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STUDENT PUB. INTEREST RESEARCH GROUP OF NEW JERSEY

January 21, 1985

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and FRIENDS OF THE EARTH, Plaintiffs,
v.
MONSANTO COMPANY, Defendant



The opinion of the court was delivered by: GERRY

 This action is a citizens' suit, brought under § 505 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1365. The plaintiffs seek declaratory and injunctive relief, the imposition of civil penalties, and an award of costs, including attorneys' and expert witnesses' fees.

 The complaint states that pursuant to § 402 of the Act (33 U.S.C. § 1342), the Environmental Protection Agency (EPA), and later the New Jersey Department of Environmental Protection (NJDEP), issued National Pollutant Discharge Elimination System (NPDES) permits to Monsanto Company authorizing the latter to discharge limited quantities of pollutants from its facility in Bridgeport, New Jersey, into the Delaware River. The permits date from November 21, 1974 and about March 6, 1981, respectively. Section 308 of the Act (33 U.S.C. § 1318) requires facility operators to file reports regarding the discharge of pollutants and instances of non-compliance with permit standards. Section 301(a) of the Act (33 U.S.C. § 1311(a)) makes it unlawful to discharge pollutants where such discharge exceeds the limits authorized by permits issued under § 402. The complaint alleges that, based on a comparison of the permits and the § 308 reports, it is clear that Monsanto Company is acting in violation of the Act by discharging higher levels of substances than the permits issued allow. Plaintiffs seek a declaration that Monsanto Company has violated and continues to violate the Act; an injunction against further violations; the imposition of civil penalties of $10,000 per day of violation for each violation; and an award of costs, including attorneys' and experts' fees.

 Before the court are two motions. The defendant seeks to dismiss the action on a variety of grounds. The plaintiffs, meanwhile, seek partial summary judgment on the issue of the defendant's liability for violations of the Act.

 1. Defendant's Motion to Dismiss

 In support of its motion to dismiss, the defendant puts forth a multitude of arguments for the court to address.

 A. First, it is argued, the terms of § 505 (33 U.S.C. § 1365) bar a citizen's suit where, as here, there is an EPA enforcement action in progress. The statute, in pertinent part, states:

 
No action may be commenced [by a private citizen] if the Administrator [of the EPA] or State has commenced or is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order. . . .

 The defendant argues that we should ignore the plain wording of the statute and rule that an enforcement proceeding within the administrative agency satisfies the terms of the statute. In support of its position, Monsanto Company urges that, in reliance on Ballantine's Law Dictionary, we find an agency which has initiated enforcement action to be a court. The plaintiffs have diligently researched the legislative history of the Water Pollution Control Act Amendments of 1972 and have brought to the court's attention the fact that Congress did contemplate the possibility that agency action, if adequate, might serve as a bar to a citizen action. See S. Rep. No. 414, 92nd Cong., 1st Sess., 80 (1971). The Third Circuit, in Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (1979), construing the similar citizen suit provision of the Clean Air Act, held that there may be instances where agency enforcement action could constitute court action and thus bar citizen suits. But the Baughman court held that a state agency in that case was not a "court" because it lacked the full remedial powers available to a traditionally defined "court" under the Clean Air Act, and because it did not provide the full opportunity for citizen intervention available in "courts" under the Act. The plaintiffs argue that these same considerations apply here: § 309 of the Act (33 U.S.C. § 1319) requires that the EPA seek penalties and injunctive relief in a district court, thus making the agency enforcement action undertaken "inadequate"; and the plaintiffs have not been afforded an opportunity here to intervene before the agency. The court agrees with the plaintiffs that under these circumstances, it would be inappropriate to denominate the EPA a "court" such that a citizen's suit could not be brought. See also Sierra Club v. SCM Corp., 572 F. Supp. 828 (W.D. N.Y. 1983) (state agency not a court under the Water Pollution Control Act). The court agrees with the plaintiffs that the Congress intended the citizen suit provision to be a useful supplement to the EPA's enforcement powers and, if necessary, an antidote to agency inaction. Here, the EPA, following notice of suit, has finally begun some enforcement activity after, the plaintiffs allege, some six years of violations. But the May 9 "enforcement order" does not seem calculated to produce the results the plaintiffs seek to bring about. Rather, it seems to be only a preliminary step toward eventual elimination of violations. Thus, this court will not defer to the agency because of its dubious status as a court. The court also notes that § 505 gives the EPA the right to intervene in any citizen's suit. Should the EPA feel that this suit interferes with its attempts to secure compliance with the Act, it may avail itself of this right.

 B. Next, the defendant argues that the non-statutory doctrine of primary jurisdiction should serve as a bar to the bringing of this action. The doctrine, like the "final agency action" requirement of the Administrative Procedure Act, is designed to give agencies the first opportunity to decide questions about which they, of the various decision-making bodies, have the greatest competence. Some reasons commonly cited for the doctrine are the necessity for administrative uniformity (as, for example, in the setting of rates); and the need for special skill, commonly to be found only in a body of experts, particularly where intricacies of fact are involved. See United States v. Radio Corporation of America, 358 U.S. 334, 346, 3 L. Ed. 2d 354, 79 S. Ct. 457 (1959); Nader v. Allegheny Airlines, 426 U.S. 290, 48 L. Ed. 2d 643, 96 S. Ct. 1978 (1976). This court does not believe that the doctrine is applicable to this case such that jurisdiction ought to be yielded. Uniformity is not at issue here: whatever uniformity the EPA hoped to achieve presumably was expressed through the issuance of permits. Moreover, the agency's special skill went into the setting of pollution limits. This court in this suit is not called upon to itself delve into the complex questions of what quantities of pollutants are safe, or what various industries can be expected to accomplish in reducing pollution. All the court here is called upon to do is compare the allowable quantities of pollution listed in the permits with the available statistics on actual pollution. This comparison seems no more complicated than much other work the court does.

 The cases cited by the defendant do not seem to mandate that we yield to the agency. Loveladies Property Owners Assn. v. Raab, 430 F. Supp. 276 (D. N.J. 1975) merely stands for the proposition that plaintiffs must comply with the technical notice requirements of 33 U.S.C. § 1365. Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977) was a suit brought to compel agency enforcement action. The suit was dismissed since the court ruled that § 1319 enforcement action was discretionary. Here, by contrast, the plaintiffs are not seeking to compel agency action. Rather, not satisfied to rely on the EPA to institute suit, they are bringing suit themselves. Finally, Montgomery Environmental Coalition v. Washington Suburban Sanitary Comm., 197 U.S. App. D.C. 64, 607 F.2d 378 (D.C. Cir. 1978) is a case where the plaintiffs sought to enjoin the release of pollutants at the very time that NPDES permit proceedings were pending before the EPA. Under that circumstance, the court invoked the doctrine of primary jurisdiction. Here, however, the permit has already been issued, and the plaintiffs merely seek to enforce it. We believe that Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976), a case cited by the plaintiffs, furnishes us with proper guidance. That case, under the Clean Air Act, involved citizen action to enforce a state implementation plan. The court ruled that EPA efforts to negotiate consent orders vis-a-vis the plan were not a sufficient reason to dismiss the suit. Rather, the court reminded the EPA of its right to intervene.

 The defendant appears to argue that, as in the Montgomery Environmental Coalition case, supra, there is, in fact, a pending agency action on the permits. This is because, since 1976, the defendant has sought modifications in the pollutant levels authorized by its NPDES permits, including retroactive modifications. The EPA has held these requests in abeyance for seven years. But the plaintiffs are seeking penalties for past violations. The pendency of a modification proceeding does not excuse violations of a permit prior to actual modification: a modification request does not stay existing permit limitations. See 40 C.F.R. 124.16(c)(1). Cf. Menzel v. County Utilities Corp., 712 F.2d 91 (4th Cir. 1983) (permit, once issued, will not be applied retroactively to insulate against past violations of the Act). And to the extent the plaintiffs seek prospective relief, such relief is only calculated to secure compliance with the NPDES permits, whatever their contents. The plaintiffs do not seek to challenge the validity of the modification requests or have the court set pollution limits. Such relief, if sought, might be subject to the doctrine of primary jurisdiction. Here, however, there is no basis for deferring to the EPA.

 C. Next, the defendant urges dismissal because the plaintiffs lack standing to bring this suit. The court considers this argument entirely devoid of merit. In setting out the standing requirements of ...


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