are water based quality standards. See SPIRG v. P.D. Oil, 627 F. Supp. at 1088-1089. Water quality based effluent limitations are those which are designed to insure that water quality standards are met. Water quality standards, in turn, have been established to protect, restore, maintain and enhance a body of water so that it supports its designated uses and attains the fishable and swimmable goals of the Act. See 33 U.S.C. §§ 1311, 1312, and 1313; 40 C.F.R. 122.44(d). Any violations of these water quality based effluent limitations causes some degree of harm to the water quality of the Kill Van Kull.
Defendant has violated its permit with respect to oil and grease 48 times. New Jersey's 1980 State Water Quality Inventory stated at page 1 that "the waters [of the Interstate Sanitation District] are . . . high in oil and grease . . . ." That Report also stated at page 2 that "the quality of the District's waters is continuously degraded by . . . large concentrations of both heavy metals and oil entering the waters from inadequately treated municipal and industrial wastes." The 1982 Water Quality Inventory stated that "District waters are still degraded by oil and grease. . . ." Defendant's discharges of oil and grease have added to the problems relating to these pollutants in the Kill Van Kull.
The EPA has determined that "a pH range of 6.5 to 9.0 appears to provide adequate protection for the life of fresh water fish and bottom dwelling invertebrate fish food organisms. Outside of this range, fish suffer adverse psychological effects with an increase in severity as the degree of deviation increases until lethal levels are reached." EPA, Quality Criteria for Water, p. 341. Defendant has violated the pH limits of its permit 63 times.
Since the installation of a water treatment system known as "Zimpro" in May 1987, the frequency of defendant's violations has diminished substantially. However, the defendant has acknowledged violations of its permit since Zimpro's installation. Defendant offers no substantial evidence that it will not violate its permit in the future. Defendant's environmental consultant, LeRoy Sullivan, did not testify that defendant will not violate its permit in the future. Rather, he stated that defendant's waste water treatment plant is "adequate to meet the permit limits." Although the plant may be "adequate" to meet the permit limits if properly operated by defendant, Mr. Sullivan offered no testimony that the treatment plant, as actually operated by defendant, will meet the discharge limits contained in the permit in the future. Mr. Sullivan's testimony provides no basis for the Court to conclude that "the wrong will not be repeated". Gwaltney of Smithfield Limited v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S. Ct. 376, 386, 98 L. Ed. 2d 306 (1987).
Defendant's violations cause harm to the environment. This Court finds that based upon defendant's operations to this point, it is reasonable to conclude that its permit will be violated in the future.
Plaintiffs have attempted to convince the Court to penalize defendant for violating their permit from 1977 to 1987. Plaintiffs argue that whereas the technology to build a waste water treatment plant may not have been in existence in 1977, defendant had the option of hauling their waste water to an off-site treatment facility and thereby achieve compliance with their permit. The Court, however, is not convinced that facilities were available to treat defendant's waste water from 1977 until 1982. The Court finds that the defendant could have complied with its NPDES/NJPDES permit by hauling its waste water off-site from 1982 through April 1987, when it installed the Zimpro treatment plant and by hauling a portion of its waste water off-site from May 1987 through March 1988 in order to operate the facility in compliance with its permit. Defendant's environmental consultant, LeRoy Sullivan, testified that the DuPont Chamberworks facility in South Jersey was available to accept large qualities of waste water for treatment and disposal as early as 1982 or 1983. It has been stipulated by the parties by the DuPont facility did not accept waste water for off-site treatment prior to 1982. Mr. Sullivan estimated that the cost of defendant's waste water off-site for treatment and disposal was approximately $.11 or.12 per gallon in 1985 dollars. Defendant has no records of the amount of its flow to the Kill Van Kull for any period from September 1977 through June 1985. Based upon Mr. Sullivan's estimate, the Court determines that defendant's discharge from September 1977 through March 1988 was approximately 66 million gallons. Therefore, it is clear that the defendant enjoyed a considerable economic advantage by not hauling its waste water off-site for treatment and neglecting its permit limitations.
Using the standards contained in the Act, 33 U.S.C. § 1319(d), the Court will now make findings as to each of the factors to be considered in assessing a penalty. As has already been noted by this Court, § 1319(d), as amended, provides that
in determining the amount of a civil penalty the Court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good faith efforts to comply with the application requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.
SERIOUSNESS OF DEFENDANT'S VIOLATIONS
The Court finds that defendant's 386 violations were very serious in nature. A significant number of the violations exceeded the permit limitations by large amounts. Significantly, some of the defendant's effluent was toxic to marine organisms because defendant's violations involved toxic pollutants and pollutants with the potential to cause environmental harm to the waters into which they were discharged. Moreover, the Court attaches significance to the large number of violations at issue.
THE ECONOMIC BENEFIT RESULTING FROM THE VIOLATIONS
It is patently clear to this Court that defendant benefited a great deal from its lack of compliance with the permit. It is difficult to quantify the precise amount of benefit that the defendant incurred as a result of its noncompliance. Plaintiffs submit various methods by which this Court should compute the benefit. However, all of these methods result in amounts far in excess of the statutory maximum in this case. Therefore, those computations are of little help in guiding the Court as to what penalty should be imposed. Needless to say, those numbers compel this Court to gravitate towards the higher end of the penalty range, if not the maximum.
DEFENDANT'S HISTORY OF VIOLATIONS
The Court finds that defendant's 386 violations spanned an 11 year period from 1977 to 1988. Defendant has violated its permit in each of those 11 years.
DEFENDANT'S "GOOD FAITH" EFFORTS TO COMPLY WITH ITS PERMIT
It is perhaps under this section of the statute that the parties most differ. Plaintiffs attempt to portray the defendant as an egregious violator who, throughout the entire period at issue made no attempts whatsoever to comply with its permit and flagrantly violated both Orders of this Court and EPA decrees. On the other hand, the defendant asserts that it has made good faith efforts to comply all along and that it was lulled into complacency by both the New Jersey Department of Environmental Protection and United States Environmental Protection Agency.
This case is a tragedy in many respects. It demonstrates that private industry, left to its own initiative, will procrastinate indefinitely, even at the expense of the environment, any efforts to remedy an obviously poor situation. It further demonstrates that the government agencies empowered with protecting the environment are far from diligent in that regard. In July 1985 defendant's corporate secretary, Ronald Sprague, summarized defendant's attitude towards achieving compliance as follows:
We have consistently been unable to meet our permit limitations through any means and have been unwilling to commit to treatment schemes. Improved housekeeping, vast amounts of concrete and asphalt to prevent ground water intrusion, capturing all available rain water to dilute our contaminated run-off -- all these schemes have not improved our water quality.