ELR Citation: ELR 20966
No(s). 89-5371 (AET) (D.N.J. Feb 13, 1991)

The court holds that a electroplated copper circuit foil manufacturer is liable in a Federal Water Pollution Control Act (FWPCA) citizen suit for violating its national pollutant discharge elimination system (NPDES) permit. After the New Jersey Department of Environmental Protection (DEP) issued a separate administrative order, requiring defendant to comply with its NPDES permit, and assessed civil penalties for previous violations, environmental groups brought this FWPCA citizen suit alleging defendant committed thousands of NPDES permit discharge and reporting violations. The court first holds that plaintiffs have shown a strong enough nexus between the alleged violations of defendant's permit and plaintiffs' purported injuries to establish standing. Although defendant's permit is for discharges into a tributary of a tributary of the Delaware River, which is the source of plaintiffs' claimed damages, it is enough to show that plaintiffs' members have suffered injuries through waters directly affected by any illegal discharges. To hold otherwise, a polluter would be able to avoid suit by controlling all access to some discrete water body that flows into another waterway, ensuring that no potential plaintiff could gain access to the actual discharge point, giving the polluter free reign to damage downstream points. Additionally, the court holds that plaintiffs have established that their injuries are "fairly traceable" to the defendant's effluent, since plaintiffs are not required to show that defendant's effluent alone is the cause of their injury. Plaintiffs have also shown that their injuries are redressable by a favorable decision. Just as the pollution in a major waterway is caused by the combined effects of many individual polluters, the problem must be redressed one illegal discharger at a time, even though the impact of a favorable decision may not by itself be readily noticeable.

Turning to the motions for partial summary judgment, the court first holds that administrative actions do not preempt citizen suits under FWPCA §309(g)(6)(B)(ii), where the notice required under FWPCA §505(b)(1)(A) has been given prior to the action and the plaintiffs file their suit within 120 days of notice. Moreover, the court holds that it will not dismiss 177 individual allegations in the citizen suit that were raised in the administrative action. Congress was presumably aware of the risks and inefficiencies of parallel actions when it drafted §309(g)(6)(B) and determined that some duplication is acceptable. The court next refuses to dismiss 1150 alleged violations at one of defendant's discharge points (DSN 002). Although defendant claims that DEP of officials stated that the parameters for the discharge point were only for data purposes and would not be enforced, the NPDES permit expressly contains parameter restrictions that defendant violated. Verbal representations by officials that certain portions of a permit will not be enforced, without formal modification in the permit, will not excuse the holder from the terms of that permit. Although the DEP officials' statements that defendant alleges caused its reliance are directly on point, it was unreasonable for defendant to rely on such statements because the statutory scheme is complex and the need for written instructions is manifest, particularly where the advice runs directly counter to the clear terms of the permit, as in this case. Moreover, FWPCA §509(b)(2) precludes judicial review of challenges to FWPCA permits in civil or criminal proceedings for enforcement.

The court next grants summary judgment as to 25 alleged violations that plaintiff concedes are time barred by the statute of limitations, and eight violations that are duplicates. Next, the court holds that defendant may not round off numerical calculations in its recorded discharges to avoid exceedance violations. The court also holds that defendant's failure to present direct evidence of faulty laboratory analysis precludes summary judgment on 18 alleged violations. Also, material issues of fact exist as to whether the permit contains a bioassay limitation, which plaintiffs claimed defendant violated three times.

Turning to alleged monitoring and reporting violations, the court holds that the facts that it is unusual for a permit to require such monitoring and DEP officials indicated that such monitoring would not be needed are insufficient to overcome the permit duty to monitor silver. Moreover, the court holds that it is reasonable to conclude that plaintiffs' allegation of continued violation was made in good faith, because plaintiffs did not have access to defendant's October 1989 report until after this suit was filed, and defendant has not shown that plaintiffs' claim was a sham or raised no genuine issue of fact. The court next refuses to grant summary judgment on several alleged violations because the evidence of discharge exceedances is insufficient. The court also holds that because defendant has not challenged the alleged temperature and flow parameter violations through the proper state agency procedures, the court is precluded from reviewing them. The court next holds that issues of fact exist as to the frequency and types of sampling required under defendant's permit. Also, the court holds that defendant is not entitled to summary judgment concerning the improper preservation of several monitoring samples, because defendant's document admits improper preservation. Finally, the court holds that no issue of material fact has been established that defendant did not commit violations by reporting maximum concentrations as average concentrations, making summary judgment in favor of defendant inappropriate. Moreover, defendant's report, relating to maximum and average concentrations of effluent discharges, did not indicate how many measurements were taken, thus interfering with the ability of citizen-plaintiffs to act as watchdogs, as intended by the FWPCA.

Turning to plaintiffs' requests for injunctive relief, the court notes that violation of an effluent standard under the FWPCA presents strong evidence of irreparable harm, because permit parameters are the part of the FWPCA concerned with preserving the environment. However, the court refuses to grant injunctive relief for the monitoring and reporting violations, since plaintiffs have not shown how defendant's reporting and monitoring deficiencies would cause irreparable harm or interfere with enforcement of the permit. Moreover, the court holds that injunctive relief for violations at DSN 002 is not warranted, since defendant is still liable for violations at the discharge point and should be given the opportunity to come into full compliance. However, the court grants injunctive relief as to defendant's discharge point bioassay violations, because defendant's pattern of violation provides sufficient risk of future violations and the plaintiffs would face irreparable harm if an injunction is not granted.

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

Counsel for Defendant
Richard Friedman
Giordano, Halleran & Ciesla
270 State Highway No. 35, P.O. Box 190, Middletown NJ 07748
(908) 741-3900