On Appeal From the United States District Court For the District of New Jersey. (D.C. Civil Action No. 89-cv-02291).
Before: Sloviter, Chief Judge, Roth, Circuit Judge, and Pollak, District Judge*fn1
Plaintiffs, Public Interest Research Group of New Jersey, Inc., (NJPIRG) and Friends of the Earth, Inc., (FOE) brought a citizen suit pursuant to the Federal Water Pollution Control Act (Clean Water Act or Act), 86 Stat. 816, 33 U.S.C. § 1251 et seq., against defendant Hercules, Inc. Pursuant to the Act, plaintiffs notified Hercules, the United States Environmental Protection Agency (EPA), and the New Jersey Department of Environmental Protection and Energy (NJDEPE) that they intended to sue Hercules for alleged violations of its federal and state permits, limiting effluent discharge from its Gibbstown, New Jersey, facility.
Plaintiffs' notice letter claimed that Hercules committed sixty-eight discharge violations from April 1985 through February 1989. A discharge violation involves the release of a pollutant into receiving waters, which release exceeds the quantity, discharge rate, or concentration of the pollutant allowed by the permit. In accord with the citizen suit provision of the Act, plaintiffs waited 60 days and then filed a complaint in federal district court, alleging that Hercules had violated its permit. Plaintiffs attached to the complaint a list of eighty-seven discharge violations. This list omitted several of the originally cited violations and included more than thirty new ones. A majority of the new violations pre-dated the 60-day notice letter; the remainder post-dated it.
Between the time plaintiffs filed their complaint and moved for summary judgment, they supplemented the list of alleged permit violations, committed by Hercules, to include a total of 114 discharge violations, 328 monitoring violations, 58 reporting violations, and 228 recordkeeping violations. At no time prior to plaintiffs' motion for summary judgment did plaintiffs supply Hercules, EPA, or the State of New Jersey (State) with a new notice letter pursuant to the Act. Hercules filed a cross-motion for summary judgment, seeking to dismiss all violations not listed in plaintiffs' notice letter. The violations Hercules sought to dismiss included a majority of the discharge violations and all of the monitoring, reporting and recordkeeping violations.
The district court granted summary judgment for Hercules as to all pre-complaint discharge violations not listed in the notice letter and as to all monitoring, reporting and recordkeeping violations. The court granted summary judgment for plaintiffs as to forty-three discharge violations listed in the notice letter and included in the complaint and as to seventeen post-complaint discharge violations of the same type as those included in the notice letter.
Both parties sought interlocutory review of the district court's decision to grant summary judgment on certain claims and to dismiss others; review was granted. For the reasons stated below, we will affirm the decision of the district court in part, we will reverse it in part, and we will remand this case for further proceedings consistent with this opinion.
The Clean Water Act makes it unlawful to discharge any pollutant into the nation's waters except those discharges made in compliance with the Act. 33 U.S.C. § 1311. In 1975, the federal government issued a National Pollutant Discharge Elimination System (NPDES) permit to Hercules. 33 U.S.C. § 1342. This permit authorized Hercules to discharge certain pollutants from its Gibbstown facility into the Delaware River (outfall 001) and into Clonmell Creek (outfall 002) in strict compliance with conditions specified in the permit. In addition to establishing limits on effluent discharges, the permit required Hercules to monitor its effluent and to submit reports of the results. 33 U.S.C. § 1342(a)(2). The Act requires that such reports, known as Discharge Monitoring Reports (DMRs), be made available to the public. 33 U.S.C. § 1318(b); 40 C.F.R. § 122.41 (j), (l).
The Clean Water Act allows each state to establish and administer its own permit program, provided that the program meets the requirements established under the Act and is approved by the EPA. 33 U.S.C. § 1342(b). In 1982, the EPA authorized New Jersey to administer a state permit program. After assuming this responsibility, NJDEPE issued a modified Pollutant Discharge Elimination System permit to Hercules for the Gibbstown facility (NJPDES Permit No. NJ 0005134). This permit established monitoring and reporting requirements similar to those of Hercules' NPDES permit. 40 C.F.R. § 123.25. Under both federal and state law, Hercules was required to make its DMRs available to the public.
The NJPDES permit established the same two outfalls: outfall 001 into the Delaware River and outfall 002 into Clonmell Creek. The permit established discharge limits and monitoring requirements for designated parameters at each outfall, with each parameter defined as a particular attribute of a discharge. Parameters under the Hercules permit included specific pollutants (such as fecal coliform) and discharge characteristics or water quality indicators (such as the color or pH value of the sample or the biochemical oxygen content). The permit established strict limits on these parameters, both as to the overall amount of the pollutant and as to the concentration of the pollutant or water quality.
The Clean Water Act provides that federal or state authorities may take enforcement action against a permit holder who fails to comply with specified permit conditions. 33 U.S.C. §§ 1319 and 1342(b)(7). In addition, the Act provides that private citizens may commence civil actions in certain situations against a permit holder who fails to comply with the Act. 33 U.S.C. § 1365. If the citizen prevails, the court may order injunctive relief and/or impose civil penalties which are payable to the United States.
Following a review of Hercules' DMRs on file with the federal government, NJPIRG notified Hercules, EPA, and the State of its intent to file suit under the citizen suit provision of the Act for Hercules' alleged violation of its permits.*fn2 Plaintiffs' March 21, 1989, notice letter listed sixty-eight discharges which plaintiffs claimed had occurred from April 1985 through February 1989 in violation of Hercules' permits.*fn3
Plaintiffs' notice letter alleged that Hercules violated its permit for the parameters of biological oxygen demand, total residual chlorine, chemical oxygen demand, total suspended solids, phenol, fecal coliform, and bioassay at outfall 001 and the parameters of pH, phenol, chemical oxygen demand, and total suspended solids at outfall 002. The notice letter listed permit violations only in the discharge of a particular pollutant; it did not list any violations for the monitoring required to track that pollutant or for the reporting or recordkeeping which documented the monitoring. It is the discharge violations, however, which are most easily ascertainable from the information available to the public, i.e., the DMRs which Hercules must file.
Plaintiffs filed a citizen suit in federal district court on May 24, 1989, shortly after the 60-day notice period had expired. The complaint alleged eighty-seven discharge violations which had occurred from April 1985 through March 1989. Among these were more than thirty new violations which had not been included in the notice letter; a majority of the new violations pre-dated the notice letter, the remainder post-dated it.
Between the time of the 60-day notice letter on March 21, 1989, and the plaintiffs' final submission for purposes of summary judgment on September 14, 1992, plaintiffs made numerous modifications of their list of alleged violations through "informal" amendments to their complaint. Plaintiffs added discharge violations and for the first time alleged monitoring, reporting and recordkeeping violations.*fn4 The majority of monitoring violations were instances when Hercules did not analyze samples before the time limit specified in the permit for holding samples had expired. Reporting violations consisted of instances when Hercules erroneously reported the kind of sample that was taken or when Hercules failed to report a discharge violation. Recordkeeping violations involved paperwork and clerical errors. Plaintiffs' final submission to the district court alleged that Hercules had committed 114 discharge violations, 328 monitoring violations, 58 reporting violations, and 228 recordkeeping violations.*fn5 Plaintiffs did not send a new 60-day letter, giving notice of these additional violations, nor did plaintiffs formally amend their complaint to include them.*fn6
Following receipt of the plaintiffs' original 60-day notice letter, but prior to the district court's decision in this matter, Hercules received a Notice of Civil Penalty Assessment from the State for violations of its permit. In March 1991, Hercules and the State executed an Administrative Consent Order (ACO) under which Hercules agreed to pay the State $600,000 as a penalty for 115 discharge violations of its permit which had occurred between March 1985 and August 1990. All but two of the discharge violations addressed in the ACO were included among the discharge violations alleged by the plaintiffs in their final submission to the district court. In other words, of the 115 discharge violations which served as the basis for the imposition of the $600,000 penalty by the State, 113 were included in the plaintiffs' final submission to the district court.*fn7
A. District Court Opinion
Plaintiffs moved for partial summary judgment as to liability and for permanent injunctive relief, enjoining Hercules from future violations of the Clean Water Act. Hercules filed a cross-motion for summary judgment, asserting that plaintiffs had failed to comply with the 60-day notice provision of the Act.
The district court examined the plaintiffs' 60-day notice letter and compared it to the final list of alleged violations submitted by plaintiffs. Finding that the notice letter did not notify Hercules, the EPA, or the State of plaintiffs' intent to sue for monitoring, reporting and recordkeeping violations, the district court granted summary judgment for Hercules on all of these violations. 830 F. Supp. 1525, 1534 (D.N.J. 1993) ("In sum, there has never been a statutory notice letter in this case that alleged a specific monitoring, reporting, or recordkeeping violation, so all of the alleged monitoring, reporting, and recordkeeping violations must be dismissed.").
The district court then placed the discharge violations into three categories: (1) discharge violations included in both the notice letter and the final list; (2) pre-complaint discharge violations not included in the notice letter but included in the final list; and (3) post-complaint discharge violations included in the final list.*fn8 Finding that plaintiffs had complied with the Act's notice requirement for the violations in category one, the district court denied Hercules' summary judgment motion regarding them. As for the violations in category two, the court granted Hercules' summary judgment motion, holding that plaintiffs had failed to comply with the Act's notice requirement. Id. at 1534 ("those violations which in fact occurred before the complaint was filed on May 24, 1989 cannot be sued upon unless first noticed in compliance with 33 U.S.C. § 1365 and the accompanying regulations codified at 40 C.F.R. § 135.3"). With regard to category three, the court found no statutory requirement that defendants first be notified by plaintiffs of their intent to sue. It, therefore, granted summary judgment for plaintiffs on these violations.
In support of its decision to distinguish between category two violations and category three violations, the district court, citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987), wrote that: "Subsequently occurring violations not noticed in a citizen's 60-day notice letter were specifically contemplated -- indeed required -- by the Supreme Court as a prerequisite to a district court's jurisdiction over a citizen suit under the Clean Water Act." 830 F. Supp. at 1534. The court held that such post-complaint violations, being "the 'type of activity' (e.g., discharging pollutants in excess of permit limitations) as have been alleged in the notice letter[,]" survived defendant's summary judgment motion. Id. After reviewing the evidence on violations in categories one and three, a total of 70 violations, the court granted summary judgment (with respect to liability only) in favor of plaintiffs on 60 of these.*fn9
In sum, the district court held that, under the Act's notice requirement, the plaintiffs could sue only for those discharge violations that were included in their notice letter or that occurred after the complaint was filed and were a continuation of the same type of violation as contained in the notice letter. The only issue remaining for trial would ...