Student Public Interest Research Group v. AT & T BELL LAB.

• Decision Date: 30 August 1985
• Docket Number: Civ. A. No. 84-1087.
• Court: U.S. District Court — District of New Jersey
• Parties: STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs, v. AT & T BELL LABORATORIES, Defendant.

617 F. Supp. 1190

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs, v. AT & T BELL LABORATORIES, Defendant.

Civ. A. No. 84-1087.

United States District Court, D. New Jersey.

August 13, 1985.

As Amended August 30, 1985.

Terris & Sunderland by Bruce J. Terris, James M. Hecker, Washington, D.C., and Gordon & Gordon by Michael Gordon, West Orange, N.J., for plaintiffs.

AT & T Resource Management by John A. McKinney, Jr., Union, N.J., and Donovan, Leisure, Newton & Irvine, by Steven A. Tasher, Washington, D.C., for defendant.

OPINION

STERN, District Judge.

This action is a citizen suit, brought under § 505 of the Water Pollution Control Act (FWPCA), as amended, 33 U.S.C. § 1365 (1982). Plaintiffs Student Public Interest Research Group of New Jersey, Inc. and Friends of the Earth seek a declaratory judgment, imposition of civil penalties and the award of costs, including attorney's and expert witness fees as a result of the defendant AT & T Bell Laboratories, Inc.'s (AT & T's) alleged violation of § 301(a) of the FWPCA, 33 U.S.C. § 1311(a) (1982), by numerous alleged violations of its National Pollutant Discharge Elimination System/New Jersey Pollutant Discharge Elimination System (NPDES/NJPDES) permit. This permit authorized defendant to discharge limited amounts of specified pollutants into the Whippany River.

Plaintiffs moved for partial summary judgment on the issue of defendant's liability for violation of the FWPCA. Defendant cross-moved to dismiss, pursuant to Fed.R. Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Defendant's motion is grounded in three arguments. First, defendant argues that the citizen suit provision of the Act does not permit plaintiffs to enforce a permit that is no longer in effect and to seek penalties for past violations of a permit no longer in effect. Second, defendant asserts that plaintiffs have no standing to bring suit because they have shown no injury caused by defendant's alleged violations, and their requested relief cannot remedy any alleged injury. Third, defendant argues that the New Jersey statute of limitations bars plaintiffs from asserting claims for violations occurring before March 26, 1982. Alternatively, defendant maintains that the federal statute of limitations, 28 U.S.C. § 2462 (1982) bars plaintiffs from asserting claims for violations occurring before March 26, 1979.

The Court heard oral argument on both motions on April 22, 1985. We now deny defendant's motion to dismiss and grant plaintiff's motion for partial summary judgment.

FACTS

Defendant AT & T operates a research and development facility in Hanover Township, New Jersey. Some 3,000 scientists and support staff work at the 192-acre facility on telecommunications and electronics research, including specialized research for the United States Department of Defense. Prior to 1963, AT & T treated all of the facility's waste water through an on-site, conventional, biological waste treatment system. In that year, construction began on a new physical/chemical waste treatment plant to prepare waste water for discharge into the Whippany River.

On March 5, 1974, subsequent to the 1972 amendments to the FWPCA, the Environmental Protection Agency (EPA) issued a discharge permit for the AT & T facility, pursuant to § 402 of the Act, 33 U.S.C. § 1342 (1982). The permit set limits on the discharges of specified laboratory substances. It was modified to establish new limits in 1977, 1978 and 1979. In 1982, the authority to issue permits in New Jersey was transferred from the EPA to the New Jersey Department of Environmental Protection (NJDEP). On December 1, 1982, a NJDEP permit became effective for the AT & T facility. The limits set by the new permit were identical in all pertinent respects to those set by the 1979 renewal permit previously in force. On January 14, 1983, AT & T terminated its discharges into the Whippany River and diverted them to a treatment plant operated by the Hanover Sewerage Authority. The NJDEP removed its permit for the AT & T facility from its active files. There is no allegation before this Court of any subsequent discharge by defendant into the Whippany River.

Prior to the 1972 amendments to the FWPCA, federal water pollution laws sought to assure water quality standards reflecting the amount of pollution a given body of water could tolerate. This system of pollution control proved difficult to enforce because of the impracticality of attempting to impose precise effluent limitations for all pollutants based on water quality desired for receiving bodies of water. See Federal Water Pollution Control Act Amendments of 1972, S.Rep. No. 414, 92d Cong., 1st Sess., reprinted in 1972 U.S. Code Cong. & Ad.News 3668, 3672, 3675 (henceforth cited as S.Rep. No. 414). Consequently, the 1972 amendments were designed to control pollution through "effluent limitations" imposed on specific polluters for particular pollutants. S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Ad.News, at 3675, 3709. The basic mechanism for enforcing the new statutory goal of controlling pollutant discharge is the NPDES permit system, created by § 402 of the FWPCA, 33 U.S.C. § 1342 (1982), which translates the general effluent limitations into specific obligations for each discharger. Absent such authorization, it is unlawful for anyone to discharge any pollutant in any amount. 33 U.S.C. § 1311(a) (1982).

Under the terms of the new law, the EPA Administrator issued permits on condition that recipients establish and maintain records, and install and maintain monitoring equipment to sample effluents, and report results to the EPA in the manner prescribed by the Administrator. 33 U.S.C. § 1318 (1982). Under the permits AT & T received, it was required to police itself by filing Discharge Monitoring Reports (DMRs) and Non-Compliance Reports (NCRs) with the EPA and the NJDEP. AT & T filed monthly DMRs from July 1977 through June 1979 and semi-annual DMRs from July 1979 through December 1982. AT & T also submitted several NCRs in this five-year period in the form of letters to EPA and NJDEP reporting failures to comply with permit limitations on daily maximum effluent discharges.

Plaintiffs seek partial summary judgment on defendant's liability for eighty-seven specific permit violations between 1977 and 1982. The number of alleged violations exceeds the number of violations AT & T reported to state and federal authorities because of three flaws in AT & T's methods that led to underreporting of violations. First, AT & T's permit allowed semi-annual reports after June 1979 but did not exempt AT & T from monthly monitoring of discharges and meeting effluent limitations based on monthly monitoring. Instead of reporting each monthly violation, AT & T averaged the discharges by adding them up for each six-month period and dividing by six. Only if the semi-annual average violated the limitation was it reported. Plaintiffs recomputed the monthly averages by examining the laboratory reports underlying the DMRs. Brief for Plaintiffs in Support of Motion for Partial Summary Judgment, Student Public Interest Research Group of New Jersey, Inc. v. AT & T Bell Laboratories, No. 84-1087, at 15 (D.N.J.1985). Secondly, AT & T also underreported the maximum discharge violations after June 1979. Instead of reporting each monthly violation of discharge limitations, AT & T reported only the most serious violation for each six-month period. Again, plaintiffs have reworked test figures underlying the DMRs to compute the actual number of violations. Id. at 15-16.

Third, AT & T underreported violations of both the average and the maximum limitations between April and June 1982 when test samples were split and sent to two different labs, both chosen by AT & T—Chemtech Consulting Group and Princeton Testing Laboratories. AT & T did not consistently choose one lab's results over the other's in preparing DMRs. Eight of plaintiffs' eighty-seven alleged violations are ones where both labs reported discharges exceeding limitations, or where only one lab did, but AT & T reported that result in the DMR. Plaintiffs are not disputing situations where only one lab reported violative discharges and AT & T reported the other lab's results or neither lab's results. Id. at 16-18.

Although defendant has submitted many exhibits, including an affidavit that discusses discharge testing in some detail by Paul E. Wyszkowski, who has "general supervisory authority over all matters impacting the environment as a result of the operations of A.T. & T. Bell Laboratories," nowhere does defendant contest these three alleged flaws in reporting methods.

DISCUSSION

A. Defendant's Motion to Dismiss

Although plaintiff's motion was filed first in time, we treat defendant's motion first since it raises questions that are logically antecedent: whether plaintiffs have stated a claim upon which relief can be granted, whether plaintiffs have standing, and whether plaintiffs claims are time-barred.

Defendant offers the threshold argument that one of the plaintiffs, Friends of the Earth (FOE), should be precluded from participation in this suit because it failed to give sixty days notice of intent to sue as required by § 505(b)(1) of the FWPCA, 33 U.S.C. § 1365(b)(1)(A) (1982). The defendant acknowledges that plaintiff Student Public Interest Research Group of New Jersey, Inc. (SPIRG) served its notice of intent to sue on defendant on March 4, 1983. We hold that the failure of one plaintiff to file notice of intent to sue does not deprive this Court of subject matter jurisdiction over the action, considering that over thirteen months elapsed after SPIRG filed notice before a hearing was held. See Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton, 644 F.2d 995, 996-97 (3d Cir.1981) (citing passage of eleven months before hearing in rejecting a similar motion). We hold further that because one ...