CONN. FUND FOR ENVIRON. v. Job Plating Co.

Decision Date17 September 1985
Docket NumberCiv. No. H-83-963(JAC).
Citation623 F. Supp. 207
PartiesCONNECTICUT FUND FOR THE ENVIRONMENT; Natural Resources Defense Council v. The JOB PLATING COMPANY, INC.
CourtU.S. District Court — District of Connecticut

Katherine H. Robinson, Hartford, Conn., for plaintiff Connecticut Fund for the Environment.

James Thornton, New York City, for plaintiff Natural Resources Defense Council.

Sharon Holland Purtill, Law Offices of Peter Jay Alter, Glastonbury, Conn., for defendant Job Plating Co., Inc.

RULING ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOSÉ A. CABRANES, District Judge:

This is a citizen suit under the federal Clean Water Act against the operator of an electroplating plant that concededly discharges pollutants into the Quinnipiac River. The suit was brought against the Job Plating Company of Plainville, Connecticut, by the Connecticut Fund for the Environment and the Natural Resources Defense Council.

The environmental organizations contend that Job Plating violated the Clean Water Act on 174 occasions by discharging effluents in excess of the amount permitted by its National Pollutant Discharge Elimination System permit. The plaintiffs seek a declaratory judgment that Job Plating has violated the Clean Water Act, an injunction to prevent further violations, and civil penalties of up to $10,000 per violation payable to the United States Treasury. They also seek costs and attorneys' fees.

Job Plating does not deny that it has exceeded the discharge levels authorized by its NPDES permit. However, the company asserts that this action should nonetheless be dismissed for any of five reasons. The court finds none of these arguments to be persuasive.

First, Job Plating contends that the suit was not brought within the applicable statute of limitations. The court finds, however, that the action is governed by the five-year statute of limitations applicable to government suits under the Clean Water Act rather than by the shorter statute of limitations that would be provided by state law. Accordingly, the action is timely.

Second, Job Plating asserts that penalties for past violations cannot be recovered in citizen suits under the Clean Water Act. The court finds that, while private damages may not be recoverable under the Act, civil penalties (including fines) may be obtained on behalf of the United States.

Third, Job Plating argues that the court, in an exercise of its discretion, should defer in this matter to the Connecticut Department of Environmental Protection. However, the court finds that no such deference is called for where, as here, the suit does not raise complex issues of fact that are peculiarly within the agency's expertise.

Fourth, Job Plating contends that the action should be dismissed because, under the Clean Water Act, a citizen suit is precluded by a state's "diligent prosecution" of the same matter. The court finds that there was no "diligent prosecution" in this case, however, because the state's suit against Job Plating was initiated only after the citizen suit.

Finally, Job Plating argues that its NPDES permit is unenforceable because it was not properly promulgated. The court, noting that Job Plating failed to take advantage of earlier opportunities to challenge its permit, holds that the validity of the permit cannot be raised in this action.

Accordingly, the court finds that Job Plating is liable to the plaintiffs for violation of the Clean Water Act. The court defers a decision with respect to the relief that ought to be granted as a result of this ruling.

I.

This action, a citizen suit brought pursuant to Section 505 of the Clean Water Act ("Act"), 33 U.S.C. § 1365, was commenced on November 17, 1983.1 The plaintiffs are environmental organizations some of whose members meet the standing requirements established for citizen suits pursuant to Article III of the United States Constitution and 33 U.S.C. § 1365. See Endorsement Ruling (entered Mar. 28, 1985) on Defendant's Motion for Judgment on the Pleadings (filed Dec. 28, 1984); Certified Official Transcript of Oral Ruling delivered at a Hearing Held on November 19, 1984 (filed Nov. 26, 1984) (discussion of standing requirements in the context of this case); Sierra Club v. SCM Corporation, 747 F.2d 99, 103-07 (2d Cir.1984) (standard for standing for citizen suits brought under 33 U.S.C. § 1365); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 60 (2d Cir.1985) (recent case applying Sierra Club v. SCM Corporation standard for standing and upholding standing in conditions similar to this case). The defendant is a Connecticut corporation that operates an electroplating plant in Plainville, Connecticut, and concededly dicharges effluents into the Quinnipiac River.

The plaintiffs allege that the defendant violated its National Pollutant Discharge Elimination System ("NPDES") permit, see 33 U.S.C. § 1342(a), (b) (authorizing state issuance of NPDES permits pursuant to approval of the state's program by the Administrator of the federal Environmental Protection Agency "EPA").2 Specifically, the plaintiffs contend, based on the Discharge Monitoring Reports ("DMRs") that the defendant is required to file by law, that the defendant exceeded the permissible discharge allowed under its NDPES permit on 174 occasions. See 33 U.S.C. § 1318; 40 C.F.R. § 122.41(j); Plaintiffs' Statement Pursuant to Local Rule 9c in Support of Their Motion for Summary Judgment ("Plaintiffs' Statement"), ¶ 4, Exhibit D attached to Notice of Motion (filed Mar. 2, 1984). The plaintiffs seek declaratory relief with respect to the defendant's alleged past violations of its NPDES permit, injunctive relief preventing future violations, civil penalties of up to $10,000 per violation payable to the United States pursuant to 33 U.S.C. §§ 1319(d), 1365(a), and costs and attorney's fees pursuant to 33 U.S.C. § 1365(d).

On March 2, 1984, the plaintiffs filed a motion for partial summary judgment accompanied by a statement of undisputed facts, exhibits, an affidavit and a memorandum of law. On May 11, 1984, the defendant filed a memorandum in opposition to plaintiffs' motion. The defendant filed a motion to dismiss accompanied by exhibits, an affidavit and a memorandum of law. Each of the parties thereafter filed several additional papers concerning the outstanding motions. On November 19, 1984 (after the transfer of this case to me), oral argument was held on the pending motions. The motion for partial summary judgment and motion to dismiss became ripe for decision as of March 28, 1985, the date on which the plaintiffs' standing was upheld.

II.

The following material facts are undisputed:

1. On February 23, 1976, the Connecticut Department of Environmental Protection (DEP) issued NPDES permit number CT0022284 to the defendant. The permit was reissued on March 23, 1978. See Plaintiffs' Statement, ¶ 3 and Exhibit A (NPDES permits).

2. The defendant is required by its NDPES permit to file monthly DMRs. These reports indicate whether the defendant, on the basis of the results of specific tests, is in compliance with its permit. See Plaintiffs' Statement, ¶ 4; Exhibit D attached to Plaintiffs' Statement (copies of DMRs).

3. The defendant reported in its DMRs that, between May 1978 and November 17, 1983, it had on 174 occasions discharged substances in excess of the amounts allowed by its permit. See Plaintiffs' Statement, ¶ 5.

4. On September 9, 1983, the plaintiffs sent a Notice of Intent to Sue to the Administrator of EPA, DEP and the defendant pursuant to 33 U.S.C. § 1365(b)(1)(A). See Affidavit of Alfred J. Mastriani (executed May 8, 1984) ("Mastriani Aff."), ¶ 7, Ex. B.

5. Neither the EPA nor the DEP had filed any action against the defendant as of November 17, 1983, the date this action was filed. See Mastriani Aff., ¶¶ 8-10.

6. On December 9, 1983, the Commissioner of DEP issued an Order to Abate Pollution, No. 3639 to the defendant. Mastriani Aff. ¶ 9, Ex. C.

7. On February 9, 1984, Mike Harder, Senior Sanitary Engineer for the Water Compliance Unit, DEP, sent a letter to the defendant that stated that the defendant was in violation of DEP's Abatement Order and that the matter had been referred to the Attorney General's Office for further action. See Mastriani Aff. ¶ 10, Ex. D.

8. The plaintiffs have never contacted the defendant and requested that they be permitted to join in negotiations with the DEP and the defendant, nor have they been denied the opportunity to so join in. See Mastriani Aff., ¶ 11.

9. On March 19, 1984 the State of Connecticut, through DEP, instituted a civil action in the Connecticut Superior Court against the defendant to enforce Abatement Order No. 3639. See Mastriani Aff., Ex. E (copy of complaint). The defendant was served with the Summons and Complaint on March 23, 1984, and counsel filed an appearance on April 3, 1984 on behalf of the defendant. On April 6, 1984, the plaintiffs' counsel was informed by the defendant's attorney of the suit by DEP. See Mastriani Aff., ¶ 13.

10. The state's suit in the Connecticut Superior Court seeks enforcement of Order No. 3639, issued on December 9, 1983, requiring submission of an engineering report and subsequent placement of approved waste water treatment facilities in operation by May 31, 1984; the instant citizen suit seeks penalties for violation of effluent limitations set forth in NPDES Permit No. CT0022284, and an injunction against future violations of the permit limits. See Affidavit of Richard F. Webb (executed June 19, 1985) ("Webb Aff."), ¶ 2(c).

11. The state's suit has been resolved, with no penalties assessed against the defendant and the filing of a Stipulated Judgment in the Superior Court on June 6, 1984. See Webb Aff., ¶ 2(c), Attachment (Stipulated Judgment).

III.

The defendant raises five arguments in favor of its motion to dismiss and in opposition to the plaintiffs' motion for summary...

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