Court with subject-matter jurisdiction over penalty actions concerning violations of that permit.
To accept this argument would result in an impermissibly cramped view of the Clean Water Act's citizen suit provision, one which (as discussed infra) is not required by the language of the Act or the holding in Gwaltney. NPDES permits are designed by regulation to each be in effect for no more than five years. N.J.A.C. 7:14A-2.7(a), (c). Moreover, dischargers are able to renegotiate permits with "relative ease," such that they may acquire a new, slightly different permit to supercede their prior permit before the five year period expires. Student Public Interest Research Group v. AT&T Bell Laboratories, Inc., 617 F. Supp. 1190, 1196 (D.N.J. 1985).
Carter-Wallace's construction of § 1365, then, would allow dischargers to effectively divide their obligation to abide by their permits into discrete periods of five years or less. If one permit was nearing its expiration date, and a new permit was about to be issued, a discharger could violate the expiring permit with little or no fear of incurring a citizen suit. This would be especially troublesome during the required one- to two-month period between the issuance date of a new permit and that permit's effective date, N.J.A.C. 7:14A-8.6(b) (1984); during this time, the discharger could violate the expiring permit and be certain that no citizen group could sue while the old permit was still in effect, given the sixty-day notice requirement of the citizen suit provision. 33 U.S.C. § 1365(b). Indeed, the discharger could violate the expiring permit free of citizen suits even if, as is usually the case, the new permit merely adopts the conditions imposed by the expiring permit, so that the resulting discharges would violate permit conditions present in both the expiring permit and the current one.
To interpret the citizen suit provision to preclude penalty actions for all violations of an expired permit, including violations of permit conditions which have been carried forward into the new permit, would be contrary to the Act's overriding intent that citizens be able to enforce currently valid permit conditions when the federal and state governments have chosen not to do so.
It would similarly be contrary to this intent to conclude, as Carter-Wallace would have me conclude, that citizen suit jurisdiction is predicated upon the fortuity of whether a new permit superceded an expiring permit before or after a complaint was filed.
Finally, Carter-Wallace contends that it would be inequitable to hold a defendant liable for penalties in a citizen suit brought "to enforce the unsuitable terms of [a] superseded permit," and that Gwaltney saw such enforcement as an intrusion into "the primary enforcement domain of NJDEP and EPA." Brief in Support of Defendant's Motion for Partial Summary Judgment at 11. If enforcement of expired permits by citizen groups is limited to those conditions of the expired permit which are included in the superseding permit, then no inequity exists, for the discharger is simply being penalized for violating a currently existing permit condition. Moreover, it does not encroach upon the governmental enforcement mechanism for citizens to bring enforcement actions on the basis of discharges which violate both a condition in an expired permit and that same condition in a current permit. In such cases, the governmental authorities will have chosen not to enforce the identical effluent limitation over the course of two permits, thereby providing even greater reason why citizen groups should be allowed to enforce that limitation and impose penalties for all violations thereof.
Plaintiffs' interpretation of § 1365, allowing for citizen enforcement of an expired permit so long as the same discharger is in violation of its current permit, must also be rejected. They argue that the statutory requirement that a permit condition "[be] in effect under this chapter" means simply that the permit must be "in effect" on the date of the violation, not on the date of the complaint. In other words, the argument goes, the language was inserted by Congress to specifically "exclude enforcement actions based on draft permits or permits which have been issued but are not yet effective." Plaintiffs' Brief in Opposition to Defendant's Motion at 15. It is somewhat difficult to believe that Congress would have felt it necessary to make explicit the obvious proposition that draft permits or permits which are not yet effective may not be enforced and that only effective permits and conditions thereof may be enforced. Moreover, had Congress intended to state the obvious, it could have employed far more precise language than it did.
Plaintiffs rely upon a number of pre-Gwaltney decisions in this district and, in particular, upon AT&T Bell, supra, which held that expired permits could be enforced in citizen suits. 617 F. Supp. at 1199. They recognize that one rationale of the AT&T Bell opinion -- that jurisdiction in § 1365 citizen suits and in § 1319 government enforcement suits is identical -- is no longer valid in the wake of Gwaltney. They contend, however, that the other rationale of AT&T Bell survives:
that the government may seek civil penalties for violations of expired permits, that plaintiffs in citizen suits 'step into the shoes' of government agencies, and that, once jurisdiction properly attaches, the scope of liability in the two types of enforcement actions is therefore the same.
Plaintiffs' Brief at 17 (emphasis added). The observation that the citizen group and the government have equal enforcement powers once jurisdiction attaches may be a legally correct proposition, but it has scant relevance to a discussion of the proper scope of jurisdiction in a citizen suit.
Essential to such a discussion are the provisions of § 1365, for it is those provisions, as interpreted by Gwaltney, which limit citizen groups to seeking penalties "for violation[s] of a permit limitation 'which is in effect' under the Act." 108 S. Ct. at 381. The Supreme Court clearly intertwined, for citizen suits only, injunctive and penalty enforcement, such that penalties could be sought only on account of violations of permit conditions which could then be the subject of an injunction. Id. at 382. Plaintiffs' view of the statute would allow all conditions of an expired permit to be enforced through citizen penalty actions, even though the discharger could not be ordered to comply with those conditions of the expired permit which have no counterpart in the present permit. Plaintiffs' argument simply fails to keep injunctive and penalty relief joined, as Gwaltney requires.
A third interpretation of § 1365 -- that citizen suits may seek to impose penalties solely for those conditions of an expired permit which have counterparts in the discharger's present permit -- comports with the language of both Gwaltney and § 1365. Gwaltney holds, as noted, that only permit limitations which are currently in effect may be enforced by citizen penalty actions. Limitations of an expired permit, when those limitations have been transferred unchanged to the newly issued permit, may be viewed as currently in effect. Because those limitations which span both an expired permit and a current one may properly be enforced by an injunctive order, and because Gwaltney holds that penalties may be sought only as to those limitations enforceable through injunctive relief, violations of a permit condition which continues from an expired permit into a current one may be enforced in a penalty action.
This view is consistent with Gwaltney's concern that injunctive relief and penalty remedies remain intertwined. The Court noted that § 1365 has the "central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance." 108 S. Ct. at 384. A citizen suit to enforce through penalties a current limitation which has extended over two permits, where violations of that limitation went unchecked by government enforcement under either permit, fulfills the citizen enforcement role envisioned by the Gwaltney Court.
Only where government has refused to act may the citizen group enforce the limitation by seeking penalties. To construe the statute as Carter-Wallace suggests would allow dischargers to escape liability imposed by citizen suits even where those dischargers presently violate the identical limitations which they violated in the expired permit. That unduly narrow interpretation is not required by Gwaltney.
Nor is that interpretation required by the language of the statute. Section 1365(f)(6) defines effluent standard as "a permit or condition thereof which is in effect" (emphasis added). I read that language as supporting the interpretation previously set forth: that conditions of an expired permit which are included in the current permit may be enforced by citizen groups as "a condition [of a permit] which is in effect."
As noted above, Carter-Wallace's narrower interpretation of the statutory language unduly restricts the important role of citizen enforcement actions and is not required by Gwaltney, while plaintiffs' broader reading ignores Gwaltney's concern that injunctive and penalty relief go hand in hand.
Having determined the proper scope of citizen suits seeking to enforce conditions of expired permits, I need now only apply the enunciated standard to the facts of this case. All twelve alleged violations of the 1975 Permit involve BOD and TSS, and Carter-Wallace has submitted evidence that the 1985 Permit imposes a quantitatively less stringent standard for those effluents than did the expired permit. While plaintiffs appear to take some issue with that contention, their admission that at least one violation of the 1975 Permit would not violate the 1985 Permit indicates that the latter permit is, indeed, more lenient as regards BOD and TSS. Moreover, plaintiffs have not submitted any evidence to support a contention that the BOD and TSS limitations of the 1975 and 1985 Permits are, in fact, identical.
For these reasons, I find that the BOD and TSS limitations of the 1975 Permit were not carried forward to the 1985 Permit and, thus, that no civil penalties may be imposed in this citizen suit regarding violations of those limits prior to May 1985.
In accordance with this opinion, Carter-Wallace's motion for partial summary judgment is granted as to alleged violations of the 1975 Permit, but denied as to alleged violations of the 1985 Permit predating the filing of the complaint in this action.
This matter being opened to the court on defendant's motion for partial summary judgment, and the court having heard oral argument and in consideration of the papers submitted; and
For the reasons expressed in this court's opinion dated April 20th, 1988,
It is on this 20th day of April, 1988
ORDERED that defendant's motion for partial summary judgment is granted as to alleged violations of the 1975 Permit, but denied as to alleged violations of the 1985 Permit predating the filing of the complaint in this matter.