The opinion of the court was delivered by: Harold A. Ackerman, District Judge.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT/PLAINTIFF'S
CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
On May 24, 1989, the plaintiffs, Public Interest Research
Group of New Jersey, Inc. ("NJPIRG"), and Friends of the Earth,
Inc. ("FOE"), filed this citizens' suit against the defendant,
GAF Corporation ("GAF"), under Section 505 of the Federal Water
Pollution Control Act, 33 U.S.C. § 1365*fn1 (the "Clean Water
Act"). The complaint was filed subsequent to the expiration of
sixty days following the issuance of the plaintiffs' notice of
intent to sue GAF.*fn2 In the one-count complaint, the
plaintiffs allege that beginning in August 1985, and running
through March, 1989, GAF violated certain effluent limitations
contained in the permits issued to it by the
New Jersey Department of Environmental Protection (the "DEP"),
under the authority delegated to the DEP by the Administrator
of the Environmental Protection Agency, (the "EPA").
See Complaint, filed May 24, 1989, paras. 14, 15, and Exhibit
B.*fn3 The plaintiffs further allege that "neither EPA nor DEP
has commenced an administrative civil penalty action . . . to
redress the violations prior to the issuance of the March 21,
1989 notice letter." Id. para. 4.
On June 22, 1989, the defendant, GAF, moved to dismiss the
complaint for failure to state a claim under Rule 12(b)(6).
Fed. R.Civ.P. 12(b)(6). At that time, GAF claimed that the
plaintiffs' complaint was barred by Sections 309(g)(6)(A) and
505(b)(1)(B) of the Clean Water Act,
33 U.S.C. § 1319(g)(6)(A), 1365(b)(1)(B),*fn4 because the DEP had
commenced and was diligently prosecuting an administrative
proceeding against GAF. In particular, GAF demonstrated that
the DEP issued a notice of violation to GAF on March 15, 1989,
(prior to the issuance of the plaintiffs' notice of intent to
sue), and further, that on May 19, 1989, (prior to the filing
of the plaintiffs' complaint), an Administrative Consent Order
was executed between GAF and the DEP concerning the violations
that are the subject of the plaintiffs' complaint. A hearing
was held on GAF's motion on July 26, 1989, at which time this
court held that GAF's Rule 12(b)(6) motion must be converted
into a Rule 56 motion for summary judgment since matters
outside of the pleadings had been submitted. At that time, the
case had only been pending for two months. Also, the plaintiffs
claimed they needed discovery and it appeared that a number of
discovery requests were outstanding. Therefore, this Court
denied GAF's motion, without prejudice, pending completion of
discovery relevant to any subsequently filed motion for summary
judgment.
A scheduling order was entered by the Magistrate on June 13,
1990, indicating that the discovery period on the issue of
liability had closed*fn5 and that all dispositive motions
should have been filed prior to July 27, 1990. In accordance
with this directive, the defendant filed a motion for summary
judgment and the plaintiffs cross-moved for partial summary
judgment on the issue of liability, which motions are presently
before the court. In its motion, the defendant, GAF, argues
that it is entitled to summary judgment on the grounds that
this action is barred by Section 309(g)(6) of the Clean Water
Act, 33 U.S.C. § 1319(g)(6). It appears that GAF has abandoned
its claims that this action is barred by 505(b)(1)(B) of the
Clean Water Act, 33 U.S.C. § 1365(b)(1)(B). The plaintiffs
argue that based upon GAF's discharge monitoring reports
("DMRs") and supporting laboratory documentation they are
entitled to partial summary judgment on the issue of the
defendant's liability for 118 discharge violations and 5
reporting violations of the Clean Water Act.
In considering these motions, I shall keep in mind the Rule
56 standard of review. Rule 56 of the Federal Rules provides
that "judgment . . . shall be rendered forthwith if the
pleadings depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The moving party has the initial burden of
demonstrating that this summary judgment standard has been
satisfied (see Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355-56, 89
L.Ed.2d 538 (1986)), which can be accomplished by simply
pointing out to the court that there is an absence of evidence
to support the nonmoving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d
265 (1986); see Peters Tp. School Dist. v. Hartford Acc. and
Indem. Co., 833 F.2d 32, 34 (3d Cir. 1987).
In opposing summary judgment, the nonmoving party must come
forward with evidence supporting a claim that there is a
genuine issue of material fact in dispute which requires
resolution by the trier of fact. First Nat'l Bank v. Cities
Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d
569 (1968). The judge's role is "not to weigh the evidence and
determine the truth of the matter," but to determine whether
the evidence may reasonably be resolved in favor of either
party. Metzger v. Osbeck, 841 F.2d 518, 519 (3d Cir. 1988).
"Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge." Williams v. Borough of West
Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986)). All inferences to be drawn from the facts should
be resolved in favor of the nonmoving party. Peters Tp. School
Dist., 833 F.2d at 34.
With these standards in mind, I turn to a discussion of the
legal and factual issues involved in these motions. I shall
address the defendant's motion first, as resolution of that
motion could obviate the need to consider the plaintiffs'
motion, although the converse is not true.
II. The Defendant's Motion for Summary Judgment
The basic, material facts relative to the defendant's motion
for summary judgment are undisputed, although the parties
dispute the legal significance of those facts. It is undisputed
that the discharge permit which is the subject of the
plaintiffs' action was issued to GAF on October 30, 1985, to
become effective on December 1, 1985.*fn6 See Certification of
Jeffrey A. Cohen, Esq., filed June 30, 1990, Exhibit A. The DEP
issued this permit to GAF under the authority delegated to it
by the EPA. The permit allows GAF to discharge pollutants into
the Preakness Brook in Wayne, New Jersey, from one outfall
point only — DSN 001. Id., at 5. Effluent limitations as to
the amount of designated pollutants that could legally be
discharged from this outfall point are set forth in the permit,
and GAF was required to monitor and report to the DEP the
amount of its discharges so that the DEP and others could
determine whether GAF was complying with those effluent
limitations.
On March 15, 1989, the DEP issued a Notice of Violation
("NOV") to GAF stating that GAF exceeded the limitations
contained in its discharge permit on various occasions during
the period running from February, 1988, through February, 1989,
in violation of the New Jersey Water Pollution Control Act,
N.J.Stat.Ann. § 58:10A-1 to -60 (West 1982 & Supp. 1991). It
appears that negotiations immediately ensued between GAF and
the DEP concerning the exceedences set forth in the Notice of
Violation, among others. See, e.g., March 20, 1989 letter from
Ed Hoek of GAF to Peter Jordan of the DEP, Certification of
Jeffrey A. Cohen, Esq., filed June 30, 1990, Exhibit C.
On April 12, 1989, the DEP contacted GAF and notified it that
an Administrative Order would issue for the violations set
forth in the Notice of Violation unless GAF wished to negotiate
and enter into an Administrative Consent Order ("ACO").
See Affidavit of Leonard P. Pasculli, Esq., filed June 30,
1989, para. 4. Rather than resist the citations made by the DEP
and require the initiation of formal, adversarial proceedings,
GAF capitulated and entered into an ACO following two informal
meetings with DEP representatives. See id. paras. 5-8.
The ACO was signed by GAF on May 18, 1989, and executed by
the DEP on May 19, 1989. See Certification of Jeffrey A. Cohen,
Esq., filed June 30, 1990, Exhibit B. Prior to the issuance of
the ACO, certain factual findings were made by the DEP that
were incorporated therein. In particular, the DEP found that
ACO, at 2, para. 5, Certification of Jeffrey A. Cohen, Esq.,
filed June 30, 1990, Exhibit B.
On Appendix I of the ACO, a number of discharge violations
(in excess of forty-eight) are listed for the period beginning
in August, 1985 and ending April, 1989. In addition, an
unspecified number of monitoring and/or reporting violations
are listed for the period beginning in April, 1986 and ending
July, 1986. In addition to making specific findings as to the
violations committed by GAF, the ACO recites a history of
relations between GAF and the DER. In particular, the Order
indicates that, over the years, the DEP has been monitoring
GAF's facility for compliance with its effluent limitations. In
1987, the DEP notified GAF that its facility was rated
"unacceptable" and in response, GAF retained a consultant to
assist in preparing and implementing remedial action.
See ACO, para. 6. In March, 1988, GAF's facility was again
rated "unacceptable" by the DEP and again, GAF made operating
changes to improve the effluent quality. Id. paras. 7, 8.
However, although improvements were implemented by GAF, it
still failed to achieve compliance which ultimately resulted in
the referenced March 1989 NOV and May 1989 ACO.
Under the ACO, GAF was required to further upgrade its waste
water treatment facilities and a schedule of compliance was set
forth. Improvements were required to be made and completed by
July 8, 1990, at which time GAF must have attained full
compliance with its effluent limitations set forth in its New
Jersey Pollutant Discharge Elimination System ("NJPDES")
permit. See ACO, para. 15. Subsequently, GAF requested and
received from the DEP two extensions of the date set for final
compliance with the ACO (one until August 8, and another until
August 27, 1990). See Affidavit of Leonard P. Pasculli, Esq.,
filed September 5, 1990, paras. 3, 5.
In the interim, however, the DEP recognized that GAF did not
have the capability to meet its effluent limitations. Thus,
interim effluent limitations were set, see ACO para. 16, and a
penalty was imposed for GAF's past violations as well as the
anticipated further violations that would occur during the
period that construction was ongoing. In particular, the DEP
found,
based on information submitted by GAF, as well as
information in the possession of the Department,
the Department finds that GAF may not be able to
comply with the effluent limitations of its NJPDES
DSW Permit without undertaking improvements to
and/or upgrading its facility. Therefore, to
amicably resolve the matters described in the
above FINDINGS, the Department and GAF enter into
this Administrative Consent Order without trial or
adjudication of any of the facts or issues
contained herein.
With regard to the amount of the penalty which the DEP chose
to assess, the ACO provides:
Pursuant to N.J.S.A. 58:10A-10(d) and N.J.A.C.
7:14-8.1 et seq., and based upon the above
FINDINGS, the Department has determined that GAF
cannot meet the final effluent limitations
contained in the DSW Permit, will with a high
degree of probability discharge in violation of
these final effluent limitations until the
improvements to the Facility are completed, and
will be liable for maximum statutory penalties for
violations of these final effluent limitations
until the date of completion of the improvements to
the Facility.
However, in light of the cooperation of GAF in the
formulation of this agreement, the Department will
compromise its claim for a maximum civil
administrative penalty and accept a penalty
settlement
from GAF in the amount of $227,000.
Thus, the DEP was clearly aware that it could have, if it so
chose, assess maximum statutory penalties of $50,000.00 for
each violation occurring after December, 1986, and of $5,000
for each prior violation. See N.J.Stat.Ann. § 58:10A-10d
(authorizing commissioner of DEP to assess penalties up to
$50,000.00 per violation.)*fn7 However, the ACO states that
the DEP chose to forego such maximum penalties ...