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September 23, 1991


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 a preliminary injunction, partial summary judgment on the issue of liability and permanent injunctive relief against defendant, Donald B. Rice, the Secretary of the United States Air Force. Defendant has moved for partial summary judgment on the issue of the availability of civil penalties against an agent of the United States Government. The court having considered the written submissions and oral argument of counsel; and counsel, in response to inquiry from the court, having assured the court that all evidence was now before it and they had nothing to add; and for the reasons stated below, the court will grant the plaintiffs' motion for partial summary as to defendant's liability and issue permanent injunctive relief. The defendant's motion for summary judgment as to the civil penalties is stayed pending resolution of a similar issue by the United States Supreme Court.

NJPIRG and FOE are nonprofit 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 Crosswicks Creek, the Delaware River, the Delaware Bay and tidally-related waters, plaintiffs have brought this action.

In 1974, the United States Environmental Protection Agency ("the EPA") issued National Pollutant Discharge Elimination System ("NPDES") permit number NJ 0022578 to defendant's facility. The permit authorized certain discharges into the South Run of Crosswicks Creek from that facility through one discharge point, outfall 001. This permit expired on June 30, 1982.

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).*fn1 On August 1, 1989, 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.S.A. 58:10A-1 to :10A-20, issued a new permit under NJPDES to the defendant. This permit took effect on November 1, 1989. Pl. Exh. 2.

Plaintiffs have obtained defendant's DMRs for the time period from October 1989 through February 1991, Pl. Exh. 3, and contend that these do not present a complete picture of defendant's compliance record. Plaintiffs allege that defendant has committed 955 discharge violations, 659 reporting violations and 20 monitoring violations in the 17-month period from October 1989 through February 1991.

EPA and NJDEP evaluations and inspections show that defendant has repeatedly failed to maintain its wastewater treatment facility adequately and has failed to operate the facility in accordance with federal law. See Pl. Exhs. 50, 51 and 52. The EPA stated that it was "amenable to revising the schedule," and that defendant was "over two years behind the current schedule." Defendant wrote to the EPA asking for renegotiation of the construction compliance schedule, expansion of the 1985 FFCA interim limits and the setting of significantly lower limits to defendant's 1989 NJPDES permit. Pl. Exh. 73 pp. 1-2.

On October 26, 1990, defendant and the EPA signed an "Order on Consent." Pl. Exh. 29. The order contained an explicit statement that it "[did] not constitute a waiver from compliance with or modification of the effective terms and conditions of the Respondents' permit, which remain in full force and effect." Id. at p. 7. Nevertheless, the order included the weakened effluent limits that defendant had proposed. The order also extended the final construction compliance deadline by nearly three years, from February 1991 until November 30, 1994. Id. at 6-7.

On May 30, 1990, after complying with the notice provisions of section 505(b) of the Act, 33 U.S.C. § 1365(b), plaintiffs filed this citizen suit under section 505. Plaintiffs allege that defendant violated and continues to violate sections 301, 308, and 402 of the Act by failing to comply with the discharge limitations and the monitoring and reporting requirements in its NPDES/NJPDES permit No. 0022578. On August 27, 1990, defendant filed its Answer and Affirmative Defenses. Subsequently, defendant, while admitting that it cannot comply with the terms of the 1989 permit, filed a motion for summary judgment on the issue of whether the Air Force is immune from civil penalties. Thereafter, plaintiffs filed a motion for partial summary judgment as to defendant's liability and permanent injunctive relief.

Initially, plaintiffs request an injunction requiring defendant to comply with the Tertiary Wastewater Treatment Facility compliance schedule in the October 26, 1990, "Order on Consent." As defendant has agreed to this, the court has no problem 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. 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 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.

A. Standing

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 (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. 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 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 Research Group of New Jersey, Inc. 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). Defendant argues that plaintiffs have not alleged an injury sufficient to confer standing nor an injury that is fairly traceable to Rice's conduct.

1. Injury-in-Fact

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 adversely affected." Id. at § 1365(g).

The Court has determined that cognizable injury can implicate environmental, aesthetic or recreational as well as economic interests. Sierra Club, 405 U.S. at 734, 92 S.Ct. at 1366. But injury-in-fact requires more than an injury to a cognizable interest; plaintiffs' members may not simply assert a generalized interest in the conservation of natural resources. Id. at 734-35, 92 S.Ct. at 1365-66; Lujan v. National Wildlife Fed'n, ___ U.S. ___, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990). In order to be considered among the injured, plaintiffs' members must show a connection with the geographical area that is the subject of the suit. Sierra Club, 405 U.S. at 734-35, 92 S.Ct. at 1365-66; Lujan, 110 S.Ct. at 3189.

The complaint must properly allege that the members of the plaintiff organizations reside in the vicinity of, own property near, or recreate in or near the body of water into which the defendant discharges pollutants, and that the health, economic, recreational, aesthetic or environmental interests of these members are being and will be adversely affected by the discharges. See Powell Duffryn, 913 F.2d at 71; Natural Resources Defense Council, Inc. v. Outboard Marine Corp., 692 F. Supp. 801, 807 (N.D.Ills. 1988); Student Pub. Interest Research Group v. Monsanto Co., 600 F. Supp. 1479, 1484 (D.N.J. 1985).

In their complaint, plaintiffs allege that their members reside or work near the Delaware River, Crosswicks Creek or tidally-related waters. Complaint ¶ 8. The complaint further alleges that the quality of these waters is adversely affected by defendant's discharges in violation of the terms and conditions of its permit and that defendant's excessive discharges directly affect the health, economic, recreational, aesthetic and environmental interests and well-being of plaintiffs' members. Id. ¶¶ 8, 11. In support of these allegations, the plaintiffs have submitted the affidavits of six individuals, one of whom is a member of NJPIRG and five of whom are members of FOE.

These individuals attest that they walk, hike and sail on or near the waters or other waters which are downstream from defendant's facility or tidally related to the area where defendant discharges. Pl. Exhs. 11-16. The affiants claim injury to their aesthetic and recreational interests because of the pollution of these waters. All of the affiants complain of the foul smell or appearance of the waterways, and all of the affiants would not knowingly eat fish from these waterways because of their concern that doing so may be hazardous to their health.

For instance, in his affidavit, Edward Komczyk describes how the pollution in these waters affects his interests. Mr. Komczyk is a member of FOE and lives in Mantua Creek, New Jersey, which receives tidewater from the Delaware River. Pl. Exh. 11, Affidavit of Edward Komczyk ¶¶ 2, 8. He further claims that the pollution in these waters lowers the value of his home. He frequently canoes, boats, fishes, hikes and bird-watches on the Delaware river between Raccoon Creek and Big Timber Creek, in an area downstream from defendant's discharge. Id. ¶ 4. Mr. Komczyk also does not recreate directly in or near that area, because it contains pollution and is foul in smell and appearance. Id. ¶ 5. In addition, he has required medical attention because of irritation to his eyes while swimming in the relevant area of the river. Id. Accordingly, he will no longer swim in this ...

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