International Union, UAW v. Amerace Corp., Inc.

• Decision Date: 05 July 1990
• Docket Number: Civ. A. No. 86-1833.
• Citation: 740 F. Supp. 1072
• Parties: INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO; Local 726, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO; New Jersey Environmental Protection Federation; Randall Green; John Kozic, Jr.; Edward M. Stromko; Edward L. Majewski; and New Jersey Industrial Union Council, Plaintiffs, v. AMERACE CORP., INC., Defendant, and HARVARD INDUSTRIES, INC., Defendant/Counterclaim Plaintiff, v. NEW JERSEY ENVIRONMENTAL FEDERATION, Counterclaim Defendant.
• Court: U.S. District Court — District of New Jersey

740 F. Supp. 1072

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO; Local 726, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO; New Jersey Environmental Protection Federation; Randall Green; John Kozic, Jr.; Edward M. Stromko; Edward L. Majewski; and New Jersey Industrial Union Council, Plaintiffs, v. AMERACE CORP., INC., Defendant, and HARVARD INDUSTRIES, INC., Defendant/Counterclaim Plaintiff, v. NEW JERSEY ENVIRONMENTAL FEDERATION, Counterclaim Defendant.

Civ. A. No. 86-1833.

United States District Court, D. New Jersey.

July 5, 1990.

COPYRIGHT MATERIAL OMITTED

Ball, Livingston & Tykulsker by David Tykulsker, Newark, N.J., for plaintiffs.

Sheldon Schachter, Union, N.J., for defendant Harvard Industries, Inc.

OPINION

DEBEVOISE, District Judge.

On November 3, 1989, plaintiffs filed a motion for partial summary judgment on the issue of the liability of Harvard Industries, Inc. ("Harvard") for Clean Water Act ("Act") violations at its Elastic Stop Nut of America plant ("ESNA") in Union, New Jersey. Specifically, plaintiffs seek summary judgment on the issue of Harvard's liability for alleged violations of effluent discharge limitations promulgated by the Environmental Protection Agency ("EPA"), 40 C.F.R. §§ 413.14, 433.15, and by the Joint Meeting of Essex and Union Counties ("Joint Meeting"), 40 C.F.R. § 403.5.¹ Plaintiffs also seek summary judgment on the issue of Harvard's liability for failing to report numerous federal and local wastewater discharge violations, including violations of the Joint Meeting limitation for hexavalent chromium. Finally, plaintiffs seek a preliminary injunction to prevent additional Clean Water Act violations at ESNA.

On December 18, 1989, Harvard filed a cross-motion for summary judgment and litigation costs. Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."), Harvard seeks a dismissal of the second amended complaint with prejudice.

BACKGROUND

On May 12, 1986, plaintiffs initiated this citizen suit pursuant to section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), authorizing citizens to commence civil actions on their own behalf "against any person ... who is alleged to be in violation of ... an effluent standard or limitation under" the Clean Water Act. Plaintiffs seek injunctive relief and civil penalties for violations of local and federal effluent pretreatment standards.²

The complaint has been amended twice. On January 13, 1989, Harvard's motion to dismiss the amended complaint was denied. On October 17, 1989, all claims for alleged violations occurring before Harvard purchased ESNA on April 12, 1985 were dismissed pursuant to Rule 12(b)(6).

Plaintiffs note that ESNA is subject to EPA's general pretreatment regulations for existing electroplating and metal finishing point sources because it discharges wastewater into the publicly owned treatment works ("POTW") of the Joint Meeting. Plaintiffs also note that ESNA is subject to the rules and regulations of the Joint Meeting and the terms of its Joint Meeting permit. Plaintiffs claim that sampling results since January 30, 1980 disclose that ESNA's wastewater has regularly contained concentrations of pollutants in violation of the Clean Water Act. 33 U.S.C. § 1317. Specifically, plaintiffs assert that Harvard's discharges have continuously been in excess of national electroplating and metal finishing categorical pretreatment standards, promulgated by EPA pursuant to 40 C.F.R. § 403.6 (i.e., 40 C.F.R. §§ 413.14 and 433.15, respectively), and Joint Meeting discharge limitations, including the maximum daily discharge limitation for hexavalent chromium, promulgated pursuant to 40 C.F.R. § 403.5(c). Plaintiffs also claim that Harvard has violated its Joint Meeting permit and 40 C.F.R. § 403.12 by failing to report numerous federal and Joint Meeting violations.

FACTS

Harvard, an indirect discharger or "industrial user," 40 C.F.R. § 403.3(h), manufactures metal fasteners and engages in electroplating and metal finishing operations at ESNA. As a result of these operations, since May 1985 ESNA has discharged more than 10,000 gallons of wastewater per day into the Joint Meeting POTW. 6/6/90 Von Linden Affidavit, ¶ 1. ESNA's maximum wastewater discharge is 25,000 gallons per day. 12/8/89 Appelbaum Affidavit, ¶ 5. The POTW's total influent is 65 million gallons per day. Id.

A. Joint Meeting Rules and Regulations

On December 20, 1984, the Joint Meeting adopted the "Joint Meeting of Essex and Union Counties Rules and Regulations" ("rules and regulations"). Plaintiffs' Brief, Exhibit 1. The rules and regulations list the maximum daily concentrations of certain pollutants, including hexavalent chromium, which are allowable in an indirect discharger's wastewater. Id., Article III, § 4. Maximum monthly average concentrations were listed until these were repealed on January 31, 1987. Id.; 11/3/89 Bell Affidavit, ¶ 10. Also, under the rules and regulations industrial users cannot operate without a non-domestic wastewater discharge permit. Id., Article V, § 1. Such permits are "expressly subject to all provisions of the rules and regulations." Id., Article V, § 4(A); see also id., Article X ("All users of the wastewater facilities shall comply with the requirements of the written rules and regulations of the ... Joint Meeting").

B. Joint Meeting Permits

On May 15, 1985, Harvard was issued a Joint Meeting discharge permit (Permit JM 7030) ("permit").³ Plaintiffs' Brief, Exhibit 2. The permit and all revisions specify discharge limitations for certain pollutants and provide that Harvard is subject to all Joint Meeting rules and regulations. Id., Exhibits 2-5. Some pollutants such as hexavalent chromium which are listed in the rules and regulations are not included in ESNA's permit.

The permit initially required sampling both at "the pits located at the pretreatment area" and at the "settling tank in the tumbling area." Id., Exhibit 2. Initially, the permit also required quarterly sampling and semiannual reporting and provided that in addition to the Joint Meeting's regulations Harvard was subject to both the federal electroplating and metal finishing categorical pretreatment standards. Id. The permit's revisions have not provided that Harvard is subject to the federal electroplating standards.

On May 8, 1986, Harvard was notified that its permit had been reissued effective April 15, 1986. The expiration date was extended to April 14, 1991. Id., Exhibit 3. This revision required both semiannual sampling and reporting. Also, it provided for sampling at the "treated effluent discharge pit" and at the "final settling pit after the tumbling operation," and it included adjusted discharge limitations for total and amenable cyanide based on the combined wastestream formula ("CWF").⁴ Id.

On July 21, 1986, Harvard was notified that the permit had been revised again, effective April 15, 1986. At Harvard's request, this second revision applied the combined wastestream formula to all metal finishing parameters. The "Joint Meeting manhole" or "the manhole on the lawn by the air conditioner" was designated as the sampling site. Id., Exhibit 4.

Finally, on August 12, 1988, Harvard was notified that effective August 15, 1988 ESNA's permit would be revised based on updated flow data. Id., Exhibit 5. Harvard notes that prior to this revision the Joint Meeting permit did not require monthly averages. 12/5/89 Von Linden Affidavit, ¶ 3(A)(v). The permit defines "monthly average" as "the average of all daily samples taken in a calendar month from 1 sample to as many as 31 samples. The frequency of monitoring shall depend on the Permittee's confidence in meeting the monthly average within one daily sampling event or more frequent daily sampling events." Plaintiffs' Brief, Exhibit 5.

C. Sampling

In November 1986, Harvard notified the Joint Meeting that it was instituting a weekly sampling program. Plaintiffs' Brief, Exhibit 14 (11/24/86 letter from ESNA to the Joint Meeting). According to plaintiffs, until November 1989 Harvard in fact generally monitored its wastewater on a weekly basis. 11/3/89 Bell Affidavit, ¶ 14; 3/12/90 Bell Affidavit, ¶ 8.

ESNA produces three separate wastestreams (i.e., the plating department, tumbling department and sanitary wastestreams) that combine at the Joint Meeting manhole. Since 1985, ESNA has analyzed numerous wastewater samples taken at the Joint Meeting manhole and at other locations designated by Harvard's laboratory as the "main sewer," "DMP system," and "plating department."⁵ These three sites are downstream from the chemical waste treatment system but upstream from the Joint Meeting manhole. Thus, samples taken from the DMP system or the plating department sites can be treated as having been taken at the main sewer. 3/12/90 Bell Affidavit, ¶¶ 6-7; see also 7/19/89 Von Linden Deposition at 48-49 (ESNA's vice president of operations, Edwin Von Linden, indicated that main sewer samples are representative of plating department discharges).

ESNA uses two procedures for collecting samples: i.e., grab sampling and composite sampling. These procedures are mandated by EPA and the Joint Meeting. "A grab sample is an individual sample collected over a period of time not exceeding 15 minutes." 40 C.F.R. § 403.7(b)(2)(iv). A composite sample is a flow-proportional sample collected over a 24-hour period. 40 C.F.R. § 403.7(b)(2)(iii). In addition, different preservation techniques are used to prepare a sample for analysis depending on whether it is a grab sample or a composite sample. Grab samples are used for analyzing cyanides. Composite samples are used for analyzing metals.

Harvard asserts that all samples analyzed for permit compliance purposes since July 1986 have been taken from the Joint Meeting manhole.⁶ 12/5/89 Von Linden Affidavit, ¶ 3(B)(i). Harvard notes that a...