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September 19, 1989

PIRG, et al, Plaintiffs,
POWELL DUFFRYN TERMINALS, INC. (P.D. Oil & Chemical Storage, Inc.), Defendant

The opinion of the court was delivered by: POLITAN

 The case before this Court presents another chapter in the never ending American environmental tragedy. A recalcitrant company in the private sector of the economy combined with the lethargic enforcement of the applicable statutes and regulations by the New Jersey Department of Environmental Protection and the Federal Environmental Protection Agency, has caused a continuing, if not constant, 11 year contribution to the pollution of the Kill Van Kull. It is indeed sad that none of the participants cared sufficiently about the public trust -- the environment -- to take meaningful steps to avert the tragedy. This Court will not stand idly by to either, explicitly or tacitly, condone such inaction. For the reasons hereafter set forth, significant monetary penalties are necessary.

 Before the Court is the question of the amount of civil penalties to be assessed against defendant, Powell Duffryn Terminals, Inc., for polluting the Kill Van Kull in violation of the Clean Water Act, 33 U.S.C. §§ 1251, et seq (the "Act"). Plaintiffs also seek a permanent injunction prohibiting defendant from violating its National Pollutant Discharge Elimination System/New Jersey Pollutant Discharge Elimination System ("NPDES/NJPDES"), Permit No. NJ 0003361.

 By Orders dated January 13, 1986, March 13, 1987, and May 4, 1989, this Court determined that defendant had violated its Permit for a total of 386 times. Plaintiffs argue that the defendant should be fined the statutory maximum penalty which, in this case, is $ 4,205,000.00. The defendants counter that the assessment of civil penalties is discretionary with the Court and none are warranted in this case.

 Section 505(a) of the Act, 33 U.S.C. 1365(a) authorizes this Court to assess "any appropriate civil penalties under Section 309(d) of this Act." Section 309(d), 33 U.S.C. 1319(d), prior to its amendment in 1987 provided:

Any person who violates §§ 301, 302, 306, 307, or 308 of this Act, [or] any permit condition or limitation implementing any of such sections in a permit issued under § 402 of this Act by the Administrator . . . shall be subject to a civil penalty not to exceed $ 10,000.00 per day of such violation.

 Consequently, each violation of the NPDES permit limitation, prior to the 1987 amendments, subjects the defendant to a statutory maximum penalty of $ 10,000.00 per violation. However, in 1987 Congress increased the statutory maximum to $ 25,000.00. Therefore, defendant's violations occurring on or after February 4, 1987 are subject to a penalty of up to $ 25,000.00. Of the 386 violations, 363 of them occurred prior to February 4, 1987; 23 occurred after that date. Defendant is therefore liable for a maximum penalty of $ 4,205,000.00.

 Section 309(d) of the Act requires the Court to consider specific factors in determining the appropriate civil penalty to be assessed for violations of the Act.

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 violations, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.

 § 309(d), 33 U.S.C. § 1319(d).

 The Court held a non-jury trial on the issue of what, if any, monetary penalty should be assessed against defendant and what, if any, injunctive or other equitable relief should be granted. Both parties have submitted extensive proposed Findings of Fact and Conclusions of Law. In the interests of clarity, I will first set forth my factual determinations and then proceed to the legal conclusions. Plaintiffs Public Interest Research Group of New Jersey and Friends of the Earth, are non-profit corporations committed to environmental issues. Defendant P.D. Oil & Chemical Storage, Inc., operates a bulk chemical storage and transfer facility in Bayonne, New Jersey. Defendant's facility "receives bulk liquid commodities owned by others and holds them in storage tanks for loading, upon instruction from the commodity owners, to rail cars, tank trucks or ocean going tankers [via the Kill Van Kull]." SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 1080 (D.N.J. 1986). Between September 1977 and November 1988, defendant committed 386 violations of the effluent limitations in its 1974, 1981 and 1986 permits. These violations are summarized in the following table: Parameter Number of Violations Total Organic Carbon (TOC) 8 pH 63 Total Suspended Solids (TSS) 66 Bioassay 1 Oil and Grease 48 Hexavalent chromium 2 Petroleum Hydrocarbons 27 Methylene Chloride 9 Phenol 1 Biochemical Oxygen Demand (BOD) 80 Chemical Oxygen Demand (COD) H81 Total 386

 Of the 386 violations, 368 were violations of effluent limitations which had previously been violated. Two hundred sixty of those violations exceeded the applicable permit limitations by over 100%. One hundred ninety-five of them, exceeded the permit limitations by more than 200%. One hundred twenty-seven of them exceeded the applicable permit limitation by over 400%. Eighty-six of them exceeded the permit limitations by 1,000%.

 Pursuant to the requirements of the Act, 33 U.S.C. § 1317(a), the EPA has published a list of toxic pollutants which includes phenol and methylene chloride. The EPA recently listed the 100 hazardous substances posing "the most significant potential threat to human health." 52 Fed.Reg. 12866 (April 17, 1987). The EPA's list is divided into four groups of 25 substances each in descending order of priority. Methylene chloride is priority group I and phenol is in priority group II. The defendant has violated the effluent limitations in its permit for methylene chloride 9 times. The defendant has violated its effluent limitation for phenol once, but its permit has only contained that limitation since August 1987. Defendant has committed 10 violations of toxic pollutant limitations in its permit.

 BOD and COD effluent limitations are designed to limit the amount of oxygen demanding material which is discharged into receiving waters. "BOD is a measure of the oxygen requirement exerted by micro-organisms to stabilize organic matter. Waste water entering [a body of water] exerts an oxygen demand thereby depleting the amount of oxygen available for use by fish and plants. Without adequate oxygen, fish and plants die, eventually choking [the body of water]." United States v. Metropolitan District Commission, 23 ERC 1350, 1353 n.4 (D. Mass. 1985). Defendant's discharge of BOD and COD is particularly harmful because of oxygen deficiencies in the Kill Van Kull and the connected water-ways in the New York Harbor complex. New Jersey's Department of Environmental Protection, Division of Water Resources, has noted these deficiencies in the New Jersey 1980 State Water Quality Inventory, Report to the Congress through the Environmental Protection Agency, April 1980. That Report stated, at page 3, that "as in the past, the waters [of the Interstate Sanitary District] are plagued by . . . low levels of dissolved oxygen." The 1982 State Water Quality Inventory reported that "although [the Interstate Sanitation District Waters] show a general overall improvement since the last . . . inventory was compiled, District Waters are still plagued by low dissolved oxygen values during the summer months." The 1986 New Jersey Water Quality Inventory reported that "District Waters meet dissolved oxygen requirements during the winter; however, in some locations, dissolved oxygen values in the summer drop below standards for extended periods." Defendant's discharges added to the depletion of oxygen in the Kill Van Kull.

 "TSS, or Total Suspended Solids, is an indication of the physical quality of the water. Very high levels of suspended solids can effect the ecology of [a body of water] by inhibiting light transmission needed for photosynthesis by which plants survive". United States v. Metropolitan District Commission, 23 ERC at 1553 n. 4. The EPA has stated, and this Court recognizes that suspended solids can have an adverse affect on fish growth and reproduction and reduce the supply of food available to the fish. See EPA, Quality Criteria for Water, pp. 404-408 (1976). Defendant has violated the TSS limits of its permit 66 times.

 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.


 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 ...

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