ELR Citation: ELR 20343
No(s). 89-5371 (AET) (D.N.J. Jun 9, 1991)

The court holds that a manufacturer of electroplated copper circuit foil violated the bioassay effluent limitation in its national pollutant discharge elimination system permit, and environmental groups bringing a citizen suit against the manufacturer under §505 of the Federal Water Pollution Control Act had established that the manufacturer's violations were not wholly past. The environmental groups brought the suit alleging that the manufacturer had violated the permit's discharge, monitoring, and reporting requirements. On motions for reargument, the court first holds that it will reconsider the environmental groups' motion for summary judgment on their claim that the manufacturer violated the bioassay effluent limitation of its permit. In its initial decision, the court did not consider one exhibit submitted in support of this allegation. However, the court holds that it will not reconsider the environmental groups' summary judgment motion on their claims that the manufacturer violated the monitoring and reporting requirements of its permit. The groups' requests for reconsideration of these motions are not based on issues of law or fact that were presented to and overlooked by the court. Instead, the groups rely on new evidence, newly raised statutes and regulations, and matters that the court previously considered. The court next holds that it will reconsider its decision to grant the environmental groups' motion for summary judgment on wholly past violations, because the court did not address certain aspects of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142. The court holds that its decision to grant injunctive relief to the groups and its finding that the manufacturer should not have rounded off discharge measurements are not appropriate for reconsideration. The manufacturer's arguments for reconsideration of these issues depend on new information and material that the court already considered in conjunction with its prior opinion.

On the merits, the court finds that the manufacturer's permit includes abioassay effluent limitation, despite confusion over the applicability of two footnotes in the permit. One of the environmental groups' exhibits not considered in the court's prior decision was a letter prepared by a staff scientist for the New Jersey Department of Environmental Protection indicating that the manufacturer exceeded a bioassay limitation. The court holds that granting the groups' motion for summary judgment on this issue does not effectively modify the permit, because the court's decision clarifies an ambiguity in the permit through methods that preserve the proper deference to the responsible agency.

The court next upholds its prior decision granting summary judgment to the environmental groups on various violations that the manufacturer argued were wholly past. The court holds that since the evidence establishes that violations by the manufacturer have continued after the complaint was filed, the groups have satisfied the first means of prevailing under Gwaltney. The court rules that evidence of violations of some permit parameters is admissible as evidence that future violations are likely in other parameters, thus satisfying the requirements of Gwaltney, particularly because numerous parameters have been violated on many occasions since the suit was filed. Finally, the court holds that the environmental groups have established that there is a continuing likelihood that future violations may occur in any of the permit parameters that the manufacturer has violated in the past.

[The court's prior decision is published at 21 ELR 20966.]

Counsel for Plaintiffs
William H. Brack
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Richard L. Friedman, George J. Tyler
Giordano, Halleran & Ciesla
270 State Highway 35, P.O. Box 190, Middletown NJ 07748
(908) 741-3900