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PROFFITT v. ROHM & HAAS

August 12, 1987

Proffitt, Raymond
v.
Rohm & Haas



The opinion of the court was delivered by: GREEN

 GREEN, J.

 The Clean Water Act (the "Act"), 33 U.S.C. § 1251 et seq., authorizes citizens to bring suits on their own behalf against any person who is alleged to be in violation of an effluent standard or limitation or an order issued by the Administrator of the Environmental Protection Agency ("EPA") or a state regarding such standard or limitation. 33 U.S.C. § 1365(a)(1). Pursuant to this statutory provision, Raymond Proffitt brought suit against Rohm & Haas alleging violations of section 301(a) and 402(a) of the Act, 33 U.S.C. §§ 1311(a) and 1342(a), and of sections 301, 307 and 402 of the Pennsylvania Clean Streams Law, 35 P.S. § 691.1 et seq. Plaintiff seeks declaratory and injunctive relief, the imposition of civil penalties and the award of costs, including attorney's fees.

 Pending are Rohm & Haas' motion for summary judgment and Mr. Proffitt's cross-motion for partial summary judgment. Plaintiff contends that defendant's records show repeated violations of the effluent limitations, thus entitling plaintiff to both a declaration that defendant has violated the Act, and injunctive relief to be followed immediately by a hearing on penalties. Essentially, Rohm & Haas argues that, because there was no enforceable effluent limitation in place, it cannot be in violation of either the federal or state statutes.

 The parties agree that citizen enforcement suits pursuant to section 505, 33 U.S.C. § 1365(a), were intended to involve only a determination of whether EPA permit limitations were violated. In this regard, plaintiff points to the following discussion of section 505 citizen suits in the Senate Report which accompanied the bill which was enacted:

 
Section 505 would not substitute a "common law" or court-developed definition of water quality. An alleged violation of an effluent control limitation or standard, would not require reanalysis of technological in [sic] other considerations at the enforcement stage. These matters will have been settled in the administrative procedure leading to the establishment of such effluent control provision. Therefore, an objective evidentiary standard will have to be met by any citizen who brings an action under this section.
 
. . . .
 
The standards for which enforcement would be sought either under administrative enforcement or through citizen enforcement procedures are the same . . . . Consequently, the factual basis for enforcement of requirements would be available at the time enforcement is sought, and the issue before the courts would be a factual one of whether there had been compliance.

 S. Rep. No. 414, 92d Cong., 1st Sess., reprinted in 1972 U.S. Code Cong. & Admin. News 3668, 3745-46.

 Thus, decision on the motions turns upon whether the EPA permit issued to defendant contains a standard and limitation enforceable by plaintiff. As to this issue, there are no genuine issues of material fact. For the reasons set forth below, I conclude that summary judgment must be granted in favor of defendant Rohm & Haas.

 I.

 Rohm & Haas operates a plastics and synthetic resins and industrial organic chemicals facility in Bristol Township, Pennsylvania. It treats on-site the wastewater from its industrial operations then discharges the treated effluent through holding ponds into a tributary of the Delaware River. The discharge of wastewater into navigable waters is illegal unless done in compliance with a National Pollutant Discharge Elimination System ("NPDES") permit. 33 U.S.C. § 1311(a). Violations are alleged at a single discharge point, namely Outfall 009.

 In 1974, the Environmental Protection Agency ("EPA") administered the NPDES permit program for wastewater dischargers located in Pennsylvania. EPA issued an NPDES permit to Rohm & Haas for the Bristol facility on September 30, 1974. The Pennsylvania Department of Environmental Resources ("DER") issued a certification also on that date. Section 401 of the Clean Water Act, 33 U.S.C. § 1341, provides Pennsylvania and other states with an opportunity to participate in the permit process through certification procedures. Pursuant to section 401, the state must certify that the discharge complies with applicable effluent limitations and water quality standards before a Federal license or permit can be granted. The state's certification also may contain additional limitations. 33 U.S.C. § 1341(d). The EPA permit must include any additional limitations included in the state's certification. Id.

 After the NPDES permit was issued, Rohm & Haas filed administrative appeals challenging the NPDES permit as certified. Rohm & Haas requested an adjudicatory hearing before the EPA in order to challenge the pH and total suspended solids ("TSS") limitations of the permit. In addition, Rohm & Haas appealed DER's imposition of ...


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