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UNITED STATES v. CITY OF HOBOKEN

November 23, 1987

United States of America, Plaintiff, and Interstate Sanitation Commission, Intervenor Plaintiff,
v.
City of Hoboken, et al., Defendants; United States of America, Plaintiff, and Interstate Sanitation Commission, Intervenor Plaintiff, v. Township of North Bergen, et al., Defendants; United States of America, Plaintiff, and Interstate Sanitation Commission, Intervenor Plaintiff, v. City of Bayonne, et al., Defendants



The opinion of the court was delivered by: ACKERMAN

 This is a consolidated civil action comprised of 3 separate lawsuits. The action is brought by the United States, and by the Interstate Sanitation Commission (the "ISC") as plaintiff-intervenor, against a number of municipalities located in Hudson County, New Jersey, certain municipal sewerage authorities, the Hudson County Utilities Authority (the "HCUA"), and the State of New Jersey, alleging violations of the federal Clear Water Act, 33 U.S.C. §§ 1251 et seq. ("the Act"), also known as the Federal Water Pollution Control Act. The violations allegedly resulted from the discharge of untreated or undertreated sewage and wastewater into the waters surrounding Hudson County on 3 sides, including the Hudson River, Newark Bay, and the Kill Van Kull, a tidal waterway separating Bayonne, New Jersey from Staten Island, New York, and connecting Newark Bay and New York Harbor.

 Before me are motions for partial summary judgment on the issue of liability, brought by plaintiffs against the Hudson County defendants. Specifically, plaintiff United States moves against defendants Hoboken, Jersey City, the Jersey City Municipal Sewerage Authority, West New York, the West New York Municipal Utilities Authority, Bayonne, North Bergen, and the North Bergen Municipal Utilities Authority, seeking a finding that these defendants are liable under the Act for exceeding effluent discharge limitations imposed upon them by the federal Environmental Protection Agency (the "EPA"), and the New Jersey Department of Environmental Protection ("DEP") acting under federal authority, in the form of National Pollutant Discharge Elimination System ("NPDES") permits. Plaintiff ISC moves against the aforementioned defendants and also defendants Union City, Weehawken, and the HCUA, seeking a finding that these defendants are liable under the Act and under the Tri-State Compact for Pollution Abatement entered into by New Jersey, New York and Connecticut for failure to abide by ISC Water Quality Regulations. Neither plaintiff has at this time moved for any ruling in regard to the civil penalties and injunctions which they seek as relief from defendants' alleged violations.

 At this time, I address these motions in regard to only some for which defendants have moved against. Upon request of the moving parties and the relevant defendants, I adjourned the motions against Jersey City and its Sewerage Authority until November 23, 1987, and, initially, adjourned the motions against Hoboken, Union City, Weehawken, and the HCUA until October 26, 1987. Prior to October 26, a further adjournment of the October 26 motions was requested, and I adjourned them until November 23, 1987. North Bergen and its utilities authority have reported that they do not contest the motions brought against them by both plaintiffs, and Bayonne reports that it does not contest the motion brought against it by the ISC. Under my instruction, plaintiffs have submitted to me the appropriate forms of order granting the unopposed summary judgment, and I have signed the orders.

 Aside from this, opposition is being asserted today by Bayonne on the motion brought against it by the United States, and by West New York and the West New York Municipal Utilities Authority on the motions brought against them by the United States and the ISC. I shall deal first with Bayonne.

 According to Rule 56, summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Celotex, 106 S. Ct. at 2553. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting Fed.R.Civ.P. 56(e) (emphasis in Matsushita)).

 Before turning to the issues in dispute on this motion, I shall relate the underlying issues of law and fact upon which the parties appear to agree.

 The Clean Water Act was passed in 1972 to "restore and maintain the chemical, physical and biological integrity of the nation's waters." 33 U.S.C. § 1251(a). To meet this goal, the Act required, inter alia, that persons discharging effluents from point sources into navigable waters abide by certain effluent limitations. The limitations were designed to be attainable by persons who made use of pollution-control technologies. See S. Rep. No. 414, 92nd Cong., 1st Sess. 42 (1971), reprinted in 1972 U.S. Code Cong. & Admin. News 3668; see also E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 126-129, 51 L. Ed. 2d 204, 97 S. Ct. 965 (1977); EPA v. Cal. ex rel. State Water Resources Control Board, 426 U.S. 200, 204-5, 96 S. Ct. 2022, 48 L. Ed. 2d 578 (1976).

 Effluent limitations are imposed upon individual dischargers through the issuance of NPDES permits by the EPA or a designated state agency. No discharges are allowed without a permit; with a permit, a discharger may discharge only up to the levels of effluent limitation set out in the permit, and must engage in self-monitoring practices and file discharge monitoring reports ("DMR's") in order to aid the EPA and state agencies in enforcing the permit limitations. See 33 U.S.C. §§ 1311(a), 1311(b), 1318(a), 1342.

 Enforcement of NPDES permit limitations may be had in part by the prosecution of federal civil actions for monetary penalties and injunctive relief. See 33 U.S.C. § 1319(a)(3), 1319(b), and 1319(d); see also EPA v. California ex rel. State Water Resources Control Board, 426 U.S. at 205. In an enforcement action, a defendant's DMR's constitute admissions regarding the levels of effluent that the defendant has discharged. If the DMR's show that the defendants has exceeded its NPDES permit limitations, then permit violations are established. See, e.g., Sierra Club v. Union Oil Co., 813 F.2d 1480, slip op. at 25-27 (9th Cir. 1987); Student Public Interest Research Group v. Fritzsche, Dodge & Olcott, 579 F. Supp. 1528, 1538 (D.N.J. 1984), aff'd on other grounds, 759 F.2d 1131 (3d Cir. 1985); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 451-52 (D. Md. 1985); Student Public Interest Research Group v. Monsanto Co., 600 F. Supp. 1479, 1485 (D.N.J. 1985); United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 948 (W.D. Tenn. 1976). In general, to exceed a permit constitutes a violation of the Act. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. at 205; Natural Resources Defense Council, Inc. v. Costle, 186 U.S. App. D.C. 147, 568 F.2d 1369, 1374-77 (D.C. Cir. 1977); Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 1545 (E.D. Va. 1985), aff'd, 791 F.2d 304 (4th Cir. 1986), cert. granted, 479 U.S. 1029, 107 S. Ct. 872, 93 L. Ed. 2d 827 (1987).

 Defendant Bayonne owns and operates a "Publicly Owned Sewage Treatment Works," in "POTW," as that term is defined by EPA regulations. See 40 C.F.R. § 122.2. The Bayonne POTW collects and treats wastewater and sewage from residential, commercial, and industrial sources located in Bayonne. The Bayonne POTW discharges it effluent into the Kill Van Kull. Bayonne received its first NPDES permit in 1978. The permit was to run from December 31, 1978 to December 31, 1983. That permit limited, among other things, the acceptable level of biochemical oxygen demand ("BOD 5") exerted by Bayonne's effluent, and the acceptable concentration of total suspended solids ("TSS") in Bayonne's effluent. A BOD 5 measurement indicates the quantity of oxygen an effluent drains from the water during 5 days of decomposition. A TSS measurement, although described in more genteel terms by the parties, apparently indicates the quantity of solid sewage present in the water.

 The effluent limitations set out in Section B.I.A of Bayonne's permit were premised in part on the use of "secondary treatment" pollution-control technology at the Bayonne POTW. Sewage and wastewater receive "primary treatment" when physical processes are used to screen out solids; they receive "secondary treatment" when, in addition to physical processes, biological processes are used to break down some of the remaining impurities. Separate provisions of the Act call for all POTW's such as Bayonne's to meet effluent limitations based on the use of secondary-treatment technology no later than July 1, 1977, 33 U.S.C. § 1311(b), and establish federal-finding programs for the implementation of secondary-treatment technology at POTW's by the 1977 deadline, 33 U.S.C. §§ 1281 et seq.

 Bayonne has never had secondary treatment technology in place at its POTW. Rather, it relies solely on less-effective primary-treatment efforts to clean its effluent. Nor did Bayonne meet the 1977 deadline for effluent limitations set out in the Act. This failure is not a basis for liability in and of itself, however, because Bayonne was to some degree released from the 1977 deadline. In 1977, cognizant of delays in secondary-treatment implementation caused by failures of finding and public leadership at the local, state, and federal levels, Congress amended the Act to allow for extensions of the 1977 effluent-limitation deadline to July 1, 1983 for certain deserving PTW's identified by the EPA. 33 U.S.C. § 1311(i). In accordance with this provision, the EPA included a special section in Bayonne's 1978 permit, for some period of time during the term of the permit, from the secondary-treatment effluent standards which would otherwise become enforceable after the 1977 deadline. This section of the permit imposed instead "interim" effluent limitations that were not premised on the use of secondary-treatment technology. Whether that section, designated C.II in the permit, granted Bayonne its interim limitations for a definite, short period of time or for a longer, potentially open-ended period of time is the issue chiefly in dispute on this motion. In any event, the 1978 permit continued in effect until March 1986, when the N.J. DEP, acting as a designated permit-issuing authority in accordance with the Act, belatedly issued Bayonne a new permit running until 1991.

 In support of its motion against Bayonne, the United States has submitted a wealth of factual material, including copies of Bayonne's duly-filed DMR's. This material, including the DMR's, establishes that Bayonne violated its effluent limitations under the 1986 permit over 83 times between March 1986 and April 1987. It also shows over 29 violations between 1981 and March 1986 of the interim limitations set forth in the 1978 permit. Bayonne does not contest these violations, and I, therefore, find as a matter of law that Bayonne is liable under the Act for the violations at least.

 Bayonne does, however, contest over 121 additional violations alleged by the United States. These alleged violations occurred between July 1, 1986 and March, 1986, during the time that the 1978 permit was in effect. Although the discharges at the times in question were not great enough to violate the interim standards, they were great enough to violate the original secondary-treatment standards which the interim standards had presumably replaced. The United States argues, however, that as a matter of law, the interim standards lapsed on July 1, 1983, and that Bayonne was thereafter governed by the original 1977 secondary-treatment standards. Under these more stringent standards, Bayonne would certainly be liable for the additional violations alleged.

 Bayonne argues in opposition that the terms of the 1978 permit may not be construed as terminating the interim standards on July 1, 1983. Alternatively, Bayonne argues that the terms of the permit are ambigious. The question before me is whether, as a matter of law, the 1978 permit imposed upon Bayonne the original secondary-treatment standards or the interim standards, ...


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