sum, the fact that Ferro did not anticipate the deficiences of its sewer system can not excuse its violations of a consent decree voluntarily assumed. I, therefore, decline defendant's invitation to modify my May 6th order and deny its motion for reargument.
As for those eight alleged violations on which this court reserved judgment, this Court made clear at oral argument and by the terms of the subsequent order that defendant would be accorded a reasonable opportunity to present evidence, despite every indication to the contrary, that the violations that occurred on March 15, 30, 31 and April 14 and 15 could not be traced to Ferro. No such evidence has been forthcoming. In fact the affidavits of defendant's expert reveal that defendant can attribute no other source than its own sludge-laden sewer for the nickel and chronium discharged on those dates. The only fact established by the Coe affidavit in Ferro's favor -- that Ferro did not contribute the fluids that carried the toxins into the treatment system -- is of no legal significance. It is conceded that Ferro was not in operation on the dates in question and was not therefore discharging from its plating lines. Hence, defendant argues that it was not "operating" in violation of the Act. However, defendant's narrow focus on the word "operate" would greatly hamper the statutory enforcement scheme if I were to accept defendant's proffered interpretation. I now hold that an owner or operator of a source who operates his facility in such a fashion as to provide the primary causal link in a violation of its permit violates § 307(d) (codified at 33 U.S.C. § 1317(d) (1982)). See United States v. Tex-Tow, Inc., 589 F.2d 1310, 1313-14 (7th Cir. 1978); cf. Cities Service Pipe Line Co. v. United States, 742 F.2d 626 (Fed. Cir. 1984) (where defendant's failure to act has been called into question, defendant bears the burden of proving that it took adequate measures to prevent and defect actions of third party leading to violation of the Act).
Here, while defendant is at a loss to explain where the fluid entered its admittedly inadequate system, it has also failed to demonstrate to the court that the nickel and chromium reported in its discharge did not originate, albeit earlier, from its plant. Certainly, Ferro was "operating" when it allowed toxins to accumulate unabated. Such an interpretation is bolstered by the common sense of the word, supported by the change in the Act's focus from water quality to discharge limits, and consistent with the Act's focus on strict liability. See Student Public Interest Research Group of New Jersey, Inc. v. Tenneco Polymers, Inc., 602 F. Supp. 1394 (D.N.J. 1985).
I, therefore, hold that defendant is liable for the violations occurring on the aforesaid dates and will assess a civil penalty of $ 500.00 per violation. While the strict standards of liability under the Act compel the conclusion that defendant be held liable under the Act for the eight violations on which I earlier reserved, it does not follow that I must now also find defendant in contempt of the consent decree for those violations. While there might be some small measure of institutionalized vindication of the decree realized from contempt sanctions now imposed, that small gain is greatly outweighed by the punitive results. As both parties recognize, civil contempt is not designed to punish the wrongdoers but rather to force, through appropriate sanctions, full compliance. By letter of July 6, 1987, counsel for defendant informed the court that the monitoring incorporated into the May 6th order revealed that Ferro had achieved thirty consecutive days of compliance with the Act. There has been no indication from the parties that compliance is not continuing. From these facts, a single conclusion is drawn: the earlier sanctions achieved the result intended and any further sanctions could only serve to punish the defendant for acts which the court trusts will not be repeated.
It is, therefore, concluded that defendant's motion for reargument of this court's May 6th order will be denied and defendant is directed to comply with all of the terms of that order, to the extent they have not already been complied with, forthwith. Plaintiff's motion for summary judgment and for civil penalties for the violations occurring on March 15, 30th and 31st, and April 4th and 5th will be granted and a fine for each violation assessed at $ 500.00. Plaintiff's motion for further contempt sanctions will be denied without prejudice.
Date: October 5, 1987
ORDER - October 6, 1987, Filed
This matter having been opened to the Court by defendant Ferro Merchandising Equipment Corporation through its attorneys Hannoch, Weisman, P.C., on a motion for reconsideration of this Court's May 6, 1987 Order holding defendant in civil contempt and assessing civil penalties under the Federal Water Pollution Control Act (the "Act"), 33 U.S.C. § 1251 et seq. (1982); and plaintiffs, through their attorneys Terris, Edgecombe, Hecker, & Wayne having cross-moved for additional sanctions and penalties; and the Court having considered the submissions of the parties without oral argument pursuant to Federal Rules of Civil Procedure 78, and the Court having rendered an opinion dated October, 1987, and for good cause shown;
IT IS On this 5th of October, 1987,
ORDERED that defendant's motion for reconsideration be, and the same, hereby is denied; and it is further
ORDERED that plaintiffs' cross-motion for summary judgment and assessment of civil penalties for eight violations of the Act occurring on March 15, 30, and 31st and April 14 and 15th, 1987 be, and the same, hereby is granted; and it is further
ORDERED that defendant be, and the same, hereby is assessed a civil penalty of $ 500.00 per violation for a total penalty of $ 4,000.00 and is hereby ordered to pay that sum to the Treasury of the United States within twenty (20) days of its receipt of this order; and it is further
ORDERED that plaintiffs' cross-motion for civil contempt of this Court's March 13, 1987 Order with regard to the aforesaid violations be, and the same, hereby is denied.
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