required that plaintiffs give sixty days notice of the alleged violation to the alleged violator and to Federal and state authorities before commencing an action, the plaintiffs may sue only upon those violations which are included in their notice letter and upon violations occurring after the complaint was filed that are alleged to be a continuation of the same type of violations as contained in the notice letter and complaint, but not upon pre-complaint non-noticed violations nor upon post-complaint violations that are not a continuation of those noticed. As a result, the court permitted suit to go forward upon the discharge violations contained in the notice letter and all alleged post-complaint discharge violations, and it dismissed all other types of alleged violations (concerning monitoring, reporting and recordkeeping) as well as alleged pre-complaint discharge violations not contained in the sixty-day notice letter.
Plaintiffs Public Interest Research Group of New Jersey, Inc. ("NJPIRG") and Friends of the Earth ("FOE") have moved for a stay and for entry of a final judgment under Fed.R.Civ.P. 54(b) or, alternatively, for certification for purposes of an interlocutory appeal under 28 U.S.C. § 1292(b), with respect to this court's interpretation of the pre-complaint statutory notice requirement under the Clean Water Act at 33 U.S.C. § 1365. Additionally, in the event plaintiffs' certification motion is granted, defendant Hercules, Inc., seeks § 1292(b) certification of the question whether the court erred in not dismissing certain alleged post-complaint violations for failure to comply with § 1365. For the reasons discussed below, the court will grant the plaintiffs' and defendant's motions for § 1292(b) certification and will stay this litigation, which is otherwise trial-ready upon the remaining claims, pending the resolution of plaintiff's application for appeal in the United States Court of Appeals for the Third Circuit.
I. Procedural History3
Plaintiffs filed this citizen suit under § 505(a) of the Federal Water Pollution Control Act (the "Clean Water Act" or the "Act"), 33 U.S.C. § 1365(a), on May 24, 1989, alleging that the defendant committed numerous violations of the National Pollutant Discharge Elimination System ("NPDES") permit issued to it pursuant to Title IV of the Act, 33 U.S.C. §§ 1341-1345. The plaintiffs gave notice of this litigation on March 21, 1989 by serving notice of their intent to sue the defendant for violations of its NPDES permit. This "sixty-day" notice letter is a statutory prerequisite to the filing of the plaintiff's complaint, under section 505(a) of the Clean Water Act, supra. See PIRG v. Hercules, Inc., slip op. at 5, 1993 U.S. Dist. LEXIS 9486 (D.N.J. March 31, 1993); 33 U.S.C. § 1365(b)(1).
The plaintiffs' sixty-day notice letter listed only 68 specific violations of the discharge limits of defendant's permit. These discharge violations are the type of Clean Water Act violation which occurs when the discharge parameters of a company's permit under the NPDES is exceeded, and they typically involve a measured discharge of effluent into the surrounding waters that exceeds the permitted amount or concentration of pollutant. The permit letter did not refer to any violations of the permit's monitoring, reporting, or recordkeeping requirements.
The complaint filed on May 24, 1989 listed 87 alleged discharge violations, 31 of which were not among those mentioned in the plaintiffs' March 21, 1989 sixty-day notice letter. See Hercules, slip op. at 5-6 (March 31, 1993). Like the notice letter, the complaint was devoid of any specific allegations of monitoring, reporting, or recordkeeping violations. In contrast to discharge violations, the Clean Water Act's provisions for monitoring, reporting and recordkeeping do not address the levels of the plant's effluent discharges, but instead are concerned with the techniques and procedures for monitoring, reporting and recordkeeping. The occurrence of effluent discharge violations does not imply that any monitoring reporting or recordkeeping violation has occurred because these are conceptually separate concerns.
As of March 31, 1993, when this court entered its Opinion and Order, the plaintiffs had filed only one sixty-day notice letter and only one complaint, concerning only effluent discharge violations. Nevertheless, during the course of litigation the plaintiffs significantly added to the number -- and type -- of alleged violations for which they sought to hold defendant liable. These additions came in the form of several unilateral enlargements during the course of briefing the parties' cross-motions for summary judgment occurring prior to the reassignment of these motions to the undersigned. After all of the additions, changes, and even withdrawals of alleged violations, the total number of violations the plaintiffs were alleging had grown to 114 discharge violations, 328 monitoring violations, 58 reporting violations, and 228 recordkeeping violations. See PIRG v. Hercules, slip op. at 7, 1993 U.S. Dist. LEXIS 9486 (March 31, 1993). Thus, without any additional sixty-day notice or amended complaint being filed, the number of alleged violations increased almost nine-fold from the 87 discharge violations listed in the May 24, 1989 complaint (and 67 discharge violations in the plaintiffs' March 21, 1989 notice letter) to a total of over 700 violations of all types. The plaintiffs' allegations also increased in scope, with the plaintiffs specifically alleging monitoring, reporting, and recordkeeping violations in addition to discharge violations.
Both parties filed various motions, including cross-motions for summary judgment. Of present concern was the motion of defendant Hercules, Inc., which sought summary judgment, pursuant to the statutory notice requirement of 33 U.S.C. § 1365(b)(1) and applicable regulations, dismissing all violations other than those for which it received notice in the 60-day notice letter. In its March 31, 1993 Opinion and Order, the court granted summary judgment for the defendant as to all violations, of all types, which occurred prior to the filing of the complaint but which were not listed in the plaintiffs' statutorily-required notice-of-intent-to-sue letter, dated March 21, 1989.
The court denied defendant's motion in part, by permitting plaintiffs' assertion of discharge violations that occurred after the complaint was filed but were of a continuing nature with the discharge violations referenced in the notice letter and complaint; a total of 66 post-complaint discharge violations were thus not dismissed. The court granted summary judgment for the plaintiffs as to 60 discharge violations.
On April 7, 1993, the plaintiffs sent a notice letter notifying the defendant, the Environmental Protection Agency, and the State of New Jersey that they intended to file a complaint against the defendant for 323 monitoring violations, 58 reporting violations, and 225 recordkeeping violations of its NPDES permit. Plaintiffs have not, however, reasserted the discharge violations that had been previously dismissed for lack of notice. Those violations are substantially the same as those violations which were not included in plaintiffs' March 21, 1989 notice letter and for which the court previously awarded the defendant summary judgment.
On June 11, 1993, after the expiration of the statutorily-required sixty-day waiting period, the plaintiffs filed a new complaint which included the violations listed in the April 7, 1993 notice letter, encaptioned Public Interest Research Group of New Jersey, Inc., et al. v. Hercules, Inc., Civil No. 93-2381(JBS).
II. Motion for Rule 54(b) Order of Final Judgment or, alternatively, for 28 U.S.C. § 1292(b) Certification
Plaintiffs seek the entry of a final judgment under Rule 54(b) of the Federal Rules of Civil Procedure as to the plaintiffs' claims for the alleged pre-complaint discharge, monitoring, reporting, and recordkeeping violations which were not included in the plaintiffs' March 21, 1989 notice letter and upon which this court granted the defendant summary judgment. In the alternative, the plaintiffs seek certification for purposes of an interlocutory appeal under 28 U.S.C. § 1292(b) of the issue of whether the defendant is liable for these dismissed violations even though they were not listed in the plaintiffs' March 21, 1989 notice letter. For the reasons stated below, the court will deny plaintiffs' Rule 54(b) request and grant their § 1292(b) certification request, together with defendant's conditional cross-request for § 1292(b) certification.
A. Rule 54(b)
Rule 54(b) of the Federal Rules of Civil Procedure provides in pertinent part that:
When more than one claim for relief is presented in an action, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
In reviewing a motion under Rule 54(b), the court must first determine whether it is dealing with a "final judgment." Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980). To be recognized as a "final" judgment for purposes of Rule 54(b), the judgment must be final "in the sense that it is 'an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Id. (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 100 L. Ed. 1297, 76 S. Ct. 895 (1956)). The Third Circuit has stated that "an order subject to revision by the district court in subsequent proceedings before final judgment on all issues is not an ultimate disposition of an individual claim within Rule 54(b)." Sussex Drug Products v. Kanasco, Ltd., 920 F.2d 1150, 1154 (3d Cir. 1990) (citing American Motorists Insurance Co. v. Lorentzen, Inc., 879 F.2d 1165, 1170-71 (3d Cir. 1989)).
The plaintiffs have already filed a second complaint as to the alleged monitoring, reporting, and recordkeeping violations previously dismissed by this court for lack of notice. In its March 31, 1993 Opinion, this court explicitly declined to decide whether this new complaint would be barred under the Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987). See Hercules, slip op. at 22 n.11. We likewise decline to decide this question here.
But as the defendant points out in its brief, if the court holds that the plaintiffs' second complaint is not barred under Gwaltney or on any other ground, then the question of Hercules' liability for the violations in question would proceed to trial, or at least be the subject of another summary judgment motion by the plaintiffs. Thus, the court's March 31, 1993 decision granting summary judgment to the defendant does not constitute the "ultimate disposition" of these alleged violations.
The court therefore will deny the plaintiffs' motion for entry of judgment under Rule 54(b).
B. 28 U.S.C. § 1292(b)
The Interlocutory Appeals Act, 28 U.S.C. § 1292, provides a means of appealing from interlocutory orders that are otherwise non-appealable. Section 1292(b) provides that:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order, . . . Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.