Public Interest Research Group v. Rice

• Decision Date: 23 September 1991
• Docket Number: Civ. No. 90-2138 (CSF).
• Citation: 774 F. Supp. 317
• Parties: PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs, v. Donald B. RICE, as Secretary of the Air Force, Defendant.
• Court: U.S. District Court — District of New Jersey

774 F. Supp. 317

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs, v. Donald B. RICE, as Secretary of the Air Force, Defendant.

Civ. No. 90-2138 (CSF).

United States District Court, D. New Jersey.

September 23, 1991.

Terris, Pravlik & Wagner by Bruce J. Terris, Kathleen L. Millian, Mark V. Dugan and William H. Brack, Washington, D.C., and Edward Lloyd, Newark, N.J., for plaintiffs.

Barry M. Hartman, Asst. Atty. Gen. by Ronald M. Spritzer, Asst. Atty. Gen., Environmental Defense Section, Environment and Natural Resources Div., U.S. Dept. of Justice, Major Richard E. Sarver, Chief, Environmental Litigation Div., Central Environmental Law Office, U.S. Air Force, Washington, D.C., and Michael Chertoff, U.S. Atty. by Irene Dowdy, Asst. U.S. Atty., Trenton, N.J., for defendant.

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 a preliminary injunction, partial summary judgment on the issue of liability and permanent injunctive relief against defendant, Donald B. Rice, the Secretary of the United States Air Force. Defendant has moved for partial summary judgment on the issue of the availability of civil penalties against an agent of the United States Government. The court having considered the written submissions and oral argument of counsel; and counsel, in response to inquiry from the court, having assured the court that all evidence was now before it and they had nothing to add; and for the reasons stated below, the court will grant the plaintiffs' motion for partial summary as to defendant's liability and issue permanent injunctive relief. The defendant's motion for summary judgment as to the civil penalties is stayed pending resolution of a similar issue by the United States Supreme Court.

NJPIRG and FOE are nonprofit 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 Crosswicks Creek, the Delaware River, the Delaware Bay and tidally-related waters, plaintiffs have brought this action.

Defendant, Donald B. Rice, is the Secretary of the United States Department of the Air Force, which operates McGuire Air Force Base ("MAFB") in New Hanover, New Jersey. By statute, the Secretary of the Air Force must conduct all Air Force Department affairs, including the construction, maintenance and repair of buildings, other structures and utilities, and the acquisition of interests in real property necessary to carry out the responsibilities of the Air Force. 10 U.S.C. § 8013(b).

In 1974, the United States Environmental Protection Agency ("the EPA") issued National Pollutant Discharge Elimination System ("NPDES") permit number NJ 0022578 to defendant's facility. The permit authorized certain discharges into the South Run of Crosswicks Creek from that facility through one discharge point, outfall 001. This permit expired on June 30, 1982.

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).¹ On August 1, 1989, 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.S.A. 58:10A-1 to:10A-20, issued a new permit under NJPDES to the defendant. This permit took effect on November 1, 1989. Pl. Exh. 2.

Plaintiffs have obtained defendant's DMRs for the time period from October 1989 through February 1991, Pl. Exh. 3, and contend that these do not present a complete picture of defendant's compliance record. Plaintiffs allege that defendant has committed 955 discharge violations, 659 reporting violations and 20 monitoring violations in the 17-month period from October 1989 through February 1991.

EPA and NJDEP evaluations and inspections show that defendant has repeatedly failed to maintain its wastewater treatment facility adequately and has failed to operate the facility in accordance with federal law. See Pl. Exhs. 50, 51 and 52. The EPA stated that it was "amenable to revising the schedule," and that defendant was "over two years behind the current schedule." Defendant wrote to the EPA asking for renegotiation of the construction compliance schedule, expansion of the 1985 FFCA interim limits and the setting of significantly lower limits to defendant's 1989 NJPDES permit. Pl. Exh. 73 pp. 1-2.

On October 26, 1990, defendant and the EPA signed an "Order on Consent." Pl. Exh. 29. The order contained an explicit statement that it "did not constitute a waiver from compliance with or modification of the effective terms and conditions of the Respondents' permit, which remain in full force and effect." Id. at p. 7. Nevertheless, the order included the weakened effluent limits that defendant had proposed. The order also extended the final construction compliance deadline by nearly three years, from February 1991 until November 30, 1994. Id. at 6-7.

On May 30, 1990, after complying with the notice provisions of section 505(b) of the Act, 33 U.S.C. § 1365(b), plaintiffs filed this citizen suit under section 505. Plaintiffs allege that defendant violated and continues to violate sections 301, 308, and 402 of the Act by failing to comply with the discharge limitations and the monitoring and reporting requirements in its NPDES/NJPDES permit No. 0022578. On August 27, 1990, defendant filed its Answer and Affirmative Defenses. Subsequently, defendant, while admitting that it cannot comply with the terms of the 1989 permit, filed a motion for summary judgment on the issue of whether the Air Force is immune from civil penalties. Thereafter, plaintiffs filed a motion for partial summary judgment as to defendant's liability and permanent injunctive relief.

Initially, plaintiffs request an injunction requiring defendant to comply with the Tertiary Wastewater Treatment Facility compliance schedule in the October 26, 1990, "Order on Consent." As defendant has agreed to this, the court has no problem in ordering compliance with the construction schedule contained in the "Order on Consent."

Plaintiffs also seek to require defendant to undertake certain remedial measures, as well as repairs and maintenance, to bring its facility into compliance with its 1989 NPDES permit or any future permit, including but not limited to the installation of two Traveling Bridge Automatic Backwash Filters ("backwash filters"), at defendant's existing wastewater treatment facility. Plaintiffs' expert, Dr. Bruce A. Bell, in his affidavit, stated that because the plan for the Tertiary Wastewater Treatment Facility includes, as part of the final settling tank system design, three of these backwash filters, two of these could be installed and remain in place at the existing facility until it is necessary to remove them and install them at defendant's planned tertiary facility, as required by the April 1990 design analysis. See Pl. Exh. 26, ¶ 10. Dr. Bell noted that if installed and operated correctly, these filters would reduce current BOD5 and TSS levels at the existing facility by 50% or more, and that studies have shown TSS reductions of 70% by similar filters. Id. ¶¶ 9, 10. He also noted that the installation of the filters would decrease the amount of phosphorus in the effluent from defendant's existing facility. Id. ¶ 9. He estimated the cost of the installation of these filters to be $350,000.

The Federal Water Pollution Control Act (the "Act") was enacted by Congress in 1972 "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 Defense 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 378-79. 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 compliance 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 defendant has repeatedly discharged pollutants from its terminal into Crosswicks Creek, the Delaware River and Delaware Bay in violation of the terms of its effluent limitations permit. Plaintiffs now seek partial summary judgment as to defendant's liability for the discharges and permanent injunctive relief.

In opposition to plaintiffs' motion, Rice asserts that plaintiffs lack standing to bring this action, that the EPA consent order sets forth the appropriate remedy in this case, and that the equitable relief they seek is not justified or consistent with the objectives of the Clean Water Act. Additionally, defendant has cross-moved for summary judgment, or...