ELR Citation: ELR 20039
No(s). 84-1063 (D.N.J. Aug 19, 1985)

In a Federal Water Pollution Control Act (FWPCA) citizen enforcement suit, the court holds that plaintiffs may seek civil penalties and novel injunctive relief for past violations of a discharge permit, even though government enforcement agencies have closely monitored defendant's discharges and opted not to prosecute. The court first holds that affidavits of members claiming injury from pollution of the Delaware River are sufficient to establish plaintiffs' standing. Plaintiffs need not prove that abating defendant's pollution will significantly or completely redress the injuries claimed. The court next holds that plaintiffs may seek penalties and injunctive relief for past violations. The court holds that the suit is not barred by diligent prosecution by the Environmental Protection Agency (EPA) or the state. EPA and the state have been monitoring and evaluating defendat's compliance with a 1981 consent decree, but such action does not constitute diligent prosecution of violations not covered by the decree. The state's proceedings to issue defendant a new discharge permit likewise did not constitute prosecution. Any views that EPA or the state expressed about the merits of prosecuting defendant are irrelevant. The court holds that despite a one-year delay between giving notice and filing suit, plaintiffs' claims are not barred by laches, since the delay was largely attributable to settlement attempts and since the complaint alleges violations within three months of filing. The court holds that the novel relief that plaintiffs have requested, involving a defendant-financed, plaintiff-run program to monitor defendant's discharges, is available under the broad language of the statute but rests within the equitable discretion of the court to grant.

Turning to plaintiffs' motion for summary judgment on the issue of liability, the court notes that defendant concedes that its discharge monitoring reports (DMRs) show exceedances of pollution levels allowed in their discharge permits. The court holds that these exceedances are violations of the FWPCA, rejecting defendant's arguments that occasional exceedances do not constitute violations and that a presumption of violation may be rebutted by proof that enforcing agencies did not consider the exceedances serious. In any case, all evidence presented to the court, including agency reports, suggests that defendant has to some degree failed to comply with the Act. The court repeats that government agencies have not diligently prosecuted the violations that are the subject of this suit, and finds no material facts in issue about diligent prosecution. The court does find an issue of fact concerning whether the 1981 consent decree covered some of the violations in plaintiffs' complaint; it concludes that the decree clearly did not cover violations occurring after May 17, 1979, and grants plaintiffs' summary judgment on defendant's liability for those acts, but reserves for trial the question of whether the decree covered violations occurring between December 31, 1978, and May 17, 1979.

Counsel for Plaintiffs
Edward L. Lloyd
111 S. Montgomery St., Trenton NJ 08611

Bruce J. Terris, M. Hecker, Carolyn A. Smith
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendants
Bruce S. Haines
Cohen, Shapiro, Polisher, Shiekman & Cohen
1873 Route 70, Heritage Executive Ctr., Suite 205-2 Cherry Hill, NJ 08003
(609) 428-4633

Hershel J. Richman
Cohen, Shapiro, Polisher, Shiekman & Cohen
22nd Fl., PSFS Bldg., 12 S. 12th St., Philadelphia PA 19107
(215) 922-1300