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PUB. INTEREST RESEARCH GROUP v. STAR ENTER.

July 18, 1991

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, ET AL., PLAINTIFFS,
v.
STAR ENTERPRISE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Clarkson S. Fisher, District Judge.

    OPINION

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.

FACTS

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 currently pending.

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.

ANALYSIS

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).

B. Standing

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" . . .

Id. (citations omitted).

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.

1.  Injury-in-Fact

Under the Act, "any citizen may commence a civil action." 33 U.S.C. ยง 1365(a). A "citizen" is "a person or persons having an interest which is or may be ...


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