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
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,
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.
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" . . .
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.
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 §
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.
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
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 ...