ELR Citation: ELR 20094
No(s). 89-5370 (CSF) (D.N.J. Jul 18, 1991)

The court holds that plaintiff environmental groups are entitled to summary judgment on liability in a Federal Water Pollution Control Act (FWPCA) citizen suit alleging a petroleum company violated its national pollutant discharge elimination system (NPDES) permit for excess discharges of permitted pollutants into Newark Bay and tidally related waters. The Environmental Protection Agency (EPA) issued the petroleum company an NPDES permit in 1973 authorizing certain discharges into Newark Bay from its terminal and issued a renewal permit in 1979, which expired in 1984. Previous to the permit expiration date, EPA delegated responsibility to New Jersey for administering the NPDES program in New Jersey. New Jersey issued a New Jersey pollutant discharge elimination system (NJPDES) permit in 1988, to which the petroleum company requested an adjudicatory hearing on the permit's validity, which hearing is currently pending. Subsequently, plaintiff environmental groups notified the petroleum company, EPA, and New Jersey that it intended to bring an FWPCA citizen suit alleging violations by the petroleum company of its NJPDES permit and seeking civil penalties and a permanent injunction. Before the notice period on the citizen suit expired, New Jersey issued the petroleum company an administrative order and notice of civil penalty assessment, which directed the company to stop discharging in alleged violation of its NJPDES permit limitations and sought $704,000 in civil penalties. The petroleum company then ceased discharging effluent from its terminal, requested a hearing on the validity of the order, and selected new wastewater treatment equipment to bring its discharges within permit limitations. Plaintiffs filed this lawsuit after the notice period expired, to which defendant petroleum company moved for summary judgment or alternatively a stay.

The court first holds that it has jurisdiction to hear this case, even though the petroleum company stopped discharging effluent in violation of its permit before it was served with the complaint in this action. Defendant failed to establish that plaintiffs lacked good faith when they alleged that defendant violated its permit and would continue to violate its permit after the filing of the complaint. Moreover, the date of service of process is irrelevant.

The court next holds that plaintiffs have established associational standing sufficient to bring this suit. First, plaintiffs' members have shown that the pollution in Newark Bay and tidally related waters has caused them injury-in-fact by interfering with their enjoyment and by harming their aesthetic, recreational, and environmental interests. Second, plaintiffs' members have established a substantial likelihood that defendant petroleum company's discharge violations caused the harm. Third, plaintiffs' members have established that an injunction and civil penalty will redress their injury. Moreover, the court holds that the interests of plaintiffs' members are germane to plaintiff groups' purposes and that individual members' participation is not necessary to maintain this action.

The court next holds that plaintiffs' suit is not moot due to defendant's voluntary cessation of the allegedly illegal conduct because the plaintiffs' have established reasonable expectations that the illegal discharges will be repeated. Defendant has not established that violations of its permit can be reasonably expected to cease. The equipment that defendant seeks to implement is not yet operational and defendant admits that it cannot assure the court that once the equipment is fully operational that the discharge produced will comply with all the limitations in its permit.

The court further holds that plaintiffs have established an ongoing violation because there was a reasonable likelihood that defendant would continue to pollute after the date the complaint was filed. Plaintiffs submitted a chronology that revealed that defendant polluted in violation of its permit in every month of the preceding year. Since the court has found an ongoing violation, the court holds that it is obligated to assess penalties, which further precludes a finding that the suit is moot.

The court next turns to defendants' motion for a stay pending New Jersey's ruling on the validity of the permit at issue and for all subsequently filed appeals to be resolved before plaintiffs' motion for summary judgment may be heard. The court first holds that the primary jurisdiction doctrine is not applicable, since New Jersey has already issued a permit that plaintiffs seek to enforce. To determine whether defendant has violated its permit, the court will not have to resolve issues within the special competence of the New Jersey Department of Environmental Protection (NJDEP), or encroach on NJDEP's areas of expertise. Moreover, because an FWPCA citizen suit is not and could not be before a New Jersey administrative tribunal, the proceedings are not parallel and jurisdiction is proper. There is no reason to permit defendants' administrative challenge to be carried out on the public's time, and every reason to fulfill the obligation Congress has imposed on the court to enforce all permit restrictions that are in effect. The possibility that at some point in the future the permit may be deemed invalid cannot serve to abrogate the present duty.

Finally, the court holds that plaintiffs properly determined that defendant had committed 112 violations of the discharge limitations in its permit in 1989 and are entitled to summary judgment on this issue. Moreover, since plaintiffs are entitled to summary judgment on this issue, they have demonstrated actual success and have demonstrated that the issuance of a permanent injunction is warranted. Defendant will not be harmed by issuing the injunction, since it has already ceased discharging all effluent, and the publicinterest in preventing further pollution favors injunctive relief.

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

Edward Lloyd
Rutgers Environmental Law Clinic
15 Washington St., Rm. 334, Newark NJ 07102
(201) 648-5576

Counsel for Defendant
Louis M. DeStefano, Jennifer L. Kapell
Carpenter, Bennett & Morrissey
100 Mulberry St., 17th Fl., Newark NJ 07102
(201) 622-7711