Public Interest Research Group v. Hercules, Inc., Civ. A. No. 89-2291(JBS).

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Writing for the Court: SIMANDLE
• Citation: 830 F. Supp. 1525
• Decision Date: 31 March 1993
• Docket Number: Civ. A. No. 89-2291(JBS).
• Parties: PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs, v. HERCULES, INC., Defendant.

830 F. Supp. 1525

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs,
v.
HERCULES, INC., Defendant.

Civ. A. No. 89-2291(JBS).

United States District Court, D. New Jersey.

March 31, 1993.

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COPYRIGHT MATERIAL OMITTED

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Carolyn Smith Pravlik, Bruce J. Terris, Elisabeth J. Lyons, Robert D. Parrish, Terris, Pravlik & Wagner, Washington, DC, Edward Lloyd, Newark, NJ, for plaintiffs

Joel Schneider, E. Lynne Hirsch, Manta and Welge, Princeton, NJ, for defendant.

OPINION

SIMANDLE, District Judge:

This case involves a citizen suit brought under § 505 of the Federal Water Pollution Control Act (the "Clean Water Act" or the "Act"), 33 U.S.C. § 1365, by the Public Interest Research Group of New Jersey ("NJPIRG") and Friends of the Earth ("FOE") against defendant Hercules, Inc., a Delaware corporation doing business in New Jersey. Plaintiffs allege that defendant has committed numerous discharge, monitoring, reporting and recordkeeping violations of the discharge permit issued to it pursuant to § 402 of the Act, 33 U.S.C. § 1342. The court presently has before it the following motions filed by both parties:

1. Plaintiffs' Motion for Partial Summary Judgment as to Liability and for Permanent Injunctive Relief;

2. Defendant's Cross Motion for Summary Judgment;

3. Defendant's Motion in Limine to Bar Evidence Regarding Hercules' Kenvil Facility;

4. Defendant's Motion in Limine to Bar the Proposed Trial Testimony of Michael O'Donnell Regarding the Application of the NJDEPE and the EPA Civil Penalty Policies; and

5. Plaintiffs' Notice of Appeal of Magistrate Judge Rosen's March 11, 1992 Order, in which Judge Rosen ruled that a certain memorandum relied upon by Michael O'Donnell, a paralegal in plaintiffs' attorneys' office, was not work product and ordered that the memorandum be turned over to defendant.

BACKGROUND

The Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., was enacted in 1972 and effected "a major change in the enforcement mechanism of the federal water pollution control program from water quality standards to effluent limits." S.Rep. No. 414, 92d Cong., 1st Sess., reprinted in A Legislative History of the Federal Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess., Vol. 2 at 1425, 1972 U.S.Code Cong. & Ad.News at 3668, 3675. In furtherance of this underlying shift in emphasis from water quality standards to discharge control, the Clean Water Act prohibits the discharge of pollutants into the nation's waters except as specifically authorized by the Act. This authorization comes in the form of discharge permits, which are issued pursuant to Title IV of the Act, 33 U.S.C. §§ 1341-1345.

The permit program applicable in this case is established in § 402 of the Act — the National Pollutant Discharge Elimination System ("NPDES"). Section 402(a)(1), 33 U.S.C. § 1342(a)(1), authorizes the Administrator of the United States Environmental Protection Agency (the "EPA") to issue discharge

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permits in accordance with national standards promulgated by the Administrator. NPDES permits require permittees to establish and maintain records; to install, use, and maintain monitoring equipment; to sample effluent; and to submit regular reports to the EPA. 33 U.S.C. § 1318(a)(4)(A). These reports are known as "discharge monitoring reports" ("DMRs") and they must be submitted at regular intervals specified in the permit. 40 C.F.R. § 122.41(1)(4). Criminal penalties can be imposed for the submission of false information in the DMRs. 40 C.F.R. § 122.41(k)(2). In addition, permittees have an affirmative obligation to correct any past errors or omissions in reporting of which they subsequently become aware. 40 C.F.R. § 122.42(1)(8)

On September 10, 1975, the EPA issued NPDES permit number NJ 0005134, effective October 31, 1975, to defendant Hercules. The 1975 permit authorized defendant to discharge limited quantities of pollutants from its Gibbstown, Gloucester County, New Jersey facility into the Delaware River (outfall 001) and Clonmell Creek (outfall 002), in accordance with the conditions set forth therein. Hercules' 1975 permit expired on October 31, 1980. EPA regulations provide, however, that the terms of an expired EPA issued permit remain in effect until the effective date of a new permit. 40 C.F.R. § 122.6.

In April 1982, the EPA delegated responsibility to the New Jersey Department of Environmental Protection and Energy ("NJDEPE") for administering the NPDES program in New Jersey. 47 Fed.Reg. 17331 (April 13, 1982). On June 11, 1985, the NJDEPE issued NJPDES permit number NJ 0005134, effective August 1, 1985, to defendant. The 1985 permit likewise authorized Hercules to discharge limited quantities of pollutants into the Delaware River and Cronmell Creek (which flows into the Delaware River) from its Gibbstown facility through the two aforementioned discharge points, outfalls 001 and 002, in accordance with the conditions set forth therein.

The NJDEPE issued a permit modification to Hercules on October 9, 1987. That modification became retroactively effective on July 2, 1986. Under New Jersey law, the expired 1985 permit, as modified, remains in effect until a new permit is issued by the State. N.J.S.A. 52:14B-11; N.J.A.C. 7:14A-2.3.

On March 21, 1989, plaintiffs¹ gave notice of defendant's violations and of plaintiffs' intent to file suit for such violations to the Administrator of the EPA, the NJDEPE, and to defendant Hercules. Plaintiffs gave this notice in order to comply with Section 505 of the Act, which requires the providing of at least sixty days notice before a party can file a citizen suit under the Act. 33 U.S.C. § 1365(b)(1)(A). This notice listed only sixty-eight (68) specific discharge violations which occurred from April 1985 through February 1989. Def.Ex. 9. It did not list any other type of alleged violation of Hercules' permit, i.e., monitoring, reporting, or recordkeeping violations. Id.

Plaintiffs filed their Complaint on May 24, 1989. In their Complaint, plaintiffs asserted that Hercules "has failed in numerous instances including, but not limited to, those listed in Appendix B to this Complaint to comply with its permit, including failure to comply with the effluent limitations and to monitor its discharge properly." Def.Ex. 11 (Complaint) at ¶ 22. In Appendix B, plaintiffs specifically listed only eighty-seven (87) alleged discharge violations. Def.Ex. 11. Thirty-one (31) of the discharge excursions listed in Appendix B to plaintiffs' Complaint were not listed in plaintiffs' sixty-day notice letter.² See Joint Final Pre-Trial Order ("JFPTO"), dated Sept. 3, 1991, at p. 33, ¶ 122.

Plaintiffs have only filed the one, March 21, 1989 notice. They have never sought to file any additional sixty-day notices. See JFPTO at p. 33, ¶ 123.³ Nor, for that matter,

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have plaintiffs ever filed an amended Complaint. Over the course of this litigation, however, plaintiffs have added to the total number — and type — of alleged violations for which they seek to hold defendant liable. They have asserted these additional allegations through various "informal" amendments in the course of briefing the currently pending motions. (Plaintiffs also have withdrawn certain allegations as well as changed certain specific allegations from one category to another, e.g., certain instances previously alleged to have been monitoring violations now are listed as recordkeeping violations.) In sum, after having made several corrections and amendments, the plaintiffs allege that Hercules committed 114 discharge violations (i.e., violations of the permit's specific limitations on the levels of pollutants Hercules was authorized to discharge through outfalls 001 and 002), 328 monitoring violations, 58 reporting violations, and 228 recordkeeping violations.⁴

On May 5, 1989, after receipt of plaintiffs' sixty-day notice but before the actual filing of the Complaint, Hercules received a Notice of Civil Penalty Assessment from the NJDEPE. Hercules objected to this notice on May 24, 1989. The matter was then referred to the New Jersey Office of Administrative Law. Hercules and the DEP engaged in settlement negotiations, which culminated in the execution of an Administrative Consent Order ("ACO") in March, 1991.⁵ Def.Ex. 18. Under the ACO, Hercules was required to pay the NJDEPE $600,000 as a penalty for 115 permit violations which occurred from March, 1985 — August, 1990. In addition to this penalty, Hercules agreed to take various measures to protect against any future violations, including an agreement to implement an in-stream monitoring program and to develop a water quality model, acceptance of more stringent effluent limitations earlier than might otherwise have been required, and various construction requirements. Def.Ex. 18. All of the violations addressed by the NJDEPE in the March, 1991 ACO are included among the discharge violations alleged by plaintiffs.

DISCUSSION

I. Summary Judgment Motions

Plaintiff has moved for partial summary judgment as to liability and for permanent

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injunctive relief enjoining defendant from violating the Clean Water Act in the future.⁶ In addition to opposing plaintiffs' motion, the defendant has cross-moved for summary judgment

As is suggested by the fact that each side has made about two dozen submissions to the court in connection with these motions, the parties vigorously contest virtually every issue presently before the court. Defendant asserts that as a matter of law, it is entitled to summary judgment as to those violations not mentioned in plaintiffs' sixty-day notice. It also argues that plaintiffs should not recover additional penalties for those violations addressed by the NJDEPE in its March, 1991 ACO. Defendant further contends that it is entitled to summary judgment, or that at least a genuine issue of fact exists to preclude summary...