# Petition for Writ of Certiorari — Magnesium Elektron, Inc. v. Public Interest Research Group of New Jersey, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 946

## Text

IN THE

Supreme Court of the United States

October Term, 1992

MAGNESIUM ELEKTRON, INC.,
Petitioner,

vs.

PUBLIC INTEREST RESEARCH GROUP OF NEW
JERSEY, INC. and FRIENDS OF THE EARTH,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES CouRT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LAWRENCE A. SALIBRA, II

Counsel of Record

JOHN C. TILLMAN

LYNN H. STURGES

ALCAN ALUMINUM CORPORATION

100 Erieview Plaza

Cleveland, Ohio 44114

(216) 523-6918

Attorneys for Petitioner
Magnesium Elektron, Inc.

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

i.
QUESTIONS PRESENTED

Whether the United States Court of Appeals for the
Third Circuit erred by improperly applying the
requirements of standing embodied in Article III of the
United States Constitution and by failing to follow
standing requirements articulated by this Court in Lujan
v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), because
they did not require Respondents in a Clean Water Act
citizens’ suit to (a) show a concrete and particularized
actual or threatened injury as a result of Petitioner's
conduct; (b) that the alleged injury was fairly traceable
to the challenged conduct; and (c) was likely to be
redressed by a favorable decision.

‘ie |

ii.
RULE 29.1—STATEMENT

Petitioner, Magnesium Elektron, Inc. is a wholly-
owned subsidiary of British Alcan Overseas
Investments, Limited, an English Company.

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................
RULE 29.1—STATEMENT.....................

A

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED .....................

wh cc nawaeennas

REASONS FOR GRANTING THE WRIT OF
OI

I. THIS COURT SHOULD GRANT
PETITIONER'S WRIT OF CERTIORARI
BECAUSE THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
FAILED TO COMPLY WITH THE
STANDING REQUIREMENTS’ OF
INJURY, CAUSATION AND
REDRESSIBILITY EMBODIED IN
ARTICLE III OF THE CONSTITUTION
AND MANDATED BY THIS COURT.....

1]

iv.

A. The Permit Excursions In This Case
Were The Result Of Naturally-Occurring
Phenomena And Were Regulatory
Anomalies That Were Technically
Incapable Of Causing The Harm Alleged 11

Il. THERE IS A CLEAR’ AND
IRRECONCILABLE CONFLICT
BETWEEN THIS COURT’S STANDARD
FOR STANDING AND THAT APPLIED
BY THE THIRD CIRCUIT COURT OF
re ee rr ees 17

Ill. THIS COURT SHOULD GRANT THIS
PETITION BECAUSE THE THIRD
CIRCUIT IS FULLY AWARE THAT ITS
POSITION IS INCONSISTENT WITH t
THE CONSTITUTION AND THE :
POSITION OF THIS COURT AND IT HAS f
PROMULGATED A CONSTITUTIONAL
STANDARD THAT SETS IT APART
FROM OTHER CIRCUIT COURTS IN THE
|) ga eee enr i ner Pantera 24

NE 5 ars 50K We COKE REN ERS ORAL 30

APPENDIX:

Judgment Order of the United States Court of
Appeals for the Third Circuit (December 15,
SO erica kav cl enun eee eres ere ee Al

Decision of the United States District Court,
District of New Jersey, 34 E.R.C. 2077
Oct Bg OE ee ee en atic A3

Order of the United States District Court, District
of New Jersey (February 28, 1992) ........... A30

Order of the United States Court of Appeals for
the Third Circuit Denying Petition for

Rehearing (January 8, 1993)................. A32
BO Wile DE 6 os wc enan bec sccendewkenwkan A34
Plaintiffs’ Exhibit 1, Affidavit of Sandra

| rie Lees Sree A bed. nk * A35
Plaintiffs’ Exhibit 2, Affidavit of Chaim

cia tka Cee ee A38
Plaintiffs’ Exhibit 3, Affidavit of Elaine
CNN ed xan ¥ Sea ee eee A42

Plaintiffs’ Exhibit 4, Affidavit of Julie

vi.

TABLE OF AUTHORITIES

Cases

FWIPBS, Inc. v. Dallas, 493 U.S. 215 (1990) ....... 17

Lujan v. National Wildlife Federation, 497 U.S.
EPR 5506 <5 wes ee eR Ae eee ee 25

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130
. PPP eeeCTeT er eee Tere eT eee rr eS passim

PIRG v. Powell Duffryn Terminals Inc., 913 F.2d
64 (3d Cir. 1990), cert. denied, 111 S. Ct. 1018
\ SEPPePeEeePererr cre ee rr er ere passim

PIRG v. Magnesium Elektron, Inc., 34 E.R.C. 2077,
22 E.L.R. 20362 (D.N.J. January 23, 1992)..... passim

Public Service Electric & Gas Co. v. NJDEP, 101

Mud. 06, GO1 A.B6 186 (ROGER) . vg ck co ec cavesencses 6
Sierra Club v. Morton, 405 U.S. 727 (1972) ..... 11,19,20
SPRIG v. AT&T Bell Laboratories, 617 F. Supp.

of k Fe rere a sre s 29
SPRIG v. Hercules, Inc., 23 E.R.C. 2081 (D.N.J.

Ng os ug all eee ee ee eee 29
United States v. SCRAP, 412 U.S. 669 (1973) ...... 23

Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464
NG 5s SiS 6s ae ade ee eae kOe cee eee 9,23

Vii.

Constitutional Provisions

United States Constitution, Article III, $2,
Clause 1

Nes a vGSGSSSER LAM EMR AER EET Chee passim
Statutes

OO UTR. SUBGE oi 5c ve kc ewan es een sce eeienscen 2,8
, Bik toms) | |} were rr rrer errr: cere 2,7
Bid ta) Serre rrrer rer ree rr 2,3,4,6,8
Water Bank Act, Public Law, 91-559 and 96-182.... 13

No.

IN THE

Supreme Court of the United States

October Term, 1992

MAGNESIUM ELEKTRON, INC.,

Petitioner,
Vv.

PUBLIC INTEREST RESEARCH GROUP OF NEW
JERSEY, INC. and FRIENDS OF THE EARTH,
Respondents.

PETITION FOR Writ OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Opinion of the United States District Court for
the District of New Jersey granting a permanent
injunction against Petitioner, Magnesium Elektron, Inc.,
and finding that Respondents have Article III standing
was issued on January 23, 1992, and became effective by
Order dated February 28, 1992. The Opinion is reported
at 34 E.R.C. 2077 and 22 E.L.R. 20362 (D.N.J. January
23, 1992) and is reprinted in the Appendix at A3-A29;
the Order is set forth in the Appendix at A30-A31.

The Judgment Order of the United States Court of
Appeals for the Third Circuit affirming the decision of
the District Court was issued on December 15, 1992, and
is reprinted in the Appendix at A1-A2. Petitioner's
Request for Rehearing was denied by Order dated
January 8, 1993, and is set forth in the Appendix at
A32-A33.

2

JURISDICTION

Subject matter jurisdiction in the United States
District Court for the District of New Jersey was
predicated on 33 U.S.C. $1365. An Opinion granting a
permanent injunction against Petitioner, Magnesium
Elektron, Inc., and finding that Respondents have Article
III standing was issued on January 23, 1992 and became
effective by Order dated February 28, 1992.

Petitioner timely appealed to the United States
Court of Appeals for the Third Circuit in accordance with
28 U.S.C. $1292(a)(1). The Court of Appeals affirmed the
judgment of the lower court without a written opinion by
Judgment Order dated December 15, 1992. A timely-filed
Petition for Rehearing was denied by the Court of
Appeals on January 8, 1993.

The jurisdiction of the Supreme Court of the United
States is invoked pursuant to 28 U.S.C. §1254(1), and in
accordance with Rule 10 of the Rules of the Supreme
Court of the United States.

3

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED

United States Constitution Article III, Section 2,

Clause 1 provides that:

The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or
which shall be made, under their Authority;—to ail
Cases affecting Ambassadors, other public Ministers
and Consuls;—to all Cases of admiralty and
maritime Jurisdiction;—to Controversies to which
the United States shall be a _party;—to
Controversies between two or more
States;—between a State and Citizens of another
State:—between Citizens of different
states;—between Citizens of the same State claiming
Lands under Grants of different States, and between
a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.

Section 505(a) of the Federal Water Pollution Control

Act, 33 U.S.C. §1365 (hereinafter referred to as the
“Clean Water Act’’), provides in pertinent part:

Citizen Suits

Except as provided in subsection (b) of this section,
and section 309(g)(6) any citizen may commence a
civil action on his own behalf—

(1) against any person (including (i) the United
States, and (ii) any other governmental
instrumentality or agency to the extent permitted
by the eleventh amendment to the Constitution)
who is alleged to be in violation of (A) an effluent
standard or limitation under this Act or (B) an
order issued by the Administrator or a State with
respect to such a standard or limitation, or

4

(2) against the Administrator where there is
alleged a failure of the Administrator to perform
any act or duty under this Act which is not
discretionary with the Administrator. The district
courts shall have jurisdiction, without regard to
the amount in controversy or the citizenship of
parties, to enforce such an effluent standard or
limitation, or such an order, or to order the
Administrator to perform such act or duty, as the
case may be, and to apply any appropriate civil
penalties under section 309(d) of this Act.

Section 505 of the Clean Water Act is set forth in
the Appendix at A34.

5

STATEMENT OF THE CASE
A. The Facts

Petitioner Magnesium Elektron, Inc. (hereinafter
“MEI"’), a New’ Jersey corporation, is a
NPDES/NJPDES permit holder which owns and
operates a plant in Flemington, New Jersey which
produces zirconium compounds used in_ various
applications including antiperspirants. This process
produces an effluent which is neutralized and suspended
solids are removed, leaving a pure concentrated salt
water similar to natural sea water. The effluent is non-
toxic. The discharge of the effluent is regulated by
NPDES/NJPDES Permit No. NJ0027537 (the ‘‘permit’’)
which establishes certain discharge limitations and
reporting requirements to the New Jersey Department of
Environmental Protection (“‘NJDEP’’).

The salt water effluent is first discharged from the
plant into receiving ponds as established by the permit,
and then into the Wickecheoke Creek. The Creek
eventually joins the Delaware and Raritan Canal which
runs parallel to the Delaware River. The required
monitoring is conducted before the effluent is discharged
into the Creek, at various other areas along the path of
the Creek, and at one point in the Canal a few hundred
yards downstream from the intersection of the Creek, the
Canal and the spillway to the River. No other monitoring
is required under the permit. The monitoring data is
compiled by MEI pursuant to the permit and is reported
to the NJDEP on a monthly basis by submission of
discharge monitoring reports (““DMRs’’).

The permit, which expressly authorizes MEI to
discharge its effluent into the Wickecheoke Creek,
imposes specific discharge limitations upon MEI for

6

various parameters, including total organic carbon
(““TOC"’), total dissolved solids (‘““‘TDS’’), total suspended
solids (‘‘TSS"’), sodium, temperature and oil.

During the time period February, 1984 through July,
1989, various technical violations of the permit were
monitored and reported to the NJDEP by MEI. In 1989,
the NJDEP initiated an administrative enforcement
action against MEI motivated by public criticism of the
NJDEP by Respondents' for the technical permit
violations.? On July 26, 1989, Respondents commenced
this private citizens suit against MEI under $505 of the
Clean Water Act, 33 U.S.C. $1365 seeking civil penalties
and a permanent injunction prohibiting MEI from
further discharges into the Creek based on the same
substantive violations at issue in the administrative
action. In this case, MEI did not dispute that ‘‘technical’’
violations of the permit occurred and, accordingly,
consented to two Stipulations approved by the trial
court.

'The NJDEP had not initiated any enforcement action against MEI
prior to 1989, but apparently felt compelled to do so after public
criticism by Respondents. It must also be noted that the
Administrative Law Judge found all of the violations to be
“‘unintentional.”’

7On July 25, 1989, a civil penalty was assessed against MEI. The
penalty assessment was appealed to the Superior Court of New
Jersey, Appellate Division, on the ground that the application of the
regulations was arbitrary and capricious under the circumstances
because they are inconsistent with the objectives of the statute. See
Public Service Electric & Gas Co. v. NJDEP, 101 N.J. 95, 501 A.2d
125 (1985).

Additionally, years of Creek flow data were compiled by MEI
during the excursionary periods to develop a model to more
accurately establish permit standards at the discharge pipe. This
would eliminate the technical excusions. A new permit embodying
these changes has been pending for approximately five years.

7

On March 6, 1991, Respondents filed a motion for
partial summary judgment as to liability and for
permanent injunctive relief. MEI opposed the motion on
numerous grounds including (1) Respondents’ failure to
establish irrevocable harm to the environment or
themselves, (2) the excursions were unreliable due to the
measuring techniques employed by the _ testing
laboratories, and (3) many of the excursions were merely
‘‘technical’’ violations relating to naturally-occurring
environmental activities and phenomena. Respondents
also filed a motion for declaratory judgment on or about
May 17, 1991 requesting an Order that they have
standing to maintain this action against MEI. MEI
opposed Respondents’ motion based, inter alia, on the
fact that Respondents failed to demonstrate that they
suffered any actual or threatened injury fairly traceable
to MEI’s effluent discharges and, therefore, any alleged
injury will not be redressed by a decision favorable to
Respondents. MEI also urged the court to withhold
decision on standing until an evidentiary hearing was
conducted.

On January 23, 1992, the trial court issued its
Opinion’ holding that Respondents have standing to
maintain this action although they did not demonstrate
any injury in fact traceable to MEI. The court also
issued a permanent injunction against MEI prohibiting
further discharges into the Wickecheoke Creek. Alcan
timely filed a Notice of Appeal from the Order on March
25, 1992, pursuant to 28 U.S.C. §1292(a)(1).‘

* The district court specifically designated the Opinion as ‘‘NOT FOR
PUBLICATION”. A5.

*MEI’s Appeal to the Third Circuit on an interlocutory basis resulted
from an order of the lower court granting a contested motion for
summary judgment on the issues of standing and injunctive relief.
MEI immediately appealed because of the extreme costs
(approximately $1,000,000 per year) of hauling effluent necessitated
by the injunction. Moreover, further events in this case in the lower
courts will have no impact on the issue of standing.

8

The Court of Appeals affirmed the lower court’s
decision without a written opinion on December 15, 1992.
MEI's Petition for Rehearing was denied on January 8,
1993. This Petition is filed pursuant to 28 U.S.C.
§1254(1).

B. The Issues

This case involves the fundamental issue of what the
requisite elements of Article III standing are in order to
maintain a citizens’ suit under $505 of the Clean Water
Act, 33 U.S.C. §1365. In other words, is injury in fact,
causation and redressibility required.

This Honorable Court most recently addressed this
issue in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130
(1992) (hereinafter ‘““Lujan II’’), by stating that, to have
standing, private parties in environmental matters must
satisfy three fundamental elements:

Over the years, our cases have established that the
irreducible constitutional minimum of standing
contains three elements: First, the plaintiff must
have suffered an injury in fact an invasion of a
legally-protected interest which is (a) concrete and
particularized, and (b) ‘actual or imminent’, not
‘conjectural’ or ‘hypothetical’. Second, there must be
a causal connection between the injury and the
conduct complained of—the injury has to be ‘fairly
traceable to the challenged action of the defendant,
and not ... the result [of] the independent action of
some third party not before the court.’ Third, it
must be ‘likely’, as opposed to merely ‘speculative,’
that the injury will be ‘redressed by the favorable
decision.’

Lujan II, 112 S. Ct. at 2136 (citations omitted) (emphasis
added). The Third Circuit, in affirming the decision of the
United States District Court, effectively rejected this
Court’s construction of the Article III requirements, and
failed to comply with the mandates of the Constitution.

9

Notwithstanding this Court’s clear and unequivocal
statement as to what is required to meet Article III
standing in environmental matters, the Third Circuit
determined that a lower, less stringent standard is
adequate to confer standing, and has, in its own words at
oral argument, reduced standing to a ‘‘complete fiction’”’.
This results from the fact that Respondents, by their
counsel’s own admission at oral argument, cannot show
any real injury, much less injury caused by any of the
permit excursions. Respondents’ contention is that,
contrary to this Court’s explicit statements in Lujan II
and Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464 (1982),
they are not required to demonstrate injury in fact or
causation to satisfy Article III. Rather, Respondents
assert, and the Third Circuit agreed, that all that must
be shown is that the excursions affect or harm the kinds
of injury being asserted by the Respondents.
Additionally, the Third Circuit refused to require
Respondents to demonstrate that MEI’s effluent was
technically capable of causing the type of harm alleged.

This Court has held that requirements for
establishing standing are not general. It has required
courts to examine each type of permit violation and each
alleged injury to determine whether there is traceability
and therefore standing as to each violation. Neither the
trial court nor the appellate court examined the exact
nature of the alleged injury to Respondents as a result of
the excursions, nor did they make a_ specific
determination as to how the alleged injury was fairly
traceable to MEI. In other words, the lower courts did
not undertake their respective obligations to make the
required inquiry into the issues of injury and
traceability.

10

The third element of standing ignored by the Third
Circuit is redressibility. Redressibility in this case is
impossible. The ecosystem in which Respondents have
identified their interest is subjected to more of the
allegedly offending effluent as a result of the lower
court’s injunction, since MEI is now legally discharging
all of its effluent into the Delaware River upstream of
the area which is the primary location of Respondent's
alleged harm. Moreover, the injunction can have no
bearing on the thermal impact of MEI’s effluent on the
Creek since the thermal load, if any, was naturally
created by the sun.

The decision of the Third Circuit affirming the lower
court's ruling that Respondents have standing in this
case as a matter of law clearly conflicts with the United
States Constitution and the applicable decisions of this
Court and should, therefore, be reversed.

Pere ere ons

a

1]

REASONS FOR GRANTING THE
WRIT OF CERTIORARI

I. THIS COURT SHOULD GRANT PETITIONER’S
WRIT OF CERTIORARI BECAUSE THE UNITED
STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT FAILED TO COMPLY WITH THE
STANDING REQUIREMENTS OF = INJURY,
CAUSATION AND REDRESSIBILITY EMBODIED
IN ARTICLE III OF THE CONSTITUTION AND
MANDATED BY THIS COURT.

A. The Permit Excursions In This Case Were The
Result Of Naturally-Occurring Phenomena And Were

Regulatory Anomalies That Were Technically Incapable
Of Causing The Harm Alleged.

At the outset, an explanation of the nature of the
permit excursions is necessary since they are essential in
evaluating the injury, traceability and _ redressibility
requirements for standing as promulgated by this Court.
The standing requirements stem from the constitutional
requisite of a ‘‘case’’ or ‘‘controversy’’ which limits
federal judicial power to cases in which ‘‘a party has a
sufficient stake in an otherwise justiciable controversy to
obtain judicial resolution of that controversy.’ Sierra
Club v. Morton, 405 U.S. 727, 731 (1972). Absent such a
showing, standing does not exist.

In this case, Respondents failed to demonstrate the
injury, causation and redressibility necessary to confer
standing. In order to establish standing, the permit
violations at issue must be technically capable of causing
the harm alleged. Otherwise, there can be no injury fairly
traceable to defendant's conduct capable of being
redressed by the court. The nature and composition of
the effluent coupled with the technical permit violations
in this case demonstrate that they are simply incapable

12

of causing the injury and harm alleged in the
Respondents’ affidavits which are reproduced in the
Appendix at A35-A47.

The environment is a very complex system.
Therefore, regulatory schemes with the most beneficial
objectives may be frustrated by the unpredictability of
nature. This problem becomes more acute when, like
here, the permit regulations are not aimed at some rather
unusual chemical discharge such as methleyene chloride,
but instead address more innocuous and common
materials.

The majority of the excurions at issue in this case do
not relate to materials generated in the MEI process.
Rather, they relate to natural environmental conditions
and phenomena, or measurement anomalies. Specifically,
they relate to the impact of the sun naturally warming
both the Creek and the effluent, algae growing in the
effluent storage ponds as a result of migrating geese
dropping fecal matter into the effluent, and momentary
overages in salt—the same salt in the ocean and in
food—due to the inability to predict mother nature.
There were also two questionable oil excursions that
were most likely testing errors since they were split
samples in which one part showed an excursion while the
other part did not. This conclusion is further supported
by the fact that no other oil excursions ever occurred.

MEI's zirconium-manufacturing process does not
produce heat that could account for the temperature
excursions. The excursions resulted from the heating
of the effluent by the sun. The permit regulations had
been drafted in a manner that unrealistically assumed
changes in temperatures based on times of the year. In
fact, the differences in minimum temperatures in the
regulations could change as much as ten degrees from
one day to the next. Unfortunately, mother nature is not

13

so predictable or accommodating and on a number of
occasions it was much warmer than the regulations
contemplated. The result was that the effluent storage
pond temperature rose; however, the Creek temperature
was equally affected by the unusually warm conditions.
Thus, the pond water entered the Creek at essentially the
same temperature as that of the Creek. Although this
resulted in a violation as a technical matter, it had no
impact on the thermal condition of the Creek and was
incapable of causing injury. Ironically, if MEI had
artificially cooled the effluent to comply with the
regulations, the environmental impact would have been
negative due to the thermal change.

The TOC violations were a function of the natural
consequences of migratory geese inhabiting the ponds,
and measurement anomalies. As mentioned, the MEI
process does not involve organic carbon and none is
discharged as waste effluent. Accordingly, the MEI
process cannot account for the excursions. Any high
levels of TOC resulted not from the MEI process, but
from geese using the ponds as a natural habitat. The
geese fecal matter is organic carbon and acts as a
fertilizer. When introduced into the ponds, it precipitated
the growth of algae which is not only organic carbon, but
a plant that produces rather than eliminates dissolved
oxygen.’ The resulting conditions that existed in the
ponds were in essence no different than the rich and
verdant conditions that exist naturally in wildlife
preserves.’ The conditions on the MEI site and in its
*The TOC parameter was initially included in the permit by the State
of New Jersey as a surrogate measure of the availability of dissolved
oxygen that could not be directly measured in salt solutions like
those of MEI.

*Indeed, the conditions existing in MEI’s storage ponds are
consistent with a national policy to encourage the development of

habitats for migratory water fowl promulgated by the Department of
Agriculture. See e.g. Water Bank Act, Public Law, 91-559 and 96-182.

14

effluent have achieved the very conditions for which the
state had imposed the regulatory parameters in the first
instance—a condition which promoted the development
of ‘‘flora’’ and ‘‘fauna’. However, the conditions also
resulted in technical violations of the Clean Water Act.
The question presented by this case is whether those
‘technical’ violations which could cause no injury to
Respondents gives rise to standing.

The salt excursions were the direct result of a timing
problem. There was never any question that the total
amount of salt that MEI discharged never exceeded
what it could have discharged without violation. The
problem involved predicting with precision the
enormously complex ecosystem in order to put the right
amount of effluent into the Creek so when it combined
with salt from a thirty square mile drainage area there
were no violations. Unlike the usual regulatory standard
that simply places limits on the amount of material that
can be discharged, the MEI parameter was unusual,
since it did not regulate the amount of effluent that MEI
could discharge into the Creek directly. Instead, it limited
salt concentrations at one point in the Creek four miles
downstream of the discharge point, and another point in
the Delaware-Raritan Canal eight miles downstream.

From a theoretical point of view this was the
perfect regulatory framework: MEI’s discharges were
scaled to account for other salt inputs such as road salt
runoff. The practical application, however, proved far more
difficult since excursions could be caused by something
other than MEI’s discharges. In fact, excursions were
recorded by the automatic monitoring equipment at
times when MEI was not discharging at all! What makes
this even more compelling is the fact that the
Respondents stipulated to the accuracy of the technical
consequences of these excursions reported in a

Lg, 1 DACRE LAE ate A

15

September 15, 1981 Limnological Study of the
Wickecheoke Creek Ecosystem, and the conclusion was
that there was no harm to the ecosystem:

[AJny impact which can be perceived does not
‘significantly effect propagation of indigenous biota’;
does not interfere with biological communities or
populations of important species to a degree which
is damaging to the ecosystem’; and does not
‘interfere with the maintenance of the water quality
in a safe and satisfactory condition for wildlife, fish
and other aquatic life.’ The ‘qualification’ is that at
times it is possible to discern a moderate change in
the patterns of dominance of {not the quality of, or
the quantity of) microscopic organisms (Aufwuchs)
which is related to the presence of the MEI effluent

[T]his phenomenon is difficult, if not
impossible, to relate legitimately ariy characteristic
of the stream community to the presence of the
effluent. At no time during this study has there
been evidence of any impact whatsoever on the biota
at Station 12, targeted as the point where the
presence of the effluent is to be monitored to assure
compliance with several agreements between the
company and agency personnel.

The reporting violations were administrative
anomalies rather than substantive violations. They fall
into two categories. One type of violation related to the
failure to report to the NJDEP because no sample was
taken. The sample was not and could not be taken
because the discharge stream from which the sample was
required to be taken was shut off since the Creek had
unexpectedly stopped flowing. A sample could only be
obtained and tested if MEI illegally discharged.

Other reporting violations do not result from a
failure to report, but instead result from the fact that the
effluent discharge operators could not accurately
estimate the exact time an excursion might occur. The

16

operators therefore had to make the best estimate as to
whether it was for example, 11:59 p.m. or 12:01 a.m.
Subsequent calculations might prove that the operator's
estimate was inaccurate and the actual excursion
occurred at 12:01 a.m. (technically the next day), and this
would be recorded as a reporting violation since it
occurred on a day other than that reported. Both of the
reporting violations are technical anomalies and have
nothing to do with the failure to supply substantive
information to the NJDEP.

In short, the record demonstrates that although
‘“technical’’ violations of the Clean Water Act were
reported, the nature of the effluent and the excursions
leads to the inescapable conclusion that the excursions
neither harmed nor impaired any of the affiants’
activities. Notwithstanding these facts and without a
thorough analysis of the injury and harm alleged by the
affiants or an examination of whether such harm or
injury is fairly traceable to the effluent, the lower courts
found standing contrary to the requirements of the
Constitution and this Court.

17

Il. THERE IS A CLEAR AND
IRRECONCILABLE CONFLICT BETWEEN THIS
COURT’S STANDARD FOR STANDING AND THAT
APPLIED BY THE THIRD CIRCUIT COURT OF
APPEALS.

This case was evaluated under a lower threshold for
standing than this Court's decision in Lujan JJ, and thus
there is a fundamental conflict between this Court's
holding as to what is required for Article III standing
and the position of the Third Circuit Court of Appeals.
In Lujan II this Court affirmed a long line of cases
which established the following constitutional elements
of standing that must be met in an environmental case:

1. the plaintiff must have suffered injury in
fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical;

2. there must be a causal connection between
the injury and the conduct complained of—the
injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the
independent action of some third-party not before
the court;

3. it must be likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.

112 S. Ct. at 2136. The party invoking jurisdiction has

the burden of establishing these elements. FW/PBS, Inc.
v. Dallas, 493 U.S. 215, 231 (1990).

Respondents in this case can show none of the
requirements for standing as defined by this Court.
Moreover, Respondents were not required to meet the
well-defined standing requirements because the
standards applied by the district court and affirmed by
the Third Circuit reduce these requirements.

18

The district court, relying on the Third Circuit's
decision in PIRG v. Powell Duffryn Terminals Inc., 913
F.2d 64 (3d Cir. 1990), cert. denied, 111 S. Ct. 1018 (1991)
held that a plaintiff bringing a citizen suit under the
Clean Water Act need only establish that a defendant
has:

1) discharged some pollutant in concentrations
greater than allowed by its permit;

2) into a waterway in which the plaintiffs have
an interest that is or may be adversely affected by
the pollutant; and

3) this pollutant causes or contributes to the
kinds of injuries alleged by the plaintiffs.

A13, citing Powell Duffryn, 913 F.2d at 72.

This attenuated standard significantly broadens
standing and effectively eliminates the injury in fact and
redressibility requirements. The Third Circuit's
interpretation and application of the constitutional
standing requirements contradicts the standards
repeatedly articulated by this Court and most recently
reaffirmed in Lujan I].

The lower courts rejected the notion that there
needed to be injury in fact or that it be fairly traceable
to MEI’'s actions. Further, the alleged injuries are not
redressed as a result of the decision, but are exacerbated
because 100% of MEI’s effluent is discharged into the
Delaware River where the affiants recreate. The three
part test applied by the lower court and affirmed by the
Third Circuit did not require a ‘‘concrete or
particularized’’ injury, nor does it as a practical matter
demonstrate the injury to be fairly traceable to actions
of MEI.

The same analysis applies to each of the affiants’
allegations of harm. A35-A47. Each of the affiants state
that they enjoy certain recreational activities along the

19

Delaware and Raritan Canal and the Delaware River.
None of the affiants state that they use the Wickecheoke
Creek for their recreational activities. Rather, all of their
activities are along the Canal and the River. These
activities include walking, hiking, studying nature,
picnicking, boating, skiing and fishing. A35-A47.
The affiants state that their enjoyment of these
activities is affected to the extent that they know the
waterways in or near which they conduct their activities
contain pollution. A35-A47.

However, an ideological interest in a matter is not
enough for standing. Sierra Club v. Morton, 405 U.S. at
739 (‘a mere ‘interest in a problem,’ no matter how long-
standing the interest and no matter how qualified the
organization is in evaluating the problem, is not
sufficient. . .’’). Although this Court in Morton recognized
that harm to aesthetic and recreational interests is
sufficient to confer standing, the affiants do not
establish how any of their activities are affected by
MEI’s effluent or the violations. Each of the affiants
allege only generalized and generic environmental
concerns and fears regarding the River and Canal.
Therefore, Respondents have failed to allege any concrete
or particularized injury as required by this Court. It is
insufficient for a plaintiff to allege harm because of a
refusal to recreate in waters that are perceived to be
polluted. A plaintiff must establish how they are injured
in order to satisfy the injury requirement. In this case,
Respondents’ affiants did not and could not allege a
particularized injury since MEI’s effluent is incapable of
harming Respondents or the environment.’
7In Sierra re lub v. Morton, the complaint alleged that plaintiffs’
enjoyment of Sequoia National Park would be impaired because the

proposed ski resort would destroy or otherwise adversely affect the
scenery, natural and historic objects and wildlife of the park. 405 U.S.

(Footnote continued on following page.)

a

20

For example, the affidavit of Chaim Gold submitted
by Respondents alleges that he cannot swim in
‘“polluted’’ waters because it aggravates his psoriasis.
A40. These allegations are not tantamount to the injury
in fact requirement of Article III. First, complaining
about “‘polluted’’ water is complaining about a potential
universe of pollutants most of which are wholly unrelated
to anything contained in MEI’s effluent. Second, salt
water is a recognized treatment for psoriasis and
therefore MEI’s effluent is incapable of causing the
injury Mr. Gold alleges. Mr. Gold cannot be threatened
by an injury that is technically incapable of occurring.
Therefore, Mr. Gold has not satisfied the injury in fact
requirement. This Court has_ recognized _ that
“hypothetical” or “‘conjectural’’ injuries are insufficient
to confer standing. Lujan IJ, 112 S. Ct. at 2136. Mr.
Gold’s psoriasis cannot be aggravated by anything that
MEI discharges. His skin is only exposed to the MEI
materials when water skiing in the Delaware River some
fifty miles from the MEI discharge into the Creek. There
is no doubt that the concentration of the MEI material is
insignificant at that point and could have no negative
effect on Mr. Gold. Moreover, all of the salt excursions
occurred in the Canal and not the River.

The connection of thermal excursions to any injury
alleged by Mr. Gold or the other affiants is even more
tenuous since the effluent entered the Creek at the same
temperature of the Creek. Therefore, the excursions
could have no impact on Mr. Gold’s skin condition, not
to mention the fact that his water-related activities were
conducted fifty miles away.

(Footnote continued from preceding page.)

at 734. This Court held that this type of harm may amount to an
‘injury in fact,’’ but denied standing because plaintiffs failed to show
that they would personally be affected. This differs from this case,
where Respondents have failed to allege any actual harm they have or
could suffer as a result of MEI's discharges.

21

A similar analysis can be done for TOC. The organic
carbon in the effluent is similar to the same organic
material present in the waterways in the most pristine
state of nature. The MEI TOC would be quite
insignificant and, in fact, would be undetectable in the
vast volumes of the Delaware downstream.

Nonetheless, the lower courts refused to accept the
injury in fact requirement. Moreover, since the matter
was presented to the lower court in the context of a
motion for summary judgment, it had to construe the
evidence in favor of MEI and assume that there was no
injury in fact. The lower court refused to acknowledge
that the injury in fact standard was relevant; it did not
require a statement of particularized injury, but simply
held that standing was appropriate for Mr. Gold because
he states that he cannot swim in polluted waters due to
his psoriasis, although he could swim in the waters if
they were clean. A40.

The lower court also rejected the notion of
traceability: ie, was the Respondents’ injury in fact
caused by the conduct of MEI. The Third Circuit’s view
is that whether or not the plaintiff's injury was caused
by the defendant is irrelevant as long as the pollutant
‘causes or contributes to the kinds of injuries alleged by
the plaintiffs.” Powell Duffryn, 913 F.2d at 72. This
standard was once again reaffirmed by the Third Circuit
sub silentio in this case. This position conflicts directly
with the requirement of this Court that the harm must
be a direct result of the defendant’s action, not those of a
third party. Lujan IJ, 112 S. Ct. at 2136.

The dialogue in the Third Circuit between
Respondents’ counsel and the panel during oral
arguments made it clear that Respondents would not
have standing on the facts alleged if they were required

22

to show that MEI’s material, in fact, resulted in their
alleged injury. Judge Alito pointed out to Respondents’
counsel that his staff had undertaken an effort to
quantify the extent of the impact of the MEI salt
discharge, and concluded that the impact on the stream
was less than discharging some very pricey bottled
mineral waters such as ‘‘Polinaris’”’.

Judge Alito further questioned Respondents’ counsel
as to how it could demonstrate any impact of the
effluent many miles downstream in the Delaware
River. Arguing that it was the purpose of the Clean
Water Act to force everyone to “zero discharge’ because
“pollution is harmful’, counsel conceded _ that
Respondents would be unable to demonstrate standing if
the more stringent standards had to be met. This Court
makes it very clear that if there is no harm in fact, there
can be no traceability, and if the defendant who caused
the harm is not before the court, then there can never be
redressibility. The Respondents are not before the court
righting a wrong to them personally, but forcing the
court to usurp the role of the executive by undertaking
what is in effect an enforcement action.

This is exemplified by Ms. Howat, who claims a
concern about her ability to recreate and study nature
without defining how her interests are affected. A46. The
MEI TOC was the natural consequence of a habitat of
migrating geese and Ms. Howat would have been
exposed to vastly higher amounts of the same materials
in Montezuma National Wildlife Preserve or Yellowstone
National Park. It is hard to understand how her ability
to study nature is impaired.

23

The result is that if the affiants are really being
harmed by some pollution in the waterways, that harm is
gontinuing and this lawsuit is totally irrelevant to that
harm. As is obviously the case, the Third Circuit
doctrine has permitted persons who are suffering no
harm at all to become the vehicles for environmental
organizations to implement their political agenda and
fund their captive law firms. The Respondents here are
attempting to “convert the judicial process into ‘no more
than a vehicle for the vindication of the value interests of
concerned bystanders’,”’ contrary to the mandates of this
Court. Valley Forge, supra, 454 U.S. at 473, quoting in
part United States v. SCRAP, 412 U.S. 669, 687 (1973).

24

III. THIS COURT SHOULD GRANT THIS
PETITION BECAUSE THE THIRD CIRCUIT IS
FULLY AWARE THAT ITS POSITION IS
INCONSISTENT WITH THE CONSTITUTION AND
THE POSITION OF THIS COURT AND IT HAS
PROMULGATED A CONSTITUTIONAL STANDARD
THAT SETS IT APART FROM OTHER CIRCUIT
COURTS IN THE COUNTRY.

The lower court’s decision relies on the reasoning of
the Third Circuit in Powell Duffryn, supra. Yet, even in
Powell Duffryn, the Third Circuit knew that its holding
was inconsistent with the constitutional doctrines for
standing that had been promulgated by this Court. In a
concurring opinion, Judge Aldisert leaves little doubt
that the Third Circuit’s position in Powell Duffryn was a
departure from this Court’s historical position when he
stated:

I join in the opinion of the court and write
separately only to express a nagging doubt about
standing.

Throughout my extensive preparation of this case
including close attention at argument and discussion
with my colleagues at conference, I was persuaded
that the member/plaintiffs had failed to show an
actual injury that was traceable to the permit
violations. I am now willing to join my colleagues’
view. But I feel somewhat like Lord Byron’s fair
maiden in Don Juan, c 1, dedication cxvii,

A little more she strove, and much repented, And
whispering ‘‘I will ne’er consent’’—consented.

913 F.2d at 83.

In this case, Respondents used the same boilerplate
form affidavits that were used in Powell Duffryn.
However, unlike Powell Duffryn, standing was held to

25

exist on a motion for summary judgment and, therefore,
MEI was unable to directly demonstrate insufficiencies
of the affidavits. Nonetheless, the Third Circuit accepted
those averments even though Judge Aldisert recognized
that they were insufficient to meet the requirements of
Lujan v. National Wildlife Federation, 497 U.S. 871, 110
S. Ct. 3177, 111 L. Ed. 2d 695 (1990) (hereinafter “Lujan
,*

The [United States Supreme] Court insisted that
affidavits of the member/plaintiffs show. that the
“injury [the affiant] complains of (his aggrievement,
or the adverse effect upon him) falls within the ‘zone
of interests’ sought to be protected by the statutory
provisions whose violation forms the legal bases for
his complaint.’’ The Court directed us not to
“lassume] that general averments embrace the
‘specific facts’ needed to sustain’’ standing. If such
are the Court’s requirements to prove standing
under a statute, it follows, a fortiori, that the Court
requires some stringency in meeting Article III
standing, the issue before us here. Nevertheless, |
still am inclined to find standing. Perhaps my wish
to find standing is father to the thought, but in view
of Lujan |v. National Wildlife Federation], 1 hope it
is not, as John Greenleaf Whitter put it, a ‘‘wish
that failed of act.”

913 F.2d at 84 (citations omitted.)

Since Judge Aldisert’s comments, this Court has
revisited the issue of Article III standing as it relates to
environmental cases in Lujan II, which explicitly
addressed the issue of standing in the context of Article
III. Lujan II did not reduce the stringency of the
standing requirements. On the contrary, it reaffirmed the
standards that Judge Aldisert conceded were not met in
Powell Duffryn, and were clearly not met in this case.
The Third Circuit affirmed without a written opinion

26

because, in MEI’s view, there is no way that the Third
Circuit can reconcile its decision with the standards that
this Court has stated must apply.

The Third Circuit has apparently reached the
conclusion that the essential separation of powers which
is the hallmark of our form of government and the basis
of the standing requirement is not going to apply within
the realm of its jurisdiction, and that standing is a mere
abstract formality that is satisfied by only a ‘“‘gossamer
case. As this Court clearly stated in Lujan IJ, the
Congress may not by statute transfer the authority of
the executive to the courts. 112 S. Ct. at 2145.

Further, Congress does not have the authority to
override the Constitutional standing requirements. The
Third Circuit's position is that citizen-suit plaintiffs have
automatic standing wherever there is a permit violation.
Indeed, Judge Aldisert noted in his concurring opinion in
Powell Duffryn, 913 F.2d at 84, his concern ‘‘that this
enthusiasm has led environmental organizations and
citizen plaintiffs to mistakenly believe that they have
standing to sue any time a discharge permit is violated.”’
The Third Circuit in Powell Duffryn acknowledged that
the Clean Water Act confers standing to the limits of the
Constitution, 913 F.2d at 70 n.3, and yet ignored what
this Court has interpreted those limits to be.

In this case, as in Powell Duffryn, there is little
doubt that the Respondents’ organizations have decided
that the government’s implementation of the Clean
Water Act is not consistent with its views as to what
serves the public interest. As _ indicated earlier,
Respondents’ counsel had expressed their view that no
discharge should be permitted and that it is their view
that the private citizen suit is the mechanism by which it
will seek to obtain that objective by seeking penalties for

74 |

activities that cannot be shown to cause harm. This
policy of creating the lawsuit and then looking for an
injury to justify it is precisely what Judge Aldisert
identified in Powell Duffryn and clearly what is taking
place in this case:

I see PIRG and FOE in the position of the old-time
vaudeville performer’s ad in Variety: “Have tux, will
travel.” PIRG and FOE advertised: ‘‘Have case,
need live-bodied members/plaintiffs."’ The questions
for this court are: Were the recruited live bodies
sufficiently injured to sustain this action, or more
specifically, was theirs an ‘‘injury [that] fairly can be
traced to the challenged action,’ or otherwise
stated, did they ‘‘show injury in fact resulting from
the action which they seek to have the court
adjudicate?’

Maybe the wrong plaintiffs were recruited. Or,
perhaps the plaintiffs were not sufficiently coached
before their depositions. Whatever the case,
constitutional standing is a serious question here.

913 F.2d at 84-85 (citation omitted.)

The quesiton of standing is far weaker in this case
than Powell Duffryn. For example, in Powell Duffryn,
Judge Aldisert acknowledges that there is injury in fact.
Citing Cheryl Cummings and the dismal condition of the
Kill Van Kull, Judge Adlisert points out that Ms.
Cummings said her enjoyment of the Kill Van Kull Park
has been diminished because of ‘‘a film’’ on the water
which is “sometimes like a rainbow or sometimes like
greenish-yellow.” 913 F.2d at 87. In her deposition,
Judge Aldisert points out that Ms. Cummings concedes
that had the allegations of the lawsuit been explained to
her she would not have been able to join it. Jd.

28

In this case, the Respondents’ affiants never
acknowledged the existence of any sign of pollution. In
fact, the stipulated facts from the Limnological Study
indicated that the impact of the MEI effluent on the
Creek was essentially undetectable miles above the
closest location that any of the affiants had ever come.
Moreover, by resolving the matter on summary
judgment based on affiants never disclosed as potential
witnesses before the close of discovery, the lower court
effectively foreclosed any inspection of the underlying
claims. There can be little doubt after the most cursory
review of the facts that the Third Circuit has decided
that it is unhappy with the actions of the enforcement
agencies and has decided that, notwithstanding the
proscription of this Court, that it will usurp the role of
enforcement.

Although the Third Circuit has attempted to modify
its language so the conflict with this Court’s decisions
and Article III is not so apparent, the conclusion that
there is a conflict is inescapable. After reviewing the
testimony in Powell Duffryn and concluding that there
was no link between the alleged injuries and any act of
the defendant, Judge Aldisert concluded as follows:

I believe that the foregoing (absence of traceability)
is a fair summary of the evidence of the injuries and
the ‘injury in fact resulting from the action they
seek to have the court adjudicate.’ Is it enough?
I'm not sure. Were this not an environment{al] case,
it certainly would not be. I come down on the side of
standing with stated qualms that are soothed
somewhat by the notion that the evolving precepts
of standing are perhaps expanded a bit when at
stake are the great public policy considerations of
insults to our environment.

913 F.2d at 89 (citation omitted) (emphasis added).

29

In Lujan IJ, this Court failed to placate Judge
Aldisert’s qualms and restated the proposition that
Article III minimums do not vary with the apparent
urgency of the political issue of the moment.
Emboldened by what may appear to be insulation from
review by this Court, the Third Circuit has approved
standing in this case on even more extreme facts than
those that troubled Judge Aldisert. District courts in the
Third Circuit have been so encouraged by the apparent
disregard for Article III requirements that they feel
sufficiently secure that they explicitly reject notions that
this Court has long held as irreducible minimums. See
e.g, SPRIG v. Hercules, Inc. 23 E.R.C. 2081, 2086
(D.N.J. 1986) (‘‘affiants'’ inability to link the pollution of
the river to defendant's activities is irrelevant’); SPRIG
v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1200
(D.N.J. 1985) (holding that Clean Water Act plaintiffs
“having standing to sue because the general public
interest will benefit’. A ‘personalized showing of
redressibility fis] neither appropriate nor necessary.)

In this case, Respondents have not and, indeed,
cannot establish a direct and palpable concrete injury
traceable to MEI’s conduct nor can their alleged injury
be redressed by a favorable ruling. Unless this Honorable
Court grants this Petition, lower courts will continue to
ignore the constitutional requirements and governing
rules of law promulgated by this Court. Accordingly, this
Court's review is warranted.

30

CONCLUSION

For the foregoing reasons, Petitioner Magnesium
Elektron, Inc. requests that this Honorable Court issue a
Writ of Certiorari and reverse the decision of the Third
Circuit Court of Appeals in this case.

Respectfully submitted,

LAWRENCE A. SALIBRA, II

Counsel of Record

JOHN C. TILLMAN

LYNN H. STURGES

ALCAN ALUMINUM CORPORATION

100 Erieview Plaza

Cleveland, Ohio 44114

(216) 523-6918

Attorneys for Petitioner
Magnesium Elektron, Inc.

Al

APPENDIX

JUDGMENT ORDER OF THE UNITED
STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

(Dated December 15, 1992)
No. 92-5161

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PUBLIC INTEREST RESEARCH GROUP OF
NEW JERSEY, INC.; FRIENDS OF THE
EARTH; NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Intervenor-Plaintiff,

Vv.

MAGNESIUM ELEKTRON, INC.,
Appellant.

APPEAL FROM THE UNITED STaTES District Court
FOR THE District OF NEW JERSEY
D.C. Civit Action No. 89-03193
(HONORABLE JOHN C. LIFLAND)

Argued December 8, 1992

Before: SciricA, ALITO and HIGGINBOTHAM,
Circuit Judges.

A2
JUDGMENT ORDER

After consideration of all contentions raised by
appellant, it is

ADJUDGED AND ORDERED that the judgment
of the district court be and is hereby AFFIRMED.

Costs taxed against appellant.
BY THE COURT,

/s/ A. J. SCIRICA
Circuit Judge

Attest:

/si/ SALLY Mrvos
Sally Mrvos, Clerk

DEC 15 1992

A3

DECISION OF THE UNITED STATES
DISTRICT COURT
DISTRICT OF NEW JERSEY

(Decided January 23, 1992)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH GROUP OF
NEW JERSEY, INC., et al,
Plaintiffs,

Vv.

MAGNESIUM ELEKTRON INC.,
Defendant.

34 ERC 2077

[2078] Clean Water Act

National pollutant discharge elimination
system—Permits (® 115.2505)

Enforcement—Citizen suits—Standing (© 115.8020.03)

[1] Citizen groups have standing to bring
enforcement action against chemical company that
violated Clean Water Act discharge permit requirements,
because: (1) affidavits of groups’ members showed that
excessive pollutant discharges threatened their
recreational, health, and environmental interests and
that reporting violations hindered efforts to obtain
information needed to support research and advocacy
work, (2) members’ claims will be redressed if court

A4

grants relief requested in suit, (3) interests that groups
seek to protect are consistent with organizational
purposes of groups, and (4) suit does not require
participation of individual group members.

National pollutant discharge elimination
system— Permits (© 115.2505)

National pollutant discharge elimination
system— Discharge requirements (® 115.2515)

National pollutant discharge elimination
system—Monitoring and reporting requirements

(> 115.2520)

[2] Chemical company is liable for exceeding
limitations for total organic carbon discharges and
violating monitoring and reporting requirements in Clean
Water Act permit, because: (1) monitoring reports
showed that company violated TOC limitations; (2)
company failed to show that reported results were
caused by actual errors in sample tests; (3) even though
company claimed method approved by Environmental
Protection Agency for measuring TOC concentrations
overstated actual amount of organic carbon in samples,
claim is improper where it is effectively challenge to
permit terms that may not be raised in context of
enforcement action; and (4) company does not dispute
that it violated monitoring and reporting requirements.

National pollutant discharge elimination
system—Permits (© 115.2505)

Judicial procedure and review—Remedies (™ 115.9030)

[3] Federal district court will issue injunction to
prevent chemical company from continuing to violate
Clean Water Act discharge permit requirements, even

A5

though company already ceased discharging to receiving
waters, because: (1) citizen groups showed that company
violated permit terms; (2) court finds irreparable harm to
public health, fish, and aquatic life will result if excessive
discharges are allowed to continue; and (3) history of
company's actions and threat that company will resume
discharges because of high cost of sending effluent to
treatment facility suggest that injunction is necessary.

On motion by citizen groups for declaration that
they have standing to bring Clean Water Act suit
against chemical company and for partial summary
judgment on issue of company’s liability for alleged
violations of total organic carbon limits in discharge
permit; motion granted.

Susan J. McGolrick and Monica Wagner, Wash.,
D.C., for plaintiffs.

Lawrence Salibra, Cleveland, Ohio, for defendant.

Before John C. Lifland, district judge.

Full Text of Opinion*

Plaintiffs, Public Interest Research Group of New
Jersey (““PIRG’’) and Friends of the Earth (‘‘FOE”’) (also
referred to collectively as “‘plaintiffs’’) move for a
declaratory judgment that they have standing to litigate
this action, and for partial summary judgment on the
issue of liability against defendant Magnesium Elektron,
Inc. (“MEI”).

* The court designated this opinion as ‘“‘Not for Publication.”’

A6
BACKGROUND

Plaintiffs are non-profit corporations which seek
injunctive relief and civil penalties for MEI’s violations
of its National Pollution Discharge Elimination
System/[2079] New Jersey Pollution Discharge
Elimination System (“NPDES/NJPDES”) permit. This
permit was issued pursuant to §402(a) of the Federal
Water Pollution Control Act, 33 U.S.C. §1342(a), (the
“Clean Water Act’’ 33 U.S.C. §1251 et seg.) (hereinafter
“the Act’). MEI is a New Jersey corporation engaged in
the business of zirconium chemical production.

The Act was enacted to “restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters’ through strict limits on discharges of
pollutants. 33 U.S.C. §1251(a)(1). The Act prohibits all
discharges into navigable waters without a permit, which
limits the type and concentrations of pollutants that may
be discharged. Compliance with the permit is deemed
compliance with the Act. 33 U.S.C. §§1342(k) and
1344(p). As a condition of the permit, the permit holder
must install and maintain equipment to test its
discharges and report the results to the Environmental
Protection Agency (or the state agency) on Discharge
Monitoring Reports (““‘DMRs’’). 40 ©.F.R. §$122.41(j) and
122.48 (1989).

33 U.S.C. $1365 entitled “Citizen Suits” provides:

(a) Except as provided in subsection (b) of this
section ... any citizen may commence a civil action
on his own behalf (1) 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...

A7

In 1976 the EPA issued to MEI permit number
0027537, which authorized it to discharge limited
quantities of pollutants into the Wickecheoke Creek (‘‘the
creek’). The permit set forth discharge limitations and
monitoring and reporting requirements for various
pollutants. The EPA thereafter delegated responsibility
for administering the NPDES program to the New
Jersey Department of Environmental Protection
(‘NJDEP”). NJDEP issued to MEI NJPDES permit
number 0027537 in 1984, which authorized MEI to
discharge limited amounts of pollutants into the creek.
See Plaintiffs’ Exhibit 1. This permit expired on
November 30, 1989, and no new permit has been issued
as of this date. By law, the expired permit remains in
effect until a new permit is issued. N.J.S.A. §52:14B-11,
N.J.A.C. §$7:14A-2.3.

MEI discharges wastewater into the creek, which
flows into the Delaware and Raritan Canal
approximately 8.5 miles downstream from MEI’'s
discharge point. The Creek and the Canal are hereinafter
referred to collectively as the ‘waterways’. The
Delaware and Raritan Canal is part of the Delaware and
Raritan Canal State Park. The New Jersey Water Supply
Authority draws water from the Canal to supply potable
water to several municipalities in New Jersey. Plaintiffs
state that the Canal is a source of drinking water for
approximately 1,000,000 people in central New Jersey.
MEI does not dispute that the Creek and the Canal are
used for recreational purposes such as fishing, boating
and swimming. Moreover, the land adjacent to the
waterways is used for hiking, exhibits and concerts.

MEI has stipulated to liability for violations from
1984 to 1989, including the following: 41 violations of the
discharge limitations for total dissolved solids, sodium,

A8

temperature and oil; 76 violations of the monitoring
requirements; 4 violations of the reporting requirements;
and 2 bypass violations. See Plaintiffs’ Exhibit 3.' This
motion involves 27 alleged violations of discharge
limitations for Total Organic Carbon (“‘TOC’’) and MEI's
failure to report and monitor as required by its permit, in
violation of §§301, 308 and 402 of the Act. The permit
limits TOC discharges to 20mg/liter to be monitored one
day per month and reported to NJDEP no later than the
25th day of the month. See Plaintiffs’ Exhibit 1; and
Plaintiffs’ Exhibit 5 which lists the TOC violations.

DISCUSSION
I. Standing

PIRG and FOE move for a declaratory judgment
that they have standing to litigate this action. An
organization has standing where:

1) the organization’s members would have standing
to sue on their own,

[2080] 2) the interests the organization seeks to
protect are germane to its purpose, and

3) neither the claim asserted nor the relief

requested requires individual participation by its

members.
Public Interest Research Group of New Jersey v. Powell
Duffryn, 913 F.2d 64, 70 [31 ERC 1905] (3d Cir. 1990),
citing Hunt v. Washington Apple Advertising Comm'n,
432 U.S. 333, 343 (1977); Automobile Workers v. Brock,
477 U.S. 274 (1986). In Powell PIRG and FOE brought
suit pursuant to 33 U.S.C. §1365(a) against a permit
holder for violations of its operating permit under the

‘MEI also stipulated to 50 additional violations occurring prior to
1984 which plaintiffs do not pursue because of the statute of
limitations.

A9

Clean Water Act. That defendant opposed the plaintiffs’
motion for summary judgment on liability, in part, on the
basis that PIRG lacked standing. The defendant argued
that PIRG’s members lacked standing on their own
under the first prong of the Hunt test. The Third Circuit
noted that the Act confers standing to the limits of the
Constitution. Jd. at 70 n.3. The court stated that
individual standing requires that a plaintiff show:

1) an actual or threatened injury suffered as a
result of the conduct of the defendant,

2) which is “fairly traceable to the challenged
action’, and

3) “is likely to be redressed by a_ favorable
decision’’.
Powell, 913 F.2d at 70, quoting Valley Forge Christian

College v. Americans United for Separation of Church
and State, 454 U.S. 464, 472 (1982).

A. Individual Standing Of Plaintiffs’ Members

MEI argues, as did the defendants in Powell, that
plaintiffs have failed to establish that their members
suffered an actual injury that can be traced directly to
its discharge of effluents. MEI argues that its violations
are ‘“‘technical” in nature and too minor to contribute to
plaintiffs’ injuries, and that any pollution of the
waterways is caused by other sources, such as the sun
and duck droppings. MEI also asserts that plaintiffs
have not established that their injuries would be
redressed by a favorable decision.

MEI does not dispute any facts concerning
plaintiffs’ standing. Rather, MEI contests the legal
standards by which standing is determined.

Al0

1. Actual Injury

In support of their position that they have standing,
PiRG and FOE submit affidavits of their members. See
Plaintiffs’ Exhibits 1-5. Plaintiffs’ members state that
they live nearby and use the affected waterways for
recreation, that they avoid eating fish or drinking the
water that originates from the waterways due to their
pollution, that they rely on PIRG and FOE to protect
their interest in the waterways, and that they use the
waterways and the surrounding land to hike, fish, boat,
study nature and swim. One affiant states that he has
high blood pressure which requires him to limit his
sodium restriction (an admitted effluent). See Exhibit 2
4-6. This affiant also states that he cannot swim in the
polluted waters due to his psoriasis, although he could
swim in the waters if they were clean. /d.

Plaintiffs provide reports which state that excess
Total Organic Carbon (‘“TOC’’) depletes the amount of
dissolved oxygen in the water, which in turn affects the
survival of fish and other aquatic life. See Plaintiffs’
Exhibits 8, 9 and 11 to their Summary Judgment
motion. Plaintiffs also provide a report by the New
Jersey Department of Environmental Protection which
states that the Wickecheoke Creek has been deemed to
have ‘‘moderately degraded fisheries’’ due to wastewater
discharges. See Plaintiffs’ Exhibit 12 attached to their
Reply Brief on standing.

MEI characterizes the affiants’ injuries as ‘‘general
and generic environmental concerns’’ which are
insufficient to establish a direct injury. The court
disagrees. In Powell the organizations presented
affidavits of their members which stated that they
resided in the vicinity or owned property or recreated on

All

or near the waterway in question. The members stated
that they were bothered by the smell and oily sheen of
the water and stated that they would boat, fish, or swim
in the water if it was cleaner. The Third Circuit held that
the members stated sufficient injury to satisfy the
Supreme Court's requirement in Sierra Club v. Morton,
405 U.S. 727 [3 ERC 2039] (1972) (holding that harm to
aesthetic and recreational interests is sufficient to confer
standing). Powell, 913 F.2d at 71. The Powell court noted
that the interests at stake need not be large to be
cognizable. /d.

{1} As in Powell, plaintiffs’ members have
submitted affidavits in which they state that but for the
pollution, they [2081] would swim, drink and fish in the
affected waterways. Chaim and Elaine Gold, among
others, stated that their health has been affected by the
excess discharge of sodium and oil. Julie Howat stated
that she does not drink the water provided to her from
the waterways, nor does she eat fish known to come from
these waters, although she would if the water were
known to be cleaner. These interests are sufficient under
Powell and Morton to show actual or threatened injury
to PIRG’s and FOE’s members.

Nor does the fact that the members live downstream
from MEI’s discharge point affect their standing. As
Judge Thompson noted in Public Interest Research
Group v. Yates Industries, 757 F. Supp. 438, 443 [33
ERC 1142] (D.N.J. 1991), “it is enough to show that
plaintiffs’ members have suffered injuries through
waters directly affected by any illegal discharges.’ To
hold otherwise would enable a polluter to ‘‘avoid suit by
controlling all access to some discrete body of water
which flows into another waterway, ensuring that no

Al2

potential plaintiff gained access to the actual discharge
point, thus giving the polluter free reign to damage
downstream points.” Id.

Plaintiffs also argue that they and their members
have suffered injuries as a result of MEI’s failure to
monitor and report as required by its permit. Plaintiffs
assert that the purpose of the monitoring and reporting
requirements is, in part, to assist the public in
enforcement of the statute. Therefore, MEI's failure to
monitor and report as required by its permit prohibited
plaintiffs from bringing suit. See Plaintiffs’ Exhibits 5
and 6. Plaintiffs also argue that due to MEI’s failure to
monitor and report its discharge levels, plaintiffs were
unable to obtain accurate information to conduct
research, prepare reports and make proposals and
recommendations to the State Legislature, etc. Jd.

Violations of the Act include failure to monitor or
report as required by the permit and courts have
permitted citizen suits to enforce the monitoring and
reporting aspect of the Act. See Yates, 757 F. Supp. at
442 and 448; Sierra Club v. Simkins Industries, Inc., 617
F. Supp. 1120, 1132 [23 ERC 1018] (D.Md. 1985), aff'd,
847 F.2d 1109 [27 ERC 1881] (4th Cir. 1988), cert. denied,
109 S.Ct. 3185 [30 ERC 1064] (1989); Menzel v. County
Utilities Corp., 712 F.2d 91, 94 [19 ERC 2193] (4th Cir.
1983). Therefore, the court concludes that plaintiffs have
demonstrated that they are injured by MEI’s failure to
monitor and report as required by the Act.

_2. Fairly Traceable

MEI argues that plaintiffs’ injuries are not directly
traceable to its violations, claiming inter alia that its
effluents did not cause the pollution.

Al3

The Third Circuit has held that the causation
requirement of the second prong of Valley Forge does
not require plaintiffs to show ‘‘to a scientific certainty
that defendant's effluent, and defendant's effluent alone,
caused the precise harm suffered by the plaintiffs’.
Powell, 913 F.2d at 72. Instead, plaintiffs ‘“‘need only
show that there is a ‘substantial likelihood’ that
defendant's conduct caused plaintiff's harm’’. Jd. quoting
Duke Power Co. v. Carolina Environmental Study Group,
Inc. 438 U.S. 59, 75 n.20 [11 ERC 1753] (1978). Under
the Clean Water Act, this likelihood may be establish by
demonstrating that:

1) the defendant has discharged some pollutant in
concentrations greater than allowed by its permit;

2) into a waterway in which the plaintiffs have an
interest that is or may be adversely affected by the
pollutant; and

3) that this pollutant causes or contributes to the
kinds of injuries alleged by the plaintiffs.

Powell, 913 F.2d at 72.

Plaintiffs assert that they have established discharge
of pollutants in concentrations greater than allowed by
MEI’s permit through MEI’s stipulations of liability and
its DMRs, which establish discharges in excess of its
permit limitations. MEI argues that the violations were
“technical” and insufficient to cause plaintiffs’ injuries.
This identical argument was rejected by Judge
Thompson in Yates, 757 F. Supp. at 443 (noting that this
argument is contrary to the intent of the Act) and Judge
Ackerman in the District Court decision in Powell, 627
F. Supp. 1074, 1083 (D.N.J. 1986). See also SPIRG v.
Tenneco Polymers, Inc., 602 F. Supp. 1394, 1397 [22
ERC 1327] (D.N.J. 1985) (‘The effect of the defendant’s

Al4

argument would be to prohibit any citizens’ suits against
violators of the FWPCA unless the violation was so
great or the waterway so small that the direct impact of
the discharges could be pinpointed. This interpretation of
the [2082] FWPCA would be directly contrary to its
intent. ’’)

Pliantiffs’ members have submitted affidavits which
establish their interest in the waterways into which MEI
discharges its effluents and the effects on their interests.
As noted supra, plaintiffs provide evidence that the
effluents, inter alia, threaten (and in fact have already
diminished) the aquatic life in the waterways. See also
Yates, 757 F. Supp. at 443 (excess copper, lead, cadmium
and zinc can harm aquatic life). Therefore, plaintiffs meet
the second requirements of Powell.

Finally, plaintiffs provide evidence that the effluents
discharged by MEI cause or contribute to the kinds of
injuries alleged by plaintiffs. For example, the excess
sodium causes Chaim Gold to avoid drinking the water
due to his high blood pressure. The oil discharge
prevents Mr. Gold from swimming in the water. The
excess TOC causes several of plaintiffs’ members to
avoid drinking the water and eating fish caught in the
waterways.

Plaintiffs also state that MEI’s failure to monitor or
report its discharge as required by its permit resulted in
plaintiffs’ inability to have correct figures with which to
do research or bring suit to enforce the Act. Citizens
depend upon the monitoring and reporting by the permit
holder to bring suits to enforce the Act, and without his
information plaintiffs’ cannot enforce the Act as ‘‘private
attorneys general’. See Middlesex County Sewerage
Authority v. Sea Clammers, 453 U.S. 1, 17 [16 ERC
1118] (1980). Plaintiffs assert that their subsequent

Al5

independent review of MEI’s figures established 30
additional violations which plaintiffs were unable to
allege in the complaint due to MEI’s failure to report
them. This injury, if proved, would be traceable to MEI's
failure to monitor and report as required by its permit.

~)

3. Redressibility

The last Valley Forge test for individual standing is
that the plaintiff's injuries are ‘‘likely to be redressed by
a favorable decision.’ Powell, 913 F.2d at 73, quoting
Valley Forge, 454 U.S. at 472. The inquiry focuses on the
relationship between the plaintiff's injury and the
judicial relief sought. Powell, 913 F.2d at 73. The court
noted that where a plaintiff alleges harm to the water
quality _ because a defendant violated its permit
limitations, an injunction would redress the injury by
forcing the defendant to comply with its permit. Jd. The
plaintiff ‘‘need not show that the waterway will be
returned to pristine condition in order to satisfy the
minimal requirements of Article III.’ Jd.

The Powell court went on to note the connection
between civil penalties and the injuries to the plaintiffs.
‘‘Where Congress has expressly granted a right of action
and plaintiffs have shown ‘a distinct and palpable
injury’, plaintiffs ‘may invoke the general public interest
in support of their claim’ ’’. Jd., quoting Warth v. Seldin,
422 U.S. 490, 501 (1975). The court also noted that
penalties will deter the defendant and other permit
holders. Jd. See also Yates, 757 F. Supp. at 444.

As in Powell, the rights of PIRG and FOE members
will be redressed by a favorable decision, which would
force MEI to comply with its permit. Therefore, the
individual members of PIRG and FOE would have a
claim that can be redressed by this court.

Al6

B. Interests Of The Organization

To determine whether PIRG and FOE have standing
to litigate this case, the court must next determine
whether the interests that the organizations seek to
protect are germane to their purpose. Plaintiffs provide
the affidavits of Jeanette Jenkins and Brent Blackwelder
(Plaintiff's Exhibits 5 and 6) which state that their
organizations conduct research, make recommendations
to the legislature, submit comments to the New Jersey
DEP concerning the issuance of permits under the Act,
and initiate citizen-enforcement suits under the Act.
PIRG’s and FOE’s actions to protect their members’
health and recreational, aesthetic and environmental
interests in the surrounding waterways and to enforce
the Act to obtain cleaner waterways are germane to their
purpose as organizations.

C. Individual Participation

The final aspect of the standing test under Hunt
requires a determination of whether the claims asserted
or the relief requested require individual participation by
the organizations’ members. In this case, as in the
redressibility question, plaintiffs seek compliance with
the Act, as well as the imposition of civil damages. This
relief does not require the individual participation of the
members [2083] of FOE or PIRG, since their interests
will be served and redressed by a successful outcome of
the suit.

Therefore, having met the 3 parts of the Hunt test,
PIRG and FOE have standing to litigate on behalf of
their members.

Al7

II. Partial Summary Judgment On Liability

As noted supra, MEI has stipulated to liability for
all permit violations except TOC.

A. TOC

[2] Plaintiffs assert that they are entitled to
summary judgment on liability since they have provided
evidence through MEI’s own DMBs to establish that
MEI exceeded its permit limitations for discharge of
TOC. Government-mandated records are treated as party
admissions to establish civil liability under the Act.
United States v. Ward, 448 U.S. 242 [14 ERC 1673]
(1980). Thus numerous courts have granted summary
judgment on liability based upon violations reported in a
defendant's DMR’s. SPIRG v. PD Oil & Chemical
Storage, Inc., 627 F. Supp. 1074, 1090 [23 ERC 1894]
(D.N.J. 1986), aff'd, 913 F.2d 64 [31 ERC 1905] (3d Cir.
1990); Yates, 757 F. Supp. at 447-8; SPIRG v. Tenneco
Polymers, 602 F. Supp. 1394, 1400 (D.N.J. 1985); Sierra
Club v. Simkins Industries, Inc. 617 F. Supp. 1120
(D.Md. 1985); SPIRG uv. Fritzsche, Dodge & Olcott, 579
F. Supp. 1528, 1538 [20 ERC 1624] (D.N.J. 1984), aff'd,
759 F.2d 1131 [22 ERC 1721] (3d Cir. 1985); Chesapeake
Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp.
440, 452 [22 ERC 1894] (D.Md. 1985); SPIRG v. Georgia-
Pacific Corp., 615 F. Supp. 1419, 1429-30 [23 ERC 1338]
(D.N.J. 1985); PIRG v. GAF Corp., D.N.J., Civil Action
No. 89-2283, November 20, 1990, slip op. pp. 25-28.

As noted supra, a violation of the discharge permit
limitations violates the Act. 33 U.S.C. §1311. Courts have
held defendants strictly liable for such violations. PD
Oil, 627 F. Supp. at 1087; SPIRG v. Georgia-Pacific, 615
F. Supp. at 1429-30; Simkins Industries, 617 F. Supp. at
1128; Chesapeake Bay, 68 F. Supp. at 451.

Al18

While MEI concedes that DMRs may be deemed
admissions for purposes of liability, it asserts that they
are not conclusive proof when challenged, citing Friends
of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532
[22 ERC 1143] (W.D.N.Y. 1984). MEI states that its
DMRs do not accurately reflect the TOC levels of its
discharge because the laboratories performing the tests
failed to purge inorganic carbon from the samples,
resulting in artificially inflated TOC levels. MEI bases
this argument on the affidavit of its former Senior Vice
President Glen McIntyre. See Defense Exhibit B.
McIntyre states that the testing protocol employed by
the laboratories erroneously reported both organic and
inorganic carbon. /d. at 446 and 7.

Some cases in this Circuit have held that summary
judgment cannot be avoided as to liability simply by
challenging the accuracy of the data in the DMRs. PD
Oil, 627 F. Supp. at 1089 (citations omitted). Other
courts have held that laboratory error may be used to
challenge DMRs to oppose summary judgment, but
only where the defendant presents direct evidence of
errors in the actual tests performed which showed a
permit violation. Yates, 757 F. Supp. at 447; Fritzsche,
579 F. Supp. at 1538; Tenneco, 602 F. Supp. at 1400;
SPIRG v. AT & T Bell Lab., 617 F. Supp. 1190, 1205 [23
ERC 1201] (D.N.J. 1985). ‘“‘[I]n light of the strong
evidentiary emphasis placed on DMRs, defendant has a
heavy burden to establish faulty analysis.’’ Yates, 757 F.
Supp. at 447. The burden is not met by “speculation” of
measurement error. Jd. Thus, in Yates the court found
that the defendant's letters outlining its theories of other
causes for the discharges were insufficient to create an
issue of fact to preclude summary judgment, since the
letters did not prove errors which occurred in the actual
tests performed. /d.

Al9

Therefore, the only basis upon which MEI may
oppose summary judgment on liability for TOC
violations as a matter of law in this circuit is to
demonstrate error in the actual tests performed. It has
attempted to do this by the aforementioned affidavit of
Dr. McIntyre, which states that in his opinion the
analytical testing method used by Technion Labs and
OBG Labs, Inc., which analyzed its samples from '84-'89,
did not accurately reflect TOC in its samples since it
erroneously measured total carbon, rather than just
organic carbon. See Defense Exhibit B at 445-6.

Plaintiffs provide the deposition of Omar Baturay
(“Baturay’’) the Vice President of Technion (which tested
11 [2084] samples from ME]I). See Plaintiffs’ Exhibit 12.
Baturay states that Technion employed a_ procedure
which purged inorganic carbon from MEI’s samples. Id.
at 17-18. Plaintiffs also provide an affidavit by Vincent
Pugliese, the Vice President and CEO of Acutest (which
tested 2 of MEI’s samples). Pugliese states that Acutest
likewise employed a test protocol which purged inorganic
carbon from samples tested during the period in which
Acutest tested MEI’s samples. See Plaintiffs’ Exhibit 13
at pp. 1-2. Both labs employ the “compensation method”’
approved by the EPA.

MEI’s_ samples were also tested by a _ third
laboratory, OBG, which tested 14 MEI samples at issue
in this case. In a letter to McIntyre, David Hill, OBG’s
Vice President, stated that OBG did not purge inorganic
carbon from wastewater samples prior to testing. See
Defense Exhibit B. However, Hill states in his deposition
that OBG empioys an EPA-approved method to
compensate for inorganic carbon which subtracts the
inorganic carbon results from the total carbon results to
achieve an organic carbon level. See Plaintiffs’ Exhibit

A20

14 at 15-18. The EPA considers this method (EPA
method 415.1) valid to measure TOC. See 40 C.F.R. Part
136 (cited in MEI’s permit at p. 3, Part I, section (j)(3)-
Plaintiffs’ Exhibit 2).

Contrary to MEI’s assertions, al] the laboratories
measuring the samples at issue followed EPA-approved
methods to compensate for inorganic carbon and render
valid measurements of TOC levels. MEI violated the
TOC limitations contained in its permit in samples
measured by either method. At oral argument on this
issue, MEI’s counsel stated that MEI’s opposition to
summary judgment rests on its belief that the EPA-
approved method employed by OBG and Technion
overstated TOC levels and was inappropriate for MEI’s
wastewater sample. Therefore, MEI does not challenge
the accuracy of the actual measurements performed, as
required by Yates and Fritzsche. MEI has failed to meet
its burden of establishing that the actual tests
performed were inaccurate. See Yates, 757 F. Supp. at
447. Therefore, summary judgment is appropriate.

MEI opposes summary judgment by asserting that
one EPA approved method for measuring TOC levels
overstates TOC in its samples. Thus, MEI asks the
Court to make a determination that one of the EPA-
approved methods for measuring TOC is inaccurate. This
is a decision ill-suited for courts.

Moreover, in Powell the Third Circuit noted that
challenges to the validity of the terms of a defendant’s
discharge permit are not permitted by $509(b)(2) of the
Act, 33 U.S.C. $1369(b)(2). 913 F.2d at 77-78. In Powell
the defendant had argued that it could not be held liable
for its excess discharges since they related only to
continuous dischargers, while the defendant was only an

A21

intermittent discharger. The court rejected this claim,
noting that $1369 prohibited the court from entertaining
the issue, notwithstanding its merits. Jd.* The defendant
had had an opportunity to challenge the conditions of its
permit through the administrative process and the state
court system within 30 days after issuance of the permit,
but failed to do so. Hence, the defendant was barred
from raising the claim in an enforcement action, since it
had ‘‘forever’’ lost the right to do so. Id. at 78. Similarly,
in Yates, Judge Thompson found that the defendant's
argument that DEP officials had orally promised that its
permit would not be enforced by its terms was, in effect,
a challenge to the terms of the defendant's permit, which
was prohibited by $1369. 757 F. Supp. at 445-46.

MEI's permit states that test procedures for
pollutants, including TOC, shall conform to the methods
set forth in regulations promulgated pursuant to §304(g)
of the Act. See Plaintiffs’ Exhibit 1, p. 8 to Brief in
Support of Summary Judgment. The regulation enacted
pursuant to §304(g) sets forth the two aforementioned
EPA-approved methods for measuring TOC. By
challenging the EPA-approved method of measuring
TOC contained in its permit, MEI is directly challenging
its permit. If MEI wished to challenge EPA’s standard
procedures for measuring TOC as inappropriate for its
wastewater, it should have done so within 30 days of the
issuance of it permit rather than in the present
enforcement action. See Powell, 913 F.2d at 78; Yates,
757 F. Supp. at 445; PD Oil, 627 F. Supp. at 1088.

? §1369(b)(2) provides that challenges to permits issued under the Act
“shall not be subject to judicial review in any civil or criminal
proceeding for enforcement.”

A22

As an alternative basis for opposing summary
judgment, MEI states that [2085] there are issues of fact
as to whether it caused the high TOC levels. As noted
supra, a violation of the permit is a violation of the Act.
33 U.S.C. $1311. Any discharge not pursuant to a permit
it automatically a violation of the Act. As Judge
Ackerman noted in PD Oil, Congress has determined
what effluent levels are violative of the Act and it is not
the court's role to reexamine this issue. 627 F. Supp. at
1083. Accord NRDC v. Texaco, 719 F. Supp. 281, 288-89
{30 ERC 1145] (D. Del. 1989), vacated in part on other
grounds, 906 F.2d 934 [31 ERC 1605] (3d Cir. 1990). As
noted in Tienneco Polymers, the legislative history of the
Act establishes Congress’ intent that no lengthy fact-
finding occur during enforcement procedures.

[T]he bill ... establishes and makes precise new
requirements imposed on persons and subject to
enforcement. One purpose of these requirements is
to avoid the necessity of lengthy fact finding
investigations at the time of enforcement.
Enforcement of violations of requirements under
this Act should be based on relatively narrow fact
situations requiring a minimum of discretionary
decision making or delay.

Tenneco Polymers, 602 F.Supp. at 1400, quoting S. Rep.
No. 414, 92nd Cong., lst Sess. 64, reprinted in 1972 U.S.
Code Cong. & Ad. News 3668, 3730. Thus, once it has
been established that the defendant has discharged a
pollutant in excess of its permit levels, unless the
defendant can establish that the testing was inaccurate,
summary judgment is appropriate. See Yates; PD Oil;
Tenneco; Chesapeake Bay.

For the aforementioned reasons, summary judgment
is appropriate on liability as to the 27 discharges of TOC.

A23

B. Reporting and Monitoring

Plaintiffs assert that MEI failed on five occasions to
report violations of the discharge limitations in its
permit on its DMRs, which was subsequently discovered
by plaintiffs upon examination of MEI’s records.
Plaintiffs assert that this failure resulted in their
inability to assert an additional 30 discharge violations
in the complaint.

Plaintiffs assert that MEI failed on 76 occasions to
monitor pursuant to its permit, within the time period
required by the permit. As a result, they allege that it is
impossible to know the level of MEI’s discharges at
those times, which inhibits plaintiffs’ enforcement
activities under the Act.

MEI's permit requires it to monitor its discharge
once a month and report any violations in its DMRs. See
Plaintiffs Exhibit 2, p.2, Part I. MEI must certify that
the submitted information is ‘‘true, accurate, and
complete.’ Jd. at 3, Part I, section (k)(4). MEI does not
oppose plaintiffs’ summary judgment motion as it relates
to its monitoring and reporting violations. Therefore,
summary judgment is appropriate as to these violations.

III. Permanent Injunction

Plaintiffs request a permanent injunction restraining
MEI from continuing to violate its permit. Plaintiffs cite
cases in which injunctive relief was granted upon a
finding that the defendants exceeded the discharge limits
in their permits.* The Third Circuit, in affirming the
permanent injunction entered in Powell, narrowed the

>For example, SPIRG v. Monsanto, 29 ERC 1078 (D.N.J. 1988).
Powell 1, 720 F.Supp. 1158 (D.N.J. 1989); PIRG v. Witco Chemical
Corp., 31 ERC 1571 (D.N.J. 1990); Yates, 757 F.Supp. 438, 454-55
(D.N.J. 1991).

A24

scope of the injunction to eliminate injunctive relief
against violations of future permits. Powell, 913 F.2d at
83. Accordingly, the court will not restrain MEI from
violating any new permit. As to the existing permit

A court may only enter a permanent injunction
‘after a showing of both irreparable injury and
inadequacy of legal remedies, and a balancing of
competing claims of injury and the public interest’.

Powell, 913 F.2d at 82, quoting Natural Resources

Defense Council v. Texaco Refining and Marketing, Inc.,
906 F.2d 934, 941 (3d Cir. 1990).

A. Success On The Merits

[3] Since the court will grant summary judgment on
the 27 TOC violations and the monitoring and reporting
violations, plaintiffs have achieved success on the merits.

B. Irreparable Injury
1. Likelihood Of Irreparavle Injury

In Amoco Production Co. v. Village of Gambell, 480
U.S. 531, 545 (1987), the Supreme Court stated:

[2086] Environmental injury, by its nature, can
seldom be adequately remedied by money damages
and is often permanent or at least of long duration,
i.e. irreparable. If such injury is sufficiently likely,
therefore, the balance of harms will usually favor the
issuance of an _ injunction to. protect the
environment.

In Texaco Refining the Court of Appeals for the Third
Circuit remanded the case to the district court since it
had failed to apply traditional equitable principles to its
injunctive relief analysis. However, the Court of Appeals
advised the district court that it should bear in mind the
aforementioned language in Amoco. Texaco, 906 F.2d at
94.

A25

Plaintiffs assert that Congress has determined that
discharges of pollutants into the nation’s waterways in
excess of the levels set by the EPA a fortiori cause harm.
As noted in Yates, the purpose of the Act is to reduce the
total amount of effluent discharges, and injury occurs
when permit limitations on discharges are exceeded.
Yates, 757 F.Supp. at 454 (citations omitted).

Plaintiffs assert that there is an immediate threat of
irreparable injury to aquatic life in the affected
waterways, as well as to the health, recreational and
aesthetic interests of its members. In support, plaintiffs
provide an EPA report which states that the Creek has
been affected by the discharges, and EPA reports which
detail the harm which results from the various pollutants
discharged by MEI. See Plaintiffs’ Exhibits 12 (in Reply
Brief on Standing), 8 and 11 (of initial moving brief).

In the 1990 State Water Quality Inventory Report,
the Wickecheoke Creek is described as ‘‘moderately
degraded”’ due to wastewater discharges. See Plaintiffs’
Exhibit 12 at 109, 110 (in Reply Brief on Standing).

MEI has violated its permit discharge levels for total
dissolved solids; sodium, temperature, oil and TOC.

An EPA report notes the toxicity of oils to aquatic
organisms at levels as low as 1 mg/liter, and the long-
term effect of oil pollutants incorporated into sediments
in the waterways. See Plaintiffs’ Exhibit 12 at 210, 211,
219 to Summary Judgment Brief. This report also notes
that the fish population is adversely affected at dissolved
oxygen concentrations of 4 mg/liter or less. Jd. at 226.
Decreased oxygen levels also affect ‘“‘aquatic insects and
other animals upon which fish feed.”’ Jd. at 227.

A26

Excess total dissolved solids, particularly sodium
sulfate and magnesium sulfate, adversely affect persons
suffering from cardiac disease and pregnancy-related
toxemia. Jd. at 394 and 395. Excess dissolved solids also
have a deleterious effect on fish and other aquatic life.
Id. at 397-398. See also Plaintiffs’ Exhibit 11 to Brief in
Support of Summary Judgment, at 1-2; 4-5.

‘Increased temperatures’ accelerate’ the
biodegradation of organic materials ... which makes
increased demands on the dissolved oxygen resources of
a given system.”’ Plaintiffs’ Exhibit 12 at 423. Fish and
other aquatic life are adversely affected by increased
temperatures. /d. at 425-436.

The aforementioned reports establish harm to
aquatic life and the public health when the
aforementioned substances are discharged at levels in
excess of MEI's permit limitations.

Plaintiffs also assert irreparable injury from MEI's
failure to monitor and report pursuant to its permit
requirements, in that plaintiffs are unable to research,
report their findings to their members or legislative
bodies and generally enforce the Act as intended by
Congress.

In response, MEI asserts that plaintiffs have failed
to demonstrate the likelihood of irreparable harm. In
support, MEI provides the affidavit of Kathleen
Keating, a Professor of Environmental Sciences.
Keating's affidavit states only that in her opinion the
“excursions at issue would not result in irreversible
changes to the creek environment’. See Defense Exhibit
A at €5. The court is wary of Keating's conclusory
affidavit, which equates irreparable injury’ with
“irreversible” injury. In Amoco the Supreme Court

A27

described irreparable environmental injury as ‘‘of long
duration’. 480 U.S. at 545. Where such injury is
sufficiently likely, injunctive relief is generally warranted
to protect the environment. /d.

MEI further argues that plaintiffs have not shown
actual injury to the environment. However, this
argument is directly contradicted by the EPA report
which found changes in the Creek which affected fish
and other aquatic life. See discussion supra.

[2087] For the aforementioned reasons, there is a
likelihood of irreparable injury if MEI is likely to resume
discharging its effluent into the waterways.

2. Likelihood Of Resumption Of Discharge

Plaintiffs note that since 1989, shortly after they
filed suit, MEI began voluntarily hauling its effluent to
the Trenton Sewer Authority. Noting the expense of this
procedure, plaintiffs assert that unless an injunction is
issued, MEI will return to its former practice of
discharging the effluent into the Creek. This is especially
true, plaintiffs assert, in light of MEI’s statement that it
‘‘will resume discharge’. See Defense Exhibit B.

Economic hardship has been rejected as a basis for
denying injunctive relief. See SPIRG v. Fritzsche, Dodge
& Olcott Inc., 579 F.Supp. 1528, 1537 (D.N.J. 1984),
aff'd, 759 F.2d 1131 (3d Cir. 1985); Yates, 757 F.Supp. at
456. Likewise, the economic cost of compliance is a
relevant factor in determining whether resumption of
discharge is likely. As noted, MEI has stated its intent
to resurne discharging into the waterways.

In addition, MEI has failed to report and monitor its
discharge levels, as required by the Act. This renders the
Act unenforceable as the NJDEP is unable to determine

A28

if MEI is discharging effluents within its permit
requirements. See Sierra Club v. Simkins Industries, 847
F.2d 1109, 1115 (4th Cir. 1988). MEI has not provided
the court with any evidence that establishes that a
resumption of discharge will not result in discharge
levels in excess of its permit limitations.

Moreover, MEI's history, which includes excess
discharges before 1984, prosecution of which is barred by
‘the Statute of Limitations, also supports a conclusion
that MEI is likely to resume discharge.

In light of the expense of hauling its effluent, MEI’s
failure to monitor and report its discharges, and MEI’s
history, the court concludes that MEI is likely to resume
discharging its effluents unless a permanent injunction is
issued.

C. Balance Of Harm

Plaintiffs assert that the balance of harm requires
the issuance of injunctive relief, since harm to the public
health and aquatic life has been demonstrated. See
Plaintiffs’ Exhibits 11 and 12. As noted supra, economic
hardship in complying with the act does not outweigh
the benefit to the community in ensuring compliance
with the act. Fritzsche, 579 F.Supp. at 1537; United
States v. Ciampitti, 583 F.Supp. 483, 499 [20 ERC 1926]
(D.N.J. 1984). The balance of harm clearly favors the
issuance of injunctive relief.

D. Public Interest

The purpose of the Act is to protect the public
interest in the integrity of the nation’s waters. 33 U.S.C.
§125l(a). Therefore, in this case injunctive relief

A29

enjoining MEI from discharging harmful effluents into
the waterways is in the public interest. See Ciampitti,
583 F.Supp. at 499.

For the aforementioned reasons, the court concludes
that a permanent injunction is appropriate to enforce the
Act. Plaintiffs’ counsel shall submit an appropriate
order, consented to as to form.

A30

ORDER OF THE UNITED STATES
DISTRICT COURT
DISTRICT OF NEW JERSEY

(Filed February 28, 1992)
Civil No. 89-3193

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH GROUP
OF NEW JERSEY, INC., et ai.

Plaintiffs,
v.
MAGNESIUM ELEKTRON INC.,
Defendant.
Hon. JOHN C. LIFLAND
ORDER

Upon consideration of plaintiffs’ motions for partial
summary judgment as to defendant’s liability for
violations of its discharge limitation for total organic
carbon, for permanent injunctive relief, and for a
declaratory judgment that plaintiffs have standing to
maintain this action; the arguments of counsel; and the
briefs and exhibits submitted by the parties in support
or opposition thereto, it is this 28th day of February,
1992,

A31

ORDERED, that plaintiffs’ motion for a declaratory
judgment that plaintiffs have standing on behalf of
themselves and their members to maintain this citizen
enforcement action under the Federal Water Pollution
Control Act, 33 U.S.C. 1251, et seq., is granted, and it is
further

ORDERED, that plaintiffs’ motion for partial
summary judgment on the issue of defendant's liability
for its TOC discharge violations of the Federal Water
Pollution Control Act, 33 U.S.C. 1251, et seg., and the
NPDES/NJPDES permit issued to defendant thereunder,
as set forth in Appendix A, attached hereto is granted,
and it is further

ORDERED, that plaintiffs’ motion for permanent
injunctive relief is granted and defendant is hereby
enjoined from discharging wastewater from its facility
located in Kingwood Township, Hunterdon County, New
Jersey, until such time as NPDES/NJPDES Permit No.
NJ 0027537, which became effective on December 1,
1984, is superceded by a new permit, and it is further

ORDERED, that defendant shall submit to plaintiffs
its discharge monitoring reports (DMRs) and all other
documents containing monitoring results, including
laboratory reports, within three days of its submission of
its discharge monitoring reports (DMRs) to. the
government regulatory agencies, and it is further

ORDERED, that this case shall proceed to trial on
the issue of other appropriate remedies for defendant's
violations of the Federal Water Pollution Control Act, 33
U.S.C. 1251, et seq.

/s/_ JOHN C. LIFLAND
United States District Judge

a

A32

ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
DENYING PETITION FOR REHEARING

(Dated January 8, 1993)
No. 92-5161

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PUBLIC INTEREST RESEARCH GROUP OF
NEW JERSEY, INC.; FRIENDS OF THE
EARTH; NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Intervenor-Plaintiff,

Vv.

MAGNESIUM ELEKTRON, INC.,
Appellant.

(D.C. Civ. No. 89-03193)

SUR PETITION FOR REHEARING

Present: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, HUTCHINSON, SCIRICA,
CowEN, NYGAARD, ALITO, ROTH, LEwis' and
HIGGINBOTHAM*, Circuit Judges

The petition for rehearing filed by appellant in the
above-entitled case having been submitted to the judges
who participated in the decision of this Court and to all

* As to panel rehearing only.

A33

the other available circuit judges of the circuit in regular
active service, and no judge who concurred in the
decision having asked for rehearing, and a majority of
the circuit judges of the circuit in regular service not
having voted for rehearing, the petition for rehearing by
the panel and the Court en banc, is denied.

BY THE COURT,

s/ A.J. SCIRICA
Circuit Judge

Dated: January 8, 1993

A34

33 U.S.C.S. §1365
§1365. Citizen suits

(a) Authorization; jurisdiction. Except as provided in
subsection (b) of this section, any citizen may commence
a civil action on his own behalf—

(1) against any person (including (i) the United
States, and (ii) any other governmental
instrumentality or agency to the extent permitted
by the eleventh amendmert to the Constitution) who
is alleged to be in violation of (A) an effluent
standard or limitation under this Act or (B) an order
issued by the Administrator or a State with respect
to such a standard or limitation, or

(2) against the Administrator where there is alleged
a failure of the Administrator to perform any act or
duty under this Act which is not discretionary with
the Administrator.

The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship of
the parties, to enforce such an effluent standard or
limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case
may be, and to apply any appropriate civil penalties
under section 309(d) of this Act [33 USCS $1319(d)].

* * *

A35

PLAINTIFFS’ EXHIBIT 1

AFFIDAVIT OF SANDRA SILVERSTONE
Civil No. 89-3193

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH GROUP
OF NEW JERSEY, INC., et al.
Plaintiffs,

Vi.

MAGNESIUM ELEKTRON INC.,
Defendant.

Hon. JOHN C. LIFLAND

AFFIDAVIT OF SANDRA SILVERSTON
I, Sandra Silverstone, do hereby affirm and state:

1. I have been a member of both Friends of the
Earth and Public Interest Research Group of New
Jersey, Inc., (hereafter ‘‘NJPIRG”’) for approximately
two years.

2. I reside at 203 Riverview Road, Bridgewater,
New Jersey 08807, where I have lived for seven years.

3. I enjoy walking, hiking, and studying nature
with my husband and two children along the Delaware
and Raritan Canal and the Delaware River in New Jersey
between Frenchtown and Lambertville and desire to
continue this activity. I also enjoy sightseeing along the

litte

A36

River and the Canal between’ Frenchtown and
Lambertville and visiting the towns and historic sites in
this area. My enjoyment of these activities is
significantly affected to the extent I know that the
waterway along which I am walking, hiking, studying
nature, or sightseeing contains pollution.

4. I avoid eating fish caught in the Delaware and
Raritan Canal or the Delaware River because I am
concerned that those fish might be contaminated with
harmful pollutants. I do not believe that it is safe to eat
fish caught in these waters at the present time but would
eat fish caught in them if the waters were cleaner.

5. I am interested in obtaining correct information
about the amount of pollution discharged to
Wickecheoke Creek, the Delaware and Raritan Canal,
and the Delaware River so I can decide whether to use
the waters between Frenchtown and Lambertville and
downstream waters. In addition, it is important for me to
know how much pollution is in those waters so I can
decide whether to eat fish caught there. If defendant and
other dischargers do not monitor and report in
accordance with their permits the amcunt of pollution
they discharge, this information will not be available.

6. One of the reasons I belong to Friends of the
Earth and NJPIRG is because I support their activities
to protect and improve the waters of New Jersey,
including Wickecheoke Creek, the Delaware and Raritan
Canal, and the Delaware River.

7. I believe that it is important for state and federal
government agencies to know the amount of pollution
discharged into Wickecheoke Creek, the Delaware and
Raritan Canal, and the Delaware River so_ that

A37

government agencies, Friends of the Earth, NJPIRG,
and other citizen organizations can bring litigation and
take other actions to protect these waters from pollution.
Since I hike, study nature, and recreate along the
Delaware and Raritan Canal and the Delaware River
between Frenchtown and Lambertville and would eat fish
caught there if the waters were cleaner, I benefit
significantly from these efforts to protect the River and
Canal from pollution. If defendant and other dischargers
do not monitor and report in accordance with their
permits the amount of pollution they discharge, this
information will not be available.

Pursuant to 28 U.S.C. 1746, I declare under penalty
of perjury that the foregoing is true and correct.
Executed this 30th day of April, 1991.

/s/ SANDRA SILVERSTONE
Sandra Silverstone

A38

PLAINTIFFS’ EXHIBIT 2
AFFIDAVIT OF CHAIM GOLD
Civil No. 89-3193

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH GROUP
OF NEW JERSEY, INC., et al.
Plaintiffs,

Vv.

MAGNESIUM ELEKTRON INC.,
Defendant.

Hon. JOHN C. LIFLAND

AFFIDAVIT OF CHAIM GOLD
I, Chaim Gold, do hereby affirm and state:

1. I have been a member of Friends of the Earth for
approximately 13 years.

2. I live at 28 Richey Place, Trenton, New Jersey
08618, where I have owned a home with my wife for i5
years. My home is located on the strip of land between
the Delaware River and the Delaware and Raritan Canal.
I live approximately 200 yards east of the river, 200
yards west of the Canal, and 17 miles downstream of
Prallsville, where Wickecheoke Creek enters’ the
Delaware and Raritan Canal and the Delaware River.

A39

3. Every summer for the past 15 years, I have
enjoyed boating, fishing, water skiing, and swimming
with my wife and friends along the Delaware River
between Trenton and Philadelphia. My wife and I own a
boat and desire to continue these activities. I also enjoy
hiking along the Delaware and Raritan Canal and the
Delaware River in Washington Crossing State Park,
which is located in New Jersey approximately 7 miles
downstream of Prallsville) My enjoyment of these
activities is significantly affected to the extent I know
that the waterway in which I am boating, fishing, water
skiing, or swimming or along which I am hiking contains
pollution.

4. I have high blood pressure and, on my doctor's
advice, restrict myself to a salt-free diet. The drinking
water supply for Trenton and surrounding communities
is taken from the Delaware River. Looking out a window
of my home, I can see the water intakes for the Trenton
water filtration plant, which are located approximately
300 yards downstream from my home. High levels of
sodium in my drinking water could seriously effect my
health.

5. I know that many other communities in central
New Jersey draw their drinking water from the Delaware
and Raritan Canal at Lambertville, which is located
approximately 4 miles below Prallsville. I also know that
the water intakes for the community of Morrisville,
Pennsylvania, are located approximately 100 yards
downstream of the Trenton water intakes, and the water
intakes for Philadelphia are located approximately
another 23 miles downstream of the Morrisville intakes.
My knowledge of the locations of the various municipal
water intakes was gained as a result of my 15-year
residence in Trenton, my work as a real estate agent, and

A40

discussions over the years with friends who are active in
environmental activities. In addition, I am _ presently
chairman of the Solid Waste Advisory Council in Mercer
County and a member of the Mayor’s Economic
Development Committee in Trenton.

6. I have a skin condition called psoriasis. It is very
important to me to be able to continue my boating
activities on the Delaware River because sunbathing
improves the condition of my skin. I have found that
swimming in polluted waters has a detrimental effect on
my psoriasis condition, but swimming in very clean
waters actually improves the condition of my skin.

7. I am interested in obtaining correct information
about the amount of pollution discharged to
Wickecheoke Creek, the Delaware and Raritan Canal,
and the Delaware River so I can decide whether to use
the waters downstream of Prallsville. In addition, it is
important for me to know how much pollution is in those
waters so I can decide whether to eat fish caught there.
If defendant and other dischargers do not monitor and
report in accordance with their permits the amount of
pollution they discharge, this information will not be
available.

8. One of the reasons I belong to Friends of the
Earth is because I support its activities to protect and
improve the waters of New Jersey, including
Wickecheoke Creek, the Delaware and Raritan Canal,
and the Delaware River.

9. I believe that it is important for state and federal
government agencies to know the amount of pollution
discharged into Wickecheoke Creek, the Delaware and
Raritan Canal, and the Delaware River so_ that
government agencies, Friends of the Earth, and other

A4l

citizen organizations can bring litigation and take other
actions to protect these waters from pollution. Since I go
boating, water skiing, fishing, and swimming along the
Delaware River and hiking along the Delaware and
Raritan Canal and the Delaware River downstream of
Prallsville, I benefit significantly from these efforts to
protect the River and Canal from pollution. If defendant
and other dischargers do not monitor and report in
accordance with their permits the amount of pollution
they discharge, this information will not be available.

Pursuant to 28 U.S.C. 1746, I declare under penalty
of perjury that the foregoing is true and correct.
Executed this 10 day of May, 1991.

/s/ CHAIM GOLD
Chaim Gold

A42

PLAINTIFFS’ EXHIBIT 3
._AFFIDAVIT OF ELAINE GOLD
Civil No. 89-3193

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH GROUP
OF NEW JERSEY, INC., et ail.
Plaintiffs,

Vv.

MAGNESIUM ELEKTRON INC.,
Defendant.

Hon. JOHN C. LIFLAND

AFFIDAVIT OF ELAINE GOLD
I, Elaine Gold, do hereby affirm and state:

1. I have been a member of Friends of the Earth for
approximately 13 years.

2. I live at 28 Richey Place, Trenton, New Jersey
08618, where I have owned a home with my husband for
15 years. My home is located on the strip of land
between the Delaware River and the Delaware and
Raritan Canal. I live approximately 200 yards east of the
River, 200 yards west of the Canal, and 17 miles
downstream of Prallsville, where Wickecheoke Creek
enters the Delaware and Raritan Canal and the Delaware
River.

A43

3. Every summer for the past 15 years, I have
enjoyed boating, water skiing, fishing, and swimming
with my husband and friends along the Delaware River
between Trenton and Philadelphia. My husband and I
own a boat and desire to continue these activities. I also
enjoy hiking along the Delaware and Raritan Canal and
the Delaware River in Washington Crossing State Park,
which is located in New Jersey approximately 7 miles
downstream of Prallsville. My enjoyment of these
activities is significantly affected to the extent I know
that the waterway in which I am boating, fishing, water
skiing, or swimming or along which I am hiking contains
pollution.

4. I am interested in obtaining correct information
about the amount of pollution discharged to
Wickecheoke Creek, the Delaware and Raritan Canal,
and the Delaware River so I can decide whether to use
the waters downstream of Prallsville. In addition, it is
important for me to know how much pollution is in those
waters so I can decide whether to eat fish caught there.
If defendant and other dischargers do not monitor and
report in accordance with their permits the amount of
pollution they discharge, this information will not be
available.

5. One of the reasons I belong to Friends of the
Earth is because I support its activities to protect and
improve the waters of New Jersey, including
Wickecheoke Creek, the Delaware and Raritan Canal,
and the Delaware River.

6. I believe that it is important for state and federal
government agencies to know the amount of pollution
discharged into Wickecheoke Creek, the Delaware and
Raritan Canal, and the Delaware River so _ that

A44

government agencies, Friends of the Earth, and other
citizen organizations can bring litigation and take other
actions to protect these waters from pollution. Since I go
swimming, boating, water skiing, and fishing along the
Delaware River and hiking along the Delaware and
Raritan Canal and Delaware River downstream of
Prallsville, I benefit significantly from these efforts to
protect the River and Canal from pollution. If defendant
and other dischargers do not monitor and report in
accordance with their permits the amount of pollution
they discharge, this information will not be available.

Pursuant to 28 U.S.C. 1746, I declare under penalty
of perjury that the foregoing is true and correct.
Executed this 10 day of May, 1991.

/s/ ELAINE WALSH GOLD
Elaine Gold

A45

PLAINTIFFS’ EXHIBIT 4
AFFIDAVIT OF JULIE HOWAT
Civil No. 89-3193

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH GROUP
OF NEW JERSEY, INC., et al.
Plaintiffs,

Vv.

MAGNESIUM ELEKTRON INC.,
Defendant.

Hon. JOHN C. LIFLAND

AFFIDAVIT OF JULIE HOWAT
I, Julie Howat, do hereby affirm and state:

1. I have been a member of Friends of the Earth for
approximately one and a half years.

2. I am 22 years old and have lived in New Jersey
all of my life. I now live at 12 Heritage Court, West
Trenton, New Jersey 08628, where I have lived for the
past 3 years. My home is located approximately 1 mile
from the Delaware River and the Delaware and Raritan
Canal, and approximately 12 miles downstream of
~ Prallsville, where Wickecheoke Creek enters the
Delaware and Raritan Canal and the Delaware River.

A46

3. I enjoy walking, picnicking, and studying nature
along the Delaware and Raritan Canal and the Delaware
River in the area adjacent to Washington Crossing State
Park, which is located approximately 7 miles
downstream of Prallsville) My enjoyment of these
activities is significantly affected to the extent I know
that the waterway along which I am walking, picnicking,
or studying nature contains pollution.

4. I avoid drinking water taken directly from the
Delaware and Raritan Canal or the Delaware River
because I am concerned that the water might be
contaminated. I avoid eating fish caught in the Delaware
and Raritan Canal or the Delaware River because I am
concerned that those fish might be contaminated with
harmful pollutants. I do not believe that it is safe to
drink water directly from these waters or to eat fish
caught there at the present time but would drink water
or eat fish caught from them if the waters were cleaner.

5. I am interested in obtaining correct information
about the amount of pollution discharged to
Wickecheoke Creek, the Delaware and Raritan Canal,
and the Delaware River so I can decide whether to use
the waters downstream of Prallsville. In addition, it is
important for me to know how much pollution is in those
waters so I can decide whether to eat fish caught there.
- If defendant and other dischargers do not monitor and
report in accordance with their permits the amount of
pollution they discharge, this information will not be
available.

6. One of the reasons I belong to Friends of the
Earth is because I support its activities to protect and
improve the waters of New Jersey, including
Wickecheoke Creek, the Delaware and Raritan Canal,
and the Delaware River. e

A47

7. I believe that it is important for state and federal
government agencies to know the amount of pollution
discharged into Wickecheoke Creek, the Delaware and
Raritan Canal, and the Delaware River so that
government agencies, Friends of the Earth and other
citizen organizations can bring litigation and take other
actions to protect these waters from pollution. Since I go
walking and picnicking along the Delaware and Raritan
Canal and the Delaware River downstream of Prallsville
and would eat fish caught there if the waters were
cleaner, I benefit significantly from these efforts to
protect the Canal and River from pollution. If defendant
and other dischargers do not monitor and report in
accordance with their permits the amount of pollution
they discharge, this information will not be available.

Pursuant to 28 U.S.C. 1746, I declare under penalty
of perjury that the foregoing is true and correct.
Executed this 30th day of April, 1991.

ls! JULIE HOWAT 5/1/91
Julie Howat

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1296%3A1. Public record. Not legal advice.