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PUBLIC INTEREST RESEARCH GROUP v. YATES
February 13, 1991
PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, ET AL., PLAINTIFFS,
YATES INDUSTRIES, INC., DEFENDANT.
The opinion of the court was delivered by: Anne E. Thompson, District Judge.
This court previously considered a motion by defendant to
dismiss the action or, in the alternative, to stay the
proceedings pending the completion of certain administrative
actions. Defendant alleged that plaintiffs lacked standing, and
further argued that the suit was barred by certain provisions
of the Act. The court denied the motion in an opinion dated
July 6, 1990, but defendant was allowed to petition the court
again after the parties had conducted discovery on the issue of
Defendant Yates Industries manufactures electroplated copper
circuit foil at a facility in Bordentown, New Jersey. The
NJPDES permit authorizes defendant to discharge certain limited
amounts of several pollutants from one discharge point, DSN
001. Discharge "parameters" have been set for, among other
items, flow level, temperature, pH, total suspended solids
(TSS), chromium, copper, silver, and bioassay (toxicity).
Further, the permit sets parameters for a second discharge
point, DSN 002, which handles surface water runoff. The
parameters at DSN 002 cover fewer pollutants. Both discharge
points flow into an unnamed tributary of Mile Hollow Brook.
This brook empties into Crosswicks Creek, which in turn flows
into the Delaware River.
The permit requires defendant to take measurements at varying
time intervals for different parameters, and to determine
whether the discharge points are in compliance with the
statute. Defendant must submit monthly Discharge Monitoring
Reports ("DMRs") summarizing these measurements. If defendant
takes more measurements in a month than is required by the
permit, all results must be included in the DMR. Further,
defendant is required to report all instances of noncompliance
to the New Jersey Department of Environmental Protection
Plaintiff environmental groups initiated this action on
December 26, 1989, having given 60 days notice of the
violations as required under § 1365(a), (b)(1). They claim to
represent the interests of individual members of each
organization. The DEP issued a separate Administrative Order
and Notice of Civil Administrative Penalty Assessment on
December 21, 1989, imposing $2,633,000.00 in civil penalties
and ordering defendant to comply with the permit discharge
Plaintiffs raise several categories of alleged permit
violations, and seeks summary judgment as to liability on all
of the following: (1) that defendant exceeded discharge
parameters on 246 occasions (pl. ex. 7); (2) that it failed to
report 78 of these violations (pl. ex. 8); (3) that defendant
violated various monitoring requirements on 32 occasions (pl.
ex. 9); (4) that defendant did not report flow level on 40
occasions (pl. ex. 10); (5) that defendant did not report the
type of sample taken on 1,135 occasions (pl. ex. 11), and did
not report the frequency of sampling required on 1,118
occasions (pl. ex. 12); and (6) that defendant improperly
stated average measurement values as maximum values 122 times
(pl. ex. 13), and gave maximum values as average values 532
times (pl. ex. 14).
In addition to challenging plaintiffs' standing to bring this
suit, defendant has filed a cross-motion for summary judgment
on various allegations. After reexamining the standing issue,
this court will consider each of these matters in turn.
Finally, the court will consider plaintiffs' request for
Plaintiffs may obtain standing by representing members who
have standing to sue. PIRG v. Powell Duffryn Terminals Inc.,
913 F.2d 64, 70 (3d Cir. 1990). An individual has standing if
he can "`show that he personally has suffered some actual or
threatened injury as a result of the putatively illegal conduct
of the defendant,' . . . and that the injury `fairly can be
to the challenged action' and `is likely to be redressed by a
favorable decision . . . .'" Valley Forge Christian College v.
Americans United for Separation of Church and State,
454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).
Defendant's challenge to plaintiffs' standing centers around
what it considers to be the tenuous links between defendant's
alleged acts and the purported injuries. As discussed below,
however, plaintiffs have presented a strong enough nexus to
Defendant claims that members were improperly involved in
this suit only after defendant raised the standing defense.
However, since the members are not parties to the suit, there
is no reason to involve them from the beginning. When
plaintiffs' standing was challenged, plaintiffs simply had to
establish that they represented the interests of members who
had standing. Sierra Club v. Aluminum Co. of America,
585 F. Supp. 842, 852 (N.D.N.Y. 1984). Similarly, since the members
are nonparties, they need not be familiar with the specific
facts of the case.
Defendant argues that these members "assert no legally
cognizable interest in the unnamed tributary of the Mile Hollow
Brook." However, it is enough to show that plaintiffs' members
have suffered injuries through waters directly affected by any
illegal discharges. See Atlantic States Legal Found. v. Al Tech
Specialty Steel Corp., 635 F. Supp. 284 (N.D.N.Y. 1986)
(standing where flow of excessive discharge from one body of
water, not used by plaintiffs' members, into a second body of
water). If this court adopted defendant's position, a polluter
would be able to avoid suit by controlling all access to some
discrete body of water which flows into another waterway,
ensuring that no potential plaintiff gained access to the
actual discharge point, thus giving the polluter free reign to
damage downstream points.
Defendant claims that the particular members have not
suffered an injury. The members all live downstream from the
discharge point. They assert that they would use waterways
downstream from the "unnamed tributary" more often and eat fish
from the Delaware were it not for pollution. These types of
injuries have been found sufficient in other cases. See, e.g.,
Powell Duffryn, 913 F.2d at 71.
Defendant further argues that plaintiffs have failed to show
any nexus between the alleged illegal discharges and the
purported injuries. Plaintiffs must do more than merely allege
violations of defendant's permit. However, "[a] plaintiff need
not prove causation with absolute scientific rigor. . . ."
Id. at 72. Plaintiffs need only show
"that a defendant has 1) discharged some pollutant
in concentrations greater than allowed by its
permit 2) into a waterway in which the plaintiffs
have an interest that is or may be adversely
affected by the pollutant and that 3) this
pollutant causes or contributes to the kinds of
injuries alleged by the plaintiffs." Id.
The court has already discussed plaintiffs' satisfaction of the
first two elements. Plaintiffs have also satisfied the third
element. Thus, for example, excess pH can lead to increased
alkalinity, causing eye irritation for swimmers. Excess copper,
lead, cadmium and zinc can harm aquatic life. Since these and
other effects touch on the injuries asserted by plaintiffs'
members, plaintiffs have satisfied the causation test set by
the Third Circuit in Powell Duffryn.
Next, defendant asserts that the alleged wrongdoings are too
insignificant to support a finding of standing. As this
district noted in SPIRG v. Tenneco Polymers, Inc., 602 F. Supp. 1394,
1397 (D.N.J. 1985),
"the pollution of a portion of a major, interstate
waterway such as the Delaware River, is caused by
the combination of discharges from many different
sources. The effect of the defendant's argument
would be to prohibit any citizens' suits against
violators of the FWPCA unless the violation was so
great or the waterway so small that the direct
impact of the discharges could be pinpointed. This
interpretation of the FWPCA would be directly
contrary to its intent."
Yates claims that any pollution comes from other sources.
However, "[t]he requirement that plaintiffs' injuries be
`fairly traceable' to the defendant's conduct does not mean
that plaintiffs must show to a scientific certainty that
defendant's effluent, and defendant's effluent alone, caused
the precise harm suffered by the plaintiffs" in order to
establish standing. Powell Duffryn at 72.
Finally, defendant asserts that plaintiffs have not shown
that their injuries would be redressed by a favorable decision.
Just as pollution in a major waterway is caused by the combined
effects of many individual polluters, Tenneco Polymers at 1397,
so too the problem must be redressed one illegal discharger at
a time, even though the impact of a favorable decision may not
by itself be readily noticeable. Accordingly, defendant's
cross-motion for dismissal based on lack of standing must be
II. THE MOTIONS FOR PARTIAL SUMMARY JUDGMENT
A court may enter summary judgment under Federal Rule of
Civil Procedure 56(c) when the moving party demonstrates (1)
that there is no genuine issue of material fact, and (2) that
the evidence establishes moving party's entitlement to judgment
as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The
non-moving party has the burden to establish that a genuine
issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The
court must draw all reasonable inferences in the non-moving
party's favor, and must accept that party's evidence when
considering the merits of the summary judgment motion. See
Pollock v. American Telephone & Telegraph Long Lines,
794 F.2d 860, 864 (3d Cir. 1986).
Plaintiffs' allegations are based on evidence gleaned from
documents prepared by defendant for its DMRs, and on comparison
of this material to defendant's permit. The evidence presented
by plaintiffs will entitle them to summary judgment, unless
defendant can raise an issue of material fact defeating the
Defendant does not respond to some of plaintiffs' individual
allegations. Instead, defendant presents a number of defenses
addressing different groups of plaintiffs' claims. Any
allegation which is not covered by one of these defenses will
be the subject of summary judgment for plaintiffs based on the
evidence presented. Further, plaintiffs will be entitled to
summary judgment wherever defendant's arguments fail to raise
an issue of material fact. Thus, the court will first assess
defendant's various defenses to determine whether it is
entitled to summary judgment for the allegations covered, or
whether defendant has raised an issue of material fact
concerning these allegations. The court will then determine
what allegations, if any, are left such that plaintiffs are
entitled to summary judgment.
A. Duplication of Allegations
Defendant argues that 177 allegations (def. ex. HH) should be
dismissed because they duplicate violations raised in an
administrative action initiated by the DEP. Preemption of
citizen suits under the Act by administrative actions is
covered by § 1319(g)(6). PIRG v. Witco Chem. Corp., 31 E.R.C.
1571, 1576, 1990 WL 66178 (D.N.J. 1990). As this court stated
in its opinion of July 6, 1990, § 1319(g)(6) does not bar the
current suit. PIRG v. Yates, Civ. no. 89-5371, transcript at
11-13 (D.N.J. July 6, 1990). Under § 1319(g)(6)(B)(ii),
administrative actions do not preempt citizen suits where the
notice required under § 1365(b)(1)(A) has been given prior to
the action and the citizen-plaintiffs file their suit within
120 days of notice, as was the case here.
Defendant cites to this court's statement that "Defendant's
concern with duplicative expenditures and judicial efficiency
are genuine." Id. at 15-16. However, this language was made in
the context of the court's refusal to apply those very
concerns. See id. Holding that this action should not be stayed
pending the outcome of the administrative action, the court
noted that a federal court has a heavy obligation to exercise
the jurisdiction granted it; that the DEP and this court will
not likely impose conflicting obligations on defendant; that
this court has the option of adjusting any relief which may be
granted to plaintiffs to reflect DEP actions; that federal
courts can grant certain forms of relief which are unavailable
in administrative actions; and that plaintiffs were not a party
to the DEP action. Id. at 15. These same considerations apply
to the instant motion to dismiss the 177 duplicative
allegations. Accordingly, defendant's request will not be
Defendant seeks to dismiss 1150 alleged violations at DSN
002. Def. ex. II. Defendant claims that DEP officials stated
that the parameters applicable to runoff at DSN 002 were
imposed only to provide data for the DEP, and that these
parameters would not be enforced. Defendant asserts that the
discharge at this site consists of untreated rainwater, in
addition to "trace amounts of non-contact cooling water and
condensation from air conditioning units." Defendant further
states that the permit does not provide for treatment, and that
without treatment some parameters would likely be violated. A
request by defendant for a hearing on this issue was not
responded to by the DEP. Two letters requesting that the DSN
002 parameter limitations be suspended also went unanswered.
Nocera affid. at ¶¶ 11-19. Defendant also notes that permit
limitations for rainwater runoff are infrequent. Tyler certif.
at ¶ 4.
However, the fact remains that defendant's NJPDES permit
contains parameter restrictions for DSN 002, and that defendant
has violated those parameters. Defendant is responsible for the
terms of its permit, SPIRG v. Hercules, Inc., 23 E.R.C. 2081,
2087, 1986 WL 6380 (D.N.J. 1986), and violations of that permit
are unlawful. 33 U.S.C. § 1311(a). Unless modified, the permit
as originally filed remains in effect. See 40 C.F.R. 122.41(f),
122.62, 122.63; N.J.A.C. § 7:14A-2.3, 2.12, 2.13. Mere verbal
representations by officials that certain portions of a permit
will not be enforced, without formal modification in the
permit, will not excuse the holder from the terms of that
permit. See SPIRG v. Anchor Thread Co., 22 E.R.C. 1150, 1153
In addition, this argument, in effect, challenges the terms
of defendant's permit. Under § 1369(b)(2), challenges to
permits issued under the Act "shall not be subject to judicial
review in any civil or criminal proceeding for
enforcement."*fn2 The Third Circuit recently applied this
section in the analogous case of PIRG v. Powell Duffryn
Terminals Inc., 913 F.2d 64, 31 E.R.C. 1905 (3d Cir. 1990).
There, defendant PDT argued that it could not be held liable
under the Act for exceeding parameters for biochemical oxygen
demand and total suspended solids, since those parameters are
only applicable to continuous dischargers, and PDT was only an
intermittent discharger. Id., 913 F.2d at 77, 31 E.R.C. at
1914. The court rejected this argument:
"Because PDT never challenged the BOD and TSS
limits in its permit until PIRG brought this
enforcement action, it may not challenge them now.
By failing to challenge a permit in an agency
proceeding, PDT has lost `forever the right to do
so, even though that action might eventually
result in the imposition of severe civil or
criminal penalties.'" Id., 913 F.2d at 77-78, 31
E.R.C. at 1915 (citations omitted.)
Here, defendant has failed to challenge the permit provisions
for DSN 002 through the proper state agency procedures. Thus,
defendant has lost its right to challenge these provisions, and
this court may not review the permit.
Defendant submits two letters from the DEP to the New Jersey
Builders Association, dated December 3, 1990 and December 6,
1990. These letters state that current DEP regulations do not
require stormwater permit applications for industrial
facilities which mix industrial wastewater with stormwater
discharges, or where stormwater comes into contact with
industrial processing activities. The letters do not extend to
this court jurisdiction over the terms of defendant's permit.
Defendant further argues that plaintiffs should be estopped
from enforcing the violations at DSN 002 because of those
presentations, discussed above, which it received from DEP
officials. The statements which defendant attributes to the
officials would appear to be directly on point. However, the
court finds as a matter of law that reliance on these
statements was unreasonable. As noted by the Supreme Court,
reliance on oral advice is less appropriate, particularly where
the issue involves complex statutory programs. Heckler v.
Community Health Services, 467 U.S. 51, 65, 104 S.Ct. 2218,
2226, 81 L.Ed.2d 42 (1984) (interpretation of Medicare
provisions). Here, as in Heckler, the statutory scheme is
complex, and the need for written instructions is "manifest,"
particularly where the advice runs directly counter to the
clear terms of the permit. Defendant's reliance on DEP's
silence is similarly misplaced. Further, as the court stated in
Anchor Thread under similar facts, "if private citizen
plaintiffs were estopped from maintaining a suit because of
waivers or inaction by government officials, the effectiveness
of [§ 1365] would be drastically curtailed and its purposes
defeated." Anchor Thread at 1154.
The letters from the DEP to the New Jersey Builders
Association, discussed above, do not alter this court's
analysis of the estoppel defense. These letters were not
written until well after the alleged violations at DSN 002
occurred. They therefore could not have been relied upon by
defendant at the time of the violations. Nor do they have any
current value to defendant, since the letters do not state that
Yates is not bound by the requirements of its permit which are
aimed at DSN 002. Accordingly, plaintiffs are not estopped from
pursuing the allegations stemming from DSN 002, and defendant's
request for summary judgment is denied.
C. Alleged Violations of Effluent Limitations
Defendant first seeks summary judgment on 25 alleged
violations (def. ex. T) which it maintains are barred by the
statute of limitations. Plaintiffs admits that these
allegations are time-barred. Accordingly, the court will ...