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PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v. CA

April 20, 1988

Public Interest Research Group Of New Jersey, Inc., and Friends of the Earth, Plaintiffs,
v.
Carter-Wallace, Inc., Defendant



The opinion of the court was delivered by: BARRY

 Defendant Carter-Wallace, Inc. ("Carter-Wallace") is a corporation engaged in the manufacture of various consumer products. Its plant in Cranbury, New Jersey, has been discharging wastewater into the Cranbury Brook since 1975 pursuant to permits issued by the United States Environmental Protection Agency ("EPA") and the New Jersey Department of Environmental Protection ("DEP").

 The first of these permits was issued by the EPA on December 19, 1975 and became effective on January 31, 1976. The permit -- National Pollution Discharge Elimination System ("NPDES") permit No. NJ 0002666 (hereinafter "1975 Permit") -- limited Carter-Wallace's allowable discharges of pollutants into the Cranbury Brook, including limitations on total suspended solids ("TSS"), biological oxygen demand ("BOD"), pH, and toxicity. The permit, by its terms, was to expire on January 31, 1981.

 Beginning on June 27, 1979, Carter-Wallace repeatedly petitioned both the EPA and the DEP for a modification of the 1975 Permit, or for the replacement of that permit by one better suited to the Cranbury plant's operations. It is clear that the reason for the requested modification was that Carter-Wallace's lines and facility had expanded since the original permit application was filed and that it was using approximately 500,000 gallons of water per day rather than the 250,000 gallons recited in the permit application. No action was taken by the EPA to modify or replace the 1975 Permit, even after the January 1981 expiration date had passed. Pursuant to federal and state law, the 1975 Permit would remain in effect until a new permit was issued to replace it. 40 C.F.R. § 122.6 (1987); N.J.A.C. 7:14A-2.3(a) (1987).

 On March 7, 1985, DEP issued a new permit, NJPDES No. NJ 0002666 (hereinafter "1985 Permit"), to regulate Carter-Wallace's Cranbury plant. *fn1" The 1985 Permit became effective on May 1, 1985 and, accordingly, on that date the 1975 Permit expired. There is some dispute as to the differences between the two permits, particularly as to whether the 1985 Permit sets a more lenient standard regarding TSS and BOD.

 On May 13, 1987, plaintiffs Public Interest Research Group of New Jersey and Friends of the Earth brought suit against Carter-Wallace, pursuant to the citizen suit provision of the Federal Water Pollution Control Act (hereinafter "the Clean Water Act"), 33 U.S.C. § 1365 (1982). The complaint alleged 12 violations by Carter-Wallace of its 1975 Permit and 31 violations of its 1985 Permit. The vast majority of the effluent violations involve TSS and BOD. Plaintiffs seek an order enjoining Carter-Wallace from discharging wastewater from its Cranbury plant in violation of the 1985 Permit and requiring it to pay civil penalties to the United States, pursuant to 33 U.S.C. §§ 1319(d) and 1365(a), for violations of both the 1975 and the 1985 Permits.

 The citizen suit provision of the Clean Water Act provides as follows:

 
Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf --
 
(1) against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter . . . . The district courts shall have jurisdiction . . . to enforce such an effluent standard or limitation . . . and to apply any appropriate civil penalties under section 1319(d) of this title.

 33 U.S.C. § 1365(a). "Effluent standard or limitation," as relevant to this action, is defined as "a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter." Id. § 1365(f)(6). The civil penalty provision referred to above states that

 
any person who violates . . . any permit condition or limitation . . . in a permit issued under section 1342 of this title by the Administrator, or by a state . . . shall be subject to a civil penalty not to exceed $ 10,000 per day of such violation.

 Id. § 1319(d). It is pursuant to sections 1365(a) and 1319(d) that plaintiffs seek civil penalties for all violations of the 1975 and 1985 Permits.

 In Gwaltney, the Supreme Court had occasion to examine the interrelationship between these two sections. The citizen groups in that case filed suit under the Clean Water Act alleging over 150 violations of Gwaltney's permit. 108 S. Ct. at 379. It was conceded by both parties that Gwaltney's last recorded violation of its permit had taken place in May 1984, one month prior to the date on which the complaint was filed. Id. at 380; 791 F.2d 304, 307 n.7 (4th Cir. 1986); 611 F. Supp. 1542, 1547 (E.D. Va. 1985). Gwaltney moved to dismiss for lack of subject-matter ...


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