ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. No. 80-4041)
Before GIBBONS, BECKER and ROSENN, Circuit Judges
The Township of Woodbridge appeals from an interlocutory order entered by the district court denying its United States' motion for the assessment of civil sanctions. Woodbridge argues that the district court should have granted its motion to dissolve the injunction because it was not in violation of any federal law. The government contends that we should dismiss the appeal for lack of jurisdiction, and, alternatively, that the district court's refusal to dissolve the injunction was proper because Woodbridge violated sections 301(a) and 301(b)(1)(B) of the Clean Water Act. 33 U.S.C. § 1311(a) and (b)(1)(B) (1982). We affirm.
This appeal arises out of a cross-claim filed by the United States in a suit originally brought by the Township of Franklin Sewerage Authority against the Middlesex County utilities Authority (MCUA), a regional waste treatment facility and sewage disposal system. Franklin delivers its sewage to MCUA and is charged on a pro rata basis. it sued MCUA to compel three other municipalities, Woodbridge, the Borough of Carteret and the City of Perth Amboy, to link their sewage systems with MCUA and to share in the cost of MCUA's operations. MCUA, in turn, filed a third-party complaint against Woodbridge, Carteret, Perth Amboy, the New Jersey Department of Environmental Protection (NJDEP), and the United States, through the United States Environmental Protection Agency (EPA). The United States then filed cross-claims against Woodbridge, Carteret, and Perth Amboy, seeking to enjoin those parties from discharging pollutants into navigable waters in violations of sections 301(a) and 301(b)(1)(B) of the Clean Water Act. The United States also sought an order compelling them to link their sewage systems to the MCUA system pursuant to section 208 of the Clean Water Act, 33 U.S.C. § 1288 (1982), prescribing the development of areawide waste treatment management systems. The liability of both Carteret and Perth Amboy was resolved in favor of the United States upon the district court's entry of summary judgment against Carteret and its entry of a consent judgment against Perth Amboy. Both judgments required the municipalities to tie in with MCUA. This appeal involves Woodbridge's liability on the United States' cross-claim.
Woodbridge owns and operates two wastewater treatment works, the Keasbey Sewage Treatment Plant (Keasbey) and the Sewaren Sewage Treatment Plant (Sewaren). Both consist of a primary treatment plant and a wastewater collection system. The collection systems channel sewage, industrial waste, and storm runoff into the primary plants for treatment. After treatment is completed, Keasbey discharges into Kinsey Creek and Sewaren discharges into Arthur Kill, both navigable waters.
In 1975, the Governor of New Jersey, pursuant to section 208 of the Clean Water Act, appointed a board consisting of numerous public officials to develop a regional wastewater treatment plan for Middlesex County. The plan was completed in 1977, was certified by the Governor in 1978, and was approved by the EPA in 1979. The plan calls for the abandonment of existing municipal treatment facilities and the channeling of their sewage flows to MCUA.
In 1977, EPA issued Woodbridge National Pollutant Discharge Elimination System (NPDES) permits for Keasbey and Sewaren, allowing Woodbridge to continue utilizing these two facilities even though the quality of their discharges did not satisfy the effluent standards set by the Clean Water Act. See 33 U.S.C. § 1311(b)(1)(B). These permits were effective from December 31, 1977 until December 31, 1981. The permits, however, required Woodbridge to tie in with MCUA as soon as the construction of the transmittal facilities was completed. In 1978, Woodbridge obtained modifications of its NPDES permits. The modifications essentially granted Woodbridge an extension of time in which to use the Keasbey and Sewaren plants and in which to tie in to MCUA, provided that Woodbridge complied with a planning schedule developed by EPA for transporting sewage flows to MCUA.
In 1977 EPA awarded Woodbridge a planning grant of nearly $1,000,000 to develop the transmittal facilities. In 1980, EPA awarded Woodbridge a $1,600,000 design grant for the MCUA tie-in. In 1984, EPA awarded Woodbridge a $5,500,000 construction grant for the Keasbey tie-in segment.
On March 9, 1984 the United States filed a motion for summary judgment on liability on its cross-claim against Woodbridge. Following briefing and oral argument, the district court denied the United States' motion, finding that it was possible that as a matter of law Woodbridge, through its Keasbey and Sewaren plants, was discharging sewage pursuant to valid NPDES permits.
The United States moved for reconsideration, stating that it did not contest the validity of the permits. Rather, it contended that Woodbridge's actions were in violation of the terms of otherwise valid permits. On October 24, 1984 the court granted the United States' motion for reconsideration and entered partial summary judgment in its favor, holding that Woodbridge was violating section 301 of the Clean Water Act by discharging pollutants into navigable waters, by failing to provide adequate secondary treatment at its two sewage plants to meet the requisite effluent limitations, and by failing to tie into the MCUA regional treatment facility. The court ordered the parties to submit to it within forty-five days plans for bringing Woodbridge in compliance with the Act.
On November 21, 1984, Woodbridge appealed the entry of partial summary judgment. The United States moved to dismiss the appeal for lack of jurisdiction. On February 12, 1985 we dismissed ...