Public Interest Research Group of New Jersey v. Yates Industries

No. 89-5371 (AET) (D.N.J. April 8, 1992)

The court preliminarily enjoins a New Jersey industrial company in a Federal Water Pollution Control Act citizen suit from further violating its New Jersey pollutant discharge elimination system permit at one of its facility's discharge points, after it was previously found liable for multiple violations of its permit. The court grants only preliminary injunctive relief, because the company may be able to present new evidence requiring review of its liability. The court holds that a handful of monitoring violations do not support a finding of irreparable harm where the company is substantially in compliance with its monitoring requirements. Nonetheless, the company's permit violations for several pollutant parameters raises the specter of permanent damage. Moreover, the type of harm resulting from the continued discharge violations is not reparable through monetary damages and outweighs any harm to the company. The court holds that an injunction is necessary to ensure compliance that is quick, in light of the seriousness of the company's continuing permit violations, and orders each party to submit proposed permit compliance schedules.

[A previous court decision in this case is published at 22 ELR 20343.]

Counsel are listed at 22 ELR 20343.

[22 ELR 21463]

Thompson, J.:

Memorandum and Order

Plaintiffs and plaintiff-intervenor ("plaintiffs") come before this court seeking to permanently enjoin defendant Yates Industries, Inc.¹ from violating the parameters of its New Jersey Pollution Discharge Elimination System/Discharge to Surface Water ("NJPDES") permit at discharge point DSN 002, which covers stormwater discharge at the Yates facility. Plaintiffs present evidence of continued violations at DSN 002 and assert that these breaches in the terms of the permit justify granting the relief sought.

This court incorporates by reference the court's opinion of February 13, 1991 for purposes of factual background. Public Interest Res. Group [of New Jersey] v. Yates Indus., Inc., 757 F. Supp. 438 [21 ELR 20966] (D.N.J. 1991). Among other actions, the court found that the parameters of DSN 002 were intended to be enforced and that plaintiffs were not equitably estopped from enforcing those discharge limitations. Id. at 445-46. The court granted in part and denied in part Yates' motion for partial summary judgment on various allegations of permit violations, and granted in part and denied in part plaintiff's motion for summary judgment on liability for permit violations. Id. at 456. Ultimately defendant was found liable for 659 discharge, monitoring and reporting violations at DSN 001, and 322 such violations at DSN 002. See id. at 453, and plaintiffs' exhibits in support of summary judgment.

The court also granted in part plaintiff's motion for injunctive relief. We issued a preliminary injunction as to bioassay discharge violations at DSN 001 and a permanent injunction as to all other effluent discharge violations at DSN 001. Id., at 455-56. The court declined to impose injunctive relief for DSN 002, however.

"Defendant relied in good faith, albeit mistakenly, on certain statements by DEP officials in relation to this outflow . . . . While defendant is still liable for the violations, it would be inequitable to impose an injunction in light of these circumstances, without giving defendant the opportunity to come into full compliance under less stringent sanctions. Other remedies should be sufficient to bring defendant into compliance now that any abiguities have been settled by this opinion. Defendant will, of course, be fully responsible for all effluent violations which occur at DSN 002; this should provide ample motivation for immediate compliance with the terms of its permit."

Id. at 454.

Plaintiffs now seek a permanent injunction against defendant ordering it to comply with all permit requirements for DSN 002. In support of this motion, plaintiffs point to evidence which purportedly establishes that Yates has not yet come into full compliance with the NJPDES permit. Plaintiffs contend that Yates, by continuing to discharge hazardous materials in excess of authorized parameters, has demonstrated that it cannot be trusted to comply with its permit. Plaintiffs also assert that continuing violations present the danger of irreparable harm to the environment and the public interest.

Injunctive relief may be warranted where plaintiffs have shown a reasonable likelihood of success on the merits and irreparable harm if the relief is not granted. In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982). In order to receive a permanent injunction, plaintiffs must demonstrate actual success instead of probable success on the merits. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12. Injunctive relief should only be granted where legal remedies would be insufficient. Id. at 544-47. The court should also balance plaintiffs' interests with those of the non-moving party and other affected persons and weigh the public interest. Arthur Treacher's at 1143.

Plaintiffs have shown success on the merits of their claim, which alleged that defendant violated the parameters set out in its NJPDES permit for DSN 002. This court's February 1991 opinion granted summary judgment to plaintiffs on numerous violations of that permit as it applied to this discharge point. Thus plaintiffs have prevailed on the issue of liability.

Defendant urges that plaintiffs have not won on the merits because the court did not impose a permanent injunction in its prior opinion. Thus, defendant posits that "success on the merits" requires a party to receive an injunction before seeking an injunction. This "Catch-22" position is clearly erroneous. The standard for injunctive relief requires plaintiffs to establish success at the liability stage.

Yates further argues that plaintiffs have not succeeded on the merits because they have not proven by summary judgment the violations which allegedly occurred after the court's prior opinion. The first prong of the standard for injunctive relief does not impose an obligation to continuously reprove the merits of the case, however, nor does it require plaintiffs to establish success on every one of their allegations.

Defendant claims that plaintiffs have not succeeded on the merits because there is "continuing uncertainty as to the final judgment this Court may enter with regard to" DSN 002. Def. Opp. Br. at 23. Defendant relies on Federal Rule of Civil Procedure 54(b), which states that an order that does not dispose of every remaining issue or party to a litigation is subject to revision unless it makes "an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." After discovery related to the intervention by the New Jersey Department of Environmental Protection and Energy ("DEPE"), Yates intends to ask the court to revise its ruling that the permit placed discharge limitations at DSN 002.

Rule 54(b) is intended to address the question of when a claim is final for purposes of appeal; it is not intended to inject uncertainty into litigation where the court has previously made a firm holding. Further, while revision is possible under Rule 54(b), there is an extremely strong presumption in favor of the law of the case. "The rule of the law of the case is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter." United States v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198 (1950). Generally, a court will not reconsider its own decision from an earlier stage of the trial unless there are compelling reasons. Pincus v. Pabst Brewing Co., 752 F. Supp. 871, 873 (E.D. Wis. 1990).

This court has no reason to believe at this time that it will revise its prior findings of liability. However, it is conceivable that defendant will be able to present a strong basis for revisiting the issue of defendant's liability at DSN 002. We would therefore refrain from imposing a permanent injunction at this time, and will instead review plaintiffs' motion as if it were a request for a preliminary injunction.

On the issue of irreparable harm, plaintiffs submit evidence of five monitoring violations at DSN 002 since this court's February 1991 opinion. P1. Ex. 2. For the reasons expressed in its prior opinion, 757 F. Supp. at 454, the court is not inclined at this point to find that a handful of monitoring violations supports a finding of irreparable harm where defendant is substantially in compliance with it monitoring [22 ELR 21464] requirements. For the first time, plaintiffs also raise allegations relating to the inclusiveness of Yates' monitoring at DSN 002. P1. Reply Br. at 8-9. As discovery is continuing on DEPE's intent regarding the permit parameters at DSN 002, we will decline to rule on the merits of plaintiffs' contention until subsequent dispositive motions are filed pursuant to the scheduling order set down by United States Magistrate Judge Freda L. Wolfson.

Plaintiffs also present evidence of 23 discharge violations at DSN 002 between March and November of 1991, involving copper, lead, zinc, oil and grease, total suspended solids, pH balance and chemical oxygen demand. P1. Ex. 1. The court cannot presume irreparable harm "from the mere fact of statutory violation, thus improperly focusing on the integrity of the permit process rather than the integrity of the Nation's waters." NRDC v. Texaco Refining and Marketing, Inc., 906 F.2d 934, 941 [20 ELR 20949] (3d Cir. 1990). However, the Third Circuit noted the increased likelihood of irreparable harm from environmental injury. Id. "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long 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." Amoco, 480 U.S. at 545 (emphasis in original) (quoted in Texaco at 541). The continued record of permit violations, in light of the prior history at this site, strong supports the conclusion that we should "no longer be satisfied that the defendant will comply with its permit absent the issuance of an injunction." PIRG v. Powell Duffryn Terminals, Inc., 720 F. Supp. 1158, 1168 [20 ELR 20152] (D.N.J. 1989), aff'd, 913 F.2d 64 [20 ELR 21216] (3d Cir. 1990), cert. denied, U.S. , 111 S. Ct. 1018 (1991); see Yates, 757 F. Supp. at 455; see also PIRG v. Rice, 774 F. Supp. 317, 329 (D.N.J. 1991).

Defendant asserts that plaintiffs have failed to carry their burden under Texaco of establishing "that irreparable harm would ensue if the injunction was not granted." 906 F.2d at 937. In support of this position, Yates submits the affidavit of Marwan M. Sadat, Ph.D., which presents the opinion that "the continuation of this discharge" pending completion of remedial efforts at DSN 002 "would not constitute any adverse impact on water quality or the environment" in the Delaware River Watershed and the Crosswicks Creek Watershed. Sadat Affid. P18. The court notes plaintiffs' response that Dr. Sadat's analysis does not consider the impact of any excess discharge on the immediately affected waters of Mile Hollow Brook and its unnamed tributary.

As this court noted in its prior opinion, however, "here defendant has violated effluent parameters, not mere technical statutory provisions." 757 F.2d at 455 (referring to DSN 001). Plaintiffs need not establish that any injury would be measurable. Powell Duffryn, 720 F. Supp. at 1167. Defendant has violated its permit for several parameters at DSN 002 — copper, lead, zinc, total suspended solids, and oil and grease — since February of 1991, which raises the specter of permanent damage. The court already found irreparable harm at DSN 001, which has discharge limitations for these parameters which are similar or identical to those at DSN 002. See P1. Br. for Partial Summary Judgment, May 25, 1990, Ex. 20.

This court was presented with evidence in connection with plaintiffs' initial motion for summary judgment which is relevant to the effect of these discharge violations on the environment. See P1. Br. for Partial Summary Judgment, May 25, 1990, at 41-43; P1. Reply Br. for Partial Summary Judgment, Nov. 19, 1990, at 4-6. Plaintiffs now submit further evidence in support of the contention that irreparable harm will result if injunctive relief is not granted. For example, an affidavit from Dr. Bruce A. Bell, an Environmental Engineer, states that "metals (such as copper, lead, zinc and arsenic), total suspended solids (TSS) and oil and grease accumulate in the sediments of a water body and thereby adversely affect the organisms in the benthic layer of the water body." P1. Ex. 6, Bell Affid. P16; see also P1. Ex. 9, EPA, Quality Criteria for Water (1986) at 7 (oil pollutants). Thus, continued violations of the discharge limitations for these substances in any concentration can lead to the biological degradation of the unnamed tributary. Dr. Bell also states that the evidence collected by Dr. Sadat exhibits uneven distribution of pH levels at the Yates plant, disproving the theory that pH discharge violations were due to acid rain rather than industrial activities at the facility. Bell Affid. P17.

Additionally, the type of harm resulting from Yates' continuing discharge violations is not reparable through monetary damages in light of the nature of injuries caused by release of hazardous materials. Amoco, 480 U.S. at 545; see also Yates, 757 F. Supp. at 455. Thus, plaintiffs have established that they face irreparable harm which cannot be properly addressed by legal remedies unless injunctive relief is granted.

Any harm to defendant from granting injunctive relief would not outweigh the interests of other interested parties, nor the public interest. As this court explained in relation to plaintiffs' request for injunctive relief at DSN 001, "[a]n order enjoining defendant from further violations will directly serve the purposes of the Act and the purpose of this litigation; ensuring that improper effluent discharges are not entered into the nation's waterways." 757 F. Supp. at 455. The public interest in clean waters is extremely strong, and Congress, through its enactment of the Federal Water Pollution Prevention and Control Act, has shown the high value it places on this interest.

Defendant argues that an injunction should not be entered because it have [sic] been making good faith efforts to comply with the permit and because immediate compliance is not feasible due to practical considerations and regulatory requirements. Further, defendant asserts that an injunction would harm the public interest by forcing it to avert its efforts from implementing pollution control measures which in the long run will be more effective. However, defendant has had sufficient time to come into compliance with its permit. This court issued summary judgment over a year ago as to liability on hundreds of permit violations at, DSN 002. Yates has had sufficient time to implement a solution. This court is convinced that an injunction is necessary to ensure compliance that is as quick as possible in light of the seriousness of defendant's continuing permit violations.

We are persuaded that injunctive relief is warranted under the facts of this case. This injunction should provide additional impetus towards Yates' efforts at DSN 002. However, we recognize that compliance is not possible overnight. Yates should take whatever measures necessary to come into compliance as soon as possible, and to follow through with appropriate permanent solutions. We will therefore direct the parties to provide the court with a proposed schedule and form of order whereby defendant will come into compliance with its NJPDES permit requirements at DSN 002. Each submission should include a separate explanation of the basis for the proposed schedule, outlining why the particular plan will provide for the swiftest practical road towards full compliance.

The court will therefore grant plaintiffs' motion for injunctive relief at DSN 002, albeit on a preliminary rather than permanent basis. We will await finalizing the precise form of the injunction until the parties have submitted their proposed schedules and forms of order.

It is therefore on this 8th day of April, 1992

ORDERED that the motion by plaintiffs for injunctive relief at DSN 002 be and hereby is granted in substantial part, and defendant will hereby be preliminarily enjoined from further violating the terms of its NJPDES permit as it relates to discharge limitations at DSN 002, and it is further

ORDERED that the parties each submit to the court within 21 days a proposed schedule and form of order for preliminary injunctive relief whereby defendant will come into compliance with its permit requirements at DSN 002, including an explanation of the basis for the proposal. The parties shall each have seven days in which to respond to the other party's proposed schedule before this court enters its final form of preliminary injunctive relief.

1. Yates Industries has changed its name to Circuit Foil USA, Inc. For the sake of consistency between opinions, and because each party refers to defendant as "Yates Industries," the court will continue to refer to defendant by is [sic] prior name.