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STUDENT PUB. INTEREST RESEARCH GROUP OF NEW JERSEY

January 13, 1986

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs
v.
P. D. OIL & CHEMICAL STORAGE, INC., Defendant



The opinion of the court was delivered by: ACKERMAN

 This case was brought by two environmental conservation organizations, Student Public Interest Research Group of New Jersey [hereinafter "SPIRG"] and Friends of the Earth [hereinafter "FOE"], against P. D. Oil and Chemical Storage, Inc. [hereinafter "P.D. Oil"] as a citizen suit under the Federal Water Pollution Control Act [hereinafter "FWPCA"], 33 U.S.C. § 1251 et seq. (1982).

 Plaintiff's allege that defendant has violated and continues to violate Sections 301 and 402 of the FWPCA by failing to comply with the effluent limitations in its National Pollutant Discharge Elimination System/New Jersey Pollutant Discharge Elimination Systems permit [hereinafter "Discharge Permit"].

 Plaintiffs have moved for partial summary judgment that defendant is liable for these violations. Defendants have moved to dismiss plaintiffs' complaint on various grounds and oppose the motion for partial summary judgment.

 As an understanding of the factual setting of this dispute and the history of the FWPCA is important to the resolution of all of the issues raised by the parties, I turn first to these preliminary matters.

 FACTS

 Congress enacted the Federal Water Pollution Control Act in 1972. The 1972 statute represented a distinct change in federal water pollution control policy. Prior to 1972, the focus of federal water pollution law was on the quality of the receiving waters, which was to be protected through water quality standards. Water Quality Act of 1965, Pub. L. 89-234, 79 Stat. 903. This system of pollution control led to substantial problems in enforcement because of the difficulty in establishing precise effluent limitations for particular pollutants on the basis of the water quality desired for the receiving bodies of water. See Federal Water Pollution Control Act Amendments of 1971, S. Rep. No. 414, 92d Congress, 1st Sess., 8, 12 (1971); reprinted in 1972 U.S. Code Cong. & Ad. News 3668, 3675 and 3679. The effort to control water pollution using only this method was found to be "inadequate in every vital aspect." S.Rep. No. 414, supra, 2 Legis. Hist. at 1425, 1972 U.S. Code Cong. & Ad. News at 3674.

 The 1972 legislation contained "a major change in the enforcement mechanism of the federal water pollution control program from water quality standards to effluent limits." S. Rep. No. 414, supra, 1972 U.S. Code Cong. & Ad. News at 3675. Water quality standards for the receiving waters were retained as a measure of pollution control effectiveness, but "the basis of pollution prevention and elimination will be the application of effluent limitations" to particular polluters for particular pollutants. S. Rep. No. 414, supra, 1972 U.S. Code Cong. & Ad. News at 3675.

 The goal of the FWPCA, as stated in 33 U.S.C. § 1251(a) (1) was to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . ." and it was the stated national goal "that the discharge of pollutants into the navigable waters be eliminated by 1985."

 This objective is implemented through Section 301(a) of the F.W.P.C.A., 33 U.S.C. 1311(a), which states:

 
Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.

 Thus, the FWPCA sets forth a total prohibition of the discharge of pollutants, except pursuant to specific authorization.

 Plaintiffs allege that, conversely, noncompliance with a permit constitutes noncompliance with Section 301 and represents a violation of the FWPCA. Defendants allege that noncompliance with a permit is not a violation of the FWPCA where such noncompliance is as a result of an "upset." An "upset" is defined as "an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonal control of the permit fee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.": See N.J.A.C. 7:14:A-1.9 (1984 Supp.).

 For reasons which I will describe infra, defendant's allege that they were operating in an "upset" condition. The permit program applicable in this case is established in Section 402 -- the National Pollutant Discharge Elimination Systems (NPDES). Section 402(a)(1), 33 U.S.C. 1342(a)(1), authorizes the Administrator of the United States environmental Protection Agency (hereinafter "the Administrator" or "EPA") or a state, if its permit program has been approved by the Administrator, to issue permits authorizing the discharge of pollutants "upon condition that such discharges will meet . . . all applicable requirements under Sections 301, 302, 306, 307, 308, and 403." Thus, the NPDES is "a permit system whose function is to define the discharger's obligations under the Act by [setting] limitations designed for the discharger's particular operation." Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1531 (D.N.J. 1984).

 NPDES permits issued under Section 402(a)(1) must comply with Section 308(a)(4)(A). The latter section requires the Administrator to require permittees to establish and maintain records, to install, use and maintain monitoring equipment, to sample effluents and to report to EPA in the manner prescribed by the Administrator. In implementing this section, the Administrator has prescribed regulations which require, as a condition to all permits, the reporting of all monitoring results in a Discharge Monitoring Report (DMR) at intervals which are to be specified in the permit. 40 C.F.R. 122.41(1)(4). The DMR is a uniform, national form devised by EPA for the self-reporting of monitoring results. 40 C.F.R. 122.2.

 Discharge permit number NJ 000.3361 was issued to defendant's predecessor in interest, El Dorado Terminals Corp., on May 30, 1974. The permit authorized El Dorado to discharge limited quantities of pollutants into the water from its facility through a single discharge point. The permit was modified in 1978 and a new permit was issued in 1981, which is in effect until April, 1986. Each permit specified effluent limitations for various pollutants.

 The present permit holder, P.D. Oil, is located in Bayonne, New Jersey on the far eastern end of the Kill Van Kull [the "Kill"], which is one of the most highly industrialized waterways in the United States. The Kill is part of the greater Port of New Jersey and New York Channel complex and it links Newark Bay (to the east) with the Arthur Kill Channel to the west. The entire Bayonne shoreline of the Kill is industrialized with the single tail-end exception of the Kill Van Kull Park situated approximately (2) miles to the west of P.D. Oil. (See defendant's exhibit entitled "Land Uses Along the Kill Van Kull.").

 P.D. Oil acquired the El Dorado site in Bayonne, New Jersey in July 1977. Defendants contend and plaintiff's do not dispute that the property was in desperate need of cleaning up and that P.D. undertook to do so.

 P.D. is situated on approximately 30 acres and owns and operates nearly 170 tanks ranging in size from 20,000 to 1.1 million gallons capacity. P.D. receives bulk liquid commodities owned by others and holds them in the storage tanks for loading, upon instruction from the commodity owners, to rail cars, tank trucks or ocean going tankers (via the Kill Van Kull.).

 P.D.'s discharges which are at the heart of this lawsuit are as a result of spillage, tank overflow and steam condensation which collects in P.D.'s collection system along with rain water and is discharged through a four inch out fall pipe leading into the Kill. The amount of discharge varies, depending on the amount of rainfall.

 P.D. has monitored this discharge regularly since June 1, 1977 via the DMR's required under their discharge permit. Plaintiff's contend that defendant's own reports demonstrate that they have violated the permitted effluent limitations a total of 154 times. Plaintiffs submit that under FWPCA, these violations of permit limitations are automatically violations of the Act. As defendants have, by their own admission, violated the terms of their permit, plaintiffs contend that summary judgment is proper and should be granted on the issue of liability.

 In addition to the procedural and jurisdictional issues raised by defendant, they oppose the plaintiffs' motion for summary judgment on the grounds that there are genuine material issues of fact in dispute. Defendants allege that they have operated within the permissible limits of their permit because:

 1. They were operating under a declaration of an "upset,"

 2. Plaintiffs have misstated the requirements and applicable effluent limitations under the discharge permit, and

 3. The plaintiffs misinterpret and erroneously rely on the DMRs because the DMRs misstate the permit requirements.

 Because defendants have raised a number of threshhold issues which must be resolved before the merits of this case may even be considered. I consider first the issues raised by defendants.

 Defendant has moved for the following relief:

 
1. To dismiss the complaint for lack of subject matter jurisdiction and/or for prudential reasons due to plaintiffs' lack of standing; or
 
2. For summary judgment for such relief;
 
3. To dismiss all counts for relief relating to discharges allegedly occurring before January 27, 1981, as barred by the statute of limitations;
 
4. To dismiss the complaint because plaintiffs are estopped from prosecuting same or because of laches; and/or because plaintiffs have waived their rights, if any, to do so; and/or because due process require dismissal;
 
5. For a site visit by the Court prior to determination of plaintiffs' motion for summary judgment and/or defendant's motions;
 
6. For abstention and remand to the New Jersey Department of Environmental Protection;
 
7. For relief and attorneys' fees under Rule 11 of the Federal Rules of Civil Procedure; and
 
8. For an evidentiary hearing on the standing question prior to determination of plaintiffs' summary judgment motion.

 JURISDICTION

 This court has jurisdiction pursuant to 33 U.S.C. 1365(a). Venue is appropriate in the District of New Jersey pursuant to 33 U.S.C. § 1365(c)(1) because the source of the alleged violations complained of is located within this District.

 This action is brought under the citizen suit provision of the FWPCA, 33 U.S.C. § 1365(a)(1). The standing conferred under this provision must be read in conjunction with the constitutional requirements for standing, which were clearly summarized in Valley Forge Christian College v. Americans United, 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The Court stated:

 
at an irreducible minimum, Art. III requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' . . . and that the injury 'fairly can be traced to the challenged action' and 'is ...

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