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STUDENT PUB. INTEREST RESEARCH GROUP OF NEW JERSEY

August 19, 1985

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and FRIENDS OF THE EARTH, Plaintiffs,
v.
GEORGIA-PACIFIC CORPORATION, Defendant



The opinion of the court was delivered by: BROTMAN

 This matter concerns defendant Georgia - Pacific Corporation's alleged violations of a United States Environmental Protection Agency ("EPA") water pollution discharge permit. Plaintiffs Student Public Interest Research Group of New Jersey, Inc. ("SPIRG") and Friends of the Earth ("FOE") bring this action under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ("Clean Water Act" or "Act"). The complaint charges defendant with emitting unlawfully high levels of pollutants into the Delaware River from a wastepaper recycling and chipboard production plant in Delair, New Jersey. Pursuant to Section 505 of the Act, 33 U.S.C. § 1365, the "citizen suit" provision, plaintiffs seek a declaration that defendant committed some 162 violations of their EPA discharge permit between January 1, 1979 and December 31, 1983. Plaintiffs also ask the court to impose civil penalties and various forms of injunctive relief.

 Presently before the court are a series of dispositive motions. Defendant requests summary judgment, pursuant to Fed. R. Civ. P. 56, on the grounds that plaintiffs lack standing to sue. Georgia - Pacific also moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a cause of action. Fed. R. Civ. P. 12(b)(1), (6). Plaintiffs ask for partial summary judgment restricted to the issue of liability. For reasons set forth below, the court will deny defendant's motions to dismiss and for summary judgment, and will grant in part plaintiffs' motion for partial summary judgment.

 Factual Background and Procedural History

 An EPA discharge permit (also known as a "national pollution discharge elimination system" permit, or "NPDES") went into effect at defendant's Delair plant on July 31, 1974. In April, 1982, EPA delegated to the states the authority to issue water pollution discharge permits pursuant to Section 402(b) of the Clean Water Act. 33 U.S.C. § 1342(b). Nevertheless, the EPA permit, NPDES Permit No. NJ0004669, remained in force until February 1, 1984, when a New Jersey Department of Environmental Protection ("DEP") discharge permit went into effect. *fn1"

 EPA initiated a permit enforcement action against Georgia - Pacific on May 17, 1979. United States v. Georgia - Pacific Corporation, Civ. No. 79 - 1550 (D.N.J.). On May 12, 1981, defendant and EPA entered into a Consent Judgment whereby Georgia - Pacific agreed to pay $75,000.00 in fines to the United States and to install a "clarifier" in order to reduce effluents into the Delaware River.

 A major contested issue in this case is the scope of the Consent Judgment. The document purports to cover "all claims asserted" by the United States. Plaintiffs maintain the decree covers only violations specified in the original complaint: violations between February, 1977 and December, 1978. Defendants contend the order covers all violations up to May 12, 1981, the day the order was signed.

 During the twelve months after issuance of plaintiffs' notice letters, the parties exchanged information and conducted settlement negotiations. In spite of such efforts, the parties were unable to reach an amicable resolution of this matter. Consequently, plaintiffs filed this action on March 19, 1984.

 Since the entry of the Consent Judgment between defendant and the United States on May 12, 1981, both EPA and DEP have monitored the discharge of pollutants at defendant's Delair plant. At various times between May 12, 1981 and March 19, 1984, EPA has issued reports concerning defendant's compliance with its NPDES permit. In addition, Georgia - Pacific officials have met and corresponded with federal and state environmental regulators on various occasions during this period. Between December, 1981 and the fall of 1983, DEP monitored defendant's Delair operations and had numerous contacts with defendant's legal staff regarding development of a state water pollution discharge permit. Defendant's Reply Brief in Support of Motion to Dismiss, Exhibits B, D, G.

 Subsequent to the filing of this lawsuit, plaintiffs conducted a review of defendant's monthly DMRs through January, 1984. Plaintiffs' Brief in Opposition to Motion to Dismiss, Exhibit D. Based on this research, plaintiffs now allege defendant violated the Clean Water Act, by exceeding effluent levels in its NPDES permit, 162 times between January 1, 1979 and December 31, 1983. Plaintiffs' Brief in Support of Partial Summary Judgment, Appendix II, Exhibit D.

 Defendant's Motions

 Defendant Georgia - Pacific originally moved to dismiss the complaint on two grounds: plaintiffs' lack of standing to sue and plaintiffs' failure to state a cause of action under the citizen suit provision of the Clean Water Act. 33 U.S.C. § 1365. In addition, defendant charges that certain aspects of the relief plaintiffs request is not available in a citizen suit. Subsequently, both parties submitted affidavits relevant to the issue of standing. In accordance with Fed. R. Civ. P. 12(b)(6), defendant now contests plaintiffs' standing in the form of a motion for summary judgment, pursuant to Fed. R. Civ. P. 56. As plaintiffs' standing to sue is a question which concerns the power of the court to hear this matter, the court will address this aspect of defendant's motions first.

 1. Standing

 The standard for granting summary judgment is a stringent one. Rule 56(c), Fed. R. Civ. P., provides that summary judgment may be granted only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Special Jet Services, Inc. v. Federal Insurance Co., 643 F.2d 977 (3rd Cir. 1981); Ely v. Hall's Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978). In deciding whether an issue of material fact does exist, the court is obligated to view all doubt in favor of the nonmoving party. Tomalewski v. State Farm Insurance Co., 494 F.2d 882 (3rd Cir. 1974); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3rd Cir. 1972).

 Article III of the United States Constitution imposes certain minimum requirements on parties who seek to invoke the judicial power. In order to establish the existence of a bona fide "case or controversy," and thus, a basis for subject matter jurisdiction, a plaintiff must have suffered an "injury - in - fact" causally related to a defendant's actions. In other words, a plaintiff must have "personally . . . suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). The Supreme Court has also recognized further limits of a prudential nature, which courts may apply in order to "avoid deciding questions of broad social import where no individual rights would be vindicated." Id. at 99 - 100. Although Congress may not tamper with the constitutional minima, the legislature may grant a right to sue to those otherwise barred by prudential restrictions. Id. at 99 - 100.

 Plaintiffs base this lawsuit on Section 505 of the Clean Water Act, which provides, in pertinent part, that "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." 33 U.S.C. § 1365(a)(1)(A). A "citizen" is defined to be "a person or persons having an interest which is or may be adversely affected." 33 U.S.C. § 1365(g). The legislative history of the statute demonstrates that Congress intended the citizen suit provision to create standing in a manner consistent with the Supreme Court's ruling in Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 16 - 17, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). The major principle established by Sierra Club v. Morton was that standing may be based on an injury to noneconomic interests, such as aesthetic, conservational or recreational values. 405 U.S. at 738. A public interest group, that is, an organization of persons with shared interests, such as the plaintiffs in this case, may sue on the basis of noneconomic injury provided it or any of its members has been injured. Id. 734 - 35.

 Defendant initially challenged plaintiffs' standing to sue on the grounds that they had failed to "plead facts demonstrating that particular members of the organization are adversely affected in some specific way." Defendant's Brief in Support of Motion to Dismiss at 14. This position is no longer tenable in light of plaintiffs' submission of nine affidavits from members of SPIRG and FOE who live in the region adjacent to the Delaware River downstream from defendant's Delair facility. These individuals describe various actual and potential detrimental impacts on their aesthetic, recreational, conservational, economic and health interests due to pollution of the Delaware River.

 While Georgia - Pacific concedes that plaintiffs have satisfied the injury - in - fact requirement, the company claims that plaintiffs have failed to show that the alleged injuries to its members are causally related to discharges from defendant's plant. Defendant focuses on the Supreme Court's admonition that a plaintiff must show that an alleged injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).

 In support of its motion for summary judgment, Georgia - Pacific offers the testimony of an environmental engineer. Affidavit of Dr. Robert Dresnack, Defendant's Brief in Support of Summary Judgment, Exhibit C. Dr. Dresnack states that his research indicates that the contribution of defendant's Delair plant to the pollution of the Delaware is "so small that it is not discernible; and therefore, does not and cannot change the nature of the water uses within those respective areas." Id. at 3 - 4, 5 - 6. Defendant notes that plaintiffs do not allege, either in their complaint, in the affidavits of their members, or in the answer to defendant's interrogatories, that Georgia - Pacific caused the pollution that has harmed plaintiffs' interests in use and enjoyment of the Delaware. Defendant's Brief in Support of Summary Judgment at 8 - 10. Defendant also would have plaintiffs prove that elimination of Georgia - Pacific's illegal discharges "would permit them to enjoy the recreational activities" which they claim are ruined or prevented by pollution of the Delaware. Id. Defendant claims plaintiffs have failed to rebut these factual contentions, and therefore, that it is entitled to judgment as a matter of law.

 The theory advanced by defendant has little if anything to do with the constitutional requirement of causation and thus, is meritless. Georgia - Pacific uses language concerning causation in order to veil an attempt to impose a quantitative test for proof of an injury - in - fact. Defendant acknowledges that its Delair plant emits effluents in excess of the levels specified in its discharge permit and concedes that plaintiffs are injured by pollution of the Delaware. Nevertheless, Georgia - Pacific contends that its contribution to the soiling of the Delaware is so small that plaintiffs are not injured thereby.

 The issue of fact defendant purports to raise has already been resolved by Congress. The Clean Water Act presumes unlawful discharges to reduce water quality because definite proof of the proposition is often nearly impossible. Under previous legislation,

 
which had relied on water quality standards as the primary method of pollution control, [enforcement] had been largely unsuccessful. It was too difficult to establish the necessary correlation between effluent discharges by particular sources and the quality of the body of water into which the effluent flowed. To solve the dilemma, the Act, while retaining water quality standards, predicated pollution control on the application of control technology on the plants themselves rather than on the measurement of water quality.

 Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 623 (2nd Cir. 1976) (footnote omitted). Accord SPIRGNJ v. Tenneco Polymers, Inc., 602 F. Supp. 1394, 1397 (D.N.J. 1985).

 Defendant asks the court to find that the company's effluents do not cause actual harm even though the court may later determine that such effluents violate defendant's permit, and so, the Clean Water Act. Consequently, defendant would have the court apply a stricter test for standing than for liability itself. Such a result is in conflict with the intent of the Clean Water Act. As the court noted in SPIRGNJ v. Tenneco Polymers, Inc., supra,

 
obviously the pollution of a portion of a major interstate waterway as the Delaware River, is caused by a combination of discharges from many different sources. The effect of defendant's argument would prohibit any citizens' suit against violators of the [Act] unless the violation was so great or the waterway so small that the direct impact of the discharges could be pinpointed. This interpretation of the [Act] would be directly contrary to its intent.

 602 F. Supp. at 1397. Accord Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 444 - 46 (D. Md. 1985).

 Defendant's view of standing is also inconsistent with Article III of the Constitution, as interpreted in Sierra Club v. Morton, supra. The Constitution requires only that the relief sought may redress an injury allegedly caused by defendant, not that the relief sought may correct all related harm jointly caused by a series of actors. Plaintiffs need not show that this lawsuit will restore the Delaware to a pristine state, only that defendant's role in polluting the river may be lessened thereby. For purposes of establishing standing to sue, the size of an injury is not a valid criterion for determining whether an injury has occurred at all. In United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973), the Court rejected an invitation to limit standing to those "significantly" affected by an alleged wrong. Instead, the Court held that plaintiffs may sue so long as they can demonstrate an" identifiable trifle" constituting actual or threatened injury, because such harm is sufficient to guarantee that plaintiffs have a concrete interest in the outcome of the litigation. ...


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