ELR Citation: ELR 20329
No(s). 91-1701 (D.N.J. Dec 3, 1992)

The court holds that environmental groups have standing to bring a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA) against a state agency for violations of its national pollutant discharge elimination system (NPDES) permit, and that the polluter is liable for those violations. Referring to the U.S. Supreme Court's holding in Gwaltney of Smithfield v. Chesapeake Bay Foundation, 18 ELR 20142 (1987), that jurisdiction is proper under the FWPCA so long as a citizen plaintiff is able to make good-faith allegations of a continuing likelihood of ongoing violations at the time the suit is filed, the district court holds that although the permit holder is no longer violating its permit, it did continue to commit violations after the filing of the complaint, and, therefore, the allegations were made in good faith and jurisdiction is proper. The court holds that the members of the environmental group satisfy the requirements of standing. They have suffered aesthetic, recreational, and health injuries, because the water smells and is polluted and these injuries relating to a lake and downstream bodies of water are "fairly traceable" to the permit holder's discharge of excessive pollutants into a wetlands area that is connected to the lake by groundwater. The permit holder cannot escape the court's traceability finding by arguing that the pollution caused by its discharge is so small that plaintiffs are not injured by it, because in any FWPCA case, the concentration of pollutants when measured in a waterway will be significantly lower than in the effluent itself. Next, the court holds that this citizen suit is not barred under FWPCA §309(g), because there was no prior state enforcement action against the violator. There was no court action against the violator, no administrative action was ever formally commenced, and the state law is not comparable to the federal law. Finally, the court holds that a memorandum of understanding (MOU) between the polluter and the state did not modify the NPDES permit to allow relaxed effluent limitations and reporting and monitoring requirements, because the MOU explicitly stated that it did not modify the NPDES permit, the specific procedures for modifying the permit were not followed, and the FWPCA contains an "antibacksliding" provision which prohibits less stringent effluent limitations than those in the permit.

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

Counsel for Defendant
Joseph G. Gindhart
One S. New York Ave., Atlantic City NJ 08401
(609) 345-3050
Edward L. Lloyd, Prof.
Rutgers University
Rutgers Environmental Law Clinic
15 Washington St., Rm. 334, Newark NJ 07102
(201) 648-5695