was returned to the central 8.5 million gallon capacity reservoir mentioned previously. After solids and sludges settled out, the water would be pumped back into the plant's water system for reuse in the metal operations. Because of the smelting and other operations, a considerable amount of water evaporates. When the plant is in full use, the system was designed to serve the plant's water needs without discharge into the Arthur Kill. In fact, since the reservoir was put on-line in 1977, USMR achieved significant periods of zero discharge at 002 on four separate occasions.
In 1982, the EPA delegated, pursuant to statute, the power to issue discharge permits to the New Jersey Department of Environmental Protection ("DEP"). Pursuant to statute, the DEP continued the effectiveness of USMR's 1974 permit. N.J.S.A. 52:14B-11. In April of 1985, DEP issued a draft renewal permit which would have required effluent limitations of zero discharge by April 22, 1987. Then, in October of 1985, USMR announced plans to gradually phase out smelting operations at the Carteret plant. According to defendant, because water no longer evaporated in the smelting process, the reservoir had reached its capacity. Correspondingly, the system had lost its "surge" capacity. On November 27, the Carteret area experienced heavy rainfall that resulted in USMR bypassing the treatment system and discharging a large amount of untreated water into the Arthur Kill. Defendants further contend that the shutdown of smelting operations caused variations in steam pressure which resulted in various effluent excursions at 001.
In February, 1986, USMR restarted smelting and refining operations in order to process remaining inventories. However, because of a water main break, over 24 million gallons of water were added to the system over a two and one-half month period resulting in further discharges at 002 which finally ended on May 27, 1986. Meanwhile, on May 22, 1986, DEP issued defendant a new permit requiring zero discharge as of July 1, 1986. Plaintiffs then filed the instant action on May 26th. Defendant received a temporary stay of the permit in state court until July 14, 1986 in order to give the DEP an opportunity to modify the permit presumably to allow for periods of significant rainfall. On June 30, 1986, the parties to the instant action then entered into a consent decree against future violations. Then, on July 14, 1986, DEP modified the permit to the extent it limited the volume of discharges at 002 during rainfall events but confirmed those aspects of the permit that prohibited discharge in the absence of rain and further continued permit limitation on certain pollutants when discharges did occur.
Plaintiffs now move for partial summary judgment on liability for 494 separate violations of USMR's 1974 and 1986 permits occurring between December 1977 and September 1986. Defendant raises, however, numerous affirmative defenses to many of these violations in support of its motion to dismiss. These defenses include statute of limitations, "bypass" and "upset," the later two terms of art under EPA regulations. Defendant further argues that certain alleged violations which plaintiff claims result from underreporting of excursions raise factual issues precluding summary judgment.
I now hold, in conformity with the other judges of this court, that no statute of limitations applies to citizen suits under the FWPCA; nor is this action, filed before defendant's 1974 permit expired, barred by the superseding of that permit by defendant's 1986 permit. I will, therefore, deny defendant's motion to dismiss in its entirety. I further hold that defendant has failed to meet its burden of establishing the affirmative defenses of "bypass" and "upset," and has also failed to raise a material issue of fact regarding daily maximum violations left off defendant's Discharge Monitoring Reports ("DMR's") but revealed by defendant's worksheets and has similarly failed to raise a material issue of fact with regard to those claims where defendant sampled ph over and above its permit requirements. I will address these defenses seriatim.
As an initial matter, it should be noted that absent the affirmative defenses advanced here there can be no doubt as to defendant's liability for the permit violations at issue in this case. By July 1, 1977, USMR like all other point sources subject to a NPDES permit, (a) had to be in compliance with the effluent limitations contained in its permit and (b) was required to monitor its discharges and report the results to EPA or to the state in DMR's. Violation of either aspect is a violation of Section 301 of the Act and subjects the defendant to civil liability under principles analogous to the common law theory of strict liability. Accordingly, partial summary judgment is granted on those violations to which defendant raises no defense.
THE STATUTE OF LIMITATIONS
Defendant first asserts that many of the alleged violations at issue here are time-barred. Defendant advances three separate theories in support of this argument. First, it argues that no private cause of action exists for past violations of the Act unless the permit which is allegedly violated is in effect when the suit is filed. Second, it urges the court to adopt the five-year statute of limitations found in 28 U.S.C. § 2462. Third, and in the alternative, it seeks for the court to "borrow" an analogous state limitations period. I now hold that since the uncontroverted facts show that defendant's 1974 permit was in effect when this suit was filed and that plaintiffs sought prospective relief as well as relief for prior violations this action cannot fail as an improper effort to enforce an expired permit. I further hold that no limitations period, either state or federal, restricts citizen's suits under the Clean Water Act.
Defendant first argues that the statutory language of the Act can be interpreted to preclude citizens from bringing suit to remedy violations of permits that are no longer in effect.
This argument is essentially a corollary of the argument accepted in the First Circuit, see Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089 (1st Cir. 1986), and the Fifth Circuit, see Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 (5th Cir. 1985), but rejected in the Fourth Circuit, see Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir. 1986), cert. granted, 479 U.S. 1029, 107 S. Ct. 872, 93 L. Ed. 2d 827 (1987), that citizen suits may not be brought to remedy purely past violations. The procedural history of this case reveals that there are two reasons why this argument lacks merit. First, when this lawsuit was brought in May of 1986 defendant was still subject to the 1974 permit. Thus, there is no factual basis for defendant's assertion that plaintiffs sought, at the time this action was filed, to merely vindicate an expired permit.
Second, even if I construe defendant's argument to be that an expiration of a permit subsequent to the filing of suit, but before judgment, bars relief, there is no precedential support for defendant's position, nor is it clear how there could be. Pawtuxet Cove, cited by defendant, is factually inapposite to the case at bar. In Pawtuxet, the Court of Appeals for the First Circuit held, in rejecting the reasoning of the Gwaltney court, that a citizen suit may not be brought to remedy only past violations. In that case, future violations of the permit were precluded by the defendant's tie-in to a treatment plant prior to institution of suit. Pawtuxet, 807 F.2d at 1091. In the instant case, plaintiffs did not merely seek penalties for for acts that could not be repeated. At the time suit was brought defendant had been, was, and threatened to be in violation of the Act. Significantly, the prayer for relief in this case included equitable remedies which resulted in a consent order against future violations. The fact that the violations spanned two permits, one now expired because it was superceeded by the current one, does not change the prospective nature of plaintiffs' suit at the time it was brought, an element totally lacking in Pawtuxet. Id., 807 F.2d at 1092 (court does not question penalties for past violations so long as that is not the only relief sought). I, therefore, deny defendant's motion to dismiss on the ground that its 1974 permit expired subsequent to the filing of this suit.
Defendant next urges the court to adopt either a state statute of limitations or the general limitations period contained in 28 U.S.C. § 2462. Whenever Congress fails to incorporate an express limitation period into a statute creating a private cause of action, as in the Clean Water Act, it is axiomatic that court's may "borrow" an analogous state statute of limitations. Johnson v. Railway Express, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). Defendant offers N.J. Stat. Ann. § 2A:14-10(a) which places a two-year limitation on forfeiture claims recoverable by the sovereign.
The fundamental flaw in adopting 14-10(a), or for that matter any other state limitation period, is the inevitable frustration of national policies. See Knoll v. Springfield Township School District, 699 F.2d 137 (3d Cir. 1983). As the Honorable Herbert J. Stern noted in Student Public Interest Research Group v. AT&T Bell Laboratories, 617 F. Supp. 1190 (D.N.J. 1985), the FWPCA contemplates uniform "enforcement mechanisms for citizen and government suits." Id. at 1202. Clearly, if state legislatures could control the effectiveness of citizen suits in their individual states by adopting truncated limitations periods, national uniformity would suffer.
This reasoning applies with equal force to the question of the applicability of 28 U.S.C. § 2462. That statute provides that:
except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.
Although application of this statute would eliminate the possibility of conflicting state limitation periods, a different but equally worrisome problem would develop. Under the statutory scheme, the primary responsibility for enforcing effluent limits lies with the states. 33 U.S.C §§ 1251(b), 1319(a)(1), (2)(1982). Further, a citizen's suit may not be brought until the state and the EPA are first notified of the violations, 33 U.S.C. § 1365(b)(1)(A), and only if neither the state nor the EPA has commenced and is diligently pursuing a civil or criminal action. 33 U.S.C. § 1365(b)(1)(B). Because neither the state nor the federal government are bound to any limitation period, it is easy to conceive of a situation of persistent ongoing violations in which violations would be immunized by the passage of time mandated by the waiting period applicable to citizen's suits. As one court put it: "citizen suits . . . would be hampered in a way state efforts are not, and the clear policy favoring uniformity in enforcement would be thwarted." AT&T, 617 F. Supp. at 1203 (D.N.J. 1985). I, therefore, hold that none of the 464 alleged violations are time-barred under any of the theories profferred by defendant. Accordingly, I will grant partial summary judgment as to each of the violations for which the statute of limitations is the only defense interposed.
Defendant next argues that violations 368 through 373 are not properly subject to a summary judgment motion because of the asserted defense of "bypass." "'Bypass' means the intentional diversion of waste streams from any portion of a treatment facility." 40 C.F.R. § 122.41(m). As noted previously, as early as October, 1985 USMR had announced plans to shut down its smelting facility. The resulting lack of evaporation combined with desludging operations and significant rainfall to overburden defendant's reservior system. On Wednesday, November 27, 1985, the day before Thanksgiving, after a significant storm, USMR determined that it needed to bypass the treatment system and discharge untreated stormwater into the Arthur Kill. By November 29, the day after Thanksgiving, the recycle system was reactivated and, according to defendant, only minimal bypass occurred over the weekend. On Tuesday, December 3rd, USMR telephoned the DEP to inform them of the bypass and then confirmed that conversation by letter dated December 5th.
There are several reasons why defendant's defense of bypass is unavailing on the facts of this case. I need only address two. Assuming for a moment that defendant's permit would allow a bypass defense,
defendant has failed to meet at least two of the three prerequisites to the defense found in the regulations. Title 40 C.F.R. 122.41(m)(4)(i) prohibits a bypass unless:
(A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(B) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventative maintenance; and