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February 13, 1991


The opinion of the court was delivered by: Anne E. Thompson, District Judge.


This matter arises on plaintiffs' motions for partial summary judgment on the issue of liability and for injunctive relief, and on defendant's cross-motion to dismiss or for partial summary judgment. Plaintiffs filed this suit under the Federal Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 to 1387 ("the Act"),*fn1 claiming that defendant committed thousands of violations of the discharge and reporting requirements in its New Jersey Pollution Discharge Elimination System/Discharge to Surface Water ("NJPDES/DSW") permit. Plaintiffs brought suit under § 1365(a)(1)(i), which provides for the filing of civil actions by citizen-plaintiffs.

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 standing.

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 ("DEP").

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 requirements.

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 injunctive relief.


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 traced 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 establish standing.

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 denied.


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 motion.

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 notes that this court has not stated whether individual duplicative allegations should be dismissed as a matter of equity. However, § 1319(g)(6) explicitly allows certain parallel proceedings, which will inevitably involve some identical allegations. Congress was presumably aware of the risks and inefficiencies of parallel actions when it drafted § 1319(g)(6)(B) and determined that some duplication is acceptable. This court cannot circumvent the legislative plan by dismissing individual allegations. As this court stated in its earlier opinion, "[defendant's equity arguments] are not useful, insofar as section 1319(g)(6)(B) is rather clear on its fac[e] as to when and how it applies." Yates, transcript at 13.

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 granted.

B. DSN 002

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 (D.N.J. 1984).

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:

    "Whatever the merits of PDT's argument . . . the
  Act clearly [forbids judicial review]. Under New
  Jersey law, a permittee

  wishing to challenge a condition of a permit must
  request agency review within thirty days of the
  receipt of the permit. N.J. Admin.Code tit. 7,
  § 14A-8.9. . . .
  "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

1. Time bar

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 ...

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