The opinion of the court was delivered by: CALDWELL
Plaintiffs, Locust Lane and Paxtowne, have brought a "citizen's suit" pursuant to § 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a) alleging that defendant, Swatara Township Authority, violated the effluent limitations and construction compliance schedule
contained in their National Pollution Discharge Elimination System ("NPDES") permit. Plaintiffs are limited partnerships which own land in Lower Paxton Township. Defendant is the owner and operator of Swatara Township Water Pollution Control Plant, serving certain areas including Lower Paxton Township. Subsequent to lodging its complaint, plaintiffs filed a motion for summary judgment. Defendant has opposed plaintiffs' motion and filed a motion to dismiss the complaint, asserting that plaintiffs do not have standing to pursue this action.
For the reasons set forth below, we will grant plaintiffs' motion for summary judgment on their claim that defendant violated the schedule of compliance.
On July 7, 1974, defendant was issued a NPDES permit by the Pennsylvania Department of Environmental Resources ("Pa. DER"), which was revised in 1979 and 1984. The permit allows defendant to discharge wastewater into Swatara Creek from its facility in accordance with specified effluent limitations. It also includes a schedule of compliance for the construction of additional wastewater treatment facilities.
Plaintiffs allege that defendant violated the conditions of the NPDES permit by exceeding the effluent limitations. Their claim is supported by certain Discharge Monitoring Reports ("DMR") which apparently indicate that defendant has exceeded the discharge limitations. Although defendant disputes the accuracy of the DMRs, it does admit that there have been a limited number of discharges which were in excess of the effluent limitations.
The basis of plaintiffs' complaint is that they have been precluded from developing housing on their land because of defendant's failures to comply with the NPDES permit. This claim is based upon plaintiffs' inability to obtain building permits from the Township of Lower Paxton, because the Pa. DER has imposed a limited sewer ban on all townships using defendant's plant allegedly due to defendant's violations of the permit. In order to remedy this situation, plaintiffs have requested that we (1) declare defendant in violation of the Clean Water Act, (2) order defendant to comply with the conditions of the NPDES permit and (3) award the United States Treasury civil penalties of $ 10,000 per day for each day that defendant was in violation of the permit. Plaintiffs have also requested that they be awarded their litigation costs.
We must evaluate the motions under the following, well established standard:
Summary judgment under Federal Rule of Civil Procedure 56 is appropriate only where the moving party establishes that no genuine issue exists as to any of the material facts in the case, and that he is entitled to judgment as a matter of law. See, e.g., Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). Courts should resolve any doubts as to the existence of issues of material fact against the moving party, and view all inferences in the light most favorable to the nonmoving party. [citation omitted].
Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 472 (3d Cir. 1985) (brackets added).
A. Defendant's Motion for Summary Judgment.
Defendant argues that plaintiffs lack standing to bring an action under § 505(a) of the Clean Water Act. It contends that plaintiffs have not established that they were injured by defendant's conduct and that even assuming that plaintiffs were injured, it is not the type of injury protected by the Clean Water Act.
Both parties agree that the standing issue is governed by Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). In Morton, the United States ...