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PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v. NE

December 3, 1992

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiff,
v.
NEW JERSEY EXPRESSWAY AUTHORITY, Defendant.



The opinion of the court was delivered by: JOHN F. GERRY

 GERRY, Chief Judge

 This is a citizen suit brought under § 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365, by the Public Interest Research Group of New Jersey ("NJPIRG") and Friends of the Earth ("FOE") against the New Jersey Expressway Authority ("NJEA"). Plaintiffs allege that defendant has violated provisions of its discharge permit issued pursuant to § 402(a) of the Act, 33 U.S.C. § 1342(a), for the Frank S. Farley Service Area ("Service Area") on the Atlantic City Expressway. This permit sets limits on the amount of pollutants that defendant may discharge into the waterways near the Service Area.

 Since the filing of this suit, defendant has ceased discharging waste water into these waters. Plaintiffs allege that prior to such cessation, however, defendant committed 2,435 violations of the discharge limits, 1,870 violations of the monitoring requirements, and 632 violations of the reporting requirements imposed by the permit. Plaintiffs are seeking an order imposing statutory penalties for these violations. *fn1" The case is presently before us on plaintiff's motion for partial summary judgment as to liability and defendant's cross-motion for summary judgment. *fn2" For the reasons set forth below, plaintiffs' motion will be granted, and defendant's motion will be denied.

 I. Factual Background

 NPDES permits require permittees to establish and maintain records; to install, use, and maintain monitoring equipment; to sample effluent; and to submit regular reports to the Environmental Protection Agency. See 33 U.S.C. § 1318 (a)(4)(A). These reports are called "discharge monitoring reports" ("DMRs") and must be submitted at regular intervals specified in the permit. See 40 C.F.R. § 122.41(1)(4) (1991). Federal regulations provide for criminal penalties for the submission of false information in these reports, see 40 C.F.R. § 122.41(k)(2) (1991), and impose an affirmative obligation on permittees to correct any past errors or omissions in reporting of which they subsequently become aware. See 40 C.F.R. § 122.42(1)(8) (1991).

 In 1982, the EPA delegated responsibility to the New Jersey Department of Environmental Protection and Energy ("Department") to administer the NPDES program in New Jersey. 47 Fed. Reg. 17331 (1982). On December 10, 1985, the Department issued an NPDES permit to defendant, NJEA, effective February 1, 1986, authorizing defendant to discharge limited quantities of pollutants from its Service Area waste water treatment plant through one discharge point *fn3" in accordance with conditions set forth in the permit. The permit imposed certain interim effluent limitations for the period of February 1, 1986 through May 31, 1988 and final effluent limitations which became effective on June 1, 1988. The permit expired on January 31, 1991. EPA regulations, however, provide that the terms of an expired permit remain in effect until the effective date of a new permit. See 40 C.F.R. § 122.6 (1991). No new permit has apparently been issued.

 In addition to setting quantitative discharge limitations on a series of specific pollutants, the permit also imposed a number of obligations on defendant with respect to monitoring and reporting. Thus, the permit required that all monitoring results obtained by defendant be included in its DMRs, and that defendant retain records of all monitoring information for a period of at least five years.

 At the time the permit was issued, the plant was not designed to meet either the interim or the final effluent limitations without major modifications. Defendant had agreed to construct a new sewage treatment plant that would be capable of meeting the permit's effluent limitations, but this project had to be abandoned when defendant was unable to obtain the necessary regulatory approval. Defendant then developed a new plan to construct a force main to transmit the waste water from the Service Area to the proposed Atlantic County Utilities Authority ("ACUA") Coastal Alternative Interceptor Line, which would transport it out of the area entirely and avoid any discharge whatever into Makepeace Lake or surrounding waters. The process of obtaining the necessary regulatory approvals from various state agencies for this project was apparently time consuming, however, and was not completed until January 10, 1990. Meanwhile, construction of the ACUA Coastal Alternative Interceptor itself, to which the force main was supposed to connect, was delayed for two years because of litigation over the funding source for the project. Thus, both the force main and the Interceptor are still under construction but are supposed to be completed and able to transport waste water away from the Service Area within months.

 Meanwhile, the Service Area's waste water treatment plant has been shut down since September 11, 1991, and the waste water has been hauled by private carrier from the Service Area to the ACUA's Plant for processing. Defendant asserts that it will continue to do this until the force main is ready for operation. Thus, both parties agree that no waste water is currently being discharged into Makepeace Lake or surrounding waters, and accordingly no violations of the Act are presently occurring.

 In 1988, when it became clear that defendant would not be able to meet the deadline for compliance with the final effluent limitations, the Department brought its own compliance action. It decided not to impose monetary penalties on defendant for its failure to comply with the permit, but instead required defendant to enter into an enforcement agreement, referred to as the "Memorandum of Understanding" ("MOU"). The MOU required defendant to construct the force main to transfer waste water to the ACUA Coastal Alternative Interceptor line and set a schedule for such construction. It also substantially relaxed both the interim and final effluent limitations contained in the permit, and indicated that these new relaxed limitations would remain in effect until the conveyance of the Service Area's waste water to the ACUA system.

 In support of their motion, plaintiffs have submitted copies of defendant's DMRs and laboratory reports from 1986 through 1991, which they contend demonstrate that defendant committed 2,435 violations of the discharge limits, 1,870 violations of the monitoring requirements, and 632 violations of the reporting requirements imposed by the permit. The monitoring violations consisted of defendant's failure to monitor for particular pollutants on 1,854 occasions and its failure to take the kind of sample required by the permit on 16 occasions. The reporting violations consisted of: 1) defendant's underreporting of the total number of discharge violations on 113 occasions, resulting in 322 unreported violations; 2) defendant's failure on 200 occasions to accurately report the frequency of monitoring; 3) defendant's reporting of an incorrect value for its lead, copper, and zinc parameters in every DMR from February 1986 through August 1988 by using an incorrect conversion factor to convert milligrams (in which measurements were made) to micrograms (in which values were to be reported); 4) defendant's miscalculation of mass value parameters and BOD percent removal figures on 12 and 16 occasions, respectively; *fn4" and 5) defendant having simply misrecorded laboratory report values on DMRs or made simple mathematical errors in determining reported figures.

 II. Discussion

 Plaintiffs have moved for summary judgment as to liability only, and defendant has cross-moved for summary judgment. Defendant does not dispute plaintiffs' contentions as to the number of permit violations that occurred. Rather, it argues that it may not be held liable for those violations for a number of reasons. Defendant argues first, that the case must be dismissed as moot; second, that plaintiffs lack standing to bring this action; third, that prior enforcement action against defendant by the Department precludes this citizen suit; and finally, that defendant can only be held liable for violations of the more lenient MOU, not the NPDES permit. We address each of these arguments in turn.

 A. Mootness

 In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987), the Supreme Court held that the Clean Water Act does not permit citizen suits -- even for penalties -- that are based on "wholly past violations." This holding was not based on the common law doctrine of mootness, but rather on the language of the statute itself, the citizen suit provision of which is worded in the present tense only, allowing citizen suits against any person "alleged to be in violation" of the Act. 33 U.S.C. § 1365(a).

 Gwaltney, however, does not require a court to dismiss an otherwise proper suit when the defendant ceases the allegedly illegal conduct during the pendency of the litigation. See id. at 66-67; see also United States v. W. T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). Rather, Gwaltney holds that jurisdiction is proper under the Clean Water Act as long as a citizen plaintiff is able to make good faith allegations of a continuing likelihood of ongoing violations at the time the suit is filed. See Gwaltney, 484 U.S. at 64. Once such jurisdiction does attach, the court can assess penalties for all current and past violations of the Act, even if it is later proved that no violations actually occurred subsequent to the filing of the complaint. See Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696 (4th Cir. 1989) (on remand from Supreme Court); PIRG v. Carter-Wallace, Inc., 684 F. Supp. 115 (D.N.J. 1988).

 Here, although defendant is at this time no longer violating its permit, it did continue to commit violations after the filing of the complaint. *fn5" The allegations of continuing violations in the complaint, therefore, appear to have been made in good faith, and jurisdiction is accordingly proper under Gwaltney.

 B. Standing

 The standing requirement arises from Article III of the United States Constitution, which limits the jurisdiction of the federal courts to the resolution of actual cases or controversies. Thus, in order to have standing to sue, a party must have "personally . . . suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979).

 Standing need not be proven at the outset of a case in order to invoke the court's jurisdiction. Just like a plaintiff's substantive claims, the facts necessary to support standing need only be alleged in the complaint and need not be proven until trial. As with any other factual issue, however, it may be resolved prior to trial if either party can establish that it is entitled to summary judgment. See Gwaltney, 484 U.S. at 65-66. Here we have before us cross-motions for summary judgment on the issue of standing. Accordingly, either side, in order to ...


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