ELR Citation: ELR 20097
No(s). 86-1833 (D.N.J. Jul 5, 1990)

The court holds that an electroplating and metal finishing plant owner is liable in a citizen suit under the Federal Water Pollution Control Act (FWPCA) for violations of the Act's pretreatment standards and reporting requirements. The court first holds that plaintiffs need not show that defendant's contamination actually reached, passed through, and interfered with the operation of a publicly owned treatment works (POTW). Federal pretreatment standards reflect explicit determinations that the discharge of certain concentrations of pollutants will cause interference or pass through. The court next holds that the upset defense is unavailable to defendant. Defendant has not demonstrated that its noncompliance with the pretreatment standards was exceptional, unintentional, and temporary, resulting from factors beyond its reasonable control. Defendant has also not demonstrated that it timely and properly notified the POTW of its non-compliance. The court holds that good-faith and de minimis defenses are also unavailable. The Act imposes strict liability on persons responsible for pollutant discharges. Neither the Act nor its regulations excuse rare violations. The court holds that defendant has not raised any genuine issues of material fact. Wastewater samples taken by defendant downstream from its plant are appropriate for determining compliance with FWPCA pretreatment standards, even though they were taken upstream from the point designated in defendant's local permit. Defendant's assertions that some samples were taken from the main sewer while the system was recycling fail to identify when the system was recycling or to assert that such information can be provided. Finally, the court enjoins future violations. Plaintiffs have demonstrated not only likely but actual success on the merits, and irreparable injury would result if the injunction were not granted. Ongoing violation of the discharge limitations is directly contrary to Congress' determination that these discharges should be eliminated. Defendant's violations are ongoing. The court holds that defendant will suffer minimal economic injury if the injunction is granted. Defendant did not even assert economic injury as a basis for denying the injunction. Finally, because the public is profoundly interested in enforcement of FWPCA standards, granting the injunction is in the public interest.

[A previous decision in this litigation is published at 20 ELR 20394.]

Counsel for Plaintiffs
David Tykulsker
Ball, Livingston & Tykulsker
108 Washington St., Newark NJ 07102
(201) 622-4545

Cousnel for Defendant
Sheldon Schachter
Harvard Industries, Inc.
2330 Rockvauxhall Rd., Union NJ 07083
(201) 686-6000