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February 28, 1991


The opinion of the court was delivered by: Harold A. Ackerman, District Judge.


I. Introduction

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

A. Facts

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.

ACO para. 14.

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

  from GAF in the amount of $227,000.

ACO para. 19.

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 ...

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