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PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v. HE

January 2, 1997

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., and FRIENDS OF THE EARTH, Plaintiffs,
v.
HERCULES, INC., Defendant. PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., and FRIENDS OF THE EARTH, Plaintiffs, v. HERCULES, INC., Defendant.



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 Presently before the court is plaintiffs' motion for clarification of this court's November 4, 1996, Opinion and Order. That order sought to specify for trial purposes the level of deference to be given by the court to the New Jersey Department of Environmental Protection's (NJDEP's) prior determination of the appropriate penalties and remedial measures needed to redress Hercules' discharge violations. Because the court's order apparently caused some confusion over the scope of evidence that may be presented at trial, plaintiffs' motion for clarification is appropriate and will be granted.

 I. Background

 The facts giving rise to this matter have been fully set forth in a number of opinions previously issued in connection with these consolidated cases. PIRG v. Hercules, Inc., 830 F. Supp. 1525 (D.N.J. 1993), aff'd in part, rev'd in part, 50 F.3d 1239 (3d Cir. 1995); id., opinion and Order filed August 1996. The court will thus note only the facts and procedural history relevant to the pending motion.

 This citizen suit was brought against Hercules under Section 505 of the Federal Water Pollution Control Act (the "Clean Water Act"), 33 U.S.C. § 1365. Plaintiffs allege numerous violations of a discharge permit issued to defendant pursuant to Section 402 of the Clean Water Act, 33 U.S.C. § 1342. All but one of the discharge violations at issue in this suit were also considered by the NJDEP in reaching a negotiated settlement with Hercules which resulted in the signing of an Administrative Consent Order ("ACO") in March of 1991. All discharge violations substantially ceased prior to the entry of the ACO, from 1991 to the present date. Hercules filed a renewed motion for reconsideration in March 1996, seeking a determination by this court that unless plaintiffs prove by a preponderance of the evidence that the amount of the NJDEP's penalty assessment was arbitrary, capricious, or contrary to law, then no additional penalties should be awarded plaintiffs at trial for the same violations addressed by the ACO. This court's November 4, 1996, Opinion and Order addresses defendant's request and specifies that the NJDEP's penalty assessment will be given substantial deference at trial. Further clarification of that order follows.

 II. Discussion

 In assessing a penalty under the Clean Water Act, a district court has a great amount of discretion. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982) (finding with regard to Clean Water Act that statutory scheme as a whole contemplates the exercise of discretion and balancing of equities). That discretion is guided by six statutory factors to be considered by the court: (1) seriousness of the violations; (2) economic benefits (if any) resulting from the violations; (3) history of such violations; (4) good-faith efforts to comply with the applicable requirements; (5) economic impact of the penalty on the violator; and (6) such other matters as justice may require. 33 U.S.C. § 1319(d).

 As indicated in the November 4 Opinion, this court, in exercising its discretion under the Clean Water Act, will take into account the previous assessment of penalties against Hercules by the NJDEP, given the significant experience and expertise of the NJDEP in the area. The court has also previously noted that the factors used by the NJDEP in assessing penalties for defendant's violations of the Jersey Water Pollution Act are substantially the same as the six factors to be used by this court in assessing a civil penalty. See N.J.A.C. 7:14-8.5 (factors to be considered are the seriousness of the violations; conduct of the violator; history of violations; number, frequency and severity of violations; measures taken by the violator to mitigate the effect of the current violations or to prevent further violations; and the deterrent effect of the penalty). Since this court has no interest in duplicating the efforts of a specialized body such as the NJDEP, it will permit arguments by Hercules that the penalty assessed by the NJDEP was sufficient and should be presumed adequate for the purposes of this court's assessment of a civil penalty under the Clean Water Act.

 In moving for clarification, plaintiffs raise the point that the court's November 4, 1996, Order and Opinion set forth somewhat conflicting standards of deference to be given to the NJDEP's determination of an appropriate penalty. In the body of the Opinion, the court establishes that a presumption of adequacy will be given to the NJDEP's penalty assessment provided that three factors have been met with regard to the decision-making process used by the NJDEP:

 
(1) there was a meaningful degree of citizen participation;
 
(2) there is evidence of a careful, individualized determination based on all the relevant facts; and
 
(3) the process resulted in an effective remedy for society sufficient to abate ...

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