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January 21, 1985


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, 33 U.S.C. § 1365. The plaintiffs, two environmental groups, alleged that the defendant, Monsanto Company, had violated the Act by discharging pollutants from its Bridgeport, New Jersey plant into the Delaware River in amounts exceeding those allowed under Environmental Protection Agency (EPA) and state discharge permits. Plaintiffs sought a declaratory judgment that the defendant was in violation of the Act by exceeding permit limitations, civil penalties for some 236 such violations dating back to August 4, 1977, and an injunction against further violations.

 The plaintiffs moved for summary judgment on the issue of liability for these 236 violations (from August 4, 1977 through September 12, 1983). That motion did not ask the court for injunctive or declaratory relief, or for an assessment of penalties based on the violations. By order dated December 14, 1983, this court granted the plaintiffs' motion.

 Based on that ruling, the defendant's potential exposure to penalties is substantial. The Act authorizes a penalty of $10,000 for each day of violation. 33 U.S.C. § 1319(d). Depending on how that section is interpreted, the defendant may be liable for up to $2,360,000. (Some of the violations are daily average discharges in excess of allowable average output. The court is not certain exactly how this limitation squares with the "per day" language of the civil penalty provision, since an average does not represent a violation on any given day. This issue is not yet ripe for disposition.)

 The defendant is now moving on a variety of grounds in an effort to reduce its potential exposure. First, the defendant seeks to amend its answer to add the affirmative defenses of laches and a statute of limitations bar. Second, the defendant seeks to argue that the Act does not authorize citizens to seek civil penalties for violations preceding the onset of the lawsuit or, at worst, violations occurring more than two years prior to suit. Third, the defendant argues that the provisions of the Act authorizing citizens to seek the imposition of civil penalties are unconstitutional.

 1. Amendment of answer. At the risk of taking the liberal spirit of Rule 15(a) too far, the court will permit the proposed amendments and will address the merits of the amendments below.

 2. Limits on liability for violations preceding the filing of the complaint.

 As a preliminary matter, the plaintiffs argue that this matter has already been decided by the court in its opinion on plaintiffs' motion for summary judgment, and that the "law of the case" doctrine precludes reargument. Further, the plaintiffs argue that the defendant has waived this possible defense, pursuant to Rule 12(h)(2). Reviewing our bench opinion of November 18, 1983, there can be little doubt that we did decide this issue when we stated that "The plain language of 33 U.S.C. § 1365 indicates . . . that civil penalties may be assessed in citizens' suits under the Act. The cases the defendant has submitted . . . merely deny a private right of action for damages to plaintiffs in citizen suits." The defendant argues that all we decided was that it had violated the Act but did not decide whether penalties could be assessed or the time frame of such penalties. We disagree. Nevertheless, at the risk of being repetitious, we will pass over the plaintiffs' preliminary objections and briefly address again the merits of this issue.

 First, the defendant asks that we consider the "plain meaning" of the citizens' suit provision of the statute, which reads, in part:

[Any] citizen may commence a civil action against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this Act.
. . .
The district courts shall have jurisdiction . . . to apply any appropriate civil penalties under [ 33 U.S.C. § 1319].

 33 U.S.C. § 1365(a) (emphasis added). The defendant argues that "in violation" clearly refers to violations in the present, that is, occurring no earlier than the date of suit. The court does not believe that "in violation" necessarily confines violations to those presently or prospectively occurring. A plausible construction of the language is that one is "in violation," and continues to be "in violation" by having "violated." In other words, the taint of a past violation is continuing. In any event, however, the next paragraph of § 1365(a) quite specifically refers to ...

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