ELR Citation: ELR 20678
No(s). 89-2283 (D.N.J. Nov 20, 1990)

The court holds that a corporation is liable in a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA) for 123 violations of its national pollutant discharge elimination system (NPDES) permit at its plant in Wayne, New Jersey. The court first holds that New Jersey's administrative action against the corporation does not bar the citizen suit by brought by environmental groups. FWPCA §309(g)(6) bars a citizen suit for FWPCA violations if the Environmental Protection Agency (EPA) or a state is prosecuting an action for those violations, or if EPA or a state has obtained a final order and collected penalties for those violations under the FWPCA or comparable state law. The court notes that EPA has taken no action against the defendant and that New Jersey is not currently prosecuting the defendant for its violations. Furthermore, the court holds that New Jersey's administrative action was not "comparable" to an action under the FWPCA, since New Jersey law does not provide the public with notice and opportunity to participate in the assessment of civil penalties. The court next holds that the environmental groups have standing. They need not demonstrate that they use the brook into which the corporation directly discharges pollutants. It is sufficient that they use a river into which waters from that brook eventually run. Finally, the court finds, based on the corporation's own discharge monitoring reports, that there is no genuine issue of material fact that the corporation is liable for 118 discharge violations and five reporting violations of its NPDES permit.

Counsel for Plaintiffs
Eliot M. Blake
Terris, Playlik & Wagner
1121 12th St. NW, Washington DC 20005-4632
(202) 682-2100

Counsel for Defendant
Jeffrey A. Cohen
Hannoch Weisman
P.O. Box 1040, Newark NJ 07101-9819
(201) 535-5300