ELR Citation: ELR 20270
No(s). 89-2291(JBS) (D.N.J. Mar 31, 1993)

The court dismisses environmental groups' claims alleging nondischarge violations of the Federal Water Pollution Control Act (FWPCA), denies plaintiffs' motion for a permanent injunction to prevent the defendant company from committing future violations of the FWPCA, denies defendant's motions in limine to bar evidence regarding a facility not at issue in the case and testimony of a witness who prepared certain exhibits, and remands a magistrate judge's order allowing discovery of a memorandum prepared by a paralegal in the office of plaintiffs' counsel. In March 1989, the plaintiffs environmental groups filed a 60-day notice of defendant's violations of the FWPCA and of their intent to file a citizen suit under FWPCA §505. The letter listed 68 separate discharge violations, but did not allege any monitoring, recordkeeping, or reporting violations. The complaint, however, alleged 114 discharge violations and numerous monitoring, recordkeeping, and reporting violations.

The court first grants summary judgment to the defendant on all the nondischarge violations. The fact that the 60-day notice letter mentioned violations of an "effluent standard or limitation" was not sufficient to put the company on notice that the environmental groups would eventually sue on nondischarge violations. Moreover, FWPCA §505(b)(1) requires not just notice of an alleged violation, but of the specific alleged violation. Allowing the groups to sue on violations not specifically noticed would prevent the government from taking responsibility for enforcing environmental regulations and deny the company the opportunity to render the citizen suit unnecessary by bringing itself into compliance. The court, however, refused to dismiss violations alleged to have occurred after the groups filed their complaint. The company had notice that it would be sued for those violations because they are of the same type of activity alleged in the letter.

The court next holds that it has subject matter jurisdiction over all the parameters alleged to have been violated, including those parameters the company is no longer violating. Although the court lacks jurisdiction over wholly past violations, it may exercise jurisdiction over all parameters based on an ongoing violation of any one parameter, especially where, as here, multiple parameters have been violated in the past. Additionally, the case is not moot even though the company is no longer in substantial violation of the FWPCA, because, when judged from the time the plaintiffs filed the complaint, it was not absolutely clear that the violations would not be repeated. The court next holds that the environmental groups are not barred from seeking imposition of civil penalties beyond those already assessed for the same violations by the New Jersey Department of Environmental Protection and Energy (DEPE) in a 1990 administrative consent order.

The court next grants summary judgment to the company, based on its assertion of the "upset defense," for discharge violations that occurred when several electrical failures combined with unusually heavy rainfall to cause an overflow of a skimmer pit. The court denies summary judgment on discharge violations that occurred during the unanticipated failure of a blower because genuine issues of material fact exist as to whether or not the violations qualify as an upset. The court grants summary judgment to the plaintiffs on discharge violations that occurred because of scheduled maintenance work on a clarifier, because those factors were within the company's control and, thus, do not qualify as an upset.

The court denies the environmental groups' motion for a permanent injunction prohibiting the company from violating its national pollutant discharge elimination system permit and the FWPCA. The groups failed to show a sufficient likelihood that the discharge violations will continue, or that any environmental injury arising therefrom is irreparable. Furthermore, although reporting, recordkeeping, or monitoring violations may occur on a sporadic basis, the prospect of such recurrence is not sufficiently great, nor are the consequences of such recurrence sufficiently harmful to the environment, to warrant permanent injunctive relief.

The court next denies the company's motion in limine to bar evidence regarding an unrelated facility with a long history of environmental noncompliance that is owned by the company. Violations at the other facility are relevant to the company's compliance history for the purpose of assessing civil penalties. Moreover, because these violations have been litigated, there will not be time consumed by adjudication of collateral matters, and admitting evidence regarding the facility will not give rise to undue prejudice. The court also denies defendant's motion in limine to bar testimony of a paralegal in the office of plaintiffs' counsel who prepared exhibits showing plaintiffs' calculations of the appropriate civil penalties under the U.S. Environmental Protection Agency's and the DEPE's criteria, with the understanding that the testimony will be limited to explaining the exhibits and not to the actual operation of the penalty policies.

Finally, the court dismisses the environmental groups' appeal of the magistrate judge's order allowing discovery of a memorandum prepared by a former paralegal assistant in the office of plaintiffs' counsel. The magistrate judge had found that the memorandum was not work product and that the company had demonstrated a special need for it. The court remands the discovery order for consideration of arguments and documents that were not previously before the magistrate judge.

Counsel for Plaintiffs
Carolyn Smith Pravlik, Elisabeth J. Lyons
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Joel Schneider, E. Lynne Hirsch
Manta & Welge
1040 N. Kings Hwy., Ste. 600, Cherry Hill NJ 08034
(609) 795-7611