ELR Citation: ELR 20362
No(s). 89-3193 (JCL) (D.N.J. Jan 23, 1992)

The court holds that a chemical company violated the effluent discharge, monitoring, and reporting requirements of its national pollutant discharge elimination system (NPDES) permit, and that environmental organizations have standing to seek injunctive relief against the company for these violations and are entitled to a permanent injunction restraining the company from continuing to violate its permit. On the issue of standing, the court first holds that interests asserted by members of the environmental organizations are sufficient to show actual or threatened injury, since affidavits submitted by members state that but for pollution, they would swim, drink, and fish in waterways into which the company discharges wastewater. That the members live downstream from the company's discharge point does not affect their standing. The court further holds that the organizations are injured by the company's failure to monitor and report effluent discharges as required by the Federal Water Pollution Control Act (FWPCA). The court finds that the organizations' members have submitted affidavits that establish their interest in the affected waterways. The organizations have provided evidence that the effluents threaten, and may have already diminished, the aquatic life in the waterways. The organizations have also provided evidence that the effluents discharged by the company cause or contribute to the kinds of injuries alleged. The court holds that the organizations' members have a redressable claim, since a favorable decision would force the company to comply with its permit. The court also holds that the organizations' actions to protect their members' health, recreational, aesthetic, and environmental interests in the surrounding waterways and to enforce the FWPCA to obtain cleaner waterways are germane to their organizational purpose. Finally, the court holds that the relief sought does not require the individual participation of the organizations' members, since they seek compliance with the Act and the imposition of civil penalties.

The court next holds that the environmental organizations are entitled to summary judgment on the issue of the company's liability for violations of the total organic carbon (TOC) limitations of its NPDES permit. All the laboratories measuring the samples at issue followed EPA-approved methods to compensate for inorganic carbon and rendered valid measurements of TOC levels, and under these methods the company violated the TOC limitations contained in its permit in samples measured. Also, the company does not challenge the accuracy of the actual measurements performed. The court refuses to determine whether one of the EPA-approved methods for measuring TOC is inaccurate, because this decision is ill-suited for courts. Further, the court notes that by challenging the EPA-approved method of measuring TOC contained in its permit, the company is directly challenging its permit. If the company wished to challenge these procedures, it should have done so through the administrative process rather than in the present enforcement action. The court concludes that once it has been established that the company has discharged a pollutant in excess of its permit levels, unless the company can establish that the testing was inaccurate, summary judgment is appropriate. The court also holds that summary judgment is appropriate as it relates to the company's monitoring and reporting violations, because the company does not oppose the organizations' motion for summary judgment on these violations.

Finally, the court holds that the organizations are entitled to a permanent injunction restraining the company from continuing to violate its permit. Since the court will grant summary judgment on the company's TOC, monitoring, and reporting violations, the organizations have achieved success on the merits. There is a likelihood of irreparable injury if the company is likely to resume discharging its effluent, because EPA reports establish harm to aquatic life and the public health when certain substances discharged from the company's facility are discharged at levels in excess of its permit limitations. Also, the affidavit submitted by the company in support of its assertion that no likelihood of irreparable harm has been demonstrated is conclusory and equates irreparable with irreversible. The court holds that the company is likely to resume discharging its effluents unless a permanent injunction is issued because of the expense to the company of hauling its effluent, its failure to monitor and report its discharges, and its history. The court holds that the balance of harm clearly favors the issuance of injunctive relief, and enjoining the company from discharging harmful effluents is in the public interest, because the purpose of the FWPCA is to protect the public interest in the integrity of the nation's waters.

Counsel for Plaintiff
Susan J. McGolrick, Monica Wagner
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Lawrence A. Salibra II
Alcan Aluminum Corp.
100 Erieview Plaza, Cleveland OH 44114
(216) 523-6800