On appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 83-1605.
Garth, and Higginbotham, Circuit Judges and McGLYNN, District Judge.*fn*
In this interlocutory appeal*fn1 we are asked to decide whether the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(b)(1), precludes a private suit to enforce the provisions of the Clean Water Act where the Environmental Protection Agency ("EPA") had already commenced an administrative enforcement proceeding which commenced an administrative enforcement proceeding which resulted in a consent order between the EPA and the company alleged to have violated the Act. The district court concluded that the private action was not barred inasmuch as the EPA's administrative enforcement action was not a "court" proceeding within the meaning of the citizen suit provision. The district court held, alternatively, that even if the EPA's action was considered a "court" proceeding, the suit by Student Public Interest Research Group (SPIRG) was not precluded because the EPA's consent order did not constitute "diligent prosecution" under the citizen suit provision of the Clean Water Act.
After careful review of the record and an analysis of this Court's decision in Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir.), cert denied 441 U.S. 961, 60 L. Ed. 2d 1066, 99 S. Ct. 2406 (1979), we affirm the district court's conclusion that the EPA's administrative enforcement action in the instant case was not a "court" proceeding, although we do so for reasons different than those advanced by the district court. Because we find that the EPA's action was not a "court" proceeding, we do not reach the second question of whether the EPA's consent order constitutes "diligent prosecution."
Appellant, Fritzsche, Dodge & Olcott, Inc. ("FDO"), located in East Hanover, New Jersey, is manufacturer of fragrances and flavors used in cosmetic products and food. On April 19, 1974, the Administrator of the United States EPA, pursuant to section 402 of the Clean Water Act, 33 U.S.C. § 1342, issued to FDO a National Pollutant Discharge Elimination System (NPDES) permit, authorizing direct discharge by FDO of certain quantities of pollutants from FDO's East Hanover factory into the Passaic River. This permit covered a period of five years and was scheduled to expire on April 30, 1979.
Under the Clean Water Act Amendments of 1972, which include section 402, a direct discharger of pollutants, here FDO, was required to adopt the "best practicable control technology currently available" (BPT) by July 1, 1977, and the "best available technology economically achievable" (BAT) by sometime between July 1, 1983 and July 1, 1987. 33 U.S.C. § 1311(b)(1982). The guidelines used in determining the effluent limitations under the BPT and BAT standards are defined by the Administrator of the EPA, see 33 U.S.C. §§ 1311(b), 1314(b), 1314(d). Those effluent limitations, in turn, are applied to individual direct dischargers, such as FDO, through NPDES permits issued to the discharger under section 402 of the Clean Water Act. The NPDES permits are designed to transform "generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger." EPA v. National Crushed Stone Assn., 449 U.S. 64, 70, 66 L. Ed. 2d 268, 101 S. Ct. 295 (1980) (quoting EPA v California ex rel. State Water Resources Control Board, 426 U.S. 200, 265, 48 L. Ed. 2d 578, 96 S. Ct. 2022 (1976)). Under section 402(k) of the Act, if a discharger is in compliance with its NPDES permit, it is generally deemed to be in compliance with the Act . 33 U.S.C. § 1342(k). Moreover, the monitoring of permit compliance is usually done by the dischargers themselves. Under section 308 of the Clean Water Act, dischargers are required to monitor, record and report to the EPA the level of their own emmissions. 33 U.S.C. § 1318. Indeed, in the instant case, SPIRG's claim is based almost entirely on FDO's report of its own permit violations.
After EPA issued its April 19, 1974 NPDES permit, FDO expanded its business at its East Hanover plant which resulted in violations of the of the biological oxygen demand (BOD5) and temperature limits outlined in FDO's original permit. Recognizing that its needs had changed, FDO sought a permit modification from the EPA in January 1975. In October, 1976, the EPA granted the proposed modification, which included a compliance schedule requiring the installation of treatment system designed to handle increased process wastewater. Under the permit modification, this upgraded treatment system was to be operational by July 1, 1977 and was intended to meet BPT standards.
As it turned out, this system did not become operational until sometime after July 1, 1977. Realizing that installation of its treatment system was suffering from delays, FDO requested an extension under section 309(a)(5)(B)*fn2 of the July 1, 1977 statutory BPT completion deadline. The EPA denied FDO's request for an extension, citing FDO's failure to meet the "good faith condition" of section 309(a)(5)(B). App. at 155. When the construction delays persisted, the EPA, on September 13, 1977, issued an administrative order to show cause why FDO's violations of its modified permit should not be referred for civil or criminal prosecution under sections 309(b), (c) and (d) of the Clean Water Act, 33 U.S.C. § 1319(b), (c) and (d). App. at 159. After an enforcement conference with FDO, the EPA decided not to continue the administrative enforcement action and not to refer the matter for civil or criminal prosecution.
On June 6, 1979, the EPA issued to FDO a two-year renewal NPDES permit. Since, at the time the EPA issued the renewal permit, there were no EPA promulgated effluent limitation guidelines for the organic chemicals industry (of which FDO is a part), the limitations in this permit were based on the best professional judgment (BPJ) of the EPA and the projected performance of the upgraded treatment system. Although the EPA authorized the New Jersey Department of Environmental Protection (NJDEP) to issue NPDES permits beginning in April, 1982, the terms of FDO's subsequent permits remain the same as its renewal permit.
Approximately one year after the issuance of the renewal permit, FDO began to intermittently exceed its limitations for total suspended solids (TSS), despite its attempts to remedy the problem. On September 30, 1982, in response to FDO's numerous TSS violations, the EPA issued another order to show cause why the case should not be referred to the Department of Justice for judicial prosecution. In response, FDO submitted a report which detailed its efforts to remedy the TSS permit violations and requested an adjournment of the November 29, 1982 enforcement conference due to the fact that the prior six months monitoring period indicated that FDO was in compliance with its permit limitations. The EPA postponed the enforcement conference, but after a further review of FDO's monitoring reports, the EPA rescheduled the enforcement conference for April 20, 1983.
The April 20, 1983 enforcement conference was attended by representatives from the EPA, the NJDEP and FDO. At this informal meeting, the EPA and FDO discussed at length FDO's permit violations and enforcement efforts. The meeting ultimately resulted in a consent order between the EPA and FDO, in which FDO agreed to discharge its process wastewater into a municipal sewer system then under construction in East Hanover, New Jersey. Apparently, this "hook up," which was to be completed by December 31, 1984, was to permanently resolve the problem of FDO's noncompliance with its NPDES permit. Although the consent order did not address FDO's past permit violations, it did require FDO to (1) submit a report detailing its action to attempt to achieve past and future compliance with ...