Citizen Suits and the NPDES Program: A Review of Clean Water Act Decisions

Frank M. Thomas Jr.

Editors' Summary: The number of citizen suits brought by environmental groups under the Clean Water Act against companies that have allegedly violated the terms of their NPDES permits has increased dramatically in recent years. Spurred in part by district court decisions that have found defendants liable for violations of the Act solely on the basis of the data reported in the permittees' own discharge monitoring reports, environmental groups have scored several stunning victories. The author reviews the large body of case law that has emerged from the flood of Clean Water Act citizen suits, including judicial response to the most commonly asserted defenses raised by the permittees. In light of the general lack of success of these defenses, the author concludes that permittees must diligently perform their monitoring and reporting obligations.

Mr. Thomas is an attorney with the law firm of Morgan, Lewis & Bockius in Philadelphia, Pennsylvania.

[17 ELR 10050]

In the past three years, the number of citizen suits brought by environmental groups against companies holding wastewater discharge permits under the Clean Water Act (CWA)¹ has increased dramatically. Among the noteworthy aspects of these suits are the plaintiffs' focus on monetary penalties rather than injunctive relief, and their almost exclusive reliance upon reports prepared by the defendant companies as evidence of liability. This approach has yielded some surprising results, including a $1.2 million penalty assessment against a Virginia meat packing plant.² This article reviews the considerable body of case law that has developed recently as a result of the upsurge in CWA citizen suits.³

Citizen Suits and the NPDES Program

Section 505 of the CWA⁴ authorizes citizens to bring suit in the federal district courts against "any person who is alleged to be in violation of (A) an effluent standard or limitation … or (B) an order issued by the [EPA] Administrator or a State with respect to such a standard or limitation…." This provision allows citizens to sue for violations of the terms and conditions set forth in wastewater discharge permits issued under the national pollutant discharge elimination system (NPDES) program.⁵

As part of the NPDES program, permittees routinely file discharge monitoring reports (DMRs) with state and federal regulatory agencies. Those reports summarize the results of water quality sampling performed by the permittee in order to determine compliance with the permit's numerical limitations on the discharge of pollutants. The DMR must be certified as accurate by the permittee, and the statute provides for substantial penalties for false reporting.⁶ A "discharger that fails to file discharge-monitoring reports or fails to file accurate reports, would be in violation of its NPDES permit and would be subject to citizens' suits under 33 U.S.C. § 1365."⁷ One court has levied almost $1 million in penalties against a company that ignored the reporting requirement for three years.⁸

Violations of the terms or conditions of an NPDES permit are considered violations of the Clean Water Act for which the permittee may be held strictly liable.⁹ Under this standard, good faith and intent are irrelevant to the issue of civil liability, and some courts have held that there is no need for the person bringing a citizen suit to demonstrate a nexus between the violations complained of and actual injury to the receiving stream.¹⁰ An adverse judicial ruling can subject the permittee to injunctive action, civil penalties of up to $10,000 per day for each violation, and payment of the plaintiff's attorneys fees and costs.¹¹

[17 ELR 10051]

The CWA prohibits the unpermitted discharge of "any pollutant"; there is "no shield from the requirement that all discharges — at the time made — must be pursuant to an NPDES permit."¹² A new or reissued NPDES permit cannot be applied retroactively to excuse past discharges which were made without a permit or to excuse violations of an earlier permit. The filing of a permit renewal or modification application does not operate as a bar to a citizen suit over the existing permit.¹³

The DMR as Evidence of Civil Liability

District courts in several states, especially New Jersey, Maryland, and Connecticut, have ruled that the data reported in the DMR constitute "admissions" by the permittee "as to the accuracy or truthfulness of the information reported therein."¹⁴ Moreover, those same courts have granted summary judgment on the liability issue based solely upon the DMR data.

Where the district courts have used the DMR to determine whether effluent limitations or monitoring requirements have been violated, they have simply compared the NPDES permit conditions with the corresponding sampling data reported in the DMR. The rationale for adopting this approach was stated succinctly by a Massachusetts district court, as follows:

The NPDES system and the Act's self-monitoring requirements establish a simple and expedient enforcement scheme. A reviewing court, presented with alleged violations, need not inquire into the wisdom of particular effluent limits or other conditions of an NPDES permit…. The court need only ascertain that a permit was issued, and then compare the quantities of pollutants permitted by the permit with those listed on the DMRs…. A violation of an NPDES permit condition is a violation of the Act.¹⁵

In granting summary judgment on the basis of such comparisons, many courts have rejected challenges by the permittees as to the accuracy of the DMR. For example, in Tenneco Polymers the permittee submitted affidavits to the effect that "there are inherent margins of error in the results of the laboratory tests," but these were held to be "insufficient to raise a question of fact to defeat the plaintiffs' motion for summary judgment."¹⁶ Similarly, the court in Hercules was unpersuaded by arguments that the violations recorded on the DMR were attributable to "laboratory and/or sampling errors."¹⁷ General statements to the effect that "measurements were not valid, that it took the defendant many years to discover that it was using the incorrect procedure, and that the violations that were reported did not actually occur" have also been unavailing.¹⁸

The judiciary's willingness to accept the DMR at face value stems from the fact that the permittee typically "monitored its discharge itself, chose the private laboratories to analyze the results, and then reported these results on its DMRs and [non-compliance reports]."¹⁹ At least one court, however, "has declined to enter summary judgment where the defendant offered convincing arguments as to typographical errors in the data submitted on the DMR."²⁰ The existence of a material factual dispute over the DMR data was also recognized in United States v. City of Moore.²¹ There the defendant city argued that certain apparent violations of its biological oxygen demand (BOD) limitation were due to inaccurate testing procedures. In support of its position, the city introduced evidence showing that test results as reported by an independent testing laboratory were considerably lower than the results reported originally by the city. The Moore court accepted this as raising a substantial factual dispute on testing procedures and denied the government's motion for summary judgment on the city's liability for BOD discharges.

Some permittees have contended that their permit obligations are inconsistent where a discharge limitation is specified as the "daily average" quantity of a pollutant and the monitoring requirement is set as once per month. This has been viewed as a purely legal question of permit [17 ELR 10052] interpretation rather than as a disputed factual issue.²² Thus, a permittee taking one sample in the month may be held to a violation for each day in that month if the sample analysis shows an exceedance of the discharge limitation.²³ The permittee apparently has the option, however, to take additional samples which, when averaged, might demonstrate compliance with the discharge limitation:

All the permits defined "daily average" in a way that made clear that it was to be determined by dividing the total of the daily samples in a given month by the number of days on which samples were taken. The permits also required monitoring once a month, but they allowed monitoring more frequently. The intention of these provisions is unambiguous. The permits left it up to the permittee to decide how many days per month it monitored so long as it monitored at least once a month. Calculating the average was done the same way no matter how many daily tests were performed: total results were divided by the total days when tests were made. Permittees had flexibility. If a daily test showed a violative discharge level, permittees were free to take more tests in subsequent days in hope the daily average for the month would not violate permit limitations.²⁴

Special NPDES Permit Conditions

Although not asserted with the same frequency as claims of effluent parameter violations, a few citizen suits have focused on NPDES permit conditions regarding construction and compliance schedules. Two recent decisions dealing with such permit conditions are Locust Lane v. Swatara Township Authority²⁵ and Mumford Cove Association, Inc. v. Town of Groton.²⁶

The NPDES permit at issue in Locust Lane incorporated a schedule of compliance for the construction of a wastewater treatment facility which the Authority failed to meet during part of 1985. Ruling favorably upon plaintiff's motion for summary judgment on the liability issue, the district court held that the construction schedule was a "condition" of the permit and that the "failure to comply with the construction schedule contained in the NPDES permit is actionable under [CWA] § 1365(a)."²⁷ In reaching its decision, the court relied upon the following statement from the legislative history:

In addition to violations of section 301(a) citizens are granted authority to bring enforcement actions for violations of schedules or timetables of compliance and effluent limitations under section 301, standards of performance under section 306, prohibitions of effluent standards and pretreatment standards under section 307, provisions of certification under section 401, and any condition of any permit issued under 402.²⁸

The court rejected the Authority's contention that a citizen suit could not be maintained for past violations of the schedule even though the Authority ultimately achieved compliance and even though the parties did not expect this type of violation to recur.

A similar result was reached in Mumford Cove. There the permit at issue included a condition that the permittee construct and operate a new outfall for its sewage treatment plant by December 1979. The court concluded that the permittee's failure to construct the outfall constituted a "constant violation of its NPDES permit."²⁹ The permittee argued unsuccessfully that withdrawal of a state enforcement action with respect to the outfall condition operated to modify the construction requirement. The court refused to recognize any informal modifications to the NPDES condition for the reason that "the legislative intent underlying the citizens' suit provisions of the Clean Water Act would be subverted if formally promulgated enforcement orders could be modified by informal and unrecorded understandings between polluters and regulators."³⁰

Defenses to CWA Liability

Permittees have not enjoyed much success in their defense of CWA citizen suits where those suits are based upon the information found in the permittees' DMR. As discussed above, the courts have been reluctant to "look behind" the reported numbers, in large part due to the self-monitoring and self-reporting aspects of the DMR. Judicial responses to other commonly asserted defenses may be summarized as follows.

Standing

The environmental and public interest groups which actively prosecute CWA citizen suits have learned the art of federal pleading. Thus, where raised, the courts have invariably rejected challenges to the standing of such groups to bring citizen suits.³¹

Statute of Limitations

The CWA does not contain an express provision limiting the time within which a civil action may be filed. This has been the source of considerable confusion, and has resulted in two lines of decision. The New Jersey courts have ruled that there is no statute of limitations defense to suits claiming violations of NPDES permits.³² The five-year limitation [17 ELR 10053] of 28 U.S.C. § 2462³³ has generally been adopted by decisions in other jurisdictions.³⁴ The reported decisions have all rejected contentions that state statutes (which are usually of much shorter duration) should govern. A New York district court has held that the statute of limitations period "begins to run from the date that defendants' reports documenting the violations were filed with the EPA or the state" rather than from the date the violation actually occurred.³⁵

The statute of limitations issue is one which Congress could be expected to resolve easily when it again considers legislation reauthorizing the CWA. Unfortunately, the compromise bill so widely endorsed in October 1986 did not include a statute of limitations provision.

Past Violations

Section 505(a)(1) of the CWA authorizes citizen suits against any person "who is alleged to be in violation" of an NPDES permit. Because this statutory language is in the present tense, permittees have argued that CWA § 505 affords prospective relief only and does not allow civil penalties to be assessed for past violations. There is now a considerable split of authority on the proper interpretation of this provision.

Most district courts and the Fourth Circuit have rejected the permittees' argument and have instead held that the "is … in violation" language encompasses all violations, whether past or present.³⁶ Viewing the statutory language as ambiguous, these courts reasoned that a permittee continues to be "in violation" until the past illegal discharge is redressed by the imposition of a fine or otherwise. On that basis, some district courts allowed citizen suits to proceed even though the permit at issue has expired or been transferred to another permittee³⁷ or where all discharges had ceased or the plant operations had been discontinued.³⁸

The First and Fifth Circuits have reached different conclusions on this issue.³⁹ In Hamker, the Fifth Circuit accepted the statutory interpretation advanced by the permittee and held that a CWA § 505 suit could not be maintained for past violations. Courts outside the Fifth Circuit have generally declined to adopt the Hamker analysis, however, apparently because the facts of that case involve a single incident of discharge from a ruptured oil pipeline rather than a series of discharges pursuant to an NPDES permit.

The First Circuit has offered yet a third approach for resolving this issue. Uncomfortable with the legal analysis that defined all violations as actionable under CWA § 505, the First Circuit looked to the basic purpose of the citizen suit provision, namely, enforcement of permit terms and conditions where discharges are continuing:

We therefore think that the words "is … in violation" should be sufficiently liberally construed to comport with the injunctive purpose of the Act — conduct indicative of continuing or renewed violations justifying an injunction, as distinguished from matters over and apparently done with, that would not warrant one.⁴⁰

Under this standard, a citizen suit for civil penalties can be maintained where there is a "continuing likelihood" that the permittee would again violate the CWA, but not where the facts disclose that discharges have ceased permanently. Factors to be considered by the court include "the isolated or recurrent nature of the infraction, the degree of scienter on the part of the defendant, and the sincerity of its assurances against future violations."⁴¹ In the case before it, the First Circuit did not allow the civil penalty action to proceed because the permittee had completed a tie-in with a municipal treatment facility and was no longer discharging directly into a stream.

De Minimis Violations

A few companies have argued that they should not be subject to CWA citizen suits where their permit violations are de minimis. This defense has been unsuccessful so far, with the courts holding that "violations of an NPDES permit are not to be excused on the ground that they were 'technical' or insignificant in nature."⁴² Assertions that a discharge was not toxic or did not present any harm to the public have been held to be irrelevant to CWA citizen [17 ELR 10054] suits.⁴³ Improved compliance with permit conditions has also been rejected as a defense to liability, although a showing of such improvement is pertinent "to the issue of the amount of a civil penalty to be assessed, if any."⁴⁴

Pending Proceedings

A CWA citizen suit may not be commenced

if the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State, to require compliance with the standard, order, or limitation.⁴⁵

Faced with both an enforcement suit by regulatory authorities and a CWA citizen suit, a permittee may obtain dismissal of the latter by showing that the governmental action was filed first and is being diligently prosecuted. The purpose of the diligent prosecution requirement is to assure that "a defendant not be subjected to multiple suits, and potentially to conflicting court orders, to enforce the same standards."⁴⁶ One court has suggested the following approach for evaluating whether the diligent prosecution requirement is being met:

In most cases, the court may rely primarily on a comparison of the pleadings filed in the two actions to determine whether the state and the citizen plaintiffs seek "to require compliance with the [same] standard, order or limitation." It was surely not the intent of Congress to "overburden the courts" and the parties by requiring prolonged litigation over the similarities between the state's suit and the citizens' suit before the latter could be dismissed.

Similarly, in determining whether the state was "diligently prosecuting" a prior pending action against the defendant, the court may rely primarily on objective evidence from the court files with respect to the status of the state's suit at the time that the citizens' suit was commenced and the prospects that the state suit will proceed expeditiously to a final resolution. The court must presume the diligence of the state's prosecution of a defendant absent persuasive evidence that the state is currently engaged in a pattern of conduct that could be considered dilatory, collusive or otherwise in bad faith. Accordingly, the diligence of the state's prosecution of prior environmental suits will only rarely be a significant factor in ascertaining the diligence of the state's prosecution of a particular defendant.⁴⁷

A question that has received considerable attention is what constitutes a "court" for purposes of CWA § 505(b). The Third Circuit has held that an EPA administrative enforcement proceeding is not a "court" within the meaning of that provision and thus does not operate to bar a CWA citizen suit.⁴⁸ In so doing, the Third Circuit applied the same reasoning it had adopted in an earlier case under the Clean Air Act.⁴⁹ It left open the possibility that some state administrative proceedings might qualify as "court" proceedings for purposes of CWA § 505(b). A district court in Pennsylvania, however, has held that an administrative enforcement action brought by that state's environmental agency did not meet the Baughman criteria for a court proceeding and therefore did not bar a CWA citizen suit.⁵⁰

In contrast to the Third Circuit's approach the Second Circuit has determined that "[i]t would be inappropriate to expand this language [of § 505(b)] to include administrative enforcement actions" by either federal or state regulators.⁵¹ In keeping with the Consolidated Rail decision, district courts in New York and Connecticut have held that prior state administrative proceedings will not bar claims asserted in a CWA citizen suit.⁵²

One permittee has argued that the pendency of an application for waiver of secondary treatment requirements should insulate it from enforcement action. Citing to a waiver application filed with EPA pursuant to CWA § 301(h), the permittee contended that it should not have to construct the secondary treatment plant required under its NPDES permit only to discover later that treatment was unnecessary. Finding the legislative history "unenlightening as to the effect of a secondary treatment waiver application," the district court nevertheless rejected the permittee's position on the grounds that waiver requests do not operate to postpone compliance obligations.⁵³

Representations by Regulatory Agencies

Informal waivers by or the inaction of government officials does not bar a citizen suit. "The statute and regulations clearly provide that any discharge in excess of the amounts allowed in the NPDES permit are unlawful … and are grounds for enforcement actions …. No provision is made therein for waiver of permit terms by the enforcement agency."⁵⁴ Even official representations that a permittee is in substantial compliance with the conditions of its permit have proved unavailing as a defense to liability.⁵⁵

Upset

Absent unusual circumstances, the courts are reluctant to [17 ELR 10055] read EPA's upset regulation⁵⁶ in a manner that would excuse exceedances of effluent limits.⁵⁷ The burden of establishing the affirmative defense of upset rests with the permittee, who must demonstrate an upset "through properly signed, contemporaneous operating logs, or other relevant evidence."⁵⁸ A California company met this burden and prevailed on the upset defense by demonstrating that its exceedances were caused by "exceptionally heavy rainfall, causing widespread flooding and property damage" and by temporary malfunctions of equipment "which had sufficient capacity to meet permit limitations under all but the most severe circumstances."⁵⁹ The court viewed these as factors beyond the reasonable control of the permittee.

It has been held that the upset defense is unavailable for violations occurring before the effective date of the upset regulations or for violations of water quality-based effluent limits.⁶⁰ In one case, an electric utility was unable to prevail on an upset defense where it argued that its permit violations were attributable either to unanticipated demand upon the sewage treatment plant or to unanticipated corrosion problems.⁶¹

Conclusion

The litigation approach now being followed by CWA plaintiffs appears to have caught permittees by surprise. Many district courts have adopted a mechanistic approach to determining violations of NPDES permits which leaves little room for last-minute technical defenses. In light of this, permittees cannot afford a casual attitude toward their monitoring and reporting obligations, and can no longer assume that compliance which satisfies the regulatory authorities will necessarily insulate them from suit. The importance of timely and accurate reporting of DMR data must be made clear to operational personnel. Also, efforts should be made to improve monitoring practices and procedures so that test results present a true picture of compliance history.

1. Formally titled the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376, ELR STAT. 42101. The Act is commonly referred to now as the Clean Water Act.

2. Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 15 ELR 20663 (E.D. Va. 1985), aff'd, 791 F.2d 304, 16 ELR 20636 (4th Cir. 1986). At press time, the Supreme Court had granted defendant's petition for certiorari.

3. For a detailed treatment of citizen suits under federal environmental statues, see generally Miller, Private Enforcement of Federal Pollution Control Laws (pts. 1-3), 13 ELR 10309 (Oct. 1983); 14 ELR 10063 (Feb. 1984), 14 ELR 10407 (Nov. 1984); J. MILLER & ENVIRONMENTAL LAW INSTITUTE, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS (1987).

4. 33 U.S.C. § 1365, ELR STAT. 42147.

5. The term "effluent standard or limitation" is defined to include "a permit or condition thereof issued" under the NPDES program. CWA § 505(f), 33 U.S.C. § 1365(f), ELR STAT. 42147.

6. CWA § 309(c)(2), (d), 33 U.S.C. § 1319(c)(2), (d), ELR STAT. 42131.

7. Menzel v. County Utilities Corp., 712 F.2d 91, 94, 14 ELR 20251, 20252 (4th Cir. 1983). See also Student Public Interest Research Group (SPIRG) v. Fritzsche, Dodge & Olcott, 579 F. Supp. 1528, 1539 n.14, 14 ELR 20450, 20455 n.14 (D.N.J. 1984) (J. Stearn), aff'd, 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1985); Sierra Club v. Simkins Industries, 617 F. Supp. 1120, 1131, 15 ELR 21012, 21015 (D. Md. 1985) (J. Murray).

8. Sierra Club v. Simkins Industries, Inc., No. HM84-4018 (D. Md. July 31, 1986).

9. Environmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 205 (1976); Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1373-77, 8 ELR 20028, 20029-31 (D.C. Cir. 1977).

10. United States v. Earth Sciences, Inc., 599 F.2d 368, 374, 9 ELR 20542, 20544 (10th Cir. 1979); SPIRG v. National Starch and Chemical Corp., 16 ELR 20451, 20453 (D.N.J. Oct. 15, 1985) (J. Bissell).

11. CWA §§ 309(b), 309(d), 505(d), 33 U.S.C. §§ 1319(b), 1319(d), 1365(d), ELR STAT. 42131, 42147. The maximum civil penalty is likely to increase to $25,000 per day when Congress again considers legislation reauthorizing the CWA. This higher amount was included in the compromise reauthorization bill passed overwhelmingly by the Senate and House in October 1986, but vetoed by the President. 132 CONG. REC. H10532 (daily ed. Oct. 15, 1986).

12. Menzel, 712 F.2d at 94, 14 ELR at 20252. See also Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 696, 5 ELR 20046, 20047 (D.C. Cir. 1975) ("… a person must obtain a permit and comply with its terms in order to discharge any pollutant."); State Water Resources Control Board, 426 U.S. at 205.

13. Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200, 1208, 16 ELR 20503, 20506 (4th Cir. 1986); Menzel, 712 F.2d at 94, 14 ELR at 20252; Train, 510 F.2d at 696 n.8, 5 ELR at 20047 n.8; Fritzsche, 579 F. Supp. at 1537-38, 14 ELR at 20455; SPIRG v. Monsanto Co., 600 F. Supp. 1479, 1483, 15 ELR 20297, 20299 (D.N.J. 1985) (J. Gerry).

14. Fritzsche, 579 F. Supp. at 1538, 14 ELR at 20455; Monsanto, 600 F. Supp. at 1485, 15 ELR at 20299; SPIRG v. Tenneco Polymers, Inc., 602 F. Supp. 1394, 1400, 15 ELR 20309, 20311 (D.N.J. 1985) (J. Thompson); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 451, 15 ELR 20785, 20790 (D. Md. 1985) (J. Young); Simkins Industries, 617 F. Supp. 1120, 15 ELR at 21012; National Starch, 16 ELR at 20452; SPIRG v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1204, 15 ELR 21051, 21057 (D.N.J. 1985) (J. Stearn); SPIRG v. Georgia-Pacific Corp., 615 F. Supp. 1419, 1429, 16 ELR 20039, 20044 (D.N.J. 1985) (J. Brotman); SPIRG v. Anchor Thread Co., 15 ELR 20964, 20965 (D.N.J. Oct. 1, 1984) (J. Bissell); SPIRG v. Hercules, Inc., No. 83-3262 (D.N.J. Feb. 28, 1986) (J. Bissell); Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 15 ELR 20663 (E.D. Va. 1985), aff'd, 791 F.2d 304, 16 ELR 20636 (4th Cir. 1986); Connecticut Fund for the Environment v. Job Plating Co., Inc., 623 F. Supp. 207, 218, 16 ELR 20596, 20661 (D. Conn. 1985); SPIRG v. P.D. Oil and Chemical Storage Inc., 627 F. Supp. 1074, 1090, 16 ELR 20517, 20518 (D.N.J. 1986) (J. Ackerman); United States v. Town of Lowell, 637 F. Supp. 254, 257-58 (N.D. Ind. 1985); United States v. East Kentucky Beverage Co., Inc., No. 84-56 (E.D. Ky. Dec. 30, 1985); Connecticut Fund for the Environment v. Stewart-Warner Corp., 631 F. Supp. 1286, 16 ELR 20726 (D. Conn. 1986); SPIRG v. American Cyanamid Co., 16 ELR 20517 (D.N.J. Nov. 5, 1985); Sierra Club v. Kerr-McGee Corp., 16 ELR 20083, 20085 (W.D. La. Oct. 29, 1985).

15. United States v. Metropolitan District Commission, 16 ELR 20621, 20624 (D. Mass. Sept. 5, 1985).

16. 602 F. Supp. at 1400, 15 ELR at 20311.

17. Hercules, No. 83-3262 (D.N.J. Feb. 28, 1986). See also Bethlehem Steel, 608 F. Supp. at 452-53 (the court "will not accept claims of inaccurate monitoring as a defense to this action … [and] the court will not accept the conclusions asserted by the defendants as raising a genuine issue of material fact with regard to any of the alleged inaccuracies"); Georgia-Pacific, 615 F. Supp. at 1430, 16 ELR at 20044 ("… defendants may not avoid judgment as to liability under the Act simply by challenging the accuracy of the data set forth in [the reports]"); Connecticut Fund for the Environment v. Raymark Industries, Inc., 631 F. Supp. 1283, 1285-86, 16 ELR 20727, 20729 (D. Conn. 1986) (court refuses to consider "the accuracy of the monitoring procedures prescribed in NPDES permits").

18. Atlantic States Legal Foundation v. Al Tech Specialty Steel Corp., 635 F. Supp. 284, 289, 17 ELR 20125 (N.D.N.Y. 1986).

19. AT&T Bell Labs, 617 F. Supp. at 1205, 15 ELR at 21058.

20. Friends of the Earth v. Facet Enterprises Inc., 618 F. Supp. 532, 536, 15 ELR 20106, 20107 (W.D.N.Y. 1984).

21. No. CIV-84-618-E (W.D. Okla. Nov. 27, 1985).

22. AT&T Bell Labs, 617 F. Supp. at 1204-05, 15 ELR at 21057, National Starch, 16 ELR at 20452-53.

23. Gwaltney, 791 F.2d at 313-15, 16 ELR at 20641 ("… where a violation is defined in terms of a time period longer than a day, the maximum penalty assessable for that violation should be defined in terms of the number of days in that time period.").

24. AT&T Bell Labs, 617 F. Supp. at 1205; 15 ELR at 21057.

25. 636 F. Supp. 534, 16 ELR 20364 (M.D. Pa. 1986).

26. 640 F. Supp. 392, 16 ELR 20911 (D. Conn. 1986).

27. 636 F. Supp. at 539, 16 ELR at 20366.

28. 636 F. Supp. at 539, 16 ELR at 20366, citing S. REP. NO. 414, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS 3668, 3747.

29. 640 F. Supp. at 397, 16 ELR at 20913.

30. 640 F. Supp. at 396, 16 ELR at 20912.

31. Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 60-61, 15 ELR 20674, 20675-76 (2d Cir. 1985); SPIRG v. Jersey Central Power & Light Co., 642 F. Supp. 103 (D.N.J. 1986) (J. Bissell); Al-Tech, 635 F. Supp at 287, 17 ELR at 20125; Anchor Thread, 15 ELR at 20965-66; Monsanto, 600 F. Supp. at 1484, 15 ELR at 20298; Bethlehem Steel, 608 F. Supp. at 444-46, 15 ELR at 20786-87; Gwaltney, 611 F. Supp. at 1545-47, 15 ELR at 20664-65; AT&T Bell Labs, 617 F. Supp. at 1199-1202, 15 ELR at 21055-56; Georgia-Pacific, 615 F. Supp. at 1422-25, 16 ELR at 20040-42; Locust Lane, 636 F. Supp. at 536-38, 16 ELR at 20365-66; Hercules, No. 83-3262 (D.N.J. Feb. 28, 1986); P.D. Oil, 627 F. Supp. at 1083-85, 16 ELR at 20517; Simkins Industries, 617 F. Supp. at 1128-29, 15 ELR at 21016-17; Facet, 618 F. Supp. at 534-35, 15 ELR at 20106-07; Stewart-Warner, 631 F. Supp. at 1287 n.1; Sierra Club v. C.G. Manufacturing, Inc., 638 F. Supp. 492, 493-94 (D. Mass. 1986); American Cyanamid, 16 ELR at 20517; Kerr-McGee, 16 ELR at 20083-84.

32. Anchor Thread, 15 ELR at 20966; AT&T Bell Labs, 617 F. Supp. at 1202-03, 15 ELR at 21056-57; Tenneco Polymers, 602 F. Supp. at 1398-99, 15 ELR at 20310; National Starch, 16 ELR at 20452; P.D. Oil, 627 F. Supp. at 1083-85, 16 ELR at 20518; Jersey Central Power, 642 F. Supp. at 107-08.

33. 28 U.S.C. § 2462 reads as follows:

Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

34. Bethlehem Steel, 608 F. Supp. at 446-50, 15 ELR at 20787-89; Simkins Industries, 617 F. Supp. at 1124-25, 15 ELR at 21014; Facet, 618 F. Supp. at 535-36, 15 ELR at 20107; Job Plating, 623 F. Supp. at 211-13, 16 ELR at 20598; Al-Tech, 635 F. Supp. at 287-88, 17 ELR at 20125; Friends of the Earth v. Archer Daniels Midland Co., No. 84-CIV-413 (N.D.N.Y. June 16, 1986); Stewart-Warner, 631 F. Supp. at 1287 n.1, 16 ELR at 20727 n.1; Sierra Club v. Union Oil Co., 16 ELR at 20005, 20006 (N.D. Cal. Oct. 17, 1985).

35. Archer Daniels, No. 84-CIV-413 (N.D.N.Y. June 16, 1986). See also Al-Tech, 635 F. Supp. at 287-88, 17 ELR at 20125.

36. Gwaltney, 781 F.2d at 308-13, 16 ELR at 20638-40; Job Plating, 623 F. Supp. at 213-14, 16 ELR at 20598-99; SPIRG v. Monsanto, 600 F. Supp. 1474, 1476-77, 16 ELR 20294, 20295 (D.N.J. 1985); Anchor Thread, 15 ELR at 20966; AT&T Bell Labs, 617 F. Supp. at 1194-99, 15 ELR at 21052-55; Georgia-Pacific, 615 F. Supp. at 1425-26, 16 ELR at 20042-43; National Starch, 16 ELR at 20452; Simkins Industries, 617 F. Supp. at 1126-27, 15 ELR at 21015-16; C.G. Manufacturing, 638 F. Supp. at 494-95; Sierra Club v. Hanna Furnace Corp., 636 F. Supp. 527, 529-30 (W.D.N.Y. 1985); Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531, 16 ELR 20001 (M.D. Pa. 1985).

37. Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 853-54, 14 ELR 20663, 20668 (N.D.N.Y. 1984); Archer Daniels, No. 84-CIV-413 (N.D.N.Y. June 16, 1986).

38. Simkins Industries, 617 F. Supp. at 1130, 15 ELR at 21015; AT&T Bell Labs, 617 F. Supp. at 1200, 15 ELR at 21052; Hanna Furnaces, 636 F. Supp. at 529.

39. Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 15 ELR 20385 (5th Cir. 1985); Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., No. 86-1227 (1st Cir. Dec. 18, 1986). See also Sierra Club v. Copolymer Rubber and Chemical Corp., 621 F. Supp. 1013, 16 ELR 20491 (M.D. La. 1985) (follows Hamker decision).

40. Pawtuxet Cove Marina, slip op. at 10.

41. Pawtuxet Cove Marina, slip op. at 11-12.

42. Mumford Cove, 640 F. Supp. at 394, 16 ELR at 20912; AT&T Bell Labs, 617 F. Supp. at 1205-06, 15 ELR at 21058; National Starch, 16 ELR at 20452; Stewart-Warner, 631 F. Supp. at 1288, 16 ELR at 20727.

43. Monsanto, 600 F. Supp. at 1486, 15 ELR at 20300; City of Moore, No. CIV-84-618-E (W.D. Okla. Nov. 27, 1985).

44. City of Moore, No. CIV-84-618-E (W.D. Okla. Nov. 27, 1985); Monsanto, 600 F. Supp. at 1486, 15 ELR at 20300.

45. CWA § 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B), ELR STAT. 42147.

46. Connecticut Fund for the Environment v. Contract Plating Co., 631 F. Supp. 1291, 16 ELR 20667; (D. Conn. 1986). See also Consolidated Rail, 768 F.2d at 63, 15 ELR at 20676.

47. Contract Plating, 631 F. Supp. at 1293, 16 ELR at 20668.

48. SPIRG v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 15 ELR at 20427 (3d Cir. 1985). See also Kerr-McGee, 16 ELR at 20084.

49. Baughman v. Branford Coal Co., Inc., 592 F.2d 215, 9 ELR 20147 (3d Cir. 1979), cert. denied, 441 U.S. 961 (1979).

50. Wiconisco Creek Watershed v. Kocher Coal Co., 641 F. Supp. 712 (M.D. Pa. 1986).

51. Consolidated Rail, 768 F.2d at 62, 15 ELR at 20677.

52. Archer Daniels, No. 84-CIV-413 (N.D.N.Y. June 16, 1986); Connecticut Fund for the Environment v. L&W Industries, Inc., 631 F. Supp. 1289, 1290-91, 16 ELR at 20666, 20667 (D. Conn. 1986). See also P.D. Oil, 627 F. Supp. at 1085, 16 ELR at 20517 (citizen suit not dismissed under abstention doctrine where state administrative action is pending); Job Plating, 623 F. Supp. at 214-15, 16 ELR at 20599 (rejects defense based on primary jurisdiction doctrine).

53. Metropolitan District Commission, 16 ELR at 20625. See also Natural Resources Defense Council v. Environmental Protection Agency, 656 F.2d 768, 11 ELR 20487 (D.C. Cir. 1981).

54. Hercules, No. 83-3262 (D.N.J. Feb. 28, 1986). See also Anchor Thread, 15 ELR at 20966 (no waiver pending the availability of township sewer system).

55. Georgia-Pacific, 615 F. Supp. at 1431, 16 ELR at 20043 ("Evidence of regulators' views of the seriousness of a permittee's misconduct is irrelevant to the issue of liability. In a Section 505 suit, such evidence is germane, if at all, to a court's determination as to the nature and extent of the relief which is appropriate to remedy the violations in question."); C.G. Manufacturing, 638 F. Supp. at 495 ("The compliments of EPA staff scientists do not rise to the level of a waiver of the right to prosecute permit violators.").

56. 40 C.F.R. § 122.41(n)(1). "Upset" is defined in the regulations as "an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities; lack of preventive maintenance; or careless or improper operation."

57. Metropolitan District Commission, 16 ELR at 20626; AT&T Bell Labs, 617 F. Supp. at 1204, 15 ELR at 21057; Bethlehem Steel, 608 F. Supp. at 453, 15 ELR at 20791; P.D. Oil, 627 F. Supp. at 1085-87; Al-Tech, 638 F. Supp. at 288, 17 ELR at 20125; Jersey Central Power, 642 F. Supp. at 108.

58. 40 C.F.R. § 122.41(n)(1).

59. Sierra Club v. Union Oil Co., 16 ELR at 20007, 20008 (N.D. Cal. 1985). See also Kerr-McGee, 16 ELR at 20086 (suggesting that the upset defense may apply during the testing period of a new wastewater treatment system).

60. AT&T Bell Labs, 617 F. Supp. at 1204, 15 ELR at 21057; Bethlehem Steel, 608 F. Supp. at 453, 15 ELR at 20791; P.D. Oil, 627 F. Supp. at 1085-87; Al-Tech, 635 F. Supp. at 288, 17 ELR at 20125.

61. Jersey Central Power, 642 F. Supp. at 108.