Student Public Interest Research Group v. Monsanto Co., Civ. A. No. 83-2040.

Decision Date21 January 1985
Docket NumberCiv. A. No. 83-2040.
Citation600 F. Supp. 1474
PartiesSTUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and Friends of the Earth, Plaintiffs, v. MONSANTO COMPANY, Defendant.
CourtU.S. District Court — District of New Jersey

Michael Gordon, West Orange, N.J., Terris & Sunderland by Philip G. Sunderland, Carolyn A. Smith, Washington, D.C., for plaintiffs.

Davis, Reberkenny & Abramowitz, P.A. by Robert F. Blomquist, Kenneth D. Roth, Cherry Hill, N.J., for defendant.

Jeffrey P. Minear, U.S. Dept. of Justice Policy, Legislation & Special Litigation Section Land and Natural Resources Division, Washington, D.C., for United States amicus curiae.

OPINION

GERRY, District Judge.

This action is a citizens' suit brought under § 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365. The plaintiffs, two environmental groups, alleged that the defendant, Monsanto Company, had violated the Act by discharging pollutants from its Bridgeport, New Jersey plant into the Delaware River in amounts exceeding those allowed under Environmental Protection Agency (EPA) and state discharge permits. Plaintiffs sought a declaratory judgment that the defendant was in violation of the Act by exceeding permit limitations, civil penalties for some 236 such violations dating back to August 4, 1977, and an injunction against further violations.

The plaintiffs moved for summary judgment on the issue of liability for these 236 violations (from August 4, 1977 through September 12, 1983). That motion did not ask the court for injunctive or declaratory relief, or for an assessment of penalties based on the violations. By order dated December 14, 1983, this court granted the plaintiffs' motion.

Based on that ruling, the defendant's potential exposure to penalties is substantial. The Act authorizes a penalty of $10,000 for each day of violation. 33 U.S.C. § 1319(d). Depending on how that section is interpreted, the defendant may be liable for up to $2,360,000. (Some of the violations are daily average discharges in excess of allowable average output. The court is not certain exactly how this limitation squares with the "per day" language of the civil penalty provision, since an average does not represent a violation on any given day. This issue is not yet ripe for disposition.)

The defendant is now moving on a variety of grounds in an effort to reduce its potential exposure. First, the defendant seeks to amend its answer to add the affirmative defenses of laches and a statute of limitations bar. Second, the defendant seeks to argue that the Act does not authorize citizens to seek civil penalties for violations preceding the onset of the lawsuit or, at worst, violations occurring more than two years prior to suit. Third, the defendant argues that the provisions of the Act authorizing citizens to seek the imposition of civil penalties are unconstitutional.

1. Amendment of answer. At the risk of taking the liberal spirit of Rule 15(a) too far, the court will permit the proposed amendments and will address the merits of the amendments below.

2. Limits on liability for violations preceding the filing of the complaint.

a. The defendant argues that the plain meaning of the statute, the legislative history of the Act, and the case law all indicate that citizens are not authorized to seek penalties for past violations of the Act, that is, for violations preceding the date the complaint is filed.

As a preliminary matter, the plaintiffs argue that this matter has already been decided by the court in its opinion on plaintiffs' motion for summary judgment, and that the "law of the case" doctrine precludes reargument. Further, the plaintiffs argue that the defendant has waived this possible defense, pursuant to Rule 12(h)(2). Reviewing our bench opinion of November 18, 1983, there can be little doubt that we did decide this issue when we stated that "The plain language of 33 U.S.C. § 1365 indicates ... that civil penalties may be assessed in citizens' suits under the Act. The cases the defendant has submitted ... merely deny a private right of action for damages to plaintiffs in citizen suits." The defendant argues that all we decided was that it had violated the Act but did not decide whether penalties could be assessed or the time frame of such penalties. We disagree. Nevertheless, at the risk of being repetitious, we will pass over the plaintiffs' preliminary objections and briefly address again the merits of this issue.

First, the defendant asks that we consider the "plain meaning" of the citizens' suit provision of the statute, which reads, in part:

Any citizen may commence a civil action against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this Act.
. . . . .
The district courts shall have jurisdiction ... to apply any appropriate civil penalties under 33 U.S.C. § 1319.

33 U.S.C. § 1365(a) (emphasis added). The defendant argues that "in violation" clearly refers to violations in the present, that is, occurring no earlier than the date of suit. The court does not believe that "in violation" necessarily confines violations to those presently or prospectively occurring. A plausible construction of the language is that one is "in violation," and continues to be "in violation" by having "violated." In other words, the taint of a past violation is continuing. In any event, however, the next paragraph of § 1365(a) quite specifically refers to the court's power to impose civil penalties in citizens' suits and contains no limiting time frame. This would seem to defeat defendant's argument.

However, the defendant states that "appropriate" penalties, within the context of the earlier language, refers to penalties for present violations: that only these penalties are "appropriate." The reasoning here seems somewhat circular. This court believes "appropriate" directs the court to use its discretion to order maximum or less-than-maximum penalties, based on the facts of the case. The court therefore rejects the defendant's construction of the statute. At the least, it cannot be denied that the statute is somewhat equivocal, in which case the "plain meaning" rule cannot be of much relevance.

The legislative history that the defendant cites does not convince the court to alter its conclusion either. It is true that in some places the congressional reports speak in terms of "abatement" of violations, implying prospective relief. See 1972 U.S.C.C. A.N. 3746, 3747. But in some of these instances, the reports refer to the Government's initiation of abatement proceedings, not merely initiation by citizens. It can hardly be argued that the Government is restricted to abatement actions, and we do not read the legislative history to mean that citizens are so restricted. Rather, we read the references to "abatement" to merely indicate one possible avenue of relief. Elsewhere, the reports speak of "enforcement" proceedings, a term not so narrow as to exclude penalty proceedings. Id. And elsewhere, the reports speak of the "right" of citizens to seek "vigorous enforcement action" and refer to such action as a "public service." Id. at 3730, 3747. We read the legislative history as conferring on citizens the same power to seek relief as is conferred on the Government, including the right to seek penalties for past violations. We construe the statute as one incorporating the private attorneys general concept and reject a construction which would permit a defendant to escape liability for past violations by present compliance. That would hinder the ambitious aims of the legislation and not encourage the deterrent effect that the penalties are in part designed for. See Sierra Club v. Alcoa, 585 F.Supp. 842, 854 (N.D.N.Y. 1984).

The defendant next urges that, as a penal statute, § 1365 must be strictly construed and any ambiguity must be resolved in favor of the defendant. The court does not see the application of that canon to this situation. The statute could not be clearer in stating that one who exceeds permit limitations is subject to penalties. The defendant had full notice of this and was well aware that it was at least subject to suit by the Government. To argue lack of notice is disingenuous.

Finally, the defendant cites certain cases whose language is equivocal, but somewhat supportive of its position. In the Sea Clammers case, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the court stated that the Act authorizes only prospective relief. Id. at 6, 101 S.Ct. at 2619. But this statement was made in the context of a suit for private damages. Later in the same opinion, the court noted that penalties may be ordered in citizen suits. Id. at 14 n. 25, 101 S.Ct. at 2623 n. 25. Language in the City of Evansville case, 604 F.2d 1008, 1014 (7th Cir.1979), that suits for past violations are not authorized, also comes within the context of a private damage suit and seems addressed most particularly to that issue. The Stepan Chemical case, 544 F.Supp. 1135, 1145-46 (E.D.Pa.1982), on the one hand states that only prospective relief is authorized, and on the other hand states that penalties may be imposed. By this seeming contradiction, the court may have meant that a plaintiff could seek prospective relief from the effects of past discharges through, inter alia, the imposition of fines. In this regard, see Illinois v. Outboard Marine, 680 F.2d 473 (7th Cir.1982). Other cases permitting citizen suits seeking penalties for past violations are Sierra Club v. Alcoa, 585 F.Supp. 842, 853-54 (N.D.N.Y.1984) and NJPIRG v. Ragen, Civ. 83-1604 (D.N.J.1983), bench opinion of J. Lacey, Dec. 19, 1983. For all of the reasons outlined above, we accept the reasoning of these latter cited cases and reaffirm our original conclusion that § 1365(a) authorizes citizen suits for the imposition of civil penalties.

b. The defendant next urges that even if we reject (as we have) its construction of the Act, its liability is...

To continue reading

Request your trial
17 cases
  • Connecticut Fund for Environment, Inc. v. Upjohn Co.
    • United States
    • U.S. District Court — District of Connecticut
    • May 18, 1987
    ...F.Supp. at 216 (failure to commence administrative challenge to NDPES permit precluded defendant from doing so in this action); Monsanto, 600 F.Supp. at 1486 ("the regulations promulgated pursuant to the Act (see 40 C.F.R. 124.16) estop the defendant from claiming reliance on the agency's c......
  • Delaware Valley Toxics Coalition v. Kurz-Hastings, Civ. A. No. 92-5961.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • February 17, 1993
    ...judgment that the judiciary has the greatest competence to made such determinations." Student Public Interest Research Group of New Jersey v. Monsanto Co., 600 F.Supp. 1474, 1479 (D.N.J.1985) (emphasis in the original). This is not an unlawful delegation of executive authority and it does n......
  • Sierra Club v. Simkins Industries, Inc.
    • United States
    • U.S. District Court — District of Maryland
    • June 18, 1985
    ...of the case. See Illinois v. Outboard Marine, Inc., 680 F.2d 473, 480-81 (7th Cir.1982); Student Public Interest Research Group of New Jersey v. Monsanto, 600 F.Supp. 1474, 1476-77 (D.N. J.1985); Sierra Club v. Aluminum Company of America, 585 F.Supp. 842, 853-54 (N.D.N.Y.1984); Friends of ......
  • Amland Properties v. Aluminum Co. of America
    • United States
    • U.S. District Court — District of New Jersey
    • December 22, 1992
    ...See Lavin v. Hackensack Board of Education, 90 N.J. 145, 152, 447 A.2d 516 (1982); Student Public Interest Research Group of New Jersey, Inc. v. Monsanto Co., 600 F.Supp. 1474, 1477 (D.N.J.1985). Even crediting Amland's purported reasons for delay, they do not warrant the excessive and inte......
  • Request a trial to view additional results
3 books & journal articles
  • Article II Separation of Powers and the President's Enforcement Right
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • April 20, 2009
    ...authority, an assumption that this chapter seeks to challenge. 73. Student Pub. Interest Research Group of N.J. v. Monsanto Co., 600 F. Supp. 1474, 1478, 15 ELR 20294 (D.N.J. 1985). ch11.indd 266 4/30/09 10:15:59 AM article ii separation of powers 267 when Congress creates statutory rights ......
  • Table of authorities
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...656 Student Pub. Interest Research Group of N.J., Inc. v. Monsanto Co., 600 F. Supp. 1474 (D.N.J. 1985) .............................................................................................. 118 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ...........................................
  • Introduction to the CWA and the administrative process
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...Steel Corp. , 652 F. Supp. 620, 623-26 (D. Md. 1987); and Student Pub. Interest Research Group of N.J., Inc. v. Monsanto Co. , 600 F. Supp. 1474, 1478-79 (D.N.J. 1985). 5. ELR is one of two major services providing updated information on environmental law and policy. It is published by the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT