in ordering compliance with the construction schedule contained
in the "Order on Consent."
Plaintiffs also seek to require defendant to undertake
certain remedial measures, as well as repairs and maintenance,
to bring its facility into compliance with its 1989 NPDES
permit or any future permit, including but not limited to the
installation of two Traveling Bridge Automatic Backwash Filters
("backwash filters"), at defendant's existing wastewater
treatment facility. Plaintiffs' expert, Dr. Bruce A. Bell, in
his affidavit, stated that because the plan for the Tertiary
Wastewater Treatment Facility includes, as part of the final
settling tank system design, three of these backwash filters,
two of these could be installed and remain in place at the
existing facility until it is necessary to remove them and
install them at defendant's planned tertiary facility, as
required by the April 1990 design analysis. See Pl. Exh. 26, ¶
10. Dr. Bell noted that if installed and operated correctly,
these filters would reduce current BOD5 and TSS levels at the
existing facility by 50% or more, and that studies have shown
TSS reductions of 70% by similar filters. Id. ¶¶ 9, 10. He also
noted that the installation of the filters would decrease the
amount of phosphorus in the effluent from defendant's existing
facility. Id. ¶ 9. He estimated the cost of the installation of
these filters to be $350,000.
The Federal Water Pollution Control Act (the "Act") was
enacted by Congress in 1972 "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 Defense Council, Inc.
v. Texaco Refining & Marketing Inc., 906 F.2d 934, 935 (3d Cir.
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 378-79. 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 compliance 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 defendant has repeatedly discharged
pollutants from its terminal into Crosswicks Creek, the
Delaware River and Delaware Bay in violation of the terms of
its effluent limitations permit. Plaintiffs now seek partial
summary judgment as to defendant's liability for the discharges
and permanent injunctive relief.
In opposition to plaintiffs' motion, Rice asserts that
plaintiffs lack standing to bring this action, that the EPA
consent order sets forth the appropriate remedy in this case,
and that the equitable relief they seek is not justified or
consistent with the objectives of the Clean Water Act.
Additionally, defendant has cross-moved for summary judgment,
or alternatively, a stay as to availability of civil penalties.
The court will withhold judgment on defendant's motion for
summary judgment. The issue for this court to decide in that
motion is whether sections 313 and 505 of the Clean Water Act,
33 U.S.C. § 1323, waive the sovereign immunity of the United
States, thereby, permitting the court to award civil penalties
for violations of the Act by a federal agency. The Air Force
argues that as an agent of the federal government it is cloaked
in sovereign immunity
and cannot be held liable for the civil penalties generally
available under the statute. That issue is presently before the
United States Supreme Court in Ohio v. U.S. Department of
Energy, 904 F.2d 1058 (6th Cir. 1990), cert. granted, ___ U.S.
___, 111 S.Ct. 2256, 114 L.Ed.2d 709 (1991) (to be argued
during the Fall Term 1991). Therefore, this court will reserve
decision on the issue until such time as the Supreme Court has
considered and decided the case.
Defendant 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, 1680-81, 72 L.Ed.2d 33
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).