Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.

• Decision Date: 05 August 1997
• Docket Number: No. 96-5049,96-5049
• Parties: , 27 Envtl. L. Rep. 21,340 PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC.; Friends of the Earth New Jersey Department of Environmental Protection, Intervenor-Plaintiff, v. MAGNESIUM ELEKTRON, INC., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 111

123 F.3d 111

45 ERC 1001, 27 Envtl. L. Rep. 21,340

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC.; Friends

of the Earth New Jersey Department of

Environmental Protection, Intervenor-Plaintiff, v. MAGNESIUM ELEKTRON, INC., Appellant.

No. 96-5049.

United States Court of Appeals, Third Circuit.

Argued Nov. 12, 1996.

Decided Aug. 5, 1997.

Bruce J. Terris (argued), Monica Wagner, Terris, Pravlik & Wagner, Washington, DC, for Appellees Public Interest Research Group of New Jersey, Inc. and Friends of the Earth.

Lawrence A. Salibra, II, (argued), John C. Tillman, Alcan Aluminum Corporation, Mayfield Heights, OH, for Appellant Magnesium Elektron.

George M. Moscarino, Arter & Hadden, Cleveland, OH, for Amicus appellants Arizona Association of Industries; California Manufacturers' Association; Delaware State Chamber of Commerce; Illinois Manufacturers' Association; Indiana Manufacturers Association; Associated Industries of Missouri; Business Council of New York State, Inc.; Pennsylvania Manufacturers' Association; and Wisconsin Manufacturers & Commerce.

Daniel J. Popeo, Paul D. Kamenar, Washington Legal Foundation, Washington, DC for Amicus-Appellant Washington Legal Foundation.

Before: ALITO, ROTH and LEWIS, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

Pursuant to the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a), Public Interest Research Group (PIRG) and Friends of the Earth (FOE) have sued Magnesium Elektron, Inc. (MEI) for violating the terms of its National Pollution Discharge Elimination System (NPDES) permit. PIRG and FOE obtained a declaratory judgment from a New Jersey District Court establishing that they had standing to prosecute their action against MEI. See PIRG v. MEI, 34 ERC 2077, 1992 WL 16314 (D.N.J.1992) (hereinafter MEI I). This Court affirmed the district court without written opinion, 983 F.2d 1052 (3d Cir.1992). At the penalty phase of the litigation, the district court then found that MEI's permit violations had caused no harm and posed no threat to the Wickecheoke Creek, the waterway into which MEI discharged its effluent. See PIRG v. MEI, No. 89-3193, 1995 WL 461252 (D.N.J. March 9, 1995) (hereinafter MEI II). In response to these findings, MEI has asked this Court to revisit the district court's original decision on standing. For reasons explained below, we will reverse the district court and vacate its permanent injunction and judgment against MEI.

I.

In 1972, Congress enacted the Federal Water Pollution Control Act ("Clean Water Act") to restore and maintain the nation's waters and to eliminate the discharge of pollutants into waterways by 1985. See 33 U.S.C. § 1251(a)(1). Congress enlisted the help of the public in attaining this goal by authorizing citizens to bring suits against those who violated the Act. See 33 U.S.C. § 1365. ¹ Accordingly, "citizen suits supplement government efforts" to enforce the Act. Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn, 913 F.2d 64, 74 (3d Cir.1990). Under the Act, corporations may not discharge pollutants into navigable waterways, see 33 U.S.C. § 1311(a), unless they obtain a National Pollution Discharge Elimination System (NPDES) permit. See 33 U.S.C. § 1342. Compliance with the terms and conditions of the permit constitutes compliance with the Act. See 33 U.S.C. § 1342(k). The permits, in turn, place limitations on the amount of effluent (pollution) corporations may discharge into the water, and require permit-holders to monitor their effluent discharges, to file test results and other data with the Environmental Protection Agency, and to cooperate with state agencies by placing the information on Discharge Monitoring Reports (DMR's). See 40 C.F.R. §§ 122.41(j) and 122.48 (1989).

MEI manufactures zirconium carbonate, a chemical used in paint and other products. In 1976, the EPA issued MEI a permit authorizing it to discharge certain pollutants into the Wickecheoke Creek. The Creek flows into the Delaware River and Raritan Canal approximately 8.5 miles downstream from MEI's discharge point. See MEI II, at 9-10. MEI does not dispute that PIRG's members use the River and Canal for fishing and recreational purposes. The 1976 permit set forth discharge limitations (effluent limitations) and monitoring and reporting requirements. The EPA delegated administration of the permit program to the New Jersey Department of Environmental Protection (NJDEP). NJDEP issued MEI another permit in 1984, authorizing the discharge of certain pollutants into the Creek. The 1984 permit expired on November 30, 1989. Because no new permit was issued, the terms of the 1984 permit remained in effect.

Public Interest Research Group of New Jersey and Friends of the Earth are non-profit environmental organizations. ² Pursuant to the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, PIRG and FOE brought suit against MEI in 1989 for violating the terms of its NPDES permit. According to PIRG and FOE, MEI had violated its permit by exceeding the effluent limitations for certain pollutants and by failing to comply with the permit's monitoring and reporting requirements. The bulk of the alleged discharge violations concerned excess emissions of salt and total organic carbon (TOC), as well as temperature excursions, caused by MEI's discharge of heated wastewater into the Creek. ³

In support of its motion for a declaratory judgment that it had standing, PIRG submitted affidavits from four of its members. See Appendix, at 861-873. Although the four affidavits differ somewhat in content, they all state the following:

1. The affiants engage in various recreational activities along the Delaware River and Raritan Canal, including hiking, walking, "studying nature," swimming and fishing. See e.g. Appendix, at 861p 3.

2. The affiants' enjoyment of these activities is lessened to the extent that they "know" the Delaware River "contains pollution." Id.

3. One affiant (Sandra Silverstone) avoids eating fish caught in the Delaware River because "I am concerned that those fish might be contaminated with harmful pollutants." Appendix, at 861-62 p 4.

4. Another affiant (Julie Howat) avoids drinking water taken "directly" from the Delaware River "because I am concerned that the water might be contaminated." Appendix, at 864 p 4.

MEI stipulated to committing 123 permit violations. On January 23, 1992, the district court, in its first opinion, found MEI liable for an additional 27 violations for excess discharges of total organic carbon (TOC). The district court also permanently enjoined MEI from violating its NPDES permit and granted PIRG's motion for a declaratory judgment that plaintiffs had standing to bring their citizens suit. In its discussion of standing, the court cited the four affidavits submitted by PIRG's members as evidence of actual injury and referred to reports stating that excess TOC ordinarily depletes the amount of oxygen in water and thereby harms aquatic life dependent on oxygen. See MEI I, at 14-15. We affirmed the district court's decision without opinion, PIRG v. Magnesium Elektron, Inc., 983 F.2d 1052 (1992).

Following a hearing to determine penalties, the district court issued an opinion imposing $2.625 million dollars in penalties on MEI. See PIRG v. Magnesium Elektron, Inc., 1995 WL 461252 (D.N.J. March 9, 1995) (MEI II ). In this opinion, the district court credited the testimony of MEI's expert limnologist, Dr. Kathleen Keating, that MEI's discharge violations had caused no harm to the aquatic ecosystem of the Wickecheoke Creek and in fact, may have improved it by adding nutrients in which it was deficient. See MEI II, at 6-8 (discussing origin and contents of Keating's limnological study). Keating conducted her study of the Wickecheoke Creek between June 1979 and July 1981. In a pre-trial order, the two parties stipulated that Keating's findings regarding the impact of MEI's effluent violations on the Wickecheoke Creek would be the same in 1989 as it was when the Limnological Study was conducted, nearly a decade earlier. See MEI II, at 8. ⁴ Keating also submitted her conclusions in an affidavit to the court.

Although in MEI I, 34 ERC at 2086, the district court referred to Keating's affidavit as "conclusory," the court nevertheless eventually concluded that her findings of no injury or threat of injury to the Creek were persuasive. See MEI II, at 16-23.

In December 1995, the court issued a decision denying MEI's motion to reconsider its penalty determination and awarded plaintiffs $524,899.09 in attorneys fees and expenses. MEI now appeals the judgment of the district court, including its standing decision, in light of the district court's conclusions in MEI II that the discharge violations visited no harm on the Wickecheoke Creek.

II.

A. The Law of the Case

Before we consider the merits of MEI's argument, we first must contend with PIRG's argument that, because an appellate court affirmed the district court's initial decision in MEI I, the law of the case precludes our reconsideration of the issue of standing. The law of the case doctrine directs courts to refrain from re-deciding issues that were resolved earlier in the litigation. The doctrine applies"as much to the decisions of a coordinate court in the same case as to a court's own decisions." Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 2177, 100 L.Ed.2d 811 (1988). Because it prevents courts from entertaining endless appeals on the same issue, the doctrine promotes finality and judicial economy. "Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit." 18 Charles A. Wright, Arthur R. Miller, Edward Cooper, Federal Practice and Procedure § 4478 at 788 (1981).

The law of the case doctrine does not limit a federal court's power; rather, it directs its exercise of...