ELR Citation: ELR 21225
No(s). 89-3946 (D.N.J. Mar 31, 1993)

The court holds that claims of plaintiff citizen and environmental groups in a Federal Water Pollution Control Act (FWPCA) §505 citizen suit against a fluoropolymer manufacturer are not moot or barred under FWPCA §309(g), and the court grants summary judgment for the plaintiffs as to 66 monitoring violations and 27 reporting violations. The court first holds that plaintiffs' action is not moot. Although the defendant has already paid a penalty to the government for the same violations, the possibility that substantial additional penalties may be imposed in this litigation creates a sufficient case or controversy to avoid constitutional mootness. The court next holds that the action is not barred by FWPCA §309(g)(6). The court holds that a state-issued "compliance evaluation inspection report" delivered before plaintiffs filed their 60-day notice of violations did not constitute commencement of the state prosecution, but rather that a later "Order and Notice" filed by the state after the plaintiffs had filed their notice was the commencement of the state action. Because the state "commenced" its action after the plaintiffs filed their notice, the citizen suit is not barred.

The court next holds that it has jurisdiction over the plaintiffs' claims even though FWPCA §505(a)(1) does not permit citizen suits that are based on wholly past violations. Only some of the violations were alleged to have occurred after the filing of the complaint. The court rejects the parameter-by-parameter approach which would require plaintiffs to make good-faith allegations of ongoing violations as to each parameter separately, and instead views the national pollutant discharge elimination system (NPDES) permit as a whole, allowing good-faith allegations of ongoing violations as to any one parameter to establish jurisdiction over all past and present permit violations.

The court holds that plaintiffs have standing to bring the suit, because they have shown personal injury fairly traceable to the challenged action, and their injury is likely to be redressed by a favorable decision. The assessment of additional penalties would result in further deterrence against future violations by other violators. The court also holds that evidence that the reported violations were the result of laboratory error is not sufficient to allow defendant to escape liability, in light of the FWPCA's placing the burden on permit holders to monitor accurately their own discharges. However, where laboratory error is actually shown, the court holds that defendant will be liable for a monitoring violation rather than a discharge violation. The court holds that there is a genuine issue of material fact as to whether or not composite sampling was performed in accordance with the NPDES permit terms, while granting summary judgment as to several monitoring violations to which defendant raised no specific objection. Finally, the court grants summary judgment to the plaintiffs on three reporting violations where the defendant failed to report violations that are manifest from the record.

Counsel for Plaintiffs
Bruce J. Terris, Laureen M. Tyler
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Peter J. Sacripanti, John T.S. Williams
Sidley & Austin
875 Third Ave., New York NY 10022
(212) 906-2000