ELR Citation: ELR 20964
No(s). 84-320 (D.N.J. Oct 1, 1984)

In a citizen enforcement suit, the court holds that defendant has raised no valid defense against liability for violations of the Federal Water Pollution Control Act. After reviewing the framework of the Act and plaintiffs' allegations, the court holds first that plaintiffs have standing. It rejects defendant's argument that plaintiffs must show a special interest in the creek into which defendant discharges. Plaintiffs' allegations that some of their members live and recreate in the area and suffer health, economic, recreational, aesthetic, and environmental harm is sufficient. The court next holds that the creek in question is a navigable water under the Act, relying on the state's categorization of the creek in its reports to the Environmental Protection Agency. It alternatively holds that because defendant did not raise the navigability issue when it sought its discharge permit, it is estopped from raising the issue now. Defendant cannot claim refuge in the Act's §§301(i)(2) and 309(a)(6) exemption provisions, for though it may qualify for an exemption, it has not applied for one nor has one been granted. Neither can defendant claim that it has a waiver of some sort from enforcement officials. Defendant has failed to prove that a waiver was given, and even if the government had waived enforcement, that would not bind citizens wishing to bring suit. The court holds that the suit may seek redress for past violations and that no statute of limitations applies. Further, defendants have failed to raise a genuine issue about the accuracy of their discharge monitoring reports (DMRs), on which plaintiffs rely to establish violations.

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

Counsel for Defendant
Stephen W. Miller, Douglas Smilie
Clark, Ladner, Fortenbaugh & Young
32nd Fl., 1818 Market St., Philadelphia PA 19103
(215) 241-1800