cooperated with appropriate regulatory agencies in attempting to resolve all apparent causes of potential violations or problems." The defendant argues that citizen suits are only appropriate after administrative remedies fail. In this case, the EPA issued an Administrative Order on February 15, 1980, asking Tenneco Chemicals to explain the basis for the violations, and the defendant has been working cooperatively with both the EPA and the New Jersey Department of Environmental Protection to correct discharge problems.
The court finds that the EPA administrative action does not affect the plaintiffs' right to bring this citizen suit. According to section 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B), no citizen suit may be commenced "if the Administration or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or . . . a State . . ." Under certain circumstances, agency action may be considered the equivalent of court action. Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (3d Cir.1979). Thus, the Third Circuit found that an agency could be considered a court which would bar a citizen suit under the Clean Water Act when it has the "power to accord relief which is the substantial equivalent to that available to the EPA in federal courts . . ." Id. at 219. The court also indicated that the right of citizens to intervene in the action may be a factor in finding that the agency action was not equivalent to a court. Id.
In this case, the court finds that the EPA proceedings lacked the power to accord the substantial equivalent to the relief available in federal court since the EPA has no authority to impose civil penalties. Moreover, citizens had no opportunity to participate in the EPA's administrative enforcement proceeding. In making this determination that the EPA action was not a court proceeding which would bar the citizen suit, this court is in accord with Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528 (D.N.J.1984) (hereinafter " NJSPIRG v. FDO "); Student Public Interest Research Group of New Jersey v. Monsanto Co., 14 E.L.R. 20228 (D.N.J.1983) (hereinafter " NJSPIRG v. Monsanto "); and Sierra Club v. SCM Corp., 572 F. Supp. 828 (W.D.N.Y.1983), dismissed on other grounds, 580 F. Supp. 862 (W.D.N.Y.1984).
4. Statute of Limitations
Tenneco Polymers also seeks partial summary judgment on the basis of the statute of limitations. The defendant argues that since the FWPCA does not include a statute of limitations for the initiation of citizen suits, the court should "borrow" the most analogous state statute of limitations. The defendant asserts that since the plaintiffs are seeking civil penalties payable to the government, the most analogous New Jersey statute of limitations is N.J.S.A. 2A:14-10(a), which provides a two-year statute of limitations for all actions ". . . brought for any forfeiture upon any penal statute . . . when the forfeiture is or shall be limited by the statute to the State of New Jersey only . . ." The court finds, however, that in the context of the FWPCA, it could not have been the intent of Congress to have the federal courts borrow state statutes of limitation and certainly not statutes as short as two years for the bringing of citizens suits. If courts were to borrow state statutes of limitations then the enforcement of the FWPCA through citizen suits would differ from state to state. Some states could choose to have a very brief statute of limitations and thus be very hospitable to industries that violate the Act. Clearly, the FWPCA was meant to combat this diversity in state enforcement and put forth a national policy for halting the pollution of the nation's waters. See 33 U.S.C. § 1251 (Congressional declaration of goals and policy); § 1253 (interstate cooperation and uniform laws); American Frozen Food Institute v. Train, 176 U.S. App. D.C. 105, 539 F.2d 107, 129 (D.C.Cir.1976).
In addition, the court is not persuaded that Congress envisioned a statute of limitations for citizen suits as short as two years. First, this short limitations period would truncate the right of citizen plaintiffs to seek penalties for past violations. The right to seek civil penalties for past violations has recently been affirmed by federal district courts in Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 20 E.R.C. 1916 (N.D.N.Y.1984); Student Public Interest Research Group v. Ragen Precision Industries, Civ. No. 83-1604 (D.N.J. Dec. 19, 1983); and NJSPIRG v. Monsanto, supra. Second, as stressed by the defendant, enforcement of the FWPCA through citizen suits is appropriate only after the EPA and the state have had an opportunity to enforce the Act. Thus, it would defeat the purpose of the Act to impose a shorter statute of limitations on citizen suits than on federal or state agencies.
The defendant argues in the alternative that if the court does not borrow the state statute of limitations, the five-year federal statute of limitations found in 28 U.S.C. § 2462 should be applied.
There is no precedent for applying this statute to citizen suits of this type. Moreover, even if this is the statute of limitations that would apply to EPA enforcement, the court would hesitate to apply the same limitations period to citizen plaintiffs, who, as already discussed, cannot bring suit until after the state and federal agencies have had an adequate opportunity to enforce the Act. For all of the above reasons, Tenneco Polymers' motion for partial summary judgment on the basis of the statute of limitations will be denied.
5. Dismissal Of Complaint In Regard To Violations Before December 15, 1982
Tenneco Polymers also moves for summary judgment on alleged violations which occurred before December 15, 1982,
the date when Tenneco Polymers bought the Burlington plant from Tenneco Resins. The plaintiffs argue that Tenneco Polymers can be held responsible for the violations of Tenneco Chemicals since there was a substantial continuity of identity between the two corporations. The plaintiffs assert that the change was, in essence, only a change in name. According to the plaintiffs, both corporations are subsidiaries of Tenneco, Inc., and the change followed an internal reorganization of the corporation. The plaintiffs note that the same plant manager continued after Tenneco Polymers took over and the plant appears to operate in the same way since the change in ownership. The defendant denies that there is continuity of identity between the corporations to the extent that Tenneco Polymers could be held liable for Tenneco Chemicals' violations. The defendant notes that there was more than merely a cosmetic change in name since Tenneco Chemicals continues to exist under the name Tenneco Resins.
The court finds that there are clearly unresolved questions of law and fact as to whether Tenneco Polymers could be held liable for alleged violations that occurred when the plant was owned by Tenneco Chemicals. Accordingly, the defendant's motion for summary judgment on this issue will be denied at this time.
B. Plaintiffs' Motion for Summary Judgment
The court now moves to the plaintiffs' motion for partial summary judgment on the issue of liability. In this motion the plaintiffs seek only a declaratory judgment that Tenneco Polymers has violated sections 301 and 402 of the FWPCA, 33 U.S.C. §§ 1311 and 1342. If this motion is granted, the plaintiffs will request a hearing to set forth the scope of the injunctive relief, civil penalties and costs that are also being sought.
Enforcement of NPDES permits is based on strict liability. United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir.1979). However, the defendant asserts that the plaintiffs' motion for summary judgment should be denied because there remains a question of fact as to whether Tenneco Polymers violated the permit. Tenneco Polymers argues that 55 of the alleged violations are within the margin of analytic error. Moreover, the defendant states that there is a question of fact whether the information contained in the DMR's and NCR's can conclusively show permit violations since the testing procedures, in general, are inaccurate.
This same argument was raised and rejected in NJSPIRG v. FDO, 579 F. Supp. at 1538. In FDO, the court noted that the defendant's "speculations [that the information contained in the DMR's and NCR's is inaccurate] were unaccompanied by any direct evidence of reporting inaccuracies." Id. Tenneco Polymers argues that its claims of inaccuracies differ from those asserted in FDO since it has submitted affidavits from Fred W. Kanzler, the environmental coordinator from Tenneco Polymers' Burlington plant, and from John Cirello, Vice President of Princeton Aqua Science. Kanzler states in his affidavit in part that: "Based upon information I have received from EPA regarding their quality assurance program for testing laboratories, and my own experience with analytical testing procedures, it is my understanding that there are inherent margins of error in the results of the laboratory tests in the BOD, COD, TSS Ph and TOC categories." In his affidavit, Cirello states in part: ". . . it is my professional opinion that it cannot conclusively be stated (and, in fact, it is highly questionable) that the amount of discharge which is alleged to be represented by the sample test, was in fact the amount actually discharged into the Delaware River by this defendant."
This court finds, however, that these affidavits are insufficient to raise a question of fact to defeat the plaintiffs' motion for summary judgment. There is no indication that the EPA would not consider the information contained in Tenneco Polymers' DMR's and NCR's as conclusively showing permit violations. Moreover, the affidavits do not raise a question of fact that there were errors in the actual tests performed which showed permit violations. This court is in agreement with the other courts in this district that "reports or records which are required to be kept by law, such as DMR's and NCR's, may be used to establish a defendant's liability." FDO, supra, at 1538, relying on NJSPIRG v. Monsanto, 14 E.L.R. at 20230-31. As noted by the court in FDO :
This result is consistent with the legislative history of the Act, which emphasizes the benefits of expedition in enforcing the Act:
The bill . . . establishes and makes precise new requirements imposed on persons and subject to enforcement. One purpose of these requirements is to avoid the necessity of lengthy fact finding investigations at the time of enforcement. Enforcement of violations of requirements under this Act should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay.