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PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v. EL

March 31, 1993

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs,
v.
ELF ATOCHEM NORTH AMERICA, INC., Defendant.



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

 GERRY, Chief Judge

 The Public Interest Research Group of New Jersey ("NJPIRG") and Friends of the Earth ("FOE") bring this citizen suit under § 505 of the Clean Water Act, *fn1" 33 U.S.C. § 1365, against Elf Atochem North America, Inc. (previously Pennwalt Corporation). *fn2" Plaintiffs allege that defendant violated provisions of its discharge permit, issued pursuant to § 402(a) of the Act, 33 U.S.C. § 1342(a), for a facility located in Thorofare, New Jersey. This permit sets limits on the amount of pollutants that defendant may discharge into the Delaware River and one its tributaries, Little Mantua Creek.

 Plaintiffs' complaint originally sought injunctive relief as well as civil penalties, but the claim for injunctive relief was withdrawn after defendant sold the facility in October 1990. Presently before the court are defendant's motion to dismiss, two motions by plaintiffs for partial summary judgment as to liability, and defendant's cross-motion for summary judgment.

 I. Background

 In 1972, Congress enacted the Clean Water Act, 33 U.S.C. § 1251 et seq., with the express goal of "restoring and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a). The Act prohibits the discharge of any pollutants into the nation's waters except pursuant to specific authorization as provided for in the Act.

 Pursuant to Title IV of the Act, 33 U.S.C. §§ 1341-1345, discharge permits can be issued to particular entities, allowing them to discharge limited amounts of pollutants into surface waters. The permit involved in this case was issued pursuant to the National Pollutant Discharge Elimination System ("NPDES") as created by § 402(a)(1) of the Act, 33 U.S.C. § 1342(a)(1). Section 402(a)(1) authorizes the Administrator of the United States Environmental Protection Agency ("EPA") to issue permits authorizing the limited discharge of pollutants in accordance with national standards promulgated by the Administrator. Failure to comply with a permit constitutes a violation of the Act itself. See id. §§ 1342(k), 1344(p). Under the Act, permit violators may be subject to civil or criminal penalties through either government enforcement action, see id. §§ 1319, 1342(b)(7), or court actions like this one brought by private citizens, see id. § 1365(a).

 The enforcement mechanisms in the Act are structured so as to streamline the enforcement process and "to avoid the necessity of lengthy fact finding [proceedings]." S. Rep. No. 414, 92d Cong., 1st Sess., 64 reprinted in 1972 U.S.Code Cong. & Ad. News 3668, 3730. Toward this end, the Act imposes responsibility for monitoring and reporting pollutant levels in their discharges on the permit holders themselves. NPDES permits require permit holders to establish and maintain records; to install, use, and maintain monitoring equipment; to sample effluent; and to submit regular reports to the EPA. 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(l)(4) (1992). Federal regulations provide for criminal penalties for the submission of false information in these reports, see id. § 122.41(k)(2), and impose an affirmative obligation on permit holders to correct any past errors or omissions in reporting of which they subsequently become aware. See id. § 122.41(l)(8).

 In 1982, the EPA delegated responsibility to the New Jersey Department of Environmental Protection and Energy ("NJDEPE") to administer the NPDES program in New Jersey. 47 Fed. Reg. 17331 (1982). On November 26, 1984, NJDEPE issued an NPDES permit effective January 1, 1985, authorizing Pennwalt to discharge limited quantities of pollutants into Little Mantua Creek and the Delaware River through two discharge points in accordance with conditions set forth in the permit.

 Plaintiffs, after providing 60 days notice of their intent to sue as required under the Act, 33 U.S.C. § 1365(b)(1)(A), filed this action on September 18, 1989, alleging that Pennwalt had committed and continued to commit numerous and repeated violations of the discharge, monitoring, and reporting requirements of its permit. Plaintiffs originally sought both civil penalties and injunctive relief, but they dropped their request for injunctive relief after the defendant sold the Thorofare facility in October 1990. Their claim for civil penalties under 33 U.S.C. § 1319(d) remains before us.

 Meanwhile, NJDEPE was also taking action against Pennwalt. On March 31, 1989, NJDEPE sent Pennwalt a "Compliance Evaluation Inspection Report" with a cover letter informing Pennwalt that the facility had been given a rating of "unacceptable" and instructing Pennwalt to take corrective measures. On August 25, 1989, NJDEPE issued an Administrative Order and Notice of Civil Administrative Penalty Assessment ("Administrative Order") proposing a penalty of $ 370,250 against Pennwalt. Negotiations between NJDEPE and Pennwalt eventually led to a settlement of that action, and a consent order was signed on April 24, 1992.

 Under the terms of the consent order Pennwalt had to pay a penalty of $ 275,000. The consent order states that it is "in full settlement of all civil and administrative claims and liability that might have been asserted by [NJDEPE] under the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq." for the violations set forth in Appendix A. Appendix A includes virtually all of the violations alleged by plaintiffs in this action.

 Defendant contends that its facility represented "state-of-the-art technology" for waste water treatment and that most or all of the apparent violations alleged by plaintiffs were caused by laboratory error. During the period in question, the facility's waste water samples were tested by an NJDEPE-certified laboratory, National Environmental Testing ("NET"). Defendant has taken a number of steps to try to determine the accuracy of NET's results and the propriety of its procedures.

 First, in September 1989, around the same time that this suit was filed, Pennwalt retained another laboratory, Northeastern Analytical Corporation ("NAC"), to check the accuracy of the testing being performed by NET. Accordingly, from September 1989 through mid-February 1990 the samples collected at the facility were split such that half of each sample was sent to NET and half to NAC for parallel testing. There were substantial discrepancies between the results reached by the two laboratories, but the discrepancies reveal no clear pattern. Sometimes NET's results were higher and sometimes NAC's results were higher. Over a period of four months, NET reported pollutant levels in excess of the permit limits on eight occasions where NAC's measurements of the same samples found no violations, and NAC found two violations where NET's results showed compliance with the permit.

 In order to confirm that NET's rather than NAC's results were incorrect, Pennwalt hired a third laboratory in December 1989, Princeton Laboratories. Again, there were substantial discrepancies between the results of the three laboratories, but no clear pattern can be discerned from these results that would indicate that NET's results were always the erroneous ones. On three occasions, however, NET's measurements indicated pollutant levels above the applicable permit limitations, while tests by both NAC and Princeton yielded levels well below the limit. With respect to two of these, the sample had actually been split four ways. The fourth test, performed by NJDEPE's laboratory, confirmed NAC's and Princeton's results.

 Finally, in February 1990, NET's laboratory was subject to audits by the EPA and by an environmental consultant hired by Pennwalt. Both audits revealed substantial departures from acceptable laboratory procedures. Soon after that, Pennwalt stopped using NET to test its samples.

 Around the same time, Pennwalt also hired a waste water treatment design firm, Eckenfelder, Inc., to inspect the Thorofare Facility's treatment system. Eckenfelder concluded that the Facility's system constituted state-of-the-technology for the types of waste water generated by the facility and that the system was performing at or near the highest possible efficiency. Recommendations for minor enhancements of the system were made by Eckenfelder and were subsequently implemented by defendant.

 This case is presently before the court on defendant's motions to dismiss *fn3" and for summary judgment and on two motions by plaintiffs seeking partial summary judgment as to liability for 1,688 discharge violations, 667 monitoring violations, and 28 reporting violations. *fn4" We first consider defendant's motions to dismiss and for summary judgment. In these motions, defendant urges the following bases for dismissal of the entire suit: 1) that defendant's settlement of an enforcement action by the NJDEPE alleging the same violations renders this case moot; 2) that this suit is statutorily precluded by NJDEPE's prior enforcement action; and 3) that this court lacks jurisdiction over some or all of plaintiffs' claims by reason of plaintiffs' failure to adequately allege ongoing violations of the Act as required under § 505 of the Act and the Supreme Court's opinion in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987). Because we hold that none of these theories warrant dismissal, we will then turn to plaintiffs' motions for partial summary judgment.

 II. Defendant's Motion to Dismiss

 Defendant moves to dismiss this case as moot, arguing that since defendant has already entered into a settlement agreement with the government under which it paid substantial fines for almost all of the same violations challenged in this suit, the matter has already been resolved, and there is no longer a case or controversy. According to defendant, since the government imposed a penalty that it presumably considered adequate to deter future violations, there is no realistic prospect that those violations will continue, and the case is therefore moot.

 It is important to note that this argument is related to but distinct from the argument that plaintiff's suit is statutorily precluded by the government's prior enforcement action. The Clean Water Act explicitly provides that citizen suits are precluded in certain circumstances in which prior enforcement action has been taken by the government. See 33 U.S.C. §§ 1319(g)(6), 1365(b)(1)(B). The argument that defendant initially rested its motion on, however, is a constitutional argument based on the doctrine of mootness stemming from the case or controversy requirement of Article III. In plaintiffs' opposition to the motion to dismiss, they raised the statutory issue, arguing that the government enforcement action in this case was not of a type that triggers the statutory preclusion provision. Although it had not raised this issue before, defendant then proceeded to argue statutory preclusion both in its reply brief to its motion to dismiss, and in its subsequent motion for summary judgment. *fn5" Accordingly, both issues are before us, and each will be considered separately.

 A. Constitutional Mootness

 It is a fundamental proposition that "the availability of damages or other monetary relief almost always avoids mootness." Jersey Cent. Power & Light Co. v. N.J., 772 F.2d 35, 41 (3d Cir. 1985) (quoting 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3533.3 at 261 (1984)). Courts have generally treated civil penalties under the Clean Water Act as damages for this purpose, such that even where a claim for injunctive relief is mooted by discontinuance of the challenged illegal conduct, claims for civil penalties survive. See, e.g., Atlantic States Legal Found. v. Tyson Foods, 897 F.2d 1128, 1137 (11th Cir. 1990); Pawtuxet Cove Marina v. Ciba-Geigy Corp., 807 F.2d 1089, 1094 (1st Cir. 1986), cert. denied, 484 U.S. 975, 98 L. Ed. 2d 483, 108 S. Ct. 484 (1987); Government of the V.I. v. V.I. Paving, 714 F.2d 283, 284 (3d Cir. 1983). But see Atlantic States Legal Found. v. Pan Am. Tanning Corp., 807 F. Supp. 230 (N.D.N.Y. 1992). This position makes sense from a policy standpoint, since the opposite position would encourage polluters to wait until they get sued to take corrective action in compliance with the Act. Cf. United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 21 L. Ed. 2d 344, 89 S. Ct. 361 (1968) ("Mere voluntary cessation of allegedly illegal conduct does not moot a case.").

 This case has an additional twist, however. Here the alleged illegal conduct was not simply discontinued, but penalties have also been paid by the polluter already. Assuming that the fines imposed by the government were sufficient to fulfill the Act's intended deterrence function, the remedy that plaintiff seeks has already been implemented, and thus, defendant argues, their claim for civil penalties is moot.

 Defendant cites only one case in which such a rationale has been employed to dismiss a Clean Water Act case on constitutional mootness grounds, Atlantic States Legal Found. v. Eastman Kodak Co., 933 F.2d 124 (2d Cir. 1991). *fn6" There, the defendant entered into negotiations with the state after the citizen suit was filed. Under the settlement agreement that resulted, the defendant agreed to pay 1.4 million dollars in penalties "in full settlement of all civil and administrative claims and liabilities that might have been asserted by [the state] against [the defendant]." Id. at 126. The court held that "if the state enforcement proceeding has caused the violations alleged in the citizen suit to cease without any likelihood of recurrence," the citizen suit must be dismissed as moot. Id. at 127.

 We do not find Kodak convincing. Its reasoning is based on policy arguments invoking the purposes behind the Clean Water Act, see id., which may be instructive in interpreting the statutory preclusion provisions of the Act itself but are irrelevant to the constitutional mootness issue. To resolve this issue, we need to ask instead whether, after Pennwalt's settlement with the government, there remains a "live" case or controversy such that "adverse parties will vigorously argue the conflicting contentions to the court" and a decision by the court will have an impact on the parties. Williams v. Shaffer, 385 U.S. 1037, 1038 (1967) (Douglas J., dissenting); accord Powell v. McCormack, 395 U.S. 486, 496, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); 13A C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 3533 at 212 (1984). Only where it is "impossible for the court to grant 'any effectual relief whatever' to a prevailing party," is a case moot. Church of Scientology v. United States, 121 L. Ed. 2d 313, 113 S. Ct. 447, 449 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 40 L. Ed. 293, 16 S. Ct. 132 (1895)).

 The possibility that substantial additional penalties may be imposed -- just like the possibility of penalties where none have yet been paid *fn7" -- creates a sufficient case or controversy to avoid mootness. Even though in this case specific deterrence is impossible since defendant no longer owns the facility, the imposition of additional penalties would fulfill the general deterrence function of penalties under the Act and thus provide "effectual relief" to plaintiffs. See NJPIRG v. Powell Duffryn Terminals, 913 F.2d 64, 73 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1100, 111 S. Ct. 1018 (1991). Accordingly, defendant's motion to dismiss on constitutional mootness grounds is denied.

 B. Statutory Preclusion

 There are two provisions of the Clean Water Act that bar citizen suits in certain instances where there has been a prior state enforcement action, but defendant only argues that one is applicable here. *fn8" Section 309(g)(6) provides that a citizens' suit cannot be brought regarding violations "with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection." 33 U.S.C. § 1319(g)(6). The provision goes on to state that the bar does not apply if, prior to the commencement of the state enforcement action, the citizen plaintiff has provided 60-days notice of the ...


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