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STUDENT PUB. INTEREST RESEARCH GROUP OF NEW JERSEY

February 26, 1985

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs,
v.
TENNECO POLYMERS, INC., Defendant



The opinion of the court was delivered by: THOMPSON

 This matter is before the court on cross motions for summary judgment. The plaintiffs are the Student Public Interest Research Group of New Jersey, Inc. ("NJSPIRG") and the Friends of the Earth ("FOE"). The defendant is Tenneco Polymers, Inc. The suit stems from the defendant's alleged violations of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1251 et seq. The plaintiffs first moved for partial summary judgment on the issue of Tenneco Polymer's liability. The defendant opposed this motion and made a cross-motion for summary judgment, or in the alternative, partial summary judgment. The plaintiffs have also moved to amend their complaint to state a claim against Tenneco Resins, Inc.

 I. FACTS

 In May 1974, the Administrator of the Environmental Protection Agency ("EPA"), pursuant to § 402(a) of the FWPCA, 33 U.S.C. § 1342(a), issued a National Pollutant Discharge Elimination System ("NPDES") permit number NJ 0004391 to Tenneco Polymer's predecessor in interest, Tenneco Chemicals, Inc., a manufacturer of plastics and resins in Burlington, New Jersey. The permit authorized Tenneco Chemicals to discharge limited quantities of pollutants from its facility into Marter's Ditch, a tributary of the Delaware River. In March 1981, when the regulations implementing the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., became effective, a New Jersey Pollutant Discharge Elimination System ("NJPDES") permit was issued to Tenneco Chemicals. This permit authorized Tenneco Chemicals to discharge pollutants in accordance with the existing NPDES permit and with the conditions stated in New Jersey's regulations. *fn1" The permit expired in June 1979, but remains in effect by operation of law.

 Tenneco Polymers was formed on December 3, 1982. On December 15, 1982, it bought the plastics and resin manufacturing plant and subsequently had the permit transferred. On March 14, 1983, Tenneco Chemicals changed its name to Tenneco Resins.

 As a condition of the permit, the holder must make a report of all monitoring results in a Discharge Monitoring Report ("DMR") at intervals specified by the permit. Tenneco Chemicals and Tenneco Polymers have been required to submit DMR's on a monthly basis. In addition, the permit requires that the EPA be notified in writing of any failure or inability to comply with any permit condition within five days of the holder's awareness of the noncompliance. These notices are usually in the form of a letter and are commonly called Noncompliance Reports ("NCR's").

 The plaintiffs allege that on the basis of the DMR's and the NCR's, Tenneco Polymers has admitted a total of 197 violations of its permit, which are in turn violations of section 301(a) of the FWPCA, 33 U.S.C. § 1311(a). The plaintiffs have filed a citizens' suit under section 505 of the FWPCA, 33 U.S.C. § 1365, seeking a declaratory judgment, injunctive relief, the imposition of civil penalties and the award of costs, including attorneys' and expert witnesses' fees.

 II. DISCUSSION

 A. Defendant's Cross Motion For Summary Judgment

 First, the court will consider the defendant's cross motion for summary judgment or for partial summary judgment. The defendant has put forth several arguments in support of its motion for summary judgment.

 1. FOE As Proper Party To This Suit

 Tenneco Polymers asserts that FOE has not satisfied the jurisdictional requirements of the FWPCA. Specifically, it alleges that FOE has failed to give notice of Tenneco Polymers' violations to the EPA, the State of New Jersey and to the defendant itself, as required by section 505 of the FWPCA, 33 U.S.C. § 1365. Rather, the notice of violations was forwarded by NJSPIRG and by the Atlantic States Legal Foundation. The defendant argues that a plaintiff is required to substantially comply with the notice requirement. Since FOE has not even attempted compliance, it should be dismissed from the suit.

 The defendant's argument is similar to the argument put forth in South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118 (D.S.C.1978). In that case, the defendants argued that a citizens' suit for violations of the FWPCA should be dismissed since not all of the plaintiffs complied with the notice requirement. The court found, however, that this "argument is unconvincing because such an omission would in no way fail to put the defendants on notice as to the nature of the suit or the basis on which it was brought. Therefore, defendants have not been prejudiced by this omission . . ." Id. at 123-24.

 In this case, Tenneco Polymers seeks to dismiss only FOE rather than the entire suit. However, the court does not find this difference significant. The court finds that while FOE alone did not comply with the notice requirements, the plaintiffs together substantially complied. ...


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