ELR Citation: ELR 21051
No(s). 84-1087 (D.N.J. Aug 8, 1985)

In a Federal Water Pollution Control Act (FWPCA) citizen suit, the court holds that defendant's own records are sufficient to support summary judgment for liability for violations of expired discharge permits. The court first holds that the failure of one plaintiff to give the defendant 60 days' notice before filing suit as required by FWPCA §505(b)(1) does not deprive the court of jurisdiction considering that 13 months elapsed between defendant having actual notice and the first court hearing and that one of the plaintiffs complied with the letter of the notice requirement. The court next rules that plaintiffs may seek penalties for past violations of an expired permit. To read the section to require than an ongoing violation of an active permit be occurring when the suit is filed would be impractical, since months may pass before anyone knows whether a discharger was in violation of a particular day, and would be inconsistent with the congressional intent apparent from the legislative history and the structure of the statute. The court next holds that plaintiffs have standing. They have named members affected by the pollution, and a favorable decision in the case will benefit the public interest, which plaintiffs represent under the statute. A detailed showing of redressability is not necessary given the legislative grant of standing. Also, the court rules that plaintiffs' action is not governed by a two-year state or a five-year federal statute of limitations. No statute of limitations applies to the Environmental Protection Agency (EPA) enforcement actions, and none should apply to citizen suits.

The court then grants plaintiffs' motion for summary judgment on the issue of liability. Civil liability is strict and defendant's discharge monitoring reports (DMRs) and non-compliance reports (NCRs) are adequate though not conclusive proof of violation. Defendant may not raise the affirmative defense of "upset" since EPA created the upset defense after it issued defendant's permit, and the permit does not include upset as an excuse for exceeding the permit standards. The questions defendant has raised about the meaning of "daily average" in the permit are purely questions of law; the court holds that daily average refers to the average of all daily measurements made in a given month no matter how many days were sampled. Defendants have failed to present enough evidence of inaccuracies in the DMRs and NCRs to create a disputed issue of fact. The court holds irrelevant defendant's argument that EPA and the state were within their discretion in not seeking penalties themselves. Finally, the court declines to declare defendant's discharges de minimus.

Counsel for Plaintiffs
Bruce J. Jerris, James M. Hecker
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Michael Gordon
Gordon & Gordon
80 Main St., West Orange NJ 07052
(201) 736-0094

Counsel for Defendant
John A. McKinney Jr.
AT&T Resource Management
P.O. Box 374, 650 Liberty Ave., Union NJ 07083
(201) 851-2200

Steven A. Tasher
Donovan, Leisure, Newton & Irvine
1850 K St. NW, Washington DC 20006
(202) 862-4700