ELR Citation: ELR 20297
No(s). 83-2040 (D.N.J. Jan 21, 1985)

The court rules that a Federal Water Pollution Control Act (FWPCA) citizen suit may proceed at the same time as an administrative enforcement action and without joining the administrative agencies as parties, and holds defendant liable for past violations apparent from its discharge monitoring reports. The court first rules that a pending Environmental Protection Agency (EPA) administrative enforcement action does not bar the suit, since EPA does not qualify as a court under the statute. Nor does the doctrine of primary jurisdiction require the court to defer to EPA, since the court will be merely enforcing EPA-established standards, not setting new ones. The court next holds that plaintiffs have standing, since they have alleged that some of their members' health, economic recreational, aesthetic, and environmental interests are adversely affected. Further, the court rules that neither EPA nor the New Jersey Department of Environmental Protection are indispensible parties to the suit, since complete relief can be accorded in their absence without impairing their interests or exposing the defendant to multiple liabilities.

The court grants plaintiffs' motion for partial summary judgment on defendant's liability. The court takes the defendant's monthly discharge monitoring reports as admissions of violations of defendant's national pollutant discharge elimination system (NPDES) permit. In response to defenses raised to the motion, the court repeats its conclusions that plaintiffs have standing and that the court has jurisdiction. Further, the court holds that neither defendant's belief that its NPDES permit was too stringent nor its pending request for retroactive modification preclude summary judgment. The permit requirements were not stayed by the request for modification, and EPA may not modify them retroactively. If the requirements were indeed too strict, that fact goes to the issue of appropriate penalties, not to liability. Civil penalties are available under §505 for past violations. The fact that defendant has improved its compliance with the permit is also irrelevant to whether it is liable for past violations.

[Related decisions appear at 14 ELR 20228 and 15 ELR 20294.]

Counsel are listed at 15 ELR 20294.