Opposition Brief — Magnesium Elektron, Inc. v. Public Interest Research Group of New Jersey, Inc.

*/

Supreme Court, U.S.

k ti. ED

No. 92-1516 | APR 29 1983

ttt Ci \

IN THE sua

Supreme Court of the Gnited States

OCTOBER TERM, 1992

MAGNESIUM ELEKTRON, INC..

, .

Petition rs

' INTEREST

IN is

RESEARCH GROUP OF NEW JERSEY,

and FRIENDS OF THE EARTH, INC..

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF FOR RESPONDENTS

PUBLIC INTEREST RESEARCH GROUP OF NEW

JERSEY, INC., AND FRIENDS OF THE EARTH, INC.,

IN OPPOSITION

*BRUCE J. TERRIS

SUSAN J. MCGOLRICK

TERRIS, PRAVLIK & WAGNER

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

Counsel for Respondents

Public Interest Research Group

of New Jersey, Inc., and

Friends of the Earth, Inc.

‘ ‘ounsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Whether the Court of Appeals for the Third Circuit

erred in affirming, without opinion, the determination

of the district court that respondents have standing.

PARTIES TO THE PROCEEDINGS

Respondents Public Interest Research Group of New

Jersey, Inc., and Friends of the Earth, Inc., are non-

profit environmental organizations. Neither corpora-

tion has any parent or subsidiary corporations.

Petitioner Magnesium Elektron, Inc., is a wholly-

owned subsidiary of British Alcan Overseas Invest-

ments, Limited, and an indirect, wholly-owned sub-

sidiary of Alcan Aluminium Limited of Canada.

’

TABLE OF CONTENTS

Page

CPTRIONS BIW vcssiissevssniscccsinoleanimamnngaas 2

CONSTITUTIONAL AND STATUTORY

FRU BRED dns cainansisenncbcnsnueceussueieestaasterankeaee 2

STATESMEN EL OF TEE CARES cesseiscssovssccssccsosnsaens 2

REASONS WHY THE PETITION SHOULD BE

ETD <ssenixcccixssccusisconenacececeeepeseasseneeecanan eae 8

1. The Petition Fails to Demonstrate Any

Conflict between the Decision Below and

Any Decision of This Court or Any Court

OF ABIOUEE. .0iciisssuicsminciceee 8

2. The Decision of the District Court Is Con-

sistent with the Decisions of This Court

and of the Courts of Appeals ................. 9

CONCLUBION .ceessss000s0s0n0e0.00s0ienveennbenaasen nen 17

ill

TABLE OF AUTHORITIES

CASES: Page

Duke Power Co. v. Carolina Environmental Study

Group, Inc., 488 U.S. 59 (1978) ..cceoeccccccccceee. 11

Friends of the Earth v. Consolidated Rail Corp.,

Woe Wome OF (20 Cir, TOBE) oon... ..ccccsccccsccsssccens. 11,12

Lujan v. Defenders ‘of Wildlife, 112 S. Ct. 2130

TA CAMs Di eiiisghundnhanssanbauasexssaasacesevaeves 8,10

Natural Resources Defense Council, Inc. v. Watkins,

904 F.2 974 (4th Cir. 1992) ......................c0000, 11

PIRG of NJ v. Powell Duffryn Terminals Inc., 913

F.2d 64 (3d Cir. 1990), certiorari denied, 111

OD ioc i css ssacnevancassecesecsanaracnene 9,10,11

Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir

Gli ceikashiadhidansenanstuercndliixneasvssacesnnenechasense 11

Sierra Club v. Simkins Industries, Inc., 847 F.2d

1109 (4th Cir. 1988), certiorari denied, 491 U.S.

a ccncourdacacecauacencaacs 11

Valley Forge Christian College v. Americans United

for Separation of Church and State, 545 U.S.

is scncssasssesecnaseacoasonesexens 911

STATUTES:

BE UGC. USD UW) onecccceseeccscsccccsccccscocccsscens-..... 16

ON I oi saincccstsevvssnseveacetvaceancercesosccce. 2

PMR RIID .occccncceczsessensssecsecnescasseccesesess. 2

MEG, PROIIIB) once. nccscecessscccessescecocconcs.-s. 15

LEGISLATIVE MATERIAL:

S. Rep. No. 414, 92d Cong., 1st Sess. 79-80 (1971),

reprinted in A Legislative History of the Water

Pollution Control Act Amendments of 1972,

93rd Cong., 1st Sess., vol. 2, pp. 1497-1498

(1973), 1972 U.S. Code Cong. & Ad. News

Ts cadekcsavesanashasssceseicasessiassvaseaecasees 15,16

Table of Authorities Continued

Page

MISCELLANEOUS:

EPA, Primer for Wastewater Treatment (1980) .... 6

EPA, Quality Criteria for Water (1976) ............... 6

Standard Methods far the Examination of Water ‘

and Wastewater, section 5310 (17th ed. ‘

SUNG aiciaucssmcausbtubgciantaieaiadekion axis sudsad eos 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1516

MAGNESIUM ELEKTRON. INC.,

Petitioner.

V.

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY,

INc., and FRIENDS OF THE EARTH, INC..,

Respondents.

_

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF FOR RESPONDENTS

PUBLIC INTEREST RESEARCH GROUP OF NEW

JERSEY, INC., AND FRIENDS OF THE EARTH, INC.,

IN OPPOSITION

Respondents, Public Interest Research Group of

New Jersey, Inc. (“NJPIRG”’), and Friends of the

Earth, Inc. (“FOE”), respectfully request that this

Court deny the petition for a writ of certiorari seek-

ing review of the Judgment Order of the United

States Court of Appeals for the Third Circuit.

OPINIONS BELOW

On January 23, 1992, the District Court for the

District of New Jersey issued its Opinion granting

respondents’ motions for a declaratory judgment that

they have standing to maintain this action, for partial

summary judgment as to liability, and for permanent

injunctive relief. Pet. App. A3-A29. The district court

implemented the decision by issuing an Order on Feb-

ruary 28, 1992. Pet. App. A380-A31.

On December 15, 1992, the Court of Appeals for

the Third Circuit issued a Judgment Order summarily

affirming the decision of the district court. Pet. App.

A1-A2. On January 8, 1998, the court of appeals is-

sued an Order denying petitioner’s motion for re-

hearing. Pet. App. A32-A33.

CONSTITUTIONAL AND STATUTORY PROVISIONS

In addition to the constitutional and statutory pro-

visions set forth in the petition (Pet. 3-4), the follow-

ing portion of Section 505 of the Clean Water Act,

33 U.S.C. 1365(g), is relevant:

(g) For the purpose of this section the term

‘citizen’? means a person or persons having

an interest which is or may be adversely af-

fected.

STATEMENT OF THE CASE

This is a citizens’ suit under Section 505 of the

Clean Water Act, 33 U.S.C. 1865, which sought in-

junctive relief and civil penalties for petitioner’s vi-

olations of its National Pollutant Discharge

Elimination System (‘““NPDES’’) permit for the dis-

charge of pollutants over a period of five and one-

half years.

In the district court, respondents filed motions for

a declaratory judgment that they have standing to

maintain this action, for partial summary judgment

as to liability, and for permanent injunctive relief.

The record below shows that petitioner discharged

excessive levels of total organic carbon (‘“‘TOC’’), total

dissolved solids (‘‘TDS’’), sodium, and oil in violation

of the discharge limitations in its permit, exceeded

the temperature limitation, and violated the monitor-

ing and reporting requirements on numerous occa-

sions (J.A. 181-188).! Petitioner discharges into

Wickecheoke Creek, which flows into both the Dela-

ware and Raritan Canal and the Delaware River at

Prallsville, New Jerse, (J.A. 114-115). Wickecheoke

Creek downstream from Green Sergeants Covered

Bridge is used primarily for recreational purposes,

including fishing and hiking (J.A. 115). The Creek is

the largest of 24 tributary streams which feed into

the Delaware and Raritan Canal (J.A. 115-116).

Most of the Canal and its adjacent areas are part

of the Delaware and Raritan Canal State Park (J.A.

115). Adjacent to the Creek and Canal is the Pralls-

ville Mills Historic District, which contains historic

buildings, some of which are used for exhibits, con-

certs, and community events (ibid.). The Canal is used

for recreational fishing of numerous species of fish

(J.A. 116). The Canal is also a source of drinking

water for approximately 1,000,000 people living in the

central portion of New Jersey (ibid.). The New Jersey

Water Supply Authority draws water from the Canal

in order to provide potable water to North Brunswick

'“J.A.” refers to the Joint Appendix filed by the parties in

the court of appeals.

Township, Elizabethtown, East Brunswick Township,

Middlesex, and the City of New Brunswick (zbid.).

The Delaware River and its surrounding areas are

used heavily for fishing and other recreational uses

(J.A. 4385). The River’s ecosystem is an important

nesting and feeding habitat for many species ci fish

and birds (ibid.). Like the Canal, the Delaware River

below Prallsville is a major source of drinking water

for residents of both New Jersey and Pennsylvania,

including those who live in Trenton and Philadelphia

(ibid.).

The record below shows that members of NJPIRG

and FOE have health, recreational, aesthetic, and en-

vironmental interests in the Delaware and Raritan

Canal and the Delaware River downstream from

petitioner’s discharge point (J.A. 415-427). Chaim and

Elaine Gold, who are members of FOE, live in Tren-

ton on the strip of land running between the Canal

and River (J.A. 418, 422). They own their home, which

is located just 200 yards west of the Canal and 200

yards east of the River downstream from the conflu-

ence of Wickecheoke Creek and the Canal and River

(.bid.). The water intakes for their municipal drinking

water supply are located in the River 300 yards down-

stream from their home (J.A. 419). Because Mr. Gold

has high blood pressure and is restricted to a salt-

free diet, high levels of sodium in his drinking water

could seriously affect his health (7bid.). Mr. and Mrs.

Gold enjoy boating, fishing, water skiing, and swim-

ming along the River between Trenton and Philadel-

phia (J.A. 418, 422). They also enjoy hiking along the

Canal and River in Washington Crossing State Park,

which is downstream from the confluence of Wicke-

cheoke Creek and the Canal and River (J.A. 418-419,

5

422-423). Mr. Gold’s psoriasis is aggravated by swim-

ming in polluted waters (J.A. 420). Mr. and Mrs. Gold

rely on information about the amount of pollution in

the Canal and River in order to decide whether to

eat fish caught there (J.A. 420, 423).

Julie Howat, a member of FOE, lives in a northern

suburb of Trenton (J.A. 425). Her house is located

approximately one mile from the Delaware and Rar-

itan Canal and the Delaware River downstream from

the confluence of Wickecheoke Creek and the Canal

and River (ibid.). Like Mr. and Mrs. Gold, her drink-

ing water supply is taken from the River downstream

from petitioner’s discharge point (J.A. 419). She en-

joys walking, picnicking, and studying nature in the

area adjacent to Washington Crossing State Park

(J.A. 425). She avoids eating fish caught in the Canal

or River because she is afraid of contamination from

harmful pollutants but would eat the fish if the waters

were cleaner (J.A. 426).

Sandra Silverstone, a member of both NJPIRG and

FOE, enjoys walking, hiking, and studying nature

along the Delaware and Raritan Canal and the Del-

aware River between Frenchtown and Lambertville,

which are downstream of the confluence of Wicke-

cheoke Creek and the Canal and River, with her hus-

band and two children (J.A. 415). She also enjoys

sightseeing along the Canal and River and visiting

the towns and historic sites in the area (2zbid.). She

avoids eating fish caught in the Canal or River be-

cause she is concerned that it is not safe to do so

but would eat the fish if the waters were cleaner

(J.A. 415-416).

Respondents also presented evidence from United

States Environmental Protection Agency (“EPA”)

documents which set forth the harm caused by the

pollutants which petitioner has illegally discharged.

For example, TOC “tis composed of a variety of or-

ganic compounds in various oxidation states.’’ Stand-

ard Methods for the Examination of Water and

Wastewater, section 5310 (17th ed. 1989) (J.A. 402).

“Some of these carbon compounds can be oxidized

further by biological or chemical processes’’ (J.A. 402).

The process of oxidation depletes the amount of dis-

solved oxygen in the water. Fish cannot survive with-

out sufficient quantities of dissolved oxygen. EPA,

Quality Criteria for Water (1976\hereafter “QCW

(1976)’’) (J.A. 296-297). EPA states: ‘‘Since fish and

other aquatic life depend on oxygen for life, the ox-

ygen-demanding wastes must be controlled, or the

fish die.”” EPA, Primer for Wastewater Treatment

(1980) (J.A. 341). Furthermore, severely low levels of

dissolved oxygen ‘‘can adversely affect aquatic insects

and other animals upon which fish feed.’’ @CW (1976)

(J.A. 298).

EPA states that dissolved oxygen “‘generally has

been considered as significant in the protection of

aesthetic qualities of water as well as for the main-

tenance of fish and other aquatic life.” QCW (1976)

(J.A. 295). “Dissolved oxygen concentrations are an

important gauge of existing water quality and the

ability of a water body to support a well balanced

aquatic fauna” (ibid.). ‘The aesthetic qualities of

water require sufficient dissolved oxygen present to

avoid the onset of septic conditions with its attendant

malodorous emissions.”’ (7b7d.).

The record contains evidence showing that in 1990

the New Jersey Department of Environmental Pro-

tection and Energy (‘““NJDEPE”’) evaluated Wicke-

cheoke Creek, into which petitioner directly

discharges, as ‘‘moderately degraded * * * because of

wastewater discharges” (J.A. 606). NJDEPE noted

that “‘{a]n intensive study on [the Creek’s] macroin-

vertebrate community has found a shift from forms

normally present in cold water streams to species

tolerant of extremely saline conditions” (J.A. 605).

The record below also shows that the interests of

the respondent organizations have been harmed by

petitioner’s violations of the monitoring and reporting

requirements of its permit (J.A. 428-435, 538-541).

The record includes affidavits of officials of the

respondent organizations showing that they rely on

companies to correctly monitor their discharge and

report the results to government agencies, where

respondents can view the reports (J.A. 428-430, 538-

540). This information is essential to respondents’ re-

search regarding compliance with water pollution con-

trol laws and efforts to protect and improve the

quality of the waters, including bringing citizen en-

forcement suits (J.A. 429-431, 538-540).

The district court examined each of the require-

ments for standing and concluded that respondents

had established their standing as a matter of law.

Pet. App. A8-Al6. The district court also granted

respondents’ motion for partial summary judgment as

to liability for 27 violations of the TOC discharge

limitation in petitioner’s permit and _ granted

respondents’ motion for permanent injunctive relief

to prevent future violations of the permit. Pet. App.

A22, A29. Petitioner had previously stipulated to li-

ability for an additional 123 violations of the discharge

limitations and monitoring and reporting require-

ments of its permit. Pet. App. A7-A8. The district

court ordered the case to proceed to trial on the issue

of the amount of civil penalties to be assessed against

petitioner for its 150 violations of the Act.°

In imposing the injunction, the district court found

that respondents had “‘establish[ed] harm to aquatic

life and the public health when the aforementioned

substances are discharged at levels in excess of

[petitioner's] permit limitations.’’ Pet. App. A26. The

district court rejected petitioner’s argument that

respondents had not shown actual injury to the en-

vironment, finding that ‘“‘this argument is directly

contradicted by the [NJDEPE] report which found

changes in the Creek which affected fish and other

aquatic life.’’ Pet. App. A27. The district court found

that ‘‘there is a likelihood of irreparable injury if MEI

[petitioner] is likely to resume discharging its effluent

into the waterways” and concluded that ‘‘MEI is likely

to resume discharging its effluents unless a perma-

nent injunction is issued.”” Pet. App. A27-A28.

The Court of Appeals, after hearing oral argument,

issued a Judgment Order summarily affirming the

judgment of the district court.

REASONS WHY THE PETITION SHOULD BE DENIED

1. The Petition Fails to Demonstrate Any Conflict

between the Decision Below and Any Decision of

This Court or Any Court of Appeals

Petitioner argues (Pet. 17):

This case was evaluated under a lower

threshold for standing than this Court’s de-

cision in Luan II [Lujan v. Defenders of

Wildlife, 112 S. Ct. 2180 (1992)], and thus

* Trial is currently scheduled for November 1, 1993.

there is a fundamental conflict between this

Court’s holding as to what is required for

Article II] standing and the position of the

Third Circuit Court of Appeals.

However, the Court of Appeals for the Third Circuit

did not issue an opinion. Instead, the court issued a

summary affirmance in the form of a Judgment Or-

der. Since the court of appeals issued no opinion,

there can be no conflict with this Court or any other

court of appeals. Because the court of appeals did not

issue an opinion, the petitioner is, in effect, asking

this Court to review the opinion issued by the district

court. Respondents demonstrate below that there is

no conflict between the district court opinion and any

decision of this Court or any court of appeals.

2. The Decision of the District Court Is Consistent with

the Decisions of This Court and of the Courts of

Appeals

The district court’s decision relies upon and applies

the requirements for Article III standing—injury,

causation, and redressability—set forth in PIRG of NJ

v. Powell Duffryn Terminals Inc., 913 F.2d 64, 70-

73 (3d Cir. 1990), certiorari denied, 111 S. Ct. 1018

(1991). Pet. App. A9.

In Powell Duffryn, supra, 913 F.2d at 70, the court

of appeals described the requirements for standing by

quoting Valley Forge Christian College v. Americans

United for Separation of Church and State, 454 U.S.

464, 472 (1982), in which this Court summarized its

earlier precedents:

[A]t an irreducible minimum, Art. III re-

quires the party who invokes the Court’s au-

thority to ‘‘show [1] that he personally has

10

suffered some actual or threatened injury as

a result of the putatively illegal conduct of

the defendant,’ * * * and [2] that the injury

‘fairly can be traced to the challenged ac-

tion’’ and [3] “‘is likely to be redressed by a

favorable decision * * *.”’

This Court reiterated the identical standing require-

ments in Defenders of Wildlife, supra, 112 S. Ct. at

2136.°

The district court found that respondents had sat-

isfied each of the three requirements for standing.

First, the district court found that respondents had

produced affidavits of their members and reports by

federal and state environmental protection agencies

which demonstrate injury to the interests of their

members. Pet. App. A10-A1ll. The district court also

“conclude[d] that plaintiffs ha{d] demonstrated that

they [we]re injured by MEI’s failure to monitor and

report as required by the Act.’’ Pet. App. A12.

Second, the district court analyzed the Valley Forge

requirement of causation by applying the three-part

test for traceability in Clean Water Act cases set

forth in Powell Duffryn (Pet. App. A138; 913 F.2d

at 72):

1) the defendant has discharged some pol-

lutant 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

* The district court did not discuss Defenders of Wildlife be-

cause it had not yet been decided. However, the decision was

fully argued in the court of appeals.

11

8) that this pollutant causes or contributes

to the kinds of injuries alleged by the

plaintiffs.

Relying on Powell Duffryn, the district court found

(Pet. App. Al13) that the second prong of the Valley

Forge test ‘“‘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.’ ’’ 913 F.2d at 72. The dis-

trict court quoted Powell Duffryn, 913 F.2d at 72,

which in turn quotes Duke Power Co. v. Carolina

Environmental Study Group, Inc., 438 U.S. 59, 75 n.

20 (1978), for the proposition that plaintiffs ‘‘need

only show that there is a ‘substantial likelihood’ that

defendant’s conduct caused plaintiff's harm.’’ Pet.

App. A13.

Third, the district court concluded: ‘‘As in Powell,

the rights of PIRG and FOE members will be re-

dressed by a favorable decision, which would force

MEI to comply with its permit.’’ Pet. App. A15.

The district court’s decision is also in full accord

with the decisions of the courts of appeals which have

considered the standing of citizen-plaintiffs under the

Clean Water Act. See, e.g., Natural Resources Defense

Council, Inc. v. Watkins, 954 F.2d 974, 979 (4th Cir.

1992); Sierra Club v. Simkins Industries, Inc., 847

F.2d 1109, 1112-1113, n. 3 (4th Cir. 1988), certiorari

denied, 491 U.S. 904 (1989); Friends of the Earth v.

Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir.

1985); Sierra Club v. SCM Corp., 747 F.2d 99, 107

(2d Cir. 1984). For example, in Simkins, supra, 847

F.2d at 1112, n. 3, plaintiff established standing by

showing that one of its members hiked along the river

and had been ‘‘adversely affected physically, aesthet-

12

ically and emotionally by [defendant’s] failure to com-

ply with its NPDES permit and resulting illegal

pollution.”” In Consolidated Rail, supra, 768 F.2d at

61, plaintiffs established standing by showing that

their members picnicked along the river, fished and

swam in the river, travelled near the river, and found

the pollution offensive.

Petitioner contends that ‘“‘Respondents’ affiants did

not and could not allege a particularized injury since

MEI’s effluent is incapable of harming Respondents

or the environment.”’ Pet. 19. However, respondents

submitted evidence showing that the types of pollu-

tants which petitioner discharged in excess of its per-

mit limits have been specifically recognized as harmful

to public health and aquatic life by EPA (J.A. 279-

329, 353-387).

Petitioner does not contest any of the scientific

evidence presented by respondents. Instead, petitioner

claims (Pet. 19):

[T]he 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. [emphasis in orig-

inal]

However, the record shows that the health interests

of Chaim Gold, Elaine Gold, and Julie Howat have

been harmed by petitioner’s illegal discharges of TDS,

consisting primarily of salts, because their drinking

water is taken from the Delaware River downstream

from petitioner’s discharge point (J.A. 419). Excess

TDS in drinking water has harmful effects on health

because it has laxative effects and adverse effects on

patients afflicted with cardiac disease and on women

with toxemia associated with pregnancy (J.A. 301,

359). TDS has especially serious effects on people like

Mr. Gold who have high blood pressure and are sup-

posed to reduce or eliminate their salt intake (J.A.

301, 359, 419). Mr. Gold’s psoriasis is negatively af-

fected by petitioner’s discharge of pollutants, such as

oil, because he swims in the Delaware River and pol-

lution exacerbates his skin condition (J.A. 420). Ex-

cess TOC reduces the availability of dissolved oxygen,

creating unpleasant odors (J.A. 295, 402). The af-

fiants’ enjoyment of walking, hiking, swimming, boat-

ing, fishing, studying nature, and sightseeing in, on,

or near the Canal and River downstream of

petitioner’s discharges are therefore diminished (J.A.

415, 418-419, 422-423, 425). TOC, TDS, oil, and ex-

cessive temperature have harmful effects on fish and

other aquatic life (J.A. 279-329, 353-387). Two affiants

do not eat fish caught in the Canal or River because

of the excessive levels of pollutants in those waters

to which petitioner has contributed (J.A. 416, 426).

Petitioner’s contention that its discharges are in-

capable of causing harm is also contradicted by the

New Jersey 1990 State Water Quality Inventory Re-

port, which describes the water quality and environ-

mental condition of the State’s waterways (J.A. 602).

The NJDEPE report includes the following assess-

ment of Wickecheoke Creek, into which petitioner di-

rectly discharges (J.A. 605):

Wickecheoke Creek * * * a cold water fish-

ery, is evaluated as moderately degraded. An

ES

14

intensive study on this latter stream’s ma-

croinvertebrate community has found a shift

from forms normally present in cold water

streams to species tolerant of extremely sa-

line conditions.

The NJDEPE report goes on to state: ‘‘Wickecheoke

Creek * * * is considered to have a moderately de-

graded fisheries, (i.e. partially meeting this designated

use), because of wastewater discharges’ (J.A. 606).

The area where petitioner discharges its waste-

water is a fresh-water ecosystem (J.A. 603).

Petitioner's discharge of wastewater high in TDS con-

sisting primarily of salts contributes to the artificially

saline condition of Wickecheoke Creek, which in turn

affects the aquatic life of the Creek (J.A. 131). More-

over, the saline condition of the Creek affects the

condition of the Delaware and Raritan Canal and the

Delaware River since the Creek flows into both the

Canal and the River (J.A. 115). Petitioner’s discharges

cause the transformation of a naturally fresh-water

environment into an artificially salt-water environ-

ment (J.A. 603, 605). Petitioner’s own expert admit-

ted that this transformation causes fresh-water

organisms to die off and allows salt-water organisms

to become dominant (J.A. 409-413).

Petitioner claims “{t]he majority of the excursions

at issue in this case * ** relate to natural environ-

mental conditions and phenomena, or measurement

anomalies.”’ Pet. 12. Conspicuously absent from

petitioner’s argument is any evidence in the record

to support these assertions. For example, petitioner

claims, without evidentiary support, that its temper-

ature violations ‘‘resulted from the heating of the

=

13

effluent by the sun’’ (ibid.) and that petitioner’s was-

tewater “entered the Creek at essentially the same

temperature as that of the Creek” (Pet. 13). Petitioner

claims, again without evidentiary support, that its

“TOC violations were a function of the natural con-

sequences of migratory geese inhabiting the ponds,

and measurement anomalies,” rather than from its

manufacturing process, and that these forms of or-

ganic carbon create oxygen rather than deplete dis-

solved oxygen in water. Jbid.

Petitioner’s contention that its illegally high dis-

charges of pollutants are incapable of causing harm

is essentially an improper attempt to challenge the

validity of the terms of its discharge permit. How-

ever, Section 509(b\2) of the Clean Water Act, 33

U.S.C. 1369(b\2), provides that a permit “shall not

be subject to judicial review in any civil or criminal

proceeding for enforcement.” In enacting this section.

Congress intended to preclude untimely challenges to

permit requirements in enforcement proceedings. As

the Senate Report states (S. Rep. No. 414, 92d Cong.,

Ist Sess. 79-80 (1971)):4

An alleged violation of an effluent control

limitation or standard would not require

reanalysis of technological [or] other consid-

erations at the enforcement stage. These

matters will have been settled in the admin-

istrative procedure leading to the establish-

ment of such effluent control provision.

‘Reprinted in A Legislative History of the Water Pollution

Control Act Amendments of 1972, 98rd Cong., lst Sess., vol.

2, pp. 1497-1498 (1973), 1972 U.S. Code Cong. & Ad. News

3675.

16

*_ * *

Consequently, the factual basis for enforce-

ment of requirements would be available at

the time enforcement is sought, and the issue

before the courts would be a factual one of

whether there had been compliance.

Petitioner also contends that ‘‘the alleged injuries

are not redressed as a result of the decision, but are

exacerbated because 100% of MEI’s effluent is dis-

charged into the Delaware River * * *.’’ Pet. 18. As

a result of the injunction issued by the district court,

petitioner is disposing of its wastewater by hauling

it to the wastewater treatment plant of the Trenton

Sewer Authority for discharge into the Delaware

River at the southern edge of Trenton (J.A. 129-130).

Under the Clean Water Act, the Trenton plant can

discharge only in compliance with its NPDES permit.

33 U.S.C. 1311(a). There is no evidence in the record

which indicates that the Trenton plant is not com-

plying with the discharge limits of its permit. More-

over, petitioner’s hauling of its wastewater to Trenton

alleviates the harm caused by petitioner’s discharge

of pollution to Wickecheoke Creek, the Delaware and

Raritan Canal, and the Delaware River upstream of

Trenton. The harm to respondents’ members resulting

from their use of the waters and nearby areas up-

stream of Trenton has therefore clearly been re-

dressed by this injunction.

x*_ * *

Thus, the district court correctly followed the well-

established law of this Court. Petitioner points to no

specific holdings of the district court which are in

conflict with any decisions of this Court or any court

17

of appeals. Instead, petitioner disputes the application

of those legal principles to the facts of this case. The

application of correct principles of law by a district

court to a particular factual situation does not raise

issues for review by this Court.

CONCLUSION

For the foregoing reasons, respondents Public In-

terest Research Group of New Jersey, Inc., and

Friends of the Earth, Inc., submit that the petition

for a writ of certiorari should be denied.

Respectfully submitted,

“BRUCE J. TERRIS

SUSAN J. MCGOLRICK

TERRIS, PRAVLIK & WAGNER

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

“Counsel of Record

Dated: April 29, 1993