(1980), that defendants' report of an oil spill into navigable waters filed pursuant to § 311(b)(5), 33 U.S.C. § 1321(b)(5), could be used to establish defendants' liability for civil penalties under § 311(b)(6) of the Act.
Plaintiffs contend that Ward can be applied to the facts of the instant case to demonstrate defendants' violation of the terms and conditions of its permit. Moreover, plaintiffs assert that the law is clear that a discharger whose effluent exceeds its permit limitations has violated the Act.
Section 301(a) of the Act, 33 U.S.C. § 1311(a), makes unlawful any discharges which are not consistent with other specified sections of the statute, including § 402, 33 U.S.C. § 1342.
Defendants JCPL and GPU presently oppose plaintiffs' motion for partial summary judgment by moving to dismiss plaintiffs' complaint. Defendants contend that dismissal is warranted on three grounds: (1) that this Court lacks subject matter jurisdiction because Section 505 does not authorize penalty suits for past violations; (2) the action is barred by the New Jersey Statute of Limitations; (3) plaintiffs lack standing to sue. For the reasons which follow, this Court shall grant plaintiffs' motion for partial summary judgment and deny defendants' motion to dismiss.
In preparation of this Opinion, and reaching the result herein, the Court has considered numerous decisions in comparable cases arising in this district. These decisions include the published opinions of Judge Stern in S.P.I.R.G. v. Fritzsche, Dodge & Olcott Inc., 579 F. Supp. 1528 (D.N.J. 1984), aff'd, 759 F.2d 1131 (3d Cir. 1985), and S.P.I.R.G. v. A.T.&T. Bell Laboratories, 617 F. Supp. 1190 (D.N.J. 1985), and Judge Thompson in S.P.I.R.G. v. Tenneco Polymers, Inc., 602 F. Supp. 1394 (D.N.J. 1985). In the present Opinion the Court has endeavored to enunciate rulings consistent with those decisions as well as its own opinions in such cases as S.P.I.R.G. v. Anchor Thread Co., 22 ERC 1150 (D.N.J. 1984); S.P.I.R.G. v. National Starch & Chemical Corp., (Civ. No. 84-1119 - October 15, 1985) and S.P.I.R.G. v. American Cyanamid Co., (Civ. No. 83-2068 - November 6, 1985).
Defendants argue that plaintiffs lack the requisite standing to maintain the present action. Defendants contend that plaintiffs must demonstrate (1) a distinct and palpable injury to their members, (2) that can fairly be traced to defendants, and (3) that is likely to be redressed by a favorable decision. (Defendants' Br. at 27, citing Valley Forge Christian College v. Americans United, 454 U.S. 464, 472-5, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982)).
Plaintiffs have submitted 13 affidavits of their members "who are adversely affected by the quality of water in Barnegat Bay, which receives defendants' discharges via Oyster Creek." (Plaintiffs' Br. at 22; footnote omitted). The affidavits are submitted by residents of the Bay area and members who recreate on Barnegat Bay. They assert that they have observed an increase in the pollution in the Bay area. The affiants state that they plan to continue recreational activities in the Bay.
While plaintiffs have demonstrated a "distinct and palpable injury to their members," defendants argue that the injuries set forth by plaintiffs are insufficient to confer standing to sue. (Defendants' Br. at 32). This Court does not agree. Defendants' interpretation would prohibit citizen suits against FWPCA violators unless the violations were of such a magnitude that they were overwhelmingly attributable to the violator, or where the waterway was small enough so that the source of the pollutant could be pinpointed.
This reasoning is clearly contrary to the intent of the Act. The FWPCA was enacted in 1972 after "enforcement of predecessor statutes, which had relied on water quality standards as the primary method of pollution control, 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 (2d Cir. 1976) (footnote omitted).
This Court rejects defendants' position on standing. Such a standard would be over-burdensome on plaintiffs. As in S.P.I.R.G. v. Monsanto Co., 600 F. Supp. 1479, 1484 (D.N.J. 1985), "these members are being and will be adversely affected by the discharges with regard to their 'health, economic, recreational, aesthetic and environmental interests.'" Like the Monsanto Court, this Court finds that such allegations are sufficient to confer standing. Plaintiffs have adequately documented injuries to their members and accordingly have satisfied the requirements for standing to sue.
Defendants assert that dismissal of the present action is also required because "a section 505 suit's fundamental purpose is to abate violations of the Act that are ongoing." (Defendants' Br. at 18). Defendants contend that the specific "present tense" language of the statute permits suit only "against a person who is alleged to be in violation of an effluent standard or limitation." Id. According to defendants, Congress did not intend that citizen suits be brought to collect penalties for past violations.
Defendants' arguments are not persuasive. As plaintiffs assert, defendants' DMR's demonstrate defendants' continuing violations for the months of November 1983 and January through March 1984. Even assuming arguendo that the violations were not of a continuing nature, this Court agrees with plaintiffs that civil penalties may be granted for past violations.
Section 505(a) provides that:
the district courts shall have jurisdiction . . . to enforce . . . an effluent standard or limitation, . . . and to apply appropriate civil penalties under section 309(d) of this Act [ 33 U.S.C. § 1319].