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PUB. INTEREST RESEARCH GROUP v. STAR ENTER.
July 18, 1991
PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, ET AL., PLAINTIFFS,
STAR ENTERPRISE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Clarkson S. Fisher, District Judge.
Before the court is the motion of the plaintiffs, Public
Interest Research Group of New Jersey ("NJPIRG") and Friends of
the Earth ("FOE"), for partial summary judgment on the issue of
the liability of defendant Star Enterprise ("Star") and for
permanent injunctive relief. Also before the court is Star's
cross-motion for summary judgment or, alternatively, a stay.
For the reasons set forth below, the court will grant
plaintiffs' motion for partial summary judgment and permanent
injunctive relief and will deny defendant's cross-motion.
NJPIRG and FOE are non-profit corporations that share an
interest in the protection and improvement of the quality of
water in New Jersey. Seeking to protect the interests of their
members in the quality of Newark Bay and tidally-related
waters, including the Kill Van Kull, the Arthur Kill, the Upper
and Lower New York Bays, the Raritan Bay, the Sandy Hook Bay,
and the Passaic River, plaintiffs have brought this action.
Star is a 50-50 partnership between Saudi-Refining, Inc. and
defendant Texaco Refining and Marketing Inc. ("Texaco
Refining"). On December 31, 1988, Texaco Refining transferred
a petroleum marketing terminal located in Newark, New Jersey,
to Star, which Star has operated since that date. The
discharges from this terminal into Newark Bay are the subject
of this suit.
In 1973, the United States Environmental Protection Agency
("EPA") issued National Pollutant Discharge Elimination System
permit number NJ 0002160 to Texaco Refining. The permit
authorized certain discharges into Newark Bay from the
terminal. On August 1, 1979, a renewal discharge permit for the
Newark terminal issued by the EPA took effect. This permit
expired on July 31, 1984.
On April 13, 1982, the EPA delegated responsibility to the
New Jersey Department of Environmental Protection ("NJDEP") for
administering the National Pollutant Discharge Elimination
System ("NPDES") program in New Jersey. See 33 U.S.C. § 1342)(a)-(b).
On June 27, 1988, the NJDEP, pursuant to the
authority delegated to it by the EPA and to section 58:10A-6 of
the New Jersey Water Pollution Control Act, N.J.Stat.Ann.
58:10A-1 to :10A-20, issued a new permit under the New Jersey
Pollutant Discharge Elimination System ("NJPDES") to Texaco
Refining. This permit took effect on August 1, 1988. On July
25, 1988, Texaco Refining filed a request for an adjudicatory
hearing on the validity of the NJPDES permit. A hearing is
By letter dated October 23, 1989, plaintiffs notified Star,
the EPA and NJDEP of their intent to bring suit within sixty
days for alleged violations of the NJPDES permit, as required
under 33 U.S.C. § 1365(b). Prior to the expiration of the
sixty-day period, on December 21, 1989, the NJDEP issued to
Star an Administrative Order and Notice of Civil Administrative
Penalty Assessment ("Order and Notice"). The Order and Notice
directed Star to immediately cease discharging in alleged
violation of the NJPDES permit limitations and sought to assess
a penalty of $704,000.00 against Star.
On December 27, 1989, Star ceased discharging effluent into
the Newark Bay in order to comply with the cease and desist
provision of the Order and Notice. Star filed a timely request
for a hearing on the validity of the Order and Notice. A
hearing on this issue has not yet been scheduled.
On December 26, 1989, plaintiffs filed this lawsuit, seeking
to hold Star liable for 104 violations of the discharge
limitations in its permit that allegedly occurred in 1989.
Plaintiffs also allege eight violations of the reporting
requirements of the permit, asserting that Star reported
violations on the Discharge Monitoring Reports (DMR's), but
underreported the severity of the violations and the total
number of the violations. Plaintiffs therefore request a
declaratory judgment that defendants have violated and continue
to violate the Federal Water Pollution Control Act ("the Act"),
33 U.S.C. § 1311, 1318, 1342; an injunction prohibiting the
defendants from operating the terminal in such a manner as will
result in the further violation of the permit; an order
requiring defendants to comply with all terms and conditions of
the permit; an order requiring defendants to provide plaintiffs
with a copy of all monitoring results required to be submitted
to federal or state authorities at the time they are submitted
for the period extending from the date of the order to one year
after the defendants come into compliance with the permit; an
award of civil penalties for each violation of the permit; and
an award of costs, including attorneys' and experts' fees.
In 1972, Congress deemed the objective of the Act to be "to
restore and maintain the chemical, physical and biological
integrity of the Nation's waters." 33 U.S.C. § 1251(a). Among
other things, "the Act makes unlawful the discharge of any
pollutant into navigable waters except as authorized by
specified sections of the Act. 33 U.S.C. § 1311(a)." Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 52, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987). For example,
pursuant to section 402 of the Act, "the Administrator of the
Environmental Protection Agency ("EPA"), or a state which has
established its own EPA-approved permit program, may issue a
permit allowing effluent discharges in accordance with
specified conditions. 33 U.S.C. § 1342(b), (c)." Natural
Resources Def. Council, Inc. v. Texaco Refining & Marketing
Inc., 906 F.2d 934, 935 (3d Cir. 1990).
An entity which holds an EPA-issued NPDES permit "is subject
to enforcement action by the Administrator [of the EPA] for
failure to comply with the conditions of the permit."
Gwaltney, 484 U.S. at 52-53, 108 S.Ct. at 379. Entities holding
state-issued permits are subject to both state and federal
enforcement action for failure to comply. Id. at 53, 108 S.Ct.
at 379. In the absence of state or federal enforcement, private
citizens may, upon complying with certain notice provisions,
file suit. Id.
Pursuant to section 505 of the Act, private citizens may
commence civil actions against any entity "alleged to be in
violation of" the conditions of either a federal or state
permit. 33 U.S.C. § 1365(a)(1). In this citizen suit,
plaintiffs allege that the defendants have repeatedly
discharged pollutants from their terminal into Newark Bay in
violation of the terms of their effluent limitations permit.
Plaintiffs now seek partial summary judgment as to Star's
liability and permanent injunctive relief.
Summary judgment is appropriate only when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56; Brown v. Hilton,
492 F. Supp. 771, 774 (D.N.J. 1980). The burden of showing that
no genuine issue of material fact exists rests initially on the
moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573
(3d Cir. 1976), cert. denied,
429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). This "burden . . .
may be discharged by `showing' . . . 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, 2554, 91
L.Ed.2d 265 (1986). Once a properly supported motion for
summary judgment is made, the burden shifts to the nonmoving
party to "set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505,
2509-10, 91 L.Ed.2d 202 (1986).
There is no issue for trial unless the nonmoving party can
demonstrate that there is sufficient evidence favoring the
nonmoving party so that a reasonable jury could return a
verdict in that party's favor. Anderson, 477 U.S. at 249, 106
S.Ct. at 2510-11. In deciding a motion for summary judgment,
the court must construe the facts and inferences in a light
most favorable to the nonmoving party. Pollock v. American Tel.
& Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role
of the court, however, is not "to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine issue for trial." Anderson, 477 U.S. at 249,
106 S.Ct. at 2511.
In opposition to plaintiffs' motion for summary judgment,
Star asserts that this court is without subject matter
jurisdiction, that the plaintiffs lack standing to bring this
action, that the action is moot, that the motion is premature,
that plaintiffs have miscalculated the number of Star's alleged
violations and that permanent injunctive relief is not
appropriate. Star has also cross-moved for summary judgment, or
alternatively, a stay.
A. Subject Matter Jurisdiction
Star asserts that because it stopped discharging before being
served with the complaint in this action, this court is without
jurisdiction over the claims asserted against it under
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).
Under the Act, a citizen may bring an action in federal court
against any person "alleged to be in violation of" an effluent
limitation contained in a permit issued by a state. 33 U.S.C. § 1365(a).
In Gwaltney, the Supreme Court considered Congress'
use of the words "to be in violation" and held that the Act did
not confer federal jurisdiction over citizen suits for wholly
past violations. 484 U.S. at 59, 108 S.Ct. at 382. In order for
subject matter jurisdiction to exist, the Court reasoned, a
plaintiff must allege in good faith that a defendant is in
either "continuous or intermittent violation" of its permit.
Id. at 64, 108 S.Ct. at 385. An intermittent violator is one
who has violated its permit in the past and is reasonable
likely to continue to pollute in the future. Id. at 57, 108
S.Ct. at 381.
In a complaint filed on December 26, 1989, plaintiffs alleged
that Star violated the Act numerous times and would continue to
do so. Complaint ¶¶ 17-18. Star does not assert that plaintiffs
lacked good faith when they made these allegations in their
complaint. Instead, Star notes that on December 27, 1989, it
ceased discharging effluent, and because it did so before being
served with the complaint in this action, this court is without
jurisdiction. However, the date of service of process is
irrelevant. In order to determine whether there is
jurisdiction, this court must examine the circumstances
existing as of the date of the filing of the complaint.
Gwaltney, 484 U.S. at 64, 108 S.Ct. at 385 (at "commencement of
suit," defendant must be alleged to be in violation of Act for
jurisdiction to exist); Atlantic States Legal Found., Inc. v.
Tyson Foods, 897 F.2d 1128, 1133 (11th Cir. 1990) (for
jurisdictional purposes, a good faith allegation that
"violations . . . continued at the time the suit was filed" is
sufficient); see also Chesapeake Bay Found., Inc. v. Gwaltney
of Smithfield, Ltd., 890 F.2d 690, 693 (4th Cir. 1989) (at
trial, plaintiff must prove that continuing violations existed
"`on or after the date the complaint [was] filed'"); Sierra
Club v. Union Oil Co., 853 F.2d 667, 671 (9th Cir. 1988).
Star asserts that plaintiffs are without standing to bring
this suit. Under Article III of the Constitution, federal
courts may resolve only actual cases or controversies. U.S.
Const. art. III, § 2. If a party "has a sufficient stake in an
otherwise justiciable controversy to obtain judicial resolution
of that controversy, . . ." it has standing to sue. Sierra Club
v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 1364-65, 31
L.Ed.2d 636 (1972). This requirement of a "personal stake" in
the outcome of the controversy aids the court by assuring the
"concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions." Larson v. Valente,
456 U.S. 228, 238-39, 102 S.Ct. 1673, 1680, 72 L.Ed.2d 33 (1982).
In Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 472, 102
S.Ct. 752, 758, 70 L.Ed.2d 700 (1982), the Court articulated a
test for determining whether a party has the requisite
"personal stake" in the outcome:
[A]t an irreducible minimum, Art. III requires the
party who invokes the court's authority to "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" . . .
In Hunt v. Washington State Apple Advertising Comm'n,
432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977), the
Supreme Court held that an association has standing to sue on
behalf of its members "when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization's purpose; and
(c) neither the claim asserted nor the relief requested
requires the participation of the individual members in the
lawsuit." See also New York State Club Ass'n v. City of New
York, 487 U.S. 1, 9, 108 S.Ct. 2225, 2232, 101 L.Ed.2d 1
(1988); Sierra Club, 405 U.S. at 739, 92 S.Ct. at 1368
(organization whose members are sufficiently affected may sue
on their behalf).
The first question this court must resolve then is whether,
under the test set forth in Valley Forge, the members of
plaintiffs' organizations have a sufficient connection to this
dispute such that they would have standing to sue in their own
right. See Public Interest Res. Group v. Powell Duffryn
Terminals Inc., 913 F.2d 64, 70-71 (3d Cir. 1990), cert.
denied, ___ U.S. ___, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991).
Star argues that plaintiffs have not alleged an injury
sufficient to confer standing nor an injury that is fairly
traceable to Star's conduct.
Under the Act, "any citizen may commence a civil action."
33 U.S.C. § 1365(a). A "citizen" is "a person or persons having an
interest which is or may be ...