharges in excess of its permit limitations. MEI argues that the violations were "technical" and insufficient to cause plaintiffs' injuries. This identical argument was rejected by Judge Thompson in Yates, 757 F. Supp. at 443 (noting that this argument is contrary to the intent of the Act) and Judge Ackerman in the District Court decision in Powell, 627 F. Supp. 1074, 1083 (D.N.J. 1986). See also SPIRG v. Tenneco Polymers, Inc., 602 F. Supp. 1394, 1397 [15 ELR 20309] (D.N.J. 1985) ("The effect of the defendant's argument would be to prohibit any citizens' suits against violators of the FWPCA unless the violation was so great or the waterway so small that the direct impact of the discharges could be pinpointed. This interpretation of the FWPCA would be directly contrary to its intent.")

Plaintiffs' members have submitted affidavits which establish their interest in the waterways into which MEI discharges its effluents and the effects on their interests. As noted supra, plaintiffs provide evidence that the effluents, inter alia, threaten (and in fact have already diminished) the aquatic life in the waterways. See also Yates, 757 F. [22 ELR 20365] Supp. at 443 (excess copper, lead, cadmium and zinc can harm aquatic life). Therefore, plaintiffs met the second requirement of Powell.

Finally, plaintiffs provide evidence that the effluents discharged by MEI cause or contribute to the kinds of injuries alleged by plaintiffs. For example, the excess sodium causes Chaim Gold to avoid drinking the water due to his high blood pressure. The oil discharge prevents Mr. Gold from swimming in the water. The excess TOC causes several of plaintiffs' members to avoid drinking the water and eating fish caught in the waterways.

Plaintiffs also state that MEI's failure to monitor or report its discharge as required by its permit resulted in plaintiffs' inability to have correct figures with which to do research or bring suit to enforce the Act. Citizens depend upon the monitoring and reporting by the permit holder to bring suits to enforce the Act, and without this information plaintiffs cannot enforce the Act as "private attorneys general". See Middlesex County Sewerage Authority v. Sea Clammers, 453 U.S. 1, 17 [11 ELR 20684] (1980). Plaintiffs assert that their subsequent independent review of MEI's figures established 30 additional violations which plaintiffs were unable to allege in the complaint due to MEI's failure to report them. This injury, if proved, would be traceable to MEI's failure to monitor and report as required by its permit.

3. Redressability

The last Valley Forge test for individual standing is that the plaintiff's injuries are "likely to be redressed by a favorable decision". Powell, 913 F.2d at 73, quoting Valley Forge, 454 U.S. at 472. The inquiry focuses on the relationship between the plaintiff's injury and the judicial relief sought. Powell, 913 F.2d at 73. The court noted that where a plaintiff alleges harm to the water quality because a defendant violated its permit limitations, an injunction would redress the injury by forcing the defendant to comply with its permit. Id. The plaintiff "need not show that the waterway will be returned to pristine condition in order to satisfy the minimal requirements of Article III." Id.

The Powell court went on to note the connection between civil penalties and the injuries to the plaintiffs. "Where Congress has expressly granted a right of action and plaintiffs have shown 'a distinct and palpable injury', plaintiffs 'may invoke the general public interest in support of their claim'". Id., quoting Warth v. Seldin, 422 U.S. 490, 501 (1975). The court also noted that penalties will deter the defendant and other permit holders. Id. See also Yates, 757 F. Supp. at 444.

As in Powell, the rights of PIRG and FOE members will be redressed by a favorable decision, which would force MEI to comply with its permit. Therefore, the individual members of PIRG and FOE would have a claim that can be redressed by this court.

B. Interests of the Organization

To determine whether PIRG and FOE have standing to litigate this case, the court must next determine whether the interests that the organizations seek to protect are germane to their purpose. Plaintiffs provide the affidavits of Jeanette Jenkins and Brent Blackwelder (Plaintiffs Exhibits 5 and 6) which state that their organizations conduct research, make recommendations to the legislature, submit comments to the New Jersey DEP concerning the issuance of permits under the Act, and initiate citizen-enforcement suits under the Act. PIRG's and FOE's actions to protect their members' health and recreational, aesthetic and environmental interests in the surrounding waterways and to enforce the Act to obtain cleaner waterways are germane to their purpose as organizations.

C. Individual Participation

The final aspect of the standing test under Hunt requires a determination of whether the claims asserted or the relief requested require individual participation by the organizations' members. In this case, as in the redressability question, plaintiffs seek compliance with the Act, as well as the imposition of civil damages. This relief does not require the individual participation of the members of FOE or PIRG, since their interests will be served and redressed by a successful outcome of the suit.

Therefore, having met the 3 parts of the Hunt test, PIRG and FOE have standing to litigate on behalf of their members.

II. Partial Summary Judgment on Liability

As noted supra, MEI has stipulated to liability for all permit violations except TOC.

A. TOC

Plaintiffs assert that they are entitled to summary judgment on liability since they have provided evidence through MEI's own DMRs to establish that MEI exceeded its permit limitations for discharge of TOC. Government-mandated records are treated as party admissions to establish civil liability under the Act. United States v. Ward, 448 U.S. 242 [10 ELR 20477](1980). Thus, numerous courts have granted summary judgment on liability based upon violations reported in a defendant's DMRs. SPIRG v. PD Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 1090 [16 ELR 20517] (D.N.J. 1986), aff'd, 913 F.2d 64 [20 ELR 21216] (3d Cir. 1990); Yates, 757 F. Supp. at 447-8; SPIRG v. Tenneco Polymers, 602 F. Supp. 1394, 1400 [15 ELR 20309] (D.N.J. 1985); Sierra Club v. Simkins Industries, Inc., 617 F. Supp. 1120 [15 ELR 21012] (D.Md. 1985); SPIRG v. Fritzsche, Dodge & Olcott, 579 F. Supp. 1528, 1538 [14 ELR 20450] (D.N.J. 1984), aff'd, 759 F.2d 1131 (3d Cir. 1985); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 452 [15 ELR 20785] (D.Md. 1985); SPIRG v. Georgia-Pacific Corp., 615 F. Supp. 1419, 1429-30 [16 ELR 20039] (D.N.J. 1985); PIRG v. GAF Corp., D.N.J., Civil Action No. 89-2283, November 20, 1990, slip op. pp. 25-28 [21 ELR 20678].

As noted supra, a violation of the discharge permit limitations violates the Act. 33 U.S.C. § 1311. Courts have held defendants strictly liable for such violations. PD Oil, 627 F. Supp. at 1087; SPIRG v. Georgia-Pacific, 615 F. Supp. at 1429-30; Simkins Industries, 617 F. Supp. at 1128; Chesapeake Bay, 608 F. Supp. at 451.

While MEI concedes that DMRs may be deemed admissions for purposes of liability, it asserts that they are not conclusive proof when challenged, citing Friends of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532 (W.D.N.Y. 1984). MEI states that its DMRs do not accurately reflect the TOC levels of its discharge because the laboratories performing the tests failed to purge inorganic carbon from the samples, resulting in artificially inflated TOC levels. MEI bases this argument on the affidavit of its former Senior Vice President Glen McIntyre. See Defense Exhibit B. McIntyre states that the testing protocol employed by the laboratories erroneously reported both organic and inorganic carbon. Id. at P6 and 7.

Some cases in this Circuit have held that summary judgment cannot be avoided as to liability simply by challenging the accuracy of the data in the DMRs. PD Oil, 627 F. Supp. at 1089 (citations omitted). Other courts have held that laboratory error may be used to challenge DMRs to oppose summary judgment, but only where the defendant presents direct evidence of errors in the actual tests performed which showed a permit violation. Yates, 757 F. Supp. at 447; Fritzsche, 579 F. Supp. at 1538; Tenneco, 602 F. Supp. at 1400; SPIRG v. AT & T Bell Lab., 617 F. Supp. 1190, 1205 [15 ELR 21051] (D.N.J. 1985). "[I]n light of the strong evidentiary emphasis placed on DMRs, defendant has a heavy burden to establish faulty analysis." Yates, 757 F. Supp. at 447. The burden is not met by "speculation" of measurement error. Id. Thus, in Yates the court found that the defendant's letters outlining its theories of other causes for the discharges were insufficient to create an issue of fact to preclude summary judgment, since the letters did not prove errors which occurred in the actual tests performed. Id.

Therefore, the only basis upon which MEI may oppose summary judgment on liability for TOC violations as a matter of law in this circuit is to demonstrate error in the actual tests performed. It has attempted to do this by the aforementioned affidavit of Dr. McIntyre, which states that in his opinion the analytical testing method used by Technion Labs and OBG Labs, Inc., which analyzed its samples from '84-89, did not accurately reflect TOC in its samples since it erroneously measured total carbon, rather than just organic carbon. See Defense Exhibit B at P5-6.

Plaintiffs provide the deposition of Omar Baturay ("Baturay"), the Vice President of Technion (which tested 11 samples from MEI). See Plaintiffs' Exhibit 12. Baturay states that Technion employed a procedure which purged inorganic carbon from MEI's samples. Id. at 17-18. Plaintiffs also provide an affidavit by Vincent Pugliese, the Vice President and CEO of Acutest (which tested 2 of MEI's samples). [22 ELR 20366] Pugliese states that Acutest likewise employed a test protocol which purged inorganic carbon from samples tested during the period in which Acutest tested MEI's samples. See Plaintiffs Exhibit 13 at pp. 1-2. Both labs employ the "compensation method" approved by the EPA.

MEI's samples were also tested by a third laboratory, OBG, which tested 14 MEI samples at issue in this case. In a letter to McIntyre, David Hill, OBG's Vice President, stated that OBG did not purge inorganic carbon from wastewater samples prior to testing. See Defense Exhibit B. However, Hill states in his deposition that OBG employs an EPA-approved method to compensate for inorganic carbon which subtracts the inorganic carbon results from the total carbon results to achieve an organic carbon level. See Plaintiffs' Exhibit 14 at 15-18. The EPA considers this method (EPA method 415.1) valid to measure TOC. See 40 C.F.R. Part 136 (cited in MEI's permit at p.3, Part I, section (j)(3)-Plaintiffs' Exhibit 2).

Contrary to MEI's assertions, all the laboratories measuring the samples at issue followed EPA-approved methods to compensate for inorganic carbon and render valid measurements of TOC levels. MEI violated the TOC limitations contained in its permit in samples measured by either method. At oral argument on this issue, MEI's counsel stated that MEI's opposition to summary judgment rests on its belief that the EPA-approved method employed by OBG and Technion overstated TOC levels and was inappropriate for MEI's wastewater samples. Therefore, MEI does not challenge the accuracy of the actual measurements performed, as required by Yates and Fritzsche. MEI has failed to meet its burden of establishing that the actual tests performed were inaccurate. See Yates, 757 F. Supp. at 447. Therefore, summary judgment is appropriate.

MEI opposes summary judgment by asserting that one EPA approved method for measuring TOC levels overstates TOC in its samples. Thus, MEI asks the Court to make a determination that one of the EPA-approved methods for measuring TOC is inaccurate. This is a decision ill-suited for courts.

Moreover, in Powell the Third Circuit noted that challenges to the validity of the terms of a defendant's discharge permit are not permitted by § 509(b)(2) of the Act. 33 U.S.C. § 1369(b)(2). 913 F.2d at 77-78. In Powell the defendant had argued that it could not be held liable for its excess discharges since they related only to continuous dischargers, while the defendant was only an intermittent discharger. The court rejected this claim, noting that § 1369 prohibited the court from entertaining the issue, notwithstanding its merits. Id.² The defendant had had an opportunity to challenge the conditions of its permit through the administrative process and the state court system within 30 days after issuance of the permit, but failed to do so. Hence, the defendant was barred from raising the claim in an enforcement action, since it had "forever" lost the right to do so. Id. at 78. Similarly, in Yates, Judge Thompson found that the defendant's argument thatDEP officials had orally promised that its permit would not be enforced by its terms was, in effect, a challenge to the terms of the defendant's permit, which was prohibited by § 1369. 757 F. Supp. at 445-46.

MEI's permit states that test procedures for pollutants, including TOC, shall conform to the methods set forth in regulations promulgated pursuant to § 304(g) of the Act. See Plaintiffs' Exhibit 1, p.8 to Brief in Support of Summary Judgment. The regulation enacted pursuant to § 304(g) sets forth the two aforementioned EPA-approved methods for measuring TOC. By challenging the EPA-approved method of measuring TOC contained in its permit, MEI is directly challenging its permit. If MEI wished to challenge EPA's standard procedures for measuring TOC as inappropriate for its wastewater, it should have done so within 30 days of the issuance of its permit rather than in the present enforcement action. See Powell, 913 F.2d at 78; Yates, 757 F. Supp. at 445; PD Oil, 627 F. Supp. at 1088.

As an alternative basis for opposing summary judgment, MEI states that there are issues of fact as to whether it caused the high TOC levels. As noted supra, a violation of the permit is a violation of the Act. 33 U.S.C. § 1311. Any discharge not pursuant to a permit is automatically a violation of the Act. As Judge Ackerman noted in PD Oil, Congress has determined what effluent levels are violative of the Act and it is not the court's role to reexamine this issue. 627 F. Supp. at 1083. Accord NRDC v. Texaco, 719 F. Supp. 281, 288-89 [20 ELR 20099] (D.Del. 1989), vacated in part on other grounds, 906 F.2d 934 [20 ELR 20949] (3d Cir. 1990). As noted in Tenneco Polymers, the legislative history of the Act establishes Congress' intent that no lengthy fact-finding occur during enforcement procedures.

[T]he bill . . . establishes and makes precise new requirements imposed on persons and subject to enforcement. One purpose of these requirements is to avoid the necessity of lengthy fact finding investigations at the time of enforcement. Enforcement of violations of requirements under this Act should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay.

Tenneco Polymers, 602 F. Supp. at 1400, quoting S. Rep. No. 414, 92nd Cong., 1st Sess. 64, reprinted in 1972 U.S. Code Cong. & Ad. News 3668, 3730. Thus, once it has been established that the defendant has discharged a pollutant in excess of its permit levels, unless the defendant can establish that the testing was inaccurate, summary judgment is appropriate. See Yates; PD Oil; Tenneco; Chesapeake Bay.

For the aforementioned reasons, summary judgment is appropriate on liability as to the 27 discharges of TOC.

B. Reporting and Monitoring

Plaintiffs assert that MEI failed on five occasions to report violations of the discharge limitations in its permit on its DMRs, which was subsequently discovered by plaintiffs upon examination of MEI's records. Plaintiffs assert that this failure resulted in their inability to assert an additional 30 discharge violations in the complaint.

Plaintiffs assert that MEI failed on 76 occasions to monitor pursuant to its permit, within the time period required by the permit. As a result, they allege that it is impossible to know the level of MEI's discharges at those times, which inhibits plaintiffs' enforcement activities under the Act.

MEI's permit requires it to monitor its discharge once a month and report any violations in its DMRs. See Plaintiffs Exhibit 2, p.2, Part I. MEI must certify that the submitted information is "true, accurate, and complete." Id. at 3, Part I, section (k)(4). MEI does not oppose plaintiffs' summary judgment motion as it relates to its monitoring and reporting violations. Therefore, summary judgment is appropriate as to these violations.

III. Permanent Injunction

Plaintiffs request a permanent injunction restraining MEI from continuing to violate its permit. Plaintiffs cite cases in which injunctive relief was granted upon a finding that the defendants exceeded the discharge limits in their permits.³ The Third Circuit, in affirming the permanent injunction entered in Powell, narrowed the scope of the injunction to eliminate injunctive relief against violations of future permits. Powell, 913 F.2d at 83. Accordingly, the court will not restrain MEI from violating any new permit. As to the existing permit

A court may only enter a permanent injunction 'after a showing of both irreparable injury and inadequacy of legal remedies, and a balancing of competing claims of injury and the public interest'.

Powell, 913 F.2d at 82, quoting Natural Resources Defense Council v. Texaco Refining and Marketing, Inc., 906 F.2d 934, 941 (3d Cir. 1990).

A. Success on the Merits

Since the court will grant summary judgment on the 27 TOC violations and the monitoring and reporting violations, plaintiffs have achieved success on the merits.

B. Irreparable Injury

1. Likelihood of Irreparable Injury

In Amoco Production Co, v. Village of Gambell, 480 U.S. 531, 545 [17 ELR 20574] (1987), the Supreme Court stated:

Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long [22 ELR 20367] duration, i.e. irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.

In Texaco Refining the Court of Appeals for the Third Circuit remanded the case to the district court since it had failed to apply traditional equitable principles to its injunctive relief analysis. However, the Court of Appeals advised the district court that it should bear in mind the aforementioned languagein Amoco. Texaco, 906 F.2d at 94.

Plaintiffs assert that Congress has determined that discharges of pollutants into the nation's waterways in excess of the levels set by the EPA a fortiori cause harm. As noted in Yates, the purpose of the Act is to reduce the total amount of effluent discharges, and injury occurs when permit limitations on discharges are exceeded. Yates, 757 F. Supp. at 454 (citations omitted).

Plaintiffs assert that there is an immediate threat of irreparable injury to aquatic life in the affected waterways, as well as to the health, recreational and aesthetic interests of its members. In support, plaintiffs provide an EPA report which states that the Creek has been affected by the discharges, and EPA reports which detail the harm which results from the various pollutants discharged by MEI. See Plaintiffs' Exhibits 12 (in Reply Brief on Standing), 8 and 11 (of initial moving brief).

In the 1990 State Water Quality Inventory Report, the Wickecheoke Creek is described as "moderately degraded" due to wastewater discharges. See Plaintiffs' Exhibit 12 at 109, 110 (in Reply Brief on Standing).

MEI has violated its permit discharge levels for total dissolved solids; sodium, temperature, oil and TOC.

An EPA report notes the toxicity of oils to aquatic organisms at levels as low as 1 mg/liter, and the long-term effect of oil pollutants incorporated into sediments in the waterways. See Plaintiffs' Exhibit 12 at 210-211, 219 to Summary Judgment Brief. This report also notes that the fish population is adversely affected at dissolved oxygen concentrations of 4 mg/liter or less. Id. at 226. Decreased oxygen levels also affect "aquatic insects and other animals upon which fish feed." Id. at 227.

Excess total dissolved solids, particularly sodium sulfate and magnesium sulfate, adversely affect persons suffering from cardiac disease and pregnancy-related toxemia. Id. at 394 and 395. Excess dissolved solids also have a deleterious effect on fish and other aquatic life. Id. at 397-398. See also Plaintiffs' Exhibit 11 to Brief in Support of Summary Judgment, at 1-2; 4-5.

"Increased temperatures accelerate the biodegradation of organic materials . . . which makes increased demands on the dissolved oxygen resources of a given system." Plaintiffs' Exhibit 12 at 423. Fish and other aquatic life are adversely affected by increased temperatures. Id. at 425-436.

The aforementioned reports establish harm to aquatic life and the public health when the aforementioned substances are discharged at levels in excess of MEI's permit limitations.

Plaintiffs also assert irreparable injury from MEI's failure to monitor and report pursuant to its permit requirements, in that plaintiffs are unable to research, report their findings to their members or legislative bodies and generally enforce the Act as intended by Congress.

In response, MEI asserts that plaintiffs have failed to demonstrate the likelihood of irreparable harm. In support, MEI provides the affidavit of Kathleen Keating, a Professor of Environmental Sciences. Keating's affidavit states only that in her opinion the "excursions at issue would not result in irreversible changes to the creek environment". See Defense Exhibit A at P5. The court is wary of Keating's conclusory affidavit, which equates irreparable injury with "irreversible" injury. In Amoco the Supreme Court described irreparable environmental injury as "of long duration". 480 U.S. at 545. Where such injury is sufficiently likely, injunctive relief is generally warranted to protect the environment. Id.

MEI further argues that plaintiffs have not shown actual injury to the environment. However, this argument is directly contradicted by the EPA report which found changes in the Creek which affected fish and other aquatic life. See discussion supra.

For the aforementioned reasons, there is a likelihood of irreparable injury if MEI is likely to resume discharging its effluent into the waterways.

2. Likelihood of resumption of discharge

Plaintiffs note that since 1989, shortly after they filed suit, MEI began voluntarily hauling its effluent to the Trenton Sewer Authority. Noting the expense of this procedure, plaintiffs assert that unless an injunction is issued, MEI will return to its former practice of discharging the effluent into the Creek. This is especially true, plaintiffs assert, in light of MEI's statement that it "will resume discharge". See Defense Exhibit B.

Economic hardship has been rejected as a basis for denying injunctive relief. See SPIRG v. Fritzsche, Dodge & Olcott Inc., 579 F. Supp. 1528, 1537 [14 ELR 20450] (D.N.J. 1984), aff'd, 759 F.2d 1131 [15 ELR 20427] (3d Cir. 1985); Yates, 757 F. Supp. at 456. Likewise, the economic cost of compliance is a relevant factor in determining whether resumption of discharge is likely. As noted, MEI has stated its intent to resume discharging into the waterways.

In addition, MEI has failed to report and monitor its discharge levels, as required by the Act. This renders the Act unenforceable as the NJDEP is unable to determine if MEI is discharging effluents within its permit requirements. See Sierra Club v. Simkins Industries, 847 F.2d 1109, 1115 [18 ELR 21053] (4th Cir. 1988). MEI has not provided the court with any evidence that establishes that a resumption of discharge will not result in discharge levels in excess of its permit limitations.

Moreover, MEI's history, which includes excess discharges before 1984, prosecution of which is barred by the Statute of Limitations, also supports a conclusion that MEI is likely to resume discharge.

In light of the expense of hauling its effluent, MEI's failure to monitor and report its discharges, and MEI's history, the court concludes that MEI is likely to resume discharging its effluents unless a permanent injunction is issued.

C. Balance of harm

Plaintiffs assert that the balance of harm requires the issuance of injunctive relief, since harm to the public health and aquatic life has been demonstrated. See Plaintiffs' Exhibit 11 and 12. As noted supra, economic hardship in complying with the Act does not outweigh the benefit to the community in ensuring compliance with the Act. Fritzsche, 579 F. Supp. at 1537; United States v. Ciampitti, 583 F. Supp. 483, 499 (D.N.J. 1984). The balance of harm clearly favors the issuance of injunctive relief.

D. Public Interest

The purpose of the Act is to protect the public interest in the integrity of the nation's waters. 33 U.S.C. § 1251 (a). Therefore, in this case injunctive relief enjoining MEI from discharging harmful effluents into the waterways is in the public interest. See Ciampitti, 583 F. Supp. at 499.

For the aforementioned reasons, the court concludes that a permanent injunction is appropriate to enforce the Act. Plaintiffs' counsel shall submit an appropriate order, consented to as to form.

1. MEI also stipulated to 50 additional violations occurring prior to 1984 which plaintiffs do not pursue because of the statute of limitations.

2. § 1369(b)(2) provides that challenges to permits issued under the Act "shall not be subject to judicial review in any civil or criminal proceeding for enforcement."

3. For example, SPIRG v. Monsanto, 29 ERC 1078 [18 ELR 20999] (D.N.J. 1988); Powell I, 720 F. Supp. 1158 (D.N.J. 1989); PIRG v. Witco Chemical Corp., 31 ERC 1571 [21 ELR 20820] (D.N.J. 1990); Yates, 757 F. Supp. 438, 454-55 (D.N.J. 1991).