ELR Citation: ELR 20282
No(s). 89-2291(JBS) (D.N.J. Sep 8, 1993)

The court certifies for interlocutory appeal parts of its decision in Public Interest Research Group of New Jersey, Inc. v. Hercules, 24 ELR 20270. Plaintiff environmental groups filed a 60-day letter notifying the defendant company and the U.S. Environmental Protection Agency of their intent to sue for various discharge violations, but no other type of violation pursuant to §505 of the Federal Water Pollution Control Act (FWPCA). In the previous decision, the court held that its jurisdiction included the noticed violations and any postcomplaint continuing violations of the same type as those for which notice was given, but not unnoticed precomplaint violations, nor postcomplaint violations of a different type from those for which notice was given. The court first holds that its previous decision is not a final appealable judgment under Federal Rules of Civil Procedure 54(b), because if the new complaint filed by the environmental groups to challenge the dismissed violations is permitted to proceed to trial, the dismissal would not constitute the ultimate disposition of the alleged violations. The court next holds, however, that its holding regarding the nonnoticed precomplaint violations is appropriate for interlocutory appeal. The order clearly involved a controlling question of law that is serious to the conduct of the litigation and, if decided erroneously, would lead to reversal on appeal. There is also a substantial difference of opinion between this court and other courts that have exercised jurisdiction over violations not noticed in plaintiffs' 60-day notice letters. Moreover, allowing interlocutory appeal will materially advance the ultimate termination of the litigation, because resolution of the issue will determine whether trial will involve civil penalties for 60 discharge violations, or civil penalties, plus all remaining liability issues, for as many as 700 violations of all types. Finally, the court certifies for interlocutory appeal the issue of whether it correctly determined that it had jurisdiction over postcomplaint violations of the same type as those listed in the 60-day notice letter, because the determination of that issue is closely related to whether the court properly dismissed the nonnoticed precomplaint violations.

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