2. Plaintiffs' Motion for Partial Summary Judgment
The plaintiffs' motion is a limited one. All the plaintiffs now seek is a declaratory judgment to the effect that between July 1, 1977 (the date when compliance with permits was mandated) and September 12, 1983, the defendant operated its Bridgeport facility in violation of the terms and conditions of its NPDES permit, and that such activity was in violation of sections 1311 and 1342 of the Act. This present motion does not seek injunctive relief, civil penalties, or costs, including attorneys' fees.
The plaintiffs' argument in support of its motion is a very basic one. The materials submitted by the parties indicate that the EPA issued to the defendant an NPDES permit on November 21, 1974. On July 18, 1975, the EPA and the defendant entered into a stipulation under which certain terms and conditions of the permit were modified. This permit expired January 31, 1980 but remains in effect by operation of law. See 40 C.F.R. 122.6. On March 6, 1981, the New Jersey Department of Environmental Protection, having been authorized to assume responsibility for the permit program, issued a NJPDES permit which authorized the defendant to continue its discharges in accordance with the previously issued NJDES permit. The permits require the defendant to submit monthly discharge monitoring reports (DMRs) and non-compliance Reports (NCRs) within five days of the defendant's becoming aware of non-compliance with the permit standards. The plaintiff has furnished us with these reports and shown the court 234 instances where the defendant exceeded the discharge limits permitted. (See Exhibits attached to Affidavit of Carolyn Smith.) Each such instance violates 33 U.S.C. §§ 1311 and 1342 and makes the defendant subject to civil penalties (see 33 U.S.C. §§ 1319, 1365). The plaintiff submits that the information presented above contains no genuine issues of material fact.
Regarding entitlement to judgment as a matter of law, the plaintiffs put forth the following arguments, all of which we accept:
Reports or records which are required to be kept by law (such as the DMRs and NCRs) may be used as admissions to establish a defendant's civil liability. See United States v. Ward, 448 U.S. 242, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980).
Summary judgment is appropriate on the issue of liability for violations of the Act. See United States v. Velsicol Chemical Corp., 438 F. Supp. 945 (W.D. Tenn. 1976), particularly since NPDES enforcement actions are based on strict liability, thus making intent and good faith irrelevant to the issue of liability. See United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979); United States v. Texas Pipe Line Co., 611 F.2d 345 (10th Cir. 1979).
The defendant has put forth a variety of factual and legal defenses to the summary judgment motion.
The defendant again raises the issue of the plaintiffs' standing to bring this suit. Since this issue now comes up on the plaintiffs' summary judgment motion, rather than on defendant's motion to dismiss, we may not assume the truth of allegations contained in the complaint. However, the plaintiffs' affidavits and answers to interrogatories (see plaintiffs' appendix III) do set forth facts sufficient to confer standing on the plaintiff organizations.
The defendant again raises the question of jurisdiction in light of the recent enforcement action of the EPA. But, as we have indicated above, the EPA's action is not directed toward the imposition of civil penalties for past violations, the subject of this motion. Rather, the EPA's action is calculated to secure future compliance with the permits. Since, as a matter of law, we do not regard the EPA action as within the "diligent prosecution" provision of 33 U.S.C. § 1365, we reject the defendant's argument on this issue.
Next, the defendant raises the question of the effect of its request for permit modification on its obligation to meet its NPDES permit limitations. The defendant first made a request for permit modification on November 15, 1976. (The request was based on the defendant's belief that its facility was built in accordance with the Best Practical Technology Currently Available (BPT) standards mandated by the Act, and that the existing NPDES permit limitations were too stringent. The permit, issued prior to the EPA's issuance of BPT guidelines, had been based on the EPA's best engineering judgment of what the Act required, rather than on BPT limitations later developed.) By the spring of 1977, the EPA told the defendant that its request for a hearing on modification would be held in abeyance pending the submission of additional data. This communication from the EPA did not state that the permit standards were being held in abeyance, only that the request for modification was being stayed. Six years passed. Finally, in 1983, the defendant renewed its request for permit modification, including retroactive modification. The defendant maintains that in view of the possibility of retroactive modification, and in view of its uncertain obligations between 1977 and 1983, summary judgment is inappropriate.
This issue also may be resolved as a matter of law. The question is: does the correspondence between defendant and the EPA serve to absolve the defendant of liability for violations of the permits which have continuously been in effect since 1975? The court believes the answer is No. We have indicated earlier in this opinion that permit requirements are not stayed pending a modification hearing, and that modifications are not applied retroactively. Furthermore, there is authority to indicate that NPDES permits based on best engineering judgment are as enforceable as permits based on BPT limitations. See United States v. Cutter Laboratories, Inc., 413 F. Supp. 1295 (E.D. Tenn. 1976). Accordingly, we believe the defendant's contention to be without merit. As stated earlier, strict liability attaches to permit violations. The defendant's argument is more appropriately addressed to the question of the penalties to be assessed, an issue not before the court here.
The defendant next argues that summary judgment is unwarranted because most of the permit violations occurred before January 1, 1982 (205 of 234), and that the citizen suit provisions of the Act were primarily intended to effectuate prospective relief. It is contended that suits to exact penalties for past violations should be left to the Government. The plain language of 33 U.S.C. § 1365 indicates, however, that civil penalties may be assessed in citizens suits under the Act. The cases the defendant has submitted (e.g., Love v. N.Y. State Department of Environmental Conservation, 529 F. Supp. 832 (S.D. N.Y. 1981)) do not stand for the proposition that civil penalties are unavailable under § 1365. Rather, those cases merely deny a private right of action for damages to plaintiffs in citizen suits.
The defendant next argues there is an issue as to whether prospective relief is justified in view of its improved compliance with the permit limitations. This is correct but is beyond the scope of plaintiffs' motion. The defendant further urges that the EPA's handling of the request for permit modification may estop the agency and, hence, the plaintiffs, from claiming permit violations. But the regulations promulgated pursuant to the Act (see 40 C.F.R. § 124.16) estop the defendant from claiming reliance on the agency's conduct and from claiming that its permit obligations were uncertain. The remaining contentions regarding the total suspended solids parameter of the permit are also not meritorious. The defendant's own reports indicate excessive discharges. The affidavit of an employee of Monsanto Company that the discharges were not toxic and presented no harm to the public is beside the point. The defendant must comply with the NPDES permit, which presents the EPA's judgments concerning toxicity.
The court is cognizant of improvements the defendant has managed to achieve over the last several years. But Congress, and the EPA, in promulgating regulations based on its understanding of congressional intent, has chosen to give lower priority to this factor in order to promote a healthy environment. The defendant's concerns may be properly dealt with at a hearing to assess relief. The plaintiffs' motion for summary judgment will be granted.
An order consistent with this opinion has been entered.
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