Public Interest Research Group v. Star Enterprise

• Decision Date: 18 July 1991
• Docket Number: Civ. No. 89-5370 (CSF).
• Citation: 771 F. Supp. 655
• Parties: PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, et al., Plaintiffs, v. STAR ENTERPRISE, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

771 F. Supp. 655

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, et al., Plaintiffs, v. STAR ENTERPRISE, et al., Defendants.

Civ. No. 89-5370 (CSF).

United States District Court, D. New Jersey.

July 18, 1991.

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Terris, Pravlik & Wagner by Bruce J. Terris, Mark V. Dugan, Washington, D.C., Edward Lloyd, Newark, N.J., for plaintiffs.

Carpenter, Bennett & Morrissey by Louis M. DeStefano, Jennifer L. Kapell, Newark, N.J., for defendant Star Enterprise.

OPINION

CLARKSON S. FISHER, District Judge.

Before the court is the motion of the plaintiffs, Public Interest Research Group of New Jersey ("NJPIRG") and Friends of the Earth ("FOE"), for partial summary judgment on the issue of the liability of defendant Star Enterprise ("Star") and for permanent injunctive relief. Also before the court is Star's cross-motion for summary judgment or, alternatively, a stay. For the reasons set forth below, the court will grant plaintiffs' motion for partial summary judgment and permanent injunctive relief and will deny defendant's cross-motion.

FACTS

NJPIRG and FOE are non-profit corporations that share an interest in the protection and improvement of the quality of water in New Jersey. Seeking to protect the interests of their members in the quality of Newark Bay and tidally-related waters, including the Kill Van Kull, the Arthur Kill, the Upper and Lower New York Bays, the Raritan Bay, the Sandy Hook Bay, and the Passaic River, plaintiffs have brought this action.

Star is a 50-50 partnership between Saudi-Refining, Inc. and defendant Texaco Refining and Marketing Inc. ("Texaco Refining"). On December 31, 1988, Texaco Refining transferred a petroleum marketing terminal located in Newark, New Jersey, to Star, which Star has operated since that date. The discharges from this terminal into Newark Bay are the subject of this suit.

In 1973, the United States Environmental Protection Agency ("EPA") issued National Pollutant Discharge Elimination System permit number NJ 0002160 to Texaco Refining. The permit authorized certain discharges into Newark Bay from the terminal. On August 1, 1979, a renewal discharge permit for the Newark terminal issued by the EPA took effect. This permit expired on July 31, 1984.

On April 13, 1982, the EPA delegated responsibility to the New Jersey Department of Environmental Protection ("NJDEP") for administering the National Pollutant Discharge Elimination System ("NPDES") program in New Jersey. See 33 U.S.C. 1342)(a)-(b). On June 27, 1988, the NJDEP, pursuant to the authority delegated to it by the EPA and to section 58:10A-6 of the New Jersey Water Pollution Control Act, N.J.Stat.Ann. 58:10A-1 to :10A-20, issued a new permit under the New Jersey Pollutant Discharge Elimination System ("NJPDES") to Texaco Refining. This permit took effect on August 1, 1988. On July 25, 1988, Texaco Refining filed a request for an adjudicatory hearing on the validity of the NJPDES permit. A hearing is currently pending.

By letter dated October 23, 1989, plaintiffs notified Star, the EPA and NJDEP of their intent to bring suit within sixty days for alleged violations of the NJPDES permit, as required under 33 U.S.C. § 1365(b). Prior to the expiration of the sixty-day period, on December 21, 1989, the NJDEP issued to Star an Administrative Order and Notice of Civil Administrative Penalty Assessment ("Order and Notice"). The Order and Notice directed Star to immediately cease discharging in alleged violation of the NJPDES permit limitations and sought to assess a penalty of $704,000.00 against Star.

On December 27, 1989, Star ceased discharging effluent into the Newark Bay in order to comply with the cease and desist provision of the Order and Notice. Star filed a timely request for a hearing on the validity of the Order and Notice. A hearing on this issue has not yet been scheduled.

Star has selected new wastewater treatment equipment to bring its discharges within permit limitations. Affidavit of John F. Love ¶ 9 (filed Feb. 4, 1991). Star alleges that once operational, the treatment technology will meet all permit limitations, with the possible exception of the restriction imposed on the level of chemical oxygen demand ("COD"). Id. ¶ 11. Unable to determine whether a treatment technology exists that will reduce COD to the levels provided in the permit, Star has initiated dialogue with the NJDEP concerning a possible modification of the COD limitation. Id. ¶ 12. Star has filed an application with the NJDEP for a treatment works permit and is awaiting official authorization from that agency in order to bring the equipment on line. Id. ¶ 11.

On December 26, 1989, plaintiffs filed this lawsuit, seeking to hold Star liable for 104 violations of the discharge limitations in its permit that allegedly occurred in 1989. Plaintiffs also allege eight violations of the reporting requirements of the permit, asserting that Star reported violations on the Discharge Monitoring Reports (DMR's), but underreported the severity of the violations and the total number of the violations. Plaintiffs therefore request a declaratory judgment that defendants have violated and continue to violate the Federal Water Pollution Control Act ("the Act"), 33 U.S.C. §§ 1311, 1318, 1342; an injunction prohibiting the defendants from operating the terminal in such a manner as will result in the further violation of the permit; an order requiring defendants to comply with all terms and conditions of the permit; an order requiring defendants to provide plaintiffs with a copy of all monitoring results required to be submitted to federal or state authorities at the time they are submitted for the period extending from the date of the order to one year after the defendants come into compliance with the permit; an award of civil penalties for each violation of the permit; and an award of costs, including attorneys' and experts' fees.

ANALYSIS

In 1972, Congress deemed the objective of the Act to be "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Among other things, "the Act makes unlawful the discharge of any pollutant into navigable waters except as authorized by specified sections of the Act. 33 U.S.C. § 1311(a)." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987). For example, pursuant to section 402 of the Act, "the Administrator of the Environmental Protection Agency ("EPA"), or a state which has established its own EPA-approved permit program, may issue a permit allowing effluent discharges in accordance with specified conditions. 33 U.S.C. § 1342(b), (c)." Natural Resources Def. Council, Inc. v. Texaco Refining & Marketing Inc., 906 F.2d 934, 935 (3d Cir.1990).

An entity which holds an EPA-issued NPDES permit "is subject to enforcement action by the Administrator of the EPA for failure to comply with the conditions of the permit." Gwaltney, 484 U.S. at 52-53, 108 S.Ct. at 379. Entities holding state-issued permits are subject to both state and federal enforcement action for failure to comply. Id. at 53, 108 S.Ct. at 379. In the absence of state or federal enforcement, private citizens may, upon complying with certain notice provisions, file suit. Id.

Pursuant to section 505 of the Act, private citizens may commence civil actions against any entity "alleged to be in violation of" the conditions of either a federal or state permit. 33 U.S.C. § 1365(a)(1). In this citizen suit, plaintiffs allege that the defendants have repeatedly discharged pollutants from their terminal into Newark Bay in violation of the terms of their effluent limitations permit. Plaintiffs now seek partial summary judgment as to Star's liability and permanent injunctive relief.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Brown v. Hilton, 492 F.Supp. 771, 774 (D.N.J.1980). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). This "burden ... may be discharged by `showing' ... that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

There is no issue for trial unless the nonmoving party can demonstrate that there is sufficient evidence favoring the nonmoving party so that a reasonable jury could return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the nonmoving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986). The role of the court, however, is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.

In opposition to plaintiffs' motion for summary judgment, Star asserts that this court is without subject matter jurisdiction, that the plaintiffs lack standing to bring this action, that the action is moot, that the motion is premature, that plaintiffs have miscalculated the number of Star's alleged violations and that permanent injunctive relief is not appropriate. Star has also cross-moved for summary judgment, or alternatively, a stay.

A. Subject Matter Jurisdiction

Star...