Defendant next argues that plaintiffs do not have standing because any injury incurred did not result from its failure to comply with the NPDES permit. To the contrary, plaintiffs assert that as a direct result of defendant's violations of the NPDES permit, the Pa. DER has imposed a limited sewer ban, thereby precluding them from obtaining all of the building permits required to develop their property. In support of their position, plaintiffs have submitted a letter from the Pa. DER to plaintiffs' attorney dated June 4, 1985 which confirms the ban until the expanded facilities are operational. The letter also indicates there can be no diminution of the restrictions until construction begins. Support for plaintiffs' position is also found in the defendant's Chapter 94 Annual Report to Pa. DER, which also shows that relief from the sewer ban will be considered only if there are no delays in the construction schedule and that all restrictions will be removed only when construction is completed.
Based upon this evidence we find that plaintiffs were injured by defendant's failure to comply with the construction schedule contained in the NPDES permit, but were not injured by defendant's violations of the effluent limitations. Plaintiffs have provided no evidence which demonstrates that the sewer bans were the result of defendant's excessive discharges. Plaintiffs' primary evidence, the letter issued by the Pa. DER and Chapter 94 report, address only the affect of defendant's failure to comply with the schedule of compliance. This evidence, however, clearly supports plaintiffs' position that they have been injured by defendant's failure to comply with the construction schedule. In contrast with Morton, supra, plaintiffs are claiming an injury which is more than a generalized interest.
Finally, defendant argues that the relief requested by plaintiffs will not redress the injury caused by defendant's non-compliance with the construction schedule. We disagree, noting at the outset that plaintiffs must only demonstrate that there is a substantial likelihood that the requested relief will remedy the claimed injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 n.20, 57 L. Ed. 2d 595, 612 n.20, 98 S. Ct. 2620, 2631 n.20 (1978). Plaintiffs have requested injunctive relief, ordering defendant to comply with the construction compliance schedule contained in its NPDES permit and civil penalties. As previously noted, the Pa. DER will remove the sewer ban upon completion of the planned facility and relief from the ban will be considered only after construction begins. Thus, enforcement of the compliance schedule will enable the Pa. DER to lift the sewer ban which has precluded plaintiffs from developing housing on their property as soon as possible, and we conclude that plaintiffs have standing to bring their claim that defendant violated the schedule of compliance.
B. Plaintiffs' Motion for Summary Judgment.
We now turn to plaintiffs' motion for summary judgment. Plaintiffs contend that they are entitled to summary judgment because they have demonstrated that defendant is in violation of its NPDES permit. Defendant opposes the motion on the grounds that there are several issues of material fact in dispute. As plaintiffs correctly point out, NPDES enforcement actions are based on strict liability. Student Public Interest Research Group of New Jersey, Inc. v. Tenneco Polymers, Inc., 602 F. Supp. 1394 (D. N.J. 1985); United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979). Thus, the only question before us is whether defendant violated the construction schedule. Contrary to defendant's contention, the relevant facts are not in dispute. It is undisputed that from February 1, 1985 to August 14, 1985 defendant was in violation of the mandated construction schedule. It is also undisputed that defendant is not currently in violation of the construction schedule. With this in mind, we will address the legal issues raised by defendant.
First, defendant argues that its failure to comply with the construction schedule is not the type of violation which provides a citizen with a cause of action under § 1365. Section 1365(a)(1) provides that a citizen may commence an action against any person "who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . ." 33 U.S.C. § 1365(a)(1). Section 1365(f) defines an effluent standard or limitation as "a permit or condition thereof issued under section 1342 of this title." 33 U.S.C. § 1365(f). Defendant admits that this definition apparently includes schedules of compliance, but nevertheless maintains that a construction schedule is not a "condition" whose violation gives rise to a cause of action under § 1365. Again, defendant has attempted to impose a limitation on § 1365 where one is neither supported by the language nor the legislative history. To the contrary, the legislative history provides that:
In addition to violations of section 301(a) citizens are granted authority to bring enforcement actions for violations of schedules or timetables of compliance and effluent limitations under section 301, standards of performance under section 306, prohibitions or effluent standards and pretreatment standards under section 307, provisions of certification under section 401, and any condition of any permit issued under section 402.
S.Rep. No. 414 92nd Cong. 2d Sess., reprinted in, 1972 U.S. Code Cong. & AD. News 3668, 3747.
We also note that defendant has not cited any authority which supports its position. We conclude that defendant's failure to comply with the construction schedule contained in the NPDES permit is actionable under § 1365(a).
Second, defendant argues that past violations of the construction schedule cannot be the basis for a suit under § 1365. In Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531 (M.D. Pa. 1985) we held that a "citizens suit" may be brought for past violations of the Clean Water Act. Defendant maintains that Fishel is distinguishable because it dealt only with violations of effluent limitations. However, as previously noted, there is no reason to distinguish between effluent limitations and compliance schedules for purposes of § 1365, and again defendant's position is not supported by authority. Based upon these considerations, we will grant plaintiffs' motion for summary judgment on their claim that defendant violated the schedule of compliance.
C. Requested Relief.
Having found that defendant violated the Clean Water Act we will now consider the relief requested by plaintiffs. First, plaintiffs are seeking injunctive relief, requiring defendant to comply with the construction schedule contained in the NPDES permit. Defendant is currently in compliance with the schedule in effect and there is no evidence that a violation of this schedule is reasonably expected to recur. Thus, plaintiffs' request for an injunction will be denied. Second, plaintiffs are requesting that we award the United States Treasury civil penalties of $ 10,000 per day for each day defendants were in violation. Pursuant to 33 U.S.C. § 1319(d) defendant may be subject to a "civil penalty not to exceed $ 10,000 per day of such violation." Id. The parties, however, have not addressed the issue of damages and the amount of the civil penalty, if any. Third, plaintiffs are seeking an award of litigation expenses. Litigation costs are expressly authorized by § 1365(d) which provides
(d) The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.