In her deposition, Ms. Cummings testified that her enjoyment of the park was affected "by the general unpleasantness of the Kill Van Kull," and that the water has "a film" which is "sometimes like a rainbow or sometimes like greenish-yellow" and that she would enjoy the park more if the water were cleaner. Her recreational and aesthetic interests clearly are directly affected by the condition of the water in the Kill Van Kull which plaintiff alleges is at least partially attributable to defendant's acts.
Sheldon Abrams, a member of Friends of the Earth, stated in his affidavit that he drives by the Kill Van Kull regularly and has "noticed that the shores are black and there is an oily sheen on the water." He also boats in the Lower New York Bay into which the Kill Van Kull flows. He could boat and fish in the Kill Van Kull if it were cleaner, and would enjoy his recreational activities in Lower New York Bay more if the water flowing into it from the Kill Van Kull were cleaner. Mr. Abrams clearly has a direct recreational and aesthetic interest in the Kill. In addition, Mr. Abrams eats the fish he catches in New York Bay, he has a health interest in the water there.
Another member of Friends of the Earth, Andrew Gerbino, stated in his affidavit that he "would hike and birdwatch on [the Kill Van Kull] if it were cleaner." He also stated his belief that the value of his home on Staten Island is decreased by the pollution in the Kill Van Kull and Lower New York Bay, which "makes Staten Island a less pleasant place to live." Mr. Gerbino noted in his deposition that he used to walk on the Staten Island side of the Kill, but no longer does so, in part "because it's not attractive." He further stated that the chemicals in the water create an air pollution or odor problem, which he has noticed "just opening my front door" and particularly "riding on the ferry, I could smell it getting into St. George, wind blowing from the west you can smell all those things, even on a Sunday when firings aren't operating." He also noted that he "can't eat any crabs or clams" caught in the area, although "all these waters used to be used for lobster catching and clamming, crab catching. You don't see anybody doing that anymore." There is no question that Mr. Gerbino is adversely affected by the pollution to which plaintiff alleges defendant has contributed.
Numerous other members of the plaintiff organizations testified to various recreational and aesthetic interests that are adversely affected by the pollution in the Kill. These individuals do not pursue their interest in birdwatching, tennis, jogging, bicycling or fishing to the extent they would like to, if at all, due to the pollution. Defendants have not disputed that these individuals do indeed have these interests. Under Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972), injury for standing purposes need not be economic; it can be injury to aesthetic, recreational or environmental values. Id. at 735. See also Middlesex County v. National Sea Clammers, 453 U.S. 1, 16-17, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). Plaintiffs have met the first prong of the Valley Forge test.
Defendants address the second prong of this test by contending that plaintiff's interests are not related in any cognizable way to defendants conduct and that defendant does not pollute the Kill.
The first part of defendant's argument has already been addressed by at least two of my colleagues in great depth, and I find their rulings persuasive on this issue. Plaintiffs are not required to show that a certain percentage of the pollution that affects their interests is traceable to defendant's effluent. As Judge Stern explained in Student Public Research Group v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1202 (D.C.N.J. 1985), Congress did not intend to require plaintiffs "under the FWPCA to isolate and define the injury from a particular polluter in order to show a violation," as such a requirement "would defeat the purpose of the FWPCA and other pollution-control laws. In general, numerous polluters contribute to an environmental harm like pollution of rivers. It is not possible to divide up the general harm and allocate shares to particular polluters. This was why Congress enacted the 1972 amendments to the FWPCA that abandoned permit limits based on the impact of discharges on water quality and adopted permit limits based on technological controls on polluting facilities."
Defendant's argument that they are not the ones causing plaintiff's interest to be harmed because of all the other pollution that is put into the Kill has been made many times before, and when taken to its logical conclusion, allows plaintiffs to sue no polluters unless they can sue all in one action. This is not the intent of the FWPCA.
In addition, I note Judge Brotman's equally appropriate reaction to this specific causation theory. He noted in Student Public Interest Research Group v. Georgia-Pacific Corp., 615 F. Supp. 1419 (1985) that:
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. See id., at 1424.
Defendant argues that it does not pollute even though it has reported violations of its permit under the Clean Water Act. Defendant alleges that what it discharges into the Kill are not pollutants. This, however, is not the issue before me. Congress has already made a determination of what effluents it considers violative of the Clean Water Act -- these effluents are limited in accordance with defendant's discharge permit. Under the statutory scheme set up by Congress, it is not the court's role to determine whether defendant is polluting the Kill Van Kull, rather the court's role to determine whether the FWCPA, specifically 33 U.S.C. § 1342(k) and § 1344(p), has been violated.
Plaintiffs show causation merely by showing violations of the discharge permits, thus, further discussion of this issue will await my discussion of the merits of this case. Plaintiffs meet the second part of the Valley Forge test if they show these violations.
Lastly, defendants contend that plaintiffs' injury cannot fairly be redressed by a favorable decision. See Valley Forge at 472. Once again, defendants ignore the reasons for the enactment of 1972 amendments to the FWPCA.
Judge Stern also addressed this argument in detail in SPIRG v. AT&T, supra. He held that plaintiff's in a suit such as this one are the beneficiaries of a legislative grant of standing in § 505 of the FWPCA, 33 U.S.C. § 1365 (1982). They have met the minimal Article III showing of "a distinct and palpable injury" to themselves, and if their suit is successful, "the general public interest will benefit." SPIRG v. AT&T at 1200. In addition, plaintiff's suit will deter other polluters of the same waterways. Congress intended both general and specific deterrence to be a purpose of the sanctions under the FWPCA. See Judge Stern's opinion, supra at 1201 quoting, U.S. Environmental Protection Agency, Policy on Civil Penalties, E.P.A. General Enforcement Policy GM-21, (Feb. 16, 1984). Plaintiffs have standing to redress their injuries by seeking relief in the form of general deterrence. As there are no disputed issues of material fact relevant to the determination of plaintiffs' standing, defendant's request for an evidentiary hearing is denied.
STATUTE OF LIMITATIONS
Defendant next contends that plaintiffs' claims are time barred under 28 U.S.C. § 2415(b). Defendant argues that a three year statute of limitations applies to plaintiffs' claims.
A three year statute of limitations would significantly alter the posture of this case. For example, defendant has had no N.J.P.D.E.S. effluent standard for cadmium or styrene since 1981, and all effluent limitations for petroleum hydrocarbons and chlorinated hydrocarbons were eliminated in 1981. Plaintiffs seek to impose liability for alleged violations in the 1970s of standards pertaining to cadmium, styrene, petroleum hydrocarbons and chlorinated hydrocarbons. In 1978, defendant reported that there was no styrene at the facility, and the EPA accepted that report. Defendant contends that it is prejudiced by having to defend its records on this issue where the EPA required no further records, and, thus, none were maintained. I find this reasoning unpersuasive in convincing me to apply any statute of limitations to this suit. No other federal statute of limitations applies to actions brought by EPA to enforce NPDES/NJPDES permits under the Act. Defendant cites Del Costello v. Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983) in support of its general proposition that the Court should adopt a federal statute of limitations. DelCostello concerned an employees action against his union for breach of its duty of fair representation.
In DelCostello, the question before the Court was whether, in the absence of a statute of limitations in the federal statute granting the right of action, a state statute should be borrowed. The Court rejected a state limitation period, finding that in light of the federal policies of the statute, an analogous federal limitation period should be applied. 103 S. Ct. at 2289. The test applied was whether the state rule would further federal purposes or be "at odds with the purpose or operation of federal substantive law." Id., note 12. However, the Court expressly noted that the substantive federal policies may require that no limitations period at all apply, state or federal. Id. at 2293, n.20.
Here, I find that it would contravene the substantive federal policy of the FWCPA to impose a statute of limitations as defendant requests. Here, plaintiffs' act as EPA's surrogate enforcers. Plaintiffs suing under § 505 are suing as private attorneys general on behalf of EPA and the states. See Middlesex County Sewerage Authority, supra, 453 U.S. at 16-17. The application of a federal limitations period to NPDES enforcement actions would seriously distort the enforcement scheme Congress has established. That enforcement scheme places primary enforcement responsibility in the hands of the states. 33 U.S.C. § 1251(b), 1319. If the states fail to enforce NPDES permits, however, either EPA or citizens may assume the states' responsibility. S.Rep. No. 414, 92 Cong., 1st Sess. (1971), p. 64, 1972 (Code Cong. & Ad. News 3747). Citizens can equally sue if the EPA fails to carry out enforcement responsibilities. Id.
If the EPA brought this suit no state statute of limitations should be borrowed. See SPIRG v. AT&T, supra at 1202, citing United States v. Summerlin, 310 U.S. 414, 416, 84 L. Ed. 1283, 60 S. Ct. 1019 (1940) and United States v. Podell, 572 F.2d 31, 35 (2d Cir. 1978).
If a federal limitations period is deemed applicable to actions brought by citizens, it would significantly reduce the effectiveness of citizen enforcement when the states or the EPA fail to carry out their responsibilities. Congress intended the citizens to be able to substitute for the EPA and the states if these governmental agencies failed to enforce NPDES permits. See Senate Report No. 414, supra p.65.
As Judge Stern noted:
We have seen already that Congress sought to promote regulatory uniformity by providing identical enforcement mechanisms for citizen and governmental suits under the FWPCA. The major purpose of the policy favoring uniformity is to prevent states from trying to outbid their neighbors for industries and jobs by maintaining lower pollution standards. SPRIG v. AT&T, supra at 1202.