ELR Citation: ELR 20309
No(s). 83-2105 (D.N.J. Sep 10, 1984)

The court rules that citizen actions to enforce effluent limitations in Federal Water Pollution Control Act (FWPCA) permits are not subject to the statutes of limitations that govern federal or state enforcement and grants partial summary judgment on liability to plaintiffs. Initially, the court rules that the failure of one citizen plaintiff to comply with the notice requirement in FWPCA §505 does not require dismissal of the complaint with regard to that plaintiff. The court next rules that plaintiffs have standing to bring the suit even though they have not alleged injuries to their recreational or other interests caused by the specific pollution discharged by defendant. To accept defendant's argument would undercut a fundamental purpose of the FWPCA, which was to avoid the necessity of pinpointing the adverse water quality effects caused by each individual discharger. The court also rules that the citizen suit is not precluded by Environmental Protection Agency (EPA) administrative action or by defendant's cooperation with government enforcement agencies in moving to correct the violations. Administrative enforcement can preclude citizen enforcement under §505, but only if the proceedings and relief involved can be equivalent to those in a court action. Since EPA administrative actions cannot impose civil penalties and do not allow citizen intervention, key elements of court enforcement actions, they do not preclude citizen enforcement.

The court rules that neither the New Jersey two-year statute of limitations for penal forfeitures nor a five-year statute of limitations argued by defendant to apply to EPA governs this action. Congress could not have intended state limitation periods to govern, because that would have opened the door to the creation of state pollution havens, an evil the uniform national pollution control legislation was to correct. Moreover, it would not make sense to apply the same limitation period to government and citizen enforcers, since the latter are empowered to act only in response to the government's failure to do so. The court denies defendant's motion for summary judgment concerning violations that occurred prior to the December 15, 1982, transfer of the plant in question from one subsidiary of Tenneco, Inc. to another, the current owner and defendant, because of unresolved issues of fact and law concerning the transfer.

The court grants plaintiffs' partial summary judgment motion on the issue of defendant's liability for violations occurring after December 15, 1982. The FWPCA is a strict liability statute. Defendant's affidavits averring the likely inaccuracy of the effluent and violation reports periodically submitted to EPA, which constitute plaintiffs' evidence of violations, do not raise questions of fact. Treating reports required by law as conclusive evidence of violations is consistent with the legislative history of the FWPCA, which stated that range of factual issues to be addressed in enforcement actions. The court will grant plaintiffs' motion to amend the complaint to name the prior owner of the plant after that company has been properly served.

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

Counsel for Defendant
Steven J. Picco, Patrick D. Kennedy
Greenstone & Sokol
39 Hudson St., Hackensack NJ 07601
(201) 488-3930