ELR Citation: ELR 20451
No(s). 84-1119 (D.N.J. Oct 15, 1985)

In a Federal Water Pollution Control Act (FWPCA) §505 citizen suit to enforce a national pollutant discharge elimination system (NPDES) permit, the court holds that relief may be sought for past NPDES violations, that no state or federal statute of limitations applies, and that defendants are strictly liable for NPDES violations. The court first rejects the defendant's argument that summary judgment is not appropriate, regardless of whether plaintiffs are entitled to damages, as plaintiffs are seeking to enforce the FWPCA. The court holds that plaintiffs in FWPCA §505 suits may sue for past violations and that defendant's reliance on a Fifth Circuit decision to the contrary is misplaced, since the law in New Jersey is clear. Next, the court holds that no statute of limitation applies to plaintiff's FWPCA citizen suit. Case law has established that neither New Jersey's two-year limitations nor the limitation contained in 28 U.S.C. §2462 applies. The court holds that the FWPCA imposes a standard of strict liability for violations of NPDES permits. Turning the defendant's factual arguments, the court rules that the NPDES permit provision requiring monitoring and reporting of results only once a month does not excuse defendant from the requirement of daily averages. Questions of interpretation of the permit terms are ones of law, not fact. The court rules that defendant may not challenge the accuracy of its own discharge monitoring reports. Plaintiff need only show under the preponderance of the evidence standard that it is more likely than not that monitoring results violated the permit conditions. Finally, the court rules that the discharge alone of a pollutant in violation of a permit violates the FWPCA and no proof of injury needs to be shown.

Counsel for Plaintiff
Nathalie V. Black
1121 12th St. NW, Washington DC 20005
(202) 526-9179

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

Counsel for Defendant
Charles D. Hellman, Michael L. Rodberg
Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700