in the laboratories operations. Third, defendant has submitted the EPA's report on NET's performance in a DMR Quality Assurance Program conducted in July 1989. Under this program, the EPA provided samples with known concentrations of various parameters to the laboratory for testing in order to gauge the laboratory's accuracy. For nine out of the ten parameters analyzed by NET, EPA gave the laboratory a rating of "not acceptable," meaning that its measurements were beyond the acceptable range of error.
While none of this constitutes direct evidence of laboratory error for most of the violations alleged, it does indicate that on every occasion when NET's procedures were examined they were consistently found to be below acceptable standards. Viewing this evidence as a whole, we hold that a reasonable jury could find that all of the discharge violations measured by NET, from 1985 through 1990 were based on erroneous laboratory results. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Therefore, plaintiffs' motion for summary judgment as to liability is denied as to all discharge violations alleged to have occurred while defendant was using NET to test its samples.
Three discharge violations are alleged to have occurred after February 1990, when Pennwalt stopped contracting with NET: violations of the permit limits for pH, zinc, and total fluorides on July 27, 1990. Because all three of these excursions occurred simultaneously as a result of a single operational upset in which 72,000 gallons of partially treated waste water were discharged, we must under the statute treat it as a single violation. 33 U.S.C. § 1319(d). Therefore, summary judgment is granted in favor of plaintiff as to liability for one discharge violation on July 27, 1990.
C. Monitoring Violations -- Composite Sampling Errors
Pennwalt's permit required it to perform "composite sampling" at outfall 001 on five different parameters. A "composite sample" is a sample that is created by combining a series of individual samples collected at periodic intervals over the entire discharge day. Where discharge is continuous, the permit required a composite sample to be made up of at least twenty-four individual samples collected at hourly intervals.
Plaintiffs have submitted a document produced by defendant entitled "Waste Water Sampling Procedure" dated November 18, 1986. This document describes a procedure for composite sampling that requires less frequent collection of samples than is required by the permit. Plaintiffs have also submitted a performance audit of defendant's facility performed by the EPA on February 5, 1990, which states defendant was taking samples for composite sampling on that date less frequently than the permit required. Plaintiffs contend that we can infer, based on these documents, that defendant violated its permit every time it was required to perform composite sampling between November 18, 1986, when "Waste Water Sampling Procedure" document was issued, and February 1990 when the EPA audit was performed. This amounts to a total of 574 monitoring violations.
In opposition, defendant has submitted an affidavit by an engineer who was responsible for the start up of Pennwalt's waste water treatment system in 1985. She states that an automatic composite sampler was installed in the system and that it was calibrated to compile samples at hourly intervals in compliance with Pennwalt's permit.
Again, drawing all inferences in favor of the nonmoving party, we find that the engineer's affidavit raises an inference that the automatic sampler performed all of the composite sampling required during the period in question, and that it did so at hourly intervals as required by the permit. Therefore, defendant's submission raises a genuine issue of fact as to whether or not composite samples were taken in accordance with permit requirements, and plaintiffs' motion for summary judgment must be denied as to these alleged violations.
Plaintiffs have moved for summary judgment as to a total of 667 alleged monitoring violations.
Of these, 574 are composite sampling violations as to which we are denying summary judgment for the reasons set forth above. We grant summary judgment to plaintiffs as to three monitoring violations based on the EPA's audit of February 5, 1990, which indicated that the correct procedures for testing for the pH, temperature, and oil and grease parameters were not followed on that day.
We also grant summary judgment as to 63 monitoring violations documented by plaintiffs and as to which defendant has raised no specific objection.
D. Reporting Violations -- Clerical Errors
Defendant contends that plaintiff committed clerical errors with respect to fifteen of the violations originally alleged, and that these violations are simply not supported by the DMRs and other documents. Plaintiffs admit error as to eleven violations
but contest it as to four reporting violations. We find in plaintiffs' favor as to three of these contested violations but deny summary judgment as to the fourth.
Defendant argues that plaintiffs erred in alleging two reporting violations relating to the pH parameter in October 1985. An examination of the DMR and lab reports for that month,
however, indicates that at least two reporting violations were committed. The maximum pH level allowed by the permit was 9.0. The laboratory reported pH levels in excess of that limit on two days in October: a measurement of 10.17 on October 8, and a measurement of 9.05 on October 20. First, the DMR for October reports a maximum pH of 10.1 instead of 10.17. Secondly, the box marked "No. Ex.," in which the permit holder is to indicate the number of excursions for pH that month, was left blank; it should have reported two excursions. Accordingly, plaintiffs' motion for summary judgment will be granted with respect to these two reporting violations.
Defendant also contests plaintiffs' allegation that defendant committed a reporting violation relating to the fluoride parameter in November 1989. Again, an examination of the record indicates that there was at least one reporting violation. In a cover letter to the DMR for that month, Pennwalt admitted two fluoride discharge violations, yet in the box indicating the number of excursions for fluoride, a zero was recorded. Accordingly, plaintiffs' motion for summary judgment will be granted with respect to this reporting violation.
Finally, defendant contests plaintiffs' allegations that defendant committed a reporting violation relating to the lead parameter in October 1989.
Because the xerox of the October 1989 DMR submitted by defendant and relied on by plaintiff is illegible,
we cannot make a determination as to this allegation. Summary judgment as to this reporting violation will therefore be denied.
Summary judgment as to the remaining reporting violations, with respect to which defendant has raised no specific objection, will be granted. Thus, summary judgment will be granted as to a total of 27 reporting violations.
Because we hold that this case is not moot and is not barred under § 309(g) of the Act, we deny defendant's motion to dismiss. For the same reasons and because we hold that the good faith allegations of ongoing violations of the Act contained in plaintiffs' complaint are sufficient to establish this court's jurisdiction under § 505 of the Act and the Supreme Court's opinion in Gwaltney, defendant's motion for summary judgment is denied. Finally, plaintiffs' motion for summary judgment as to liability is granted in part and denied in part. It is granted as to one discharge violation resulting from the excursions of pH, zinc, and total fluorides on July 27, 1990. It is also granted as to 66 monitoring violations and as to 27 reporting violations. With respect to all other alleged violations, summary judgment is denied.
The accompanying order has been entered.
JOHN F. GERRY, CHIEF JUDGE
March 31, 1993
This matter having come before the court on defendant's motion to dismiss, defendant's motion for summary judgment, and plaintiffs' two motions for summary judgment as to liability; the court having considered the submissions and the written and oral arguments of the parties; and for good cause shown;
It is, this 31st day of March 1993, hereby ORDERED that:
1) Defendant's motion to dismiss is DENIED;
2) Defendant's motion for summary judgment is DENIED;
3) Plaintiffs' motion for summary judgment as to liability is GRANTED IN PART AND DENIED IN PART. Defendant is held liable for one discharge violation, as set forth in Appendix A attached hereto; 66 monitoring violations, as set forth in Appendices B & C attached hereto; and 27 reporting violations, as set forth in Appendix D attached hereto. Plaintiffs' motion is denied as to all other alleged violations.
JOHN F. GERRY, CHIEF JUDGE
Violation DMR Discharge Permit Measured Number
Number Period Parameter Amount Value Violations
pH, 6.0 S.U. 3.1 S.U.
121-123 7/90 zinc, 0.6 mg/l 0.67 mg/l 1
fluorides 100 mg/l 832.6 mg/l
[SEE APPENDIX B, C AND D IN ORIGINAL]