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April 8, 1986


The opinion of the court was delivered by: BISSELL


 The case at bar arises out of a complaint filed by Student Public Interest Research Group of New Jersey (SPIRG) and Friends of the Earth (FOE) on July 29, 1983, alleging that defendants Jersey Central Power & Light Company (JCPL) and General Public Utilities Nuclear Corporation (GPU) have violated the terms and conditions of their National Pollution Discharge Elimination System/New Jersey Pollution Discharge Elimination System (NPDES/NJPDES) permits, No. NJ 000 5550, in violation of Section 301(a) of the Federal Water Pollution Control Act, ("the Act" or FWPCA), as amended, 33 USC § 1311. Plaintiffs seek a declaratory judgment, injunctive relief, civil penalties and cost/attorneys fees.

 Plaintiffs presently move for partial summary judgment, seeking a declaratory judgment that defendants have violated Sections 301 and 402 of the Act. Plaintiffs assert that the present motion does not cover the other remedies for defendants' violation of the statute. If summary judgment on the issue of defendants' liability is granted, plaintiffs will request a hearing relating to the appropriate relief.

 Defendants presently move to dismiss the complaint, asserting that plaintiffs have no standing, that there is no case or controversy, that genuine issues of fact preclude summary judgment, that the action is barred in light of the fact that the alleged violations occurred more than two years before the filing of the suit, and that a citizen cannot sue under FWPCA Section 505 for the imposition of penalties for past violations of the FWPCA.


 Defendant JCPL is an electric utility serving approximately 2 million persons in over 13 counties in the State of New Jersey. JCPL owns the Oyster Creek Nuclear Generating Station ("Oyster Creek" or OCNGS), located in Lacey Township, Ocean City, New Jersey. "Pursuant to a contract with Jersey Central, defendant GPU Nuclear Corporation (GPU Nuclear) -- a sister corporation of Jersey Central -- operates Oyster Creek Station." (D. Br. at 2) Oyster Creek is a 640 megawatt nuclear power plant which began operating in 1969, and serves over 600,000 New Jersey consumers.

 Oyster Creek draws water from the nearby South Branch of the Forked River, and its operation requires a substantial supply of water. This water, after use by OCNGS, is discharged into Oyster Creek, which is adjacent to OCNGS. Both Forked River and Ocean Creek flow into Barnegat Bay.

 On December 22, 1974, the Administrator of the Environmental Protection Agency (EPA), pursuant to § 402(a) of the FWPCA, 33 USC § 1342(a), issued a NPDES permit No. NJ 000 5550, to defendants, effective January 31, 1975. The permit authorizes JCPL to discharge limited quantities of pollutants from the OCNGS into Oyster Creek and subsequently into Barnegat Bay.

 The permit was to take effect on January 31, but after the permit was issued, JCPL requested an adjudicatory hearing to contest various conditions/limitations under the permit. After a stipulation was entered, modifying various terms and conditions, JCPL withdrew its request for a hearing.

 On March 6, 1981, the New Jersey Department of Environmental Protection (NJDEP) issued a NJPDES permit to defendant. (The permit limitations are summarized in Plaintiffs' Br. at pp. 13-14.)

 On January 1, 1982, while still maintaining ownership of the facility, JCPL transferred control and operation of the OCNGS to defendant GPU.

 The NPDES/NJPDES permits require that defendants submit monthly "Discharge Monitoring Reports" (DMR's), which defendants have been doing since 1977. In the event of a failure to comply with permit requirements, permit holders must notify EPA and NJDEP in writing within five days of becoming aware of the non-compliance. These are called Non-compliance Reports, (NCR's).

 Plaintiffs presently move for partial summary judgment asserting that defendants' DMR's and NCR's demonstrate 257 violations of their permits. Plaintiffs contend that defendants have recognized the seriousness of their non-compliance, as evidenced by their filing on May 11, 1981 of an interoffice memo, stating that "non-compliance with our NPDES permit at Oyster Creek is a serious problem. . . . Both EPA and DEP have threatened JCPL with enforcement action if the current ...

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