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PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v. HE

March 31, 1993

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs,
v.
HERCULES, INC., Defendant.



The opinion of the court was delivered by: JEROME B. SIMANDLE

 SIMANDLE, District Judge:

 This case involves a citizen suit brought under § 505 of the Federal Water Pollution Control Act (the "Clean Water Act" or the "Act"), 33 U.S.C. § 1365, by the Public Interest Research Group of New Jersey ("NJPIRG") and Friends of the Earth ("FOE") against defendant Hercules, Inc., a Delaware corporation doing business in New Jersey. Plaintiffs allege that defendant has committed numerous discharge, monitoring, reporting and recordkeeping violations of the discharge permit issued to it pursuant to § 402 of the Act, 33 U.S.C. § 1342. The court presently has before it the following motions filed by both parties:

 
1. Plaintiffs' Motion for Partial Summary Judgment as to Liability and for Permanent Injunctive Relief;
 
2. Defendant's Cross Motion for Summary Judgment;
 
3. Defendant's Motion in Limine to Bar Evidence Regarding Hercules' Kenvil Facility;
 
4. Defendant's Motion in Limine to Bar the Proposed Trial Testimony of Michael O'Donnell Regarding the Application of the NJDEPE and the EPA Civil Penalty Policies; and
 
5. Plaintiffs' Notice of Appeal of Magistrate Judge Rosen's March 11, 1992 Order, in which Judge Rosen ruled that a certain memorandum relied upon by Michael O'Donnell, a paralegal in plaintiffs' attorneys' office, was not work product and ordered that the memorandum be turned over to defendant.

 BACKGROUND

 The Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., was enacted in 1972 and effected "a major change in the enforcement mechanism of the federal water pollution control program from water quality standards to effluent limits." S. Rep. No. 414, 92d Cong., 1st Sess., reprinted in A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess., Vol. 2 at 1425, 1972 U.S. Code Cong. & Ad. News at 3675. In furtherance of this underlying shift in emphasis from water quality standards to discharge control, the Clean Water Act prohibits the discharge of pollutants into the nation's waters except as specifically authorized by the Act. This authorization comes in the form of discharge permits, which are issued pursuant to Title IV of the Act, 33 U.S.C. §§ 1341-1345.

 On September 10, 1975, the EPA issued NPDES permit number NJ 0005134, effective October 31, 1975, to defendant Hercules. The 1975 permit authorized defendant to discharge limited quantities of pollutants from its Gibbstown, Gloucester County, New Jersey facility into the Delaware River (outfall 001) and Clonmell Creek (outfall 002), in accordance with the conditions set forth therein. Hercules' 1975 permit expired on October 31, 1980. EPA regulations provide, however, that the terms of an expired EPA issued permit remain in effect until the effective date of a new permit. 40 C.F.R. § 122.6.

 In April 1982, the EPA delegated responsibility to the New Jersey Department of Environmental Protection and Energy ("NJDEPE") for administering the NPDES program in New Jersey. 47 Fed. Reg. 17331 (April 13, 1982). On June 11, 1985, the NJDEPE issued NJPDES permit number NJ 0005134, effective August 1, 1985, to defendant. The 1985 permit likewise authorized Hercules to discharge limited quantities of pollutants into the Delaware River and Cronmell Creek (which flows into the Delaware River) from its Gibbstown facility through the two aforementioned discharge points, outfalls 001 and 002, in accordance with the conditions set forth therein.

 The NJDEPE issued a permit modification to Hercules on October 9, 1987. That modification became retroactively effective on July 2, 1986. Under New Jersey law, the expired 1985 permit, as modified, remains in effect until a new permit is issued by the State. N.J.S.A. 52:14B-11; N.J.A.C. 7:14A-2.3.

 On March 21, 1989, plaintiffs *fn1" gave notice of defendant's violations and of plaintiffs' intent to file suit for such violations to the Administrator of the EPA, the NJDEPE, and to defendant Hercules. Plaintiffs gave this notice in order to comply with Section 505 of the Act, which requires the providing of at least sixty days notice before a party can file a citizen suit under the Act. 33 U.S.C. § 1365(b)(1)(A). This notice listed only sixty-eight (68) specific discharge violations which occurred from April 1985 through February 1989. Def. Ex. 9. It did not list any other type of alleged violation of Hercules' permit, i.e., monitoring, reporting, or recordkeeping violations. Id.

 Plaintiffs filed their Complaint on May 24, 1989. In their Complaint, plaintiffs asserted that Hercules "has failed in numerous instances including, but not limited to, those listed in Appendix B to this Complaint to comply with its permit, including failure to comply with the effluent limitations and to monitor its discharge properly." Def. Ex. 11 (Complaint) at P 22. In Appendix B, plaintiffs specifically listed only eighty-seven (87) alleged discharge violations. Def. Ex. 11. Thirty-one (31) of the discharge excursions listed in Appendix B to plaintiffs' Complaint were not listed in plaintiffs' sixty-day notice letter. *fn2" See Joint Final Pre-Trial Order ("JFPTO"), dated Sept. 3, 1991, at p. 33, P 122.

 On May 5, 1989, after receipt of plaintiffs' sixty-day notice but before the actual filing of the Complaint, Hercules received a Notice of Civil Penalty Assessment from the NJDEPE. Hercules objected to this notice on May 24, 1989. The matter was then referred to the New Jersey Office of Administrative Law. Hercules and the DEP engaged in settlement negotiations, which culminated in the execution of an Administrative Consent Order ("ACO") in March, 1991. *fn5" Def. Ex. 18. Under the ACO, Hercules was required to pay the NJDEPE $ 600,000 as a penalty for 115 permit violations which occurred from March, 1985 - August, 1990. In addition to this penalty, Hercules agreed to take various measures to protect against any future violations, including an agreement to implement an in-stream monitoring program and to develop a water quality model, acceptance of more stringent effluent limitations earlier than might otherwise have been required, and various construction requirements. Def. Ex. 18. All of the violations addressed by the NJDEPE in the March, 1991 ACO are included among the discharge violations alleged by plaintiffs.

 DISCUSSION

 I. Summary Judgment Motions

 Plaintiff has moved for partial summary judgment as to liability and for permanent injunctive relief enjoining defendant from violating the Clean Water Act in the future. *fn6" In addition to opposing plaintiffs' motion, the defendant has cross-moved for summary judgment.

 As is suggested by the fact that each side has made about two dozen submissions to the court in connection with these motions, the parties vigorously contest virtually every issue presently before the court. Defendant asserts that as a matter of law, it is entitled to summary judgment as to those violations not mentioned in plaintiffs' sixty-day notice. It also argues that plaintiffs should not recover additional penalties for those violations addressed by the NJDEPE in its March, 1991 ACO. Defendant further contends that it is entitled to summary judgment, or that at least a genuine issue of fact exists to preclude summary judgment for plaintiffs, on certain alleged violations because these violations either did not occur, were "merely" the result of typographical errors on certain documents, or were covered by a statutory upset defense.

 As further discussed below, the court finds at the threshold that defendant is entitled to summary judgment on those violations not noticed in plaintiffs' statutorily required sixty-day notice letter. The court recognizes that as a matter of equity, plaintiffs probably have many more arguments in their favor on this question. But after a careful, exhaustive review, I conclude that this result is constrained by the pertinent statutory provisions and regulatory language, as well as the applicable case law.

 A. Sixty-day Notice Requirement

 Section 505(b)(1), 33 U.S.C. § 1365(b)(1), provides in pertinent part:

 
No action may be commenced--
 
(1) under subsection (a)(1) of this section--
 
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order[.]

 33 U.S.C. § 1365(b)(1). That provision further requires that "notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation." Id. (emphasis added).

 The procedures prescribed by the Administrator of the EPA to govern the Act's notice requirements are set forth at 40 C.F.R. § 135.1, et seq. The specific content requirements of the notice are set forth at § 135.3(a), which provides:

 
Violation of standard, limitation, or order. Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

 Defendant argues that § 505(b) and the accompanying regulations are clear, unambiguous and not subject to any exceptions. Defendant argues that plaintiffs are statutorily precluded from bringing suit upon any violations not previously mentioned in their sixty-day notice, and that defendant thus is entitled to summary judgment on those violations not so mentioned therein. The plaintiffs' sixty-day notice listed sixty-eight discharge excursions which had occurred from April 1985 through February 1989. The notice did not allege any monitoring, reporting, or recordkeeping violations. Def. Ex. 9. Moreover, thirty-one of the discharge violations listed on the Complaint were not listed in the plaintiffs March 21, 1989 notice letter. See note 2, supra.

 In support of its position, defendant cites the Supreme Court's decision in Hallstrom v. Tillamook County, 493 U.S. 20, 107 L. Ed. 2d 237, 110 S. Ct. 304 (1989), which involved an analogous notice provision in the Resource Conservation and Recovery Act ("RCRA"). *fn7" In Hallstrom, the Supreme Court held that "the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision; a district court may not disregard these requirements at its discretion." Id. at 31. The Supreme Court's holding in Hallstrom has subsequently been applied to Clean Water Act cases. See, e.g., National Environmental Foundation v. ABC Rail Corp., 926 F.2d 1096, 1097 (11th Cir. 1991) (holding that "the 60-day notice requirement of 33 U.S.C. § 1365(b) is a mandatory condition precedent to the filing of a citizen suit under the Clean Water Act") (Powell, J. (Ret.)).

 Plaintiffs cite four cases in support of their position. Three of these cases were decided prior to Hallstrom. Defendant argues, and the court agrees, that these cases therefore are all but irrelevant. In the fourth case, PIRG v. Witco Chemical Corp., C.A. No. 89-3146, 90-968 (D.N.J. June 28, 1990), the court held that the plaintiffs' notice letter, which, like the letter at issue here, failed to list every violation subsequently claimed in the complaint, was broad enough to cover the violations added by plaintiffs after discovery. Id. slip op. at 4.

 Plaintiffs assert that their notice letter contained a list of all the effluent violations discoverable by them as of March 21, 1989, the day on which they mailed the letter. Pl. Reply Br. at 4. They also note that their letter specifically stated:

 
The attached list is based on available permit records on file at the offices of EPA Region 2 in New York City. In some instances, information was missing from the public files. We therefore expect to request information from your records to bridge these data gaps and to supplement the lists of violations based on that information.

 Def. Ex. 9. Plaintiffs argue that this letter "thus put defendant on notice that it was violating the Act, that corrective action was necessary, and that plaintiffs expected to add to the lists of violations through discovery." Pl. Reply Br. at 5. They further argue that by virtue of the statutory definition of "an effluent standard or limitation," *fn8" their letter effectively put defendant on notice of monitoring and reporting violations even though the letter *fn9" did not explicitly refer to monitoring and reporting violations. Id.

 One can think of a host of reasons why as a matter of policy and/or equity the sixty-day notice requirement should not be construed as strictly as the court construes it today. But the Supreme Court has made clear that this court is not free to disregard the notice requirements by exalting such considerations over the plain language of the statute and accompanying regulations. See Hallstrom, 493 U.S. at 31. It is equally clear that except with respect to the sixty-eight discharge violations specifically listed therein, the one and only sixty-day notice letter filed by plaintiffs in this action does not satisfy the requirements of 40 C.F.R. § 135.3(a).

 That notice did not make any mention whatsoever of monitoring, reporting, or recordkeeping violations. I am not persuaded by plaintiffs' argument that their mere mention of "effluent standard or limitation" in its sixty-day notice letter was sufficient to put defendant on notice that it also would eventually sue upon monitoring, reporting, and recordkeeping violations. Nor do I believe it was sufficient for plaintiffs to "warn" defendant that they would supplement their list of violations upon further reviewing Hercules' records. Such general notice as was given by plaintiffs' sixty-day letter does not satisfy the more specific, detailed requirements of 40 C.F.R. § 135.3(a), which were promulgated by the EPA pursuant to the authority vested in it by Congress in § 505(b)(1), 33 U.S.C. § 1365(b)(1).

 Specifically, other than for the listed effluent limitation violations, the notice letter fails to "identify the specific standard, limitation or order alleged to have been violated"--which means the permit requirement which has been violated. The notice letter fails to identify "the activity alleged to constitute a violation"--such as failure to test or report or keep adequate records, for example. The notice letter was also deficient as to unlisted violations by not giving the "date or dates of such violation," all as required in 40 C.F.R. § 135.3(a). Each of these provisions is a component of statutory "notice of the alleged violation" as a prerequisite to suit under § 505(b)(1) of the Act.

 That each of the violations alleged in the Complaint must have been stated in the sixty-day notice letter likewise is compelled by the statute's plain language, because § 505(b)(1) requires not just notice of an alleged violation, but "notice of the alleged violation." (Emphasis added.) Congress could not have chosen clearer language to express the requirement that the Complaint will be limited to the violations listed in the sixty-day notice letter. Complying with the content requirements of 40 C.F.R. § 135.3(a) is just as important--and no less a statutory prerequisite to suit--as is the requirement of waiting sixty days after the giving of such notice before commencing suit. Section 1365 explicitly provides that "notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation." 33 U.S.C. § 1365(b) (emphasis added).

 Moreover, the Supreme Court, citing its decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987), a Clean Water Act case, also cited a policy consideration militating in favor of strict construction. The Court cited legislative history as indicating "an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits." Hallstrom, 493 U.S. at 29 (citations to legislative history omitted). The Court explained that requiring citizens to comply with the notice and delay requirements serves this congressional goal in two ways. First, notice helps obviate the need for citizen suits by allowing Government agencies to take responsibility for enforcing environmental regulations. Id. (citing Gwaltney, 484 U.S. at 60). Second, notice gives the alleged violator "'an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.'" Hallstrom, at 29 (quoting Gwaltney at 60).

 A vague or open-ended notice, such as plaintiffs' notice at issue here, not only falls short of the statutory notice requirement, but it also fails to perform either of these two functions. Such notice does not help the EPA to assess intelligently whether to investigate or launch an enforcement action. Nor does it inform the violator of what it must do to avoid suit and bring itself into compliance.

 It is true, as plaintiffs note, and as defendant acknowledges, that "the bulk of Hercules' testing and monitoring records were produced to plaintiffs on October 5, 1990 and January 11, 1991[,]" after the plaintiffs filed their sixty-day letter. See Pl. Reply Br. at 5 n. 2; Def. Br. at 7 n. 20. Consequently, plaintiffs argue that "Congress could not have intended to require that the notice letter include violations about which plaintiffs had no knowledge, and could have had no knowledge, at the time the notice letter was written." Pl. Reply Br. at 5 n. 2. It may be true that Congress could not have expected plaintiffs to include such violations in their March 21, 1989 letter. But nothing prevented plaintiffs from complying with the Act's requirements and the clear mandate of Hallstrom by filing another notice letter including these newly discovered violations, and then waiting sixty-days before filing another Complaint or even an Amended Complaint.

 This result may seem counterproductive in light of the significant resources already invested in this case by all parties. But in Hallstrom the Supreme Court declined to allow the "'absurd or futile results,'" id., 493 U.S. at 29 (quoting United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940)), which petitioners argued would be compelled by giving effect to the literal meaning of the notice provisions, to dictate the outcome. Petitioners in Hallstrom made two arguments. First, they asserted that "strictly enforcing the 60-day delay provision would give violators an opportunity to cause further damage or actually accomplish the objective that the citizen was attempting to stop." Id., 493 U.S. at 30. Similarly, they argued that the courts would thereby be precluded from giving essential injunctive relief until sixty days had elapsed. Id. The Court acknowledged this potential undesirable by-product of the sixty-day waiting period, but explained that the problem arises "as a result of the balance struck by Congress in developing the citizen suit provisions." Id. The Court further noted that Congress addressed the dangers of delay in certain circumstances (neither of which is applicable here) by making certain exceptions to the required notice periods. *fn10"

 In sum, there has never been a statutory notice letter in this case that alleged a specific monitoring, reporting, or recordkeeping violation, so all of the alleged monitoring, reporting, and recordkeeping violations must be dismissed. Similarly, all of the discharge violations which occurred before the filing of the Complaint on May 24, 1989 but which were not listed in the plaintiffs' sixty-day notice letter must be dismissed.

 The court will not dismiss those discharge violations which occurred after the filing of the Complaint, however, even though they were not specifically alleged in the notice letter. I believe that this result is implicitly, if not explicitly, dictated by the Supreme Court's decision in Gwaltney, supra, and by the Act's anticipation of a ...


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