pollutants from defendant's operation into the Passaic River. Defendant moves to dismiss the complaint on two grounds: first, that a citizen's suit can not be maintained due to the "diligent prosecution" by the Environmental Protection Agency (EPA) in this matter, as reflected in the recent administrative consent order entered into between the EPA and FDO; and second, that the doctrine of primary jurisdiction compels the Court to forego decision pending the EPA's forthcoming decision on defendant's permit renewal application. Plaintiffs cross-move for summary judgment on the issue of liability, and seek additional discovery, and eventually a hearing, on the issue of damages.
Oral argument on these cross-motions was initially scheduled for September 12, 1983. On that date, the Court related to the parties that, unless there was objection, it would adjourn oral argument for a reasonable period in order to invite the EPA to participate in this lawsuit. No objections to this proposed solicitation were voiced, and on September 12, the Court wrote to Ms. Jacqueline Shafer, Regional Administrator of the EPA, and advised her of the status of the case. The Court noted that one of plaintiffs' principal arguments in opposition to defendant's motion to dismiss was that the EPA's enforcement activities with respect to defendant had not been "diligent"; in particular, plaintiffs alleged that the administrative consent order was itself invalid. The Court requested the EPA to indicate to the Court within fifteen days if it desired to participate in this case. The EPA replied that it would submit a synopsis of the administrative history of its dealings with defendant, which it did on October 28, 1983. This summary, which was submitted with a considerable number of exhibits, does not directly address any of the arguments raised by the present motions, but rather tracks the nearly nine year history of the interchanges between the EPA and FDO. Having received this submission, along with additional briefings by the parties, the Court heard oral argument on December 19, 1983. We now deny defendant's motion to dismiss, and grant plaintiffs' motion for partial summary judgment.
Defendant manufactures fragrances and flavors used in food and cosmetic products at a facility located in East Hanover, New Jersey. On April 19, 1974, the EPA's Regional Administrator issued to defendant a National Pollutant Discharge Elimination System (NPDES) permit for the direct discharge of pollutants from defendant's factory into the Passaic River; the permit became effective on April 30, 1974, and had an expiration date of April 30, 1979.
The NPDES permit was issued in accordance with section 402 of the Act, 33 U.S.C. § 1342, a provision included in the Clean Water Act Amendments of 1972, and which, in conjunction with the other additions to the Act, reflects and implements a new theory of water pollution control and enforcement.
Prior to 1972, the focus of water pollution legislation was on containing pollution through water quality standards; subsequent to 1972, the emphasis is placed on controlling pollutant discharge through "effluent limitations," rather than on the quality of the receiving water. To achieve the national goals of the Act, including elimination of all pollutant discharge into navigable waters by 1985, see 33 U.S.C. § 1251(a), the 1972 amendments require that a direct discharger, such as defendant, adopt "best practicable control technology currently available" (BPT) by July 1, 1977, and "best available technology economically achievable" (BAT) by July 1, 1983-1987, depending on the category and class of point source. See 33 U.S.C. § 1311(b). Both of these statutory guidelines are to be defined by regulations issued by the EPA Administrator. See 33 U.S.C. §§ 1311(b), 1314(b), 1314(d); National Association of Metal Finishers v. EPA, 719 F.2d 624, 633-34 (3d Cir. 1983).
The basic mechanism for enforcing the effluent and water quality standards applicable to direct dischargers is the NPDES, a permit system whose function is to define the discharger's obligations under the Act by translating the national effluent standards into limitations designed for the discharger's particular operation. As explained in EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 48 L. Ed. 2d 578, 96 S. Ct. 2022 (1976) (citing 33 U.S.C. §§ 1319, 1365), "An NPDES permit serves to transform generally applicable effluent limitations and other standards . . . into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits." Accord EPA v. National Crushed Stone Association, 449 U.S. 64, 69-72, 66 L. Ed. 2d 268, 101 S. Ct. 295 (1980). Thus, with few exceptions, a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the Amendments on which the permit conditions are based. State Water Resources Control Board, 426 U.S. at 205 (citing 33 U.S.C. § 1342(k)); see Zener, The Federal Law of Water Pollution Control, in Federal Environmental Law (Dolgin & Guilbert, eds. 1974), 728. Finally, under the Act, a discharger operating under an NPDES permit must establish and maintain records, install, use and maintain monitoring equipment, sample effluents, and report the results to the EPA, see 33 U.S.C. § 1318 -- in short, a discharger must report its own permit violations should they occur.
Subsequent to the issuance of defendant's NPDES permit in April, 1974, FDO's activities changed somewhat, causing violations of the biological oxygen demand (BOD ) and temperature limits set forth in its permit. In January, 1975, defendant sought a permit modification, which, after roughly twenty months of information gathering, was granted by the EPA in October, 1976. This modification included a compliance schedule which required the installation of a treatment system by July 1, 1977. This treatment system did not, in fact, become operational until May, 1979. See Heiart Affidavit, para. 4.
On January 16, 1977, defendant requested an extension of the July 1, 1977 statutory deadline for BPT compliance, pursuant to 33 U.S.C. § 1319 (a)(5)(B), but this request was denied by the EPA in a letter dated May 23, 1978. Finding that prior delays by defendant had not been justified, the EPA wrote that FDO had not satisfied the "good faith condition" of section 1319(a)(5)(B).
On September 13, 1977, the EPA, citing violations of the compliance schedule in defendant's NPDES permit, issued an administrative order to show cause why the matter should not be referred for civil prosecution. After meeting with representatives of FDO, the EPA determined that referral of the case to the Department of Justice was not warranted.
The EPA issued a renewal permit to defendant on June 6, 1979, which became effective on June 30, 1979. Because at the time of the permit issuance the EPA had not promulgated effluent limitation guidelines for the organic chemicals industry, of which defendant is a part, the permit limitations were based on the "best professional judgment" of the permit writer and the projected performance of the newly operational treatment system.
The renewal permit expired on June 30, 1981.
Beginning some time in 1981, the EPA noted intermittent non-compliance with permit limitations for total suspended solids (TSS), which, despite defendant's control strategies, continued into 1982. On September 30, 1982, the EPA issued another administrative order which cited the numerous TSS violations and directed defendant to appear on November 29, 1982, to show cause why the EPA should not refer the case to the Department of Justice for imposition of penalties pursuant to 33 U.S.C. § 1319. FDO responded on November 16, 1982, submitting a report to the EPA documenting its efforts to control the TSS problem and seeking an adjournment of the November 29 enforcement conference. This conference was adjourned pending EPA evaluation of the latest discharge monitoring report. The EPA received this report on March 1, 1983; after review by the case engineer, the case attorney wrote to defendant on March 15, 1983, informing FDO that the recent data revealed continuing TSS violations, and scheduling a conference for April.
During the course of these latter exchanges between the EPA and FDO, plaintiffs notified both of these parties, as well as the New Jersey Department of Environmental Protection (NJDEP), that it intended to commence an action against defendant for violations of its permit. The letters, dated March 4, 1983, were sent to satisfy the requirement that the EPA Administrator, the State, and the alleged violator be given at least sixty days notice of a "citizen's suit". See 33 U.S.C. § 1365(b)(1). By letter dated April 29, 1983, FDO wrote to plaintiffs in response to the latter's correspondence, and reviewed the measures FDO had taken to correct temperature and TSS violations. Also discussed in this letter were the EPA's enforcement efforts, which had culminated in a conference between the parties on April 20, 1983. Defendant reported that at this meeting, FDO agreed to "hook into" a municipal sewer system, then under construction in East Hanover, New Jersey, and to be completed within eighteen months. Defendant concluded, "Once the hookup is completed, the intermittent problems experienced by FDO will be completely eliminated. In the meantime, FDO also agreed to investigate and to report on reasonable interim steps to be taken to deal with the occasional problems with the TSS levels. The foregoing agreement will be embodied in an administrative consent order which is currently being drafted by an EPA staff attorney." Second Smith Aff., Exh. 1.
On May 4, 1983, plaintiffs filed this suit alleging that defendant, as a result of its numerous permit violations, was in contravention of sections 301(a) and 402 of the Act, 33 U.S.C. §§ 1311(a) and 1342. Basing their claim on defendant's own discharge monitoring reports (DMR's) and non-compliance reports (NCR's), plaintiffs assert that since May, 1980, defendant violated its effluent limitations for BOD  3 times, for temperature 58 times, and for TSS 179 times. See Complaint, para. 16; Plaintiff's Brief in Support of its Motion for Partial Summary Judgment, 17; First Smith Aff., para. 2.
After filing suit, plaintiffs wrote to the EPA's Regional Administrator and FDO's counsel on May 26, 1983, requesting that they be allowed to participate in any negotiation between the EPA and FDO concerning the latter's compliance with its NPDES permit. Plaintiffs raised several arguments that cast doubt on the legality of the proposed administrative consent order, as described in defendant's letter to plaintiffs of April 29, 1983, and emphasized that the underlying policies of the Act supported participation by citizens groups. Second Smith Aff., Exh. 2. Plaintiffs state, and defendant does not dispute, that the EPA never responded to this written request.
On December 7, 1983, defendant informed the Court that a final administrative consent order between the EPA and FDO had recently been signed, formally resolving the problem of defendant's non-compliance with its NPDES permit. The consent order notes that FDO "informed both the EPA and NJDEP that at this time it intends to discharge its process wastewater to the East Hanover collections system by December 31, 1984 or as soon as the sewer lines are made available", and orders as follows:
The permittee [FDO] shall comply with the following schedule to achieve compliance with its effluent discharge limitations:
1. By August 20, 1983, complete and submit to the EPA and NJDEP, a report detailing all actions instituted by the permittee to attain compliance with the TSS permit limitations, and the alternative interim actions the permittee can reasonably implement in the period prior to ceasing its wastewater discharge, except for the discharge of its noncontact cooling water, to the Passaic River in order to achieve the TSS permit limitations or to minimize violations of same.