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STUDENT PUB. INTEREST RESEARCH GROUP OF NEW JERSEY

August 13, 1985

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs,
v.
AT&T BELL LABORATORIES, Defendant



The opinion of the court was delivered by: STERN

 STERN, District Judge

 This action is a citizen suit, brought under § 505 of the Water Pollution Control Act (FWPCA), as amended, 33 U.S.C. § 1365 (1982). Plaintiffs Student Public Interest Research Group of New Jersey, Inc. and Friends of the Earth seek a declaratory judgment, imposition of civil penalties and the award of costs, including attorney's and expert witness fees as a result of the defendant AT&T Bell Laboratories, Inc.'s (AT&T's) alleged violation of § 301(a) of the FWPCA, 33 U.S.C. § 1311(a) (1982), by numerous alleged violations of its National Pollutant Discharge Elimination System/New Jersey Pollutant Discharge Elimination System (NPDES/NJPDES) permit. This permit authorized defendant to discharge limited amounts of specified pollutants into the Whippany River.

 The Court heard oral argument on both motions on April 22, 1985. We now deny defendant's motion to dismiss and grant plaintiff's motion for partial summary judgment.

 FACTS

 Defendant AT&T operates a research and development facility in Hanover Township, New Jersey. Some 3,000 scientists and support staff work at the 192-acre facility on telecommunications and electronics research, including specialized research for the United States Department of Defense. Prior to 1963, AT&T treated all of the facility's waste water through an on-site, conventional, biological waste treatment system. In that year, construction began on a new physical/chemical waste treatment plant to prepare waste water for discharge into the Whippany River.

 On March 5, 1974, subsequent to the 1972 amendments to the FWPCA, the Environmental Protection Agency (EPA) issued a discharge permit for the AT&T facility, pursuant to § 402 of the Act, 33 U.S.C. § 1342 (1982). The permit set limits on the discharges of specified laboratory substances. It was modified to establish new limits in 1977, 1978 and 1979. In 1982, the authority to issue permits in New Jersey was transferred from the EPA to the New Jersey Department of Environmental Protection (NJDEP). On December 1, 1982, a NJDEP permit became effective for the AT&T facility. The limits set by the new permit were identical in all pertinent respects to those set by the 1979 renewal permit previously in force. On January 14, 1983, AT&T terminated its discharges into the Whippany River and diverted them to a treatment plant operated by the Hanover Sewerage Authority. The NJDEP removed its permit for the AT&T facility from its active files. There is no allegation before this Court of any subsequent discharge by defendant into the Whippany River.

 Prior to the 1972 amendments to the FWPCA, federal water pollution laws sought to assure water quality standards reflecting the amount of pollution a given body of water could tolerate. This system of pollution control proved difficult to enforce because of the impracticality of attempting to impose precise effluent limitations for all pollutants based on water quality desired for receiving bodies of water. See Federal Water Pollution Control Act Amendments of 1972, S. Rep. No. 414, 92d Cong., 1st Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 3668, 3672, 3675 (henceforth cited as S. Rep. No. 414). Consequently, the 1972 amendments were designed to control pollution through "effluent limitations" imposed on specific polluters for particular pollutants. S. Rep. No. 414, reprinted in 1972 U.S. Code Cong. & Ad. News at 3675, 3709. The basic mechanism for enforcing the new statutory goal of controlling pollutant discharge is the NPDES permit system, created by § 402 of the FWPCA, 33 U.S.C. § 1342 (1982), which translates the general effluent limitations into specific obligations for each discharger. Absent such authorization, it is unlawful for anyone to discharge any pollutant in any amount. 33 U.S.C. § 1311(a) (1982).

 Plaintiffs seek partial summary judgment on defendant's liability for eighty-seven specific permit violations between 1977 and 1982. The number of alleged violations exceeds the number of violations AT&T reported to state and federal authorities because of three flaws in AT&T's methods that led to underreporting of violations. First, AT&T's permit allowed semi-annual reports after June 1979 but did not exempt AT&T from monthly monitoring of discharges and meeting effluent limitations based on monthly monitoring. Instead of reporting each monthly violation, AT&T averaged the discharges by adding them up for each six-month period and dividing by six. Only if the semi-annual average violated the limitation was it reported. Plaintiffs recomputed the monthly averages by examining the laboratory reports underlying the DMRs. Brief for Plaintiffs in Support of Motion for Partial Summary Judgment, Student Public Interest Research Group of New Jersey, Inc. v. AT&T Bell Laboratories, No. 84-1087, at 15 (D.N.J. 1985). Secondly, AT&T also underreported the maximum discharge violations after June 1979. Instead of reporting each monthly violation of discharge limitations, AT&T reported only the most serious violation for each six-month period. Again, plaintiffs have reworked test figures underlying the DMRs to compute the actual number of violations. Id. at 15-16.

 Third, AT&T underreported violations of both the average and the maximum limitations between April and June 1982 when test samples were split and sent to two different labs, both chosen by AT&T -- Chemtech Consulting Group and Princeton Testing Laboratories. AT&T did not consistently choose one lab's results over the other's in preparing DMRs. Eight of plaintiffs' eighty-seven alleged violations are ones where both labs reported discharges exceeding limitations, or where only one lab did, but AT&T reported that result in the DMR. Plaintiffs are not disputing situations where only one lab reported violative discharges and AT&T reported the other lab's results or neither lab's results. Id. at 16-18.

 Although defendant has submitted many exhibits, including an affidavit that discusses discharge testing in some detail by Paul E. Wyszkowski, who has "general supervisory authority over all matters impacting the environment as a result of the operations of A.T.&T. Bell Laboratories," nowhere does defendant contest these three alleged flaws in reporting methods.

 DISCUSSION

 A. Defendant's Motion to Dismiss

 Although plaintiff's motion was filed first in time, we treat defendant's motion first since it raises questions that are logically antecedent: whether plaintiffs have stated a claim upon which relief can be granted, whether plaintiffs have standing, and whether plaintiffs claims are time-barred.

 Defendant offers the threshold argument that one of the plaintiffs, Friends of the Earth (FOE), should be precluded from participation in this suit because it failed to give sixty days notice of intent to sue as required by § 505(b)(1) of the FWPCA, 33 U.S.C. § 1365(b)(1)(A) (1982). The defendant acknowledges that plaintiff Student Public Interest Research Group of New Jersey, Inc. (SPIRG) served its notice of intent to sue on defendant on March 4, 1983. We hold that the failure of one plaintiff to file notice of intent to sue does not deprive this Court of subject matter jurisdiction over the action, considering that over thirteen months elapsed after SPIRG filed notice before a hearing was held. See Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton, 644 F.2d 995, 996-97 (3d Cir. 1981) (citing passage of eleven months before hearing in rejecting a similar motion). We hold further that because one plaintiff served adequate notice, both plaintiffs "substantially complied" with the statutory requirements, and defendant's right to adequate notice was preserved. Student Public Interest Research Group of New Jersey, Inc. v. Tenneco Polymers, Inc., 602 F. Supp. 1394, 1396 (D.N.J. 1984); see South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 123-24 (D.S.C. 1978).

 1. Claims of Past Violations of Expired Permits

 Defendant draws attention to the statutory authorization of citizen suits in § 505(a)(1) to maintain that such actions are limited to present permit holders for the purpose of halting pollution:

 
. . . Any citizen may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this chapter. . . .

 33 U.S.C. § 1365(a)(1) (1982) (emphasis added). Does the use of the present tense, "in violation", mean that past violations are immunized from citizen suit enforcement? Defendant also draws attention to the statutory definition of "effluent standard or limitation" in § 505(f)(6) of the Act in order to argue that citizen suits are limited to enforcement of permits that are currently in effect when the suit is filed:

 
(6) a permit or condition thereof issued under section 1342 of this Title, which is in effect under this chapter. . . .

 33 U.S.C. § 1365(f)(6) (1982) (emphasis added). Does "in effect" mean at the time of the complaint or at the time of the violation? In claiming that past violations are immunized, and that actions are maintainable only against violations of permits in effect at the time of the complaint, defendants conclude that § 505 citizen suits may be brought only to abate violations that are ongoing at the commencement of the action.

 The obvious difficulty with this interpretation is that, for administrative and procedural reasons we have already alluded to, a court could not possibly consider a citizen suit alleging violations of the FWPCA until months after those violations occurred. If the violations were of limitations in permits, the monitoring system requires that discharge samples be sent to laboratories for processing and analysis. Reports of these tests then become the basis of DMRs and NCRs submitted by the permittee to the EPA and state agencies where a citizen group might gain access to them. Before filing suit, however, 33 U.S.C. § 1365(b)(1)(A) (1982) requires sixty days notice to the permittee and the agencies. Whatever Congress meant by using the present tense in §§ 1365(a)(1) and (f)(6), therefore, Congress could not conceivably have meant that the violations literally be ones occurring at the time the citizen suit is filed.

 The most significant legal support for defendant's interpretation is a very recent Fifth Circuit opinion that came to this Court's attention only after the hearing on the present motions. In Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 (5th Cir. 1985), the court considered a § 505 citizen suit brought by property owners against the owners of an oil pipeline. In January of 1983, the pipeline leaked into a creek that flowed onto the plaintiffs' property. Before the leak was detected and the flow of oil shut down, approximately 2,400 barrels of crude oil were discharged into the creek. Id. at 394. Among the relief sought by plaintiffs' suit was a claim for civil penalties pursuant to 33 U.S.C. § 1319(d) (1982). Among the defenses was a claim similar to defendant's in the present case that the court lacked subject matter jurisdiction because § 505 authorizes only prospective relief, which is inappropriate where defendant no longer discharges, and because the statute does not permit citizen suits for past violations. The district court dismissed, and the Fifth Circuit affirmed based on "the language of section 1365 and the structure of the Act." Id. at 395. Specifically, the court noted that § 505 authorized citizen suits against defendants "alleged to be in violation" of effluent limitations. Id. (citing 33 U.S.C. § 1365(a)(1) (1982)). Secondly, the court found that although the EPA "may have the power to seek some redress for past violations," the EPA's role in the statutory enforcement scheme is more "central" than that of citizen suits, and § 1365(a) "obviously does not permit the citizen to duplicate the Administrator's powers." Id. The centrality of EPA and state agency enforcement is implicit, the court held, in the notice provision of § 1365(b)(1)(A), which was intended to allow officials to pre-empt the citizen suit by bringing suit first, or else to allow the violator to stop violating and thereby escape liability. Id. at 395-96.

 Finally, the court found support in Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981), and in particular in a statement, quoted in that opinion, by Senator Hart:

 
It has been argued, however, that conferring additional rights on the citizen may burden the courts unduly. I would argue that the citizen suit provision of S. 4358 has been carefully drafted to prevent this consequence from arising. First of all, it should be noted that the bill makes no provision for damages to the individual. It therefore provides no incentives to suit other than to protect the health and welfare of those suing and others similarly situated. It will be the rare, rather than the ordinary, person, I suspect, who, with no hope of financial gain and the very real prospect of financial loss, will initiate court action under this bill.

 Hamker, 756 F.2d at 396 (quoting Middlesex, 453 U.S. at 18 n.27 (quoting 116 Cong. Rec. 33104 (1970))). ...


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