The opinion of the court was delivered by: Clarkson S. Fisher, District Judge.
Because the purpose of an injunction is to prevent future
violations, the court's power to grant injunctive relief
survives discontinuance of the illegal conduct. Grant, 345 U.S.
at 633, 73 S.Ct. at 897-98. In this case, Star argues that
plaintiffs' request for an injunction is moot. But in order to
show that this is so, Star must demonstrate that there is no
reasonable likelihood that it will violate the permit in the
future. This it is unable to do. Star's new equipment is not
yet operational. Moreover, Star admits that it cannot assure
this court that once the equipment is fully operational, the
discharge produced will
comply with all of the limitations in the permit.
The court notes that even if Star could offer such
assurances, the case would not necessarily then become moot.
See Phosphate Export, 393 U.S. at 203, 89 S.Ct. at 364. "It is
the duty of the courts to beware of efforts to defeat
injunctive relief by protestations of repentance and reform,
especially when abandonment seems timed to anticipate suit, and
there is probability of resumption." United States v. Oregon
State Medical Soc'y, 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96
L.Ed. 978 (1952). Because Star has not been able to establish
that violations of its permit cannot be reasonably expected to
recur and that it is entitled to a dismissal as a matter of
right, the court finds that plaintiffs' request for injunctive
relief is not moot.
2. Civil Penalties
Under the Act, civil penalties attach as of the date a permit
violation occurs. 33 U.S.C. § 1319(d). In Gwaltney, the Court
concluded that citizens may seek civil penalties only in a suit
brought to enjoin or otherwise abate an ongoing violation. Id.
484 U.S. at 59, 108 S.Ct. at 382. But in order to maintain a
suit for civil penalties, the plaintiffs must go beyond mere
allegations. Plaintiffs must be able to prove that
non-compliance was ongoing at the time they filed suit in order
to be able to later maintain an action for civil penalties.
Atlantic States, 897 F.2d at 1134; Chesapeake Bay Found., 890
F.2d at 693.
In order to prove an ongoing violation, plaintiffs must
demonstrate either (1) that violations continued on or after
the date the complaint was filed or (2) that a reasonable trier
of fact could find a continuing likelihood of a recurrence in
intermittent or sporadic violations. Chesapeake Bay Found., 890
F.2d at 696; Atlantic States, 897 F.2d at 1134.
In this case, it is not entirely clear whether any violations
occurred on December 26, 1989, the date the complaint was
filed, or on December 27, 1989, the date that Star ceased
discharging. Nevertheless, this court finds that as of December
26, 1989, there was a reasonable likelihood that Star would
continue to pollute in the future.
Plaintiffs have submitted a "Revised Chronological Listing of
Effluent Violations," which indicates that during every month
of the year of 1989, Star polluted in violation of its permit.
Plaintiffs' Reply Brief exhibit 21. This compilation also
reveals that during the time period beginning on January 13,
1989, and ending on December 15, 1989, Star committed 104
violations of its permit. Id. Star admits that it did not cease
discharging until December 27, 1989, and did so in order to
comply with the cease and desist provision of the Order and
Notice. For this reason, the court concludes that as of
December 26, 1989, a reasonable trier of fact could find a
continuing likelihood of a recurrence in intermittent
Therefore, plaintiffs have carried their burden of
demonstrating an ongoing violation. This court is obligated to
assess penalties once that has occurred. Chesapeake Bay Found.,
890 F.2d at 697. Further, once plaintiffs have proven an
ongoing violation and there is an assessment of civil
penalties, a citizen action cannot become moot. Id. For these
reasons, the court finds that plaintiffs' request for civil
penalties is not moot.
Star argues that this motion for summary judgment is
premature and as such should be denied. Rule 56 provides that
A party seeking to recover upon a claim . . . or
to obtain a declaratory judgment may, at any time
after the expiration of 20 days from the
commencement of the action . . . move with or
without supporting affidavits for a summary
judgment. . . .
The 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 a judgment as a matter
Fed.R.Civ.P. 56(a), (c).
Star does not assert that the motion was filed before
permitted under this rule, or that more discovery is required
before the court can properly determine whether there is a
genuine issue as to any material fact in this action or whether
one of the moving parties is entitled to judgment as a matter
of law. Instead, Star asserts that plaintiffs must wait for the
NJDEP to rule on the validity of the permit at issue and for
any and all subsequently filed appeals to be resolved before
their motion for summary judgment may be heard. In essence,
then, Star requests a stay of plaintiffs' action pending those
determinations. This request will be discussed below.
Plaintiffs' claims are predicated upon the NJPDES permit. The
validity of that permit is at issue in a challenge initially
brought by Star's predecessor before an administrative agency.
Star argues, therefore, that the doctrine of primary
jurisdiction requires this court to stay these proceedings or,
in the alternative, that the court should stay this action in
the interest of wise judicial discretion.
The primary jurisdiction doctrine is principally concerned
with the timing of judicial review of matters entrusted to the
discretion and expertise of administrative agencies.
Outboard Marine, 692 F. Supp. at 809. Where enforcement of a
claim requires resolution of an issue that has been placed
within the special competence of an administrative body and the
claim is properly before that administrative body, a court
should defer ruling until those matters before the
administrative agency have been resolved. See Ricci v. Chicago
Mercantile Exch., 409 U.S. 289, 305, 93 S.Ct. 573, 582, 34
L.Ed.2d 525 (1973); United States v. Western Pac. RR.,
352 U.S. 59, 63-64, 77 S.Ct. 161, 164-65, 1 L.Ed.2d 126 (1956).
This doctrine is designed to give agencies the first
opportunity to decide questions about which they, of the
various decision-making bodies, have the greatest competence.
Monsanto, 600 F. Supp. at 1483. This doctrine is inapplicable
In this case, the NJDEP has issued a permit. Plaintiffs seek
to enforce it. To determine whether Star has violated its
permit, this court will have no need to resolve issues "within
the special competence" of NJDEP. See Outboard Marine, 692
F. Supp. at 809; Monsanto, 600 F. Supp. at 1479. The court will
not be called on to set, modify or revoke the effluent limits
governing Star or to consider technical issues rightly left to
the NJDEP. The NJDEP has already exercised its regulatory role
by determining the effluent restrictions. This court is now
required to enforce the standards NJDEP has determined are
appropriate. This involves no encroachment on NJDEP's areas of
In the alternative, Star asks this court to refrain from
exercising its jurisdiction in the interest of judicial
discretion. Star asserts that because the resolution of the
issues before the administrative tribunal will have a direct
impact upon this action, the court should stay these
The federal courts have a "virtually unflagging obligation .
. . to exercise the jurisdiction given them." Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800, 817,
96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). The general rule is
that "the pendency of an action in the state court is no bar to
proceedings concerning the same matter in the Federal court
having jurisdiction." McClellan v. Carland, 217 U.S. 268, 282,
30 S.Ct. 501, 505, 54 L.Ed. 762 (1910). Nevertheless, in rare
instances, a federal court may surrender its jurisdiction when
"considerations of [w]ise judicial administration, giving
regard to [the] conservation of judicial resources and
comprehensive disposition of litigation" so dictate. Colorado
River, 424 U.S. at 817, 96 S.Ct. at 1246. The Supreme Court
held in Colorado River that only when "exceptional"
circumstances exist, and only upon "the clearest of
justifications," may a federal court stay or dismiss an action
when there is a concurrent state proceeding.
Id. at 818, 819, 96 S.Ct. at 1246, 1247; see Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26, 103
S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983). The test for a stay
or dismissal under Colorado River is stringent because
[w]hen a district court decides to dismiss or stay
under Colorado River, it presumably concludes that
the parallel state-court litigation will be an
adequate vehicle for the complete and prompt
resolution of the issues between the parties. If
there is any substantial doubt as to this, it would
be a serious abuse of discretion to grant the stay
or dismissal at all. Thus, the decision to invoke
Colorado River necessarily contemplates that the
federal court will have nothing further to do in
resolving any substantive part of the case, whether
it stays or dismisses.
Moses H. Cone, 460 U.S. at 28, 103 S.Ct. at 943 (citations
To determine whether the "exceptional circumstances" test of
Colorado River is met, a federal court must carefully consider
the assumption of jurisdiction over property; the inconvenience
of the federal forum; the desirability of avoiding piecemeal
litigation; and the order in which jurisdiction was first
obtained. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246-47.
The Supreme Court added two other considerations to this list
in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In ascertaining
whether it should refuse jurisdiction, a federal court may also
consider whether federal law will decide the action on its
merits, and whether the state court proceeding will adequately
protect the rights of the federal court plaintiff. Id. at 23,
26, 103 S.Ct. at 941, 942. With the balance heavily weighted in
favor of the exercise of jurisdiction, a federal court must
carefully consider whether a balance of these factors justifies
refraining from exercising jurisdiction. Moses H. Cone, 460
U.S. at 16, 103 S.Ct. at 937.
Star has identified no concurrent, parallel state proceeding.
The proceedings before the administrative tribunal concern
Star's claim that the NJDEP failed to follow fundamental
administrative procedures when it issued the permit. This
failure, Star asserts, deprived Star of an opportunity for
meaningful review and comment and rendered the permit invalid.
Star's Brief in Opposition at 12. A citizen plaintiff suit
under the Act is not and could not be before that tribunal.
Moreover, Star admits that the validity of the permit is not
and could not be before this court. Star's Brief in Opposition
at 15-16. Therefore, the proceedings are not parallel.
In addition, Star does not address any of the factors
required to be taken into consideration under Colorado River.
Star does not contend that there has been an assumption of
jurisdiction over property, nor does it contend that the
federal forum is inconvenient. Star does not contend that
piecemeal litigation will result, nor that the administrative
tribunal obtained jurisdiction over this matter first. Star
does not argue that federal law will decide the administrative
action on its merits, nor does it concern itself with whether
the administrative action can adequately protect the rights of
NJPIRG and FOE. For these reasons, the court concludes that the
balance of factors under Colorado River remains firmly
entrenched in favor of jurisdiction.
Nevertheless, Star asserts that it is entitled to a stay in
the interest of fairness. Star asks that it not be put to the
expense of litigating in this forum before the administrative
challenge and any subsequently filed appeals are resolved. Star
also argues that because it has ceased the allegedly offensive
discharges and has taken substantial measures to bring its
discharges within permit levels, plaintiffs will not be
prejudiced by the issuance of a stay.
The Court of Appeals for the Ninth Circuit has determined
[a] trial court may, with propriety, find it is
efficient for its own docket and the fairest
course for the parties to enter a stay of an
action before it, pending resolution of
independent proceedings which bear upon the case.
This rule applies whether the separate proceedings
are judicial, administrative, or arbitral in
character, and does not require that the issues
in such proceedings are necessarily controlling of
the action before the court.
Mediterranean Enters., Inc. v. Ssangyong Corp.,
1465 (9th Cir. 1983) (quoting Leyva v. Certified Grocers,
, 864 (9th Cir.), cert. denied,
, 100 S.Ct.
51, 62 L.Ed.2d 34 (1979)); see also Bechtel Corp. v. Local 215,
, 1215 (3d Cir. 1976).
This court does not agree that the "fairest course" of action
would be to stay this matter. There is a clear federal policy
militating against a stay. In the related context of the Clean
Air Act, the Supreme Court has stated that a request for a
variance "is carried out on the polluter's time, not the
public's." Outboard Marine, 692 F. Supp. at 811 (quoting Train
v. Natural Resources Def. Council, Inc., 421 U.S. 60, 92, 95
S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975)). In this case, the
court finds that there is no reason to permit Star's
administrative challenge to be carried out on the public's
time. The fairest course of action for this court to take would
be to fulfill the obligation Congress has imposed upon it to
enforce all permit restrictions that are in effect. The
possibility that, at some point in the future, the permit may
be deemed invalid cannot serve to abrogate that present duty.
That possibility may be taken into account when the time comes
for assessing penalties for past violations. Outboard Marine,
692 F. Supp. at 811; see also Monsanto, 600 F. Supp. at 1486
(holding a pending modification request is more appropriately
addressed at the penalty stage).
Because the primary jurisdiction doctrine is not applicable
in this action, because Star has failed to demonstrate that the
balance of factors enumerated in Colorado River weighs in favor
of a stay and because the court finds that its interest in
fairness requires these proceedings to continue, the court will
deny Star's request for a stay.
F. Summary Judgment on Star's Liability
Star asserts that plaintiffs' calculation of the number of
alleged violations is in error. First, Star argues that the
plaintiffs have erroneously assumed that a violation of a
monthly average limitation constitutes a violation for each day
of the month. Star also argues that plaintiffs have erred in
assessing multiple violations of a single parameter within a
On February 7, 1987, the Act was amended to provide that any
person who violates the Act or any condition of a permit issued
by a state "shall be subject to a civil penalty not to exceed
$25,000 per day for each violation." 33 U.S.C. § 1319(d).
Of the courts that have considered this issue, most have
determined that if a defendant has violated a monthly average
limitation, it has committed thirty violations. United States
Envtl. Protection Agency v. City of Green Forest,
921 F.2d 1394, 1407 (8th Cir. 1990); Atlantic States, 897 F.2d at 1139;
Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd.,
791 F.2d 304, 314 (4th Cir. 1986); International Union, UAW v.
Amerace Corp., 740 F. Supp. 1072, 1085 (D.N.J. 1990). But see
Student Pub. Interest Res. Group v. Monsanto Co., 29 ERC 1078,
29 ERC 1092, 1089, 1988 WL 156691 (D.N.J. 1988) (court
interpreted prior wording of this section, which provided for
"$10,000 per day of such violation," and held that violation of
monthly average limitation did not establish violation for
every day of month). This court agrees with those courts that
have interpreted the language of this section to mean that a
violation of the monthly average limitation constitutes a
violation for each day of the month.