PIRG v. Powell Duffryn Terminals, Inc., Civ. A. No. 84-340.
| Decision Date | 19 September 1989 |
| Docket Number | Civ. A. No. 84-340. |
| Citation | 720 F. Supp. 1158 |
| Parties | PIRG, et al, Plaintiffs, v. POWELL DUFFRYN TERMINALS, INC. (P.D. Oil & Chemical Storage, Inc.), Defendant. |
| Court | U.S. District Court — District of New Jersey |
Bruce J. Terris, Kathleen L. Millian, Carolyn Smith Pravlik, Terris, Edgecombe, Hecker & Wayne, Washington, D.C., Edward Lloyd, Newark, N.J., for plaintiffs.
Nathan M. Edelstein, Ridolfi, Friedman, Frank, Edelstein & Bernstein, P.C., Lawrenceville, N.J., for defendant.
The case before this Court presents another chapter in the never ending American environmental tragedy. A recalcitrant company in the private sector of the economy combined with the lethargic enforcement of the applicable statutes and regulations by the New Jersey Department of Environmental Protection and the Federal Environmental Protection Agency, has caused a continuing, if not constant, 11 year contribution to the pollution of the Kill Van Kull. It is indeed sad that none of the participants cared sufficiently about the public trust—the environment—to take meaningful steps to avert the tragedy. This Court will not stand idly by to either, explicitly or tacitly, condone such inaction. For the reasons hereafter set forth, significant monetary penalties are necessary.
Before the Court is the question of the amount of civil penalties to be assessed against defendant, Powell Duffryn Terminals, Inc., for polluting the Kill Van Kull in violation of the Clean Water Act, 33 U.S.C. §§ 1251, et seq (the "Act"). Plaintiffs also seek a permanent injunction prohibiting defendant from violating its National Pollutant Discharge Elimination System/New Jersey Pollutant Discharge Elimination System ("NPDES/NJPDES"), Permit No. NJ 0003361.
By Orders dated January 13, 1986, March 13, 1987, and May 4, 1989, this Court determined that defendant had violated its Permit for a total of 386 times. Plaintiffs argue that the defendant should be fined the statutory maximum penalty which, in this case, is $4,205,000.00. The defendants counter that the assessment of civil penalties is discretionary with the Court and none are warranted in this case.
Section 505(a) of the Act, 33 U.S.C. 1365(a) authorizes this Court to assess "any appropriate civil penalties under Section 309(d) of this Act." Section 309(d), 33 U.S.C. 1319(d), prior to its amendment in 1987 provided:
Any person who violates §§ 301, 302, 306, 307, or 308 of this Act, or any permit condition or limitation implementing any of such sections in a permit issued under § 402 of this Act by the Administrator ... shall be subject to a civil penalty not to exceed $10,000.00 per day of such violation.
Consequently, each violation of the NPDES permit limitation, prior to the 1987 amendments, subjects the defendant to a statutory maximum penalty of $10,000.00 per violation. However, in 1987 Congress increased the statutory maximum to $25,000.00. Therefore, defendant's violations occurring on or after February 4, 1987 are subject to a penalty of up to $25,000.00. Of the 386 violations, 363 of them occurred prior to February 4, 1987; 23 occurred after that date. Defendant is therefore liable for a maximum penalty of $4,205,000.00.
Section 309(d) of the Act requires the Court to consider specific factors in determining the appropriate civil penalty to be assessed for violations of the Act.
In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violations, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.
§ 309(d), 33 U.S.C. § 1319(d).
The Court held a non-jury trial on the issue of what, if any, monetary penalty should be assessed against defendant and what, if any, injunctive or other equitable relief should be granted. Both parties have submitted extensive proposed Findings of Fact and Conclusions of Law. In the interests of clarity, I will first set forth my factual determinations and then proceed to the legal conclusions.
Plaintiffs Public Interest Research Group of New Jersey and Friends of the Earth, are non-profit corporations committed to environmental issues. Defendant P.D. Oil & Chemical Storage, Inc., operates a bulk chemical storage and transfer facility in Bayonne, New Jersey. Defendant's facility "receives bulk liquid commodities owned by others and holds them in storage tanks for loading, upon instruction from the commodity owners, to rail cars, tank trucks or ocean going tankers via the Kill Van Kull." SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F.Supp. 1074, 1080 (D.N.J.1986). Between September 1977 and November 1988, defendant committed 386 violations of the effluent limitations in its 1974, 1981 and 1986 permits. These violations are summarized in the following table:
Number
of
Parameter Violations
Total Organic Carbon (TOC) 8
pH 63
Total Suspended Solids (TSS) 66
Bioassay 1
Oil and Grease 48
Hexavalent chromium 2
Petroleum Hydrocarbons 27
Methylene Chloride 9
Phenol 1
Biochemical Oxygen Demand (BOD) 80
Chemical Oxygen Demand (COD) 81
___
Total 386
___
Of the 386 violations, 368 were violations of effluent limitations which had previously been violated. Two hundred sixty of those violations exceeded the applicable permit limitations by over 100%. One hundred ninety-five of them, exceeded the permit limitations by more than 200%. One hundred twenty-seven of them exceeded the applicable permit limitation by over 400%. Eighty-six of them exceeded the permit limitations by 1,000%.
Pursuant to the requirements of the Act, 33 U.S.C. § 1317(a), the EPA has published a list of toxic pollutants which includes phenol and methylene chloride. The EPA recently listed the 100 hazardous substances posing "the most significant potential threat to human health." 52 Fed.Reg. 12866 (April 17, 1987). The EPA's list is divided into four groups of 25 substances each in descending order of priority. Methylene chloride is priority group I and phenol is in priority group II. The defendant has violated the effluent limitations in its permit for methylene chloride 9 times. The defendant has violated its effluent limitation for phenol once, but its permit has only contained that limitation since August 1987. Defendant has committed 10 violations of toxic pollutant limitations in its permit.
BOD and COD effluent limitations are designed to limit the amount of oxygen demanding material which is discharged into receiving waters. United States v. Metropolitan District Commission, 23 ERC 1350, 1353 n. 4 (D.Mass.1985). Defendant's discharge of BOD and COD is particularly harmful because of oxygen deficiencies in the Kill Van Kull and the connected water-ways in the New York Harbor complex. New Jersey's Department of Environmental Protection, Division of Water Resources, has noted these deficiencies in the New Jersey 1980 State Water Quality Inventory, Report to the Congress through the Environmental Protection Agency, April 1980. That Report stated, at page 3, that "as in the past, the waters of the Interstate Sanitary District are plagued by ... low levels of dissolved oxygen." The 1982 State Water Quality Inventory reported that "although the Interstate Sanitation District Waters show a general overall improvement since the last ... inventory was compiled, District Waters are still plagued by low dissolved oxygen values during the summer months." The 1986 New Jersey Water Quality Inventory reported that "District Waters meet dissolved oxygen requirements during the winter; however, in some locations, dissolved oxygen values in the summer drop below standards for extended periods." Defendant's discharges added to the depletion of oxygen in the Kill Van Kull.
United States v. Metropolitan District Commission, 23 ERC at 1353 n. 4. The EPA has stated, and this Court recognizes that suspended solids can have an adverse affect on fish growth and reproduction and reduce the supply of food available to the fish. See EPA, Quality Criteria for Water, pp. 404-408 (1976). Defendant has violated the TSS limits of its permit 66 times.
As this Court has already noted, defendant's BOD and TSS effluent limitations are water based quality standards. See SPIRG v. P.D. Oil, 627 F.Supp. at 1088-1089. Water quality based effluent limitations are those which are designed to insure that water quality standards are met. Water quality standards, in turn, have been established to protect, restore, maintain and enhance a body of water so that it supports its designated uses and attains the fishable and swimmable goals of the Act. See 33 U.S.C. §§ 1311, 1312, and 1313; 40 C.F.R. 122.44(d). Any violations of these water quality based effluent limitations causes some degree of harm to the water quality of the Kill Van Kull.
Defendant has violated its permit with...
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