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PUBLIC INT. RESEARCH GROUP v. YATES INDUS.

June 10, 1991

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, ET AL., PLAINTIFFS,
v.
YATES INDUSTRIES, INC., DEFENDANT.



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

This matter comes before the court on motions by both plaintiffs and defendant for partial reconsideration of this court's order dated February 12, 1991, which granted in part and denied in part plaintiffs' motion for partial summary judgment, denied defendant's cross-motion to dismiss, and granted in part and denied in part defendant's cross-motion for summary judgment. 757 F. Supp. 438. This suit is brought under the Federal Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 to 1386. Plaintiffs, several environmental groups, sued under 33 U.S.C. § 1365(a)(1)(i), which permits citizen-plaintiffs to file civil actions. Defendant Yates Industries manufactures electroplated copper circuit foil at a facility in Bordentown, New Jersey.

Plaintiffs allege that defendant violated discharge and reporting requirements in its New Jersey Pollution Discharge Elimination System/Discharge to Surface Water ("NJPDES/DSW") permit, issued by the New Jersey Department of Environmental Protection ("DEP"). The permit sets discharge "parameters" for various pollutants at two discharge points, and requires Yates to measure pollutant discharge, to report any permit violations, and to submit monthly Discharge Monitoring Reports ("DMRs") which summarize these measurements.

I.  SCOPE OF MOTIONS FOR REARGUMENT

Motions for reargument*fn1 are governed in this district by General Rule 12(I) of the United States District Court for the District of New Jersey. Before reaching the merits of the motion the court must decide whether the arguments are properly raised under Rule 12(I). The motions may address only those matters of fact or issues of law which were presented to but not considered by the court. SPIRG v. Monsanto Corp., 727 F. Supp. 876, 878 (D.N.J.), aff'd mem. 891 F.2d 283 (3d Cir. 1989). Thus, matters raised on reargument may not be introduced for the first time on a motion for reargument. See, e.g., Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). Accordingly, the court will review each argument raised for reconsideration to determine whether to allow reargument.

A.  Plaintiffs' motion for reargument

Plaintiffs ask the court to reconsider five aspects of the February 12th decision. First, plaintiffs argue that the court should find that the permit contained a bioassay effluent limitation which, if it exists, was violated by Yates. Second, they seek a finding that defendant violated its permit on those occasions where it failed to report the type or frequency of effluent sampling on certain Monitoring Report Forms. Third, plaintiffs ask the court to find that defendant failed to report certain excess discharges, listed as violations 70-72 and 75 in plaintiffs' Revised Exhibit 8. Fourth, plaintiffs assert that the court should not have granted summary judgment to defendants on six bioassay monitoring violations. Fifth, plaintiffs request that the court amend its prior order to require defendant to submit to plaintiffs certain documents related to effluent monitoring.

In their first point, plaintiffs wish the court to reconsider plaintiffs' exhibit 22 and defendant's exhibit A, which were submitted in connection with the alleged bioassay violations. The court agrees that, amidst the huge volume of submissions filed by each party, we did not consider exhibit 22. Thus, the court will reexamine this matter.

Without addressing each specific piece of information offered by plaintiffs, the court finds that their other four arguments are not appropriate for reconsideration under Rule 12(I), however. These requests are not based on issues of law or matters of fact which were presented to and overlooked by the court. Instead, plaintiffs rely on new evidence, newly-raised statutes and regulations, and matters which the court previously considered (even if they were not discussed in the opinion). Plaintiffs also rely in part on a few pieces of evidence which were submitted to the court with the initial motion. However, plaintiffs now attempt to utilize these exhibits in support of totally different aspects of the summary judgment motion. Thus, the court did not "overlook" this material in relation to the arguments for which they are currently being offered.

B.  Defendant's motion for reargument

Defendant seeks reargument on three portions of the court's prior order. Yates first argues that plaintiffs should not have received summary judgment on wholly past violations, citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), on remand, 844 F.2d 170, 172 (4th Cir. 1988). This court did not address certain aspects of Gwaltney which were previously raised by defendant. In order to clarify its prior opinion, the court will grant defendant's motion for reargument of this particular point.

Yates seeks reargument on the court's decision to grant injunctive relief, as well as the court's finding that Yates should not have rounded off discharge measurements. These two arguments are not appropriate for reconsideration under Rule 12(I). They depend on new information and material which the court already considered in conjunction with its prior opinion. Thus, the court will deny defendant's request for reargument of these particular points.

Defendant attempts to present additional issues for reargument in a brief in response to plaintiffs' reargument motion. Rule 12(I) requires motions to be filed no more than ten days after the original opinion was entered. This court gave the parties additional time in which to file their motions. Yates' response brief was submitted well after the deadline imposed by the court. Defendant had sufficient opportunity to raise any points for reconsideration within the time allotted. The court therefore will not consider any matters which were presented for reargument after the March 15th deadline, whether presented informally or as a cross-motion.

II. MOTION ON REARGUMENT

A.  Bioassay ...

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