The opinion of the court was delivered by: MINER
MEMORANDUM-DECISION and ORDER
This action, brought pursuant to section 505 of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1365, challenges alleged violations by defendant Aluminum Company of America ("Alcoa") of its National Pollutant Discharge Elimination System permit. Jurisdiction is predicated upon section 505(a)(1) of the FWPCA, 33 U.S.C. § 1365(a)(1). Before this Court are motions by defendant to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), or, in the alternative, for partial summary judgment, Fed.R.Civ.P. 56(b).
Plaintiff Sierra Club is a non-profit corporation organized in 1892 under the laws of the state of California. The Sierra Club is a national public interest organization dedicated to protecting the environment. With offices throughout the nation, it operates as a representative of its more than 300,000 members in conserving and protecting the country's natural resources for the benefit of the general public.
Defendant Alcoa is a Pennsylvania corporation operating an aluminum production facility in Massena, New York. This facility discharges the treated wastes from its operations into the Grass River, the Old Power Canal, and the St. Lawrence River. These discharges are controller by the terms of a waste water discharge permit issued pursuant to federal and state laws which prohibit all waste discharges except as authorized by a valid permit.Generally, states issue permits pursuant to a State Pollutant Discharge Elimination System ("SPDES") program which is authorized and approved by the Administrator of the Environmental Protection Agency ("EPA") as provided by the National Pollutant Discharge Elimination System ("NPDES") provision of the FWPCA, 33 U.S.C. § 1342(b). Under that section, the Administrator of the EPA has authorized the New York State Department of Environmental Conservation ("Department") to issue NPDES/SPDES permits. On January 31, 1975, the Department, pursuant to §§ 17-0801 to -0819 of the New York Environmental Conservation Law, issued Alcoa NPDES/SPDES permit number NY 0001732, permitting it to discharge limited quantities of pollutants into the Grass river and the Old Power Canal.
Section 308 of the FWPCA, 33 U.S.C. § 1318, requires holders of NPDES/SPDES permits to establish and maintain records, install, use and maintain monitoring equipment, sample effluents, and report on a regular basis to the permit-issuing agency regarding the facilities' discharge of pollutants. The reports consist of Discharge Monitoring Reports and Non-Compliance Reports. The EPA and the Department then prepare quarterly reports which discuss in general terms which permit holders are not complying with permit conditions.
After reviewing these reports of defendant, and perceiving the absence of any diligent prosecution of defendant by federal or state authorities, plaintiff commenced this action on November 23, 1982. Prior to filing the complaint, and pursuant to section 505(b) of the FWPCA, 33 U.S.C. § 1365(b), plaintiff, on September 17, 1982, notified Alcoa, the EPA, and the Department of defendant's longstanding and continuous violations of its NPDES/SPDES permit and of its intent to sue Alcoa unless within sixty days (the statutorily mandated waiting period, 33 U.S.C. § 1365(b)(2)), action was taken to redress the identified problems.In its notice letter, plaintiff identified over 615 violations of the Alcoa permit that had occurred between July of 1977 and December of 1981. Most of the violations involved fluoride and copper, both highly toxic substances, and many of Alcoa's violations exceeded five times the permit limits.
Based on these alleged violations, plaintiff seeks, inter alia, an injunction enjoining defendant from operating its Massena plant in such a way as would result in further permit violations, as well as payment of civil penalties of $10,000 per day of violation for each violation, 33 U.S.C. §§ 1319(d), 1365(a). Defendant has moved to dismiss the instant complaint, complaining that the Sierra Club is without standing to seek enforcement of section 505 of the FWPCA, 33 U.S.C. § 1365.
In the alternative, defendant has moved for partial summary judgment as to much of plaintiff's complaint as alleges violations of an expired permit.
A. Sierra Club's standing
In support of its contention that the Sierra Club lacks standing to maintain the present action, Alcoa advances two arguments. First, Alcoa claims that because the Sierra Club has conceded in a stipulation between the parties that its claim to standing in this litigation is not based on injury to itself but rather on its capacity as a representative of its members, the Sierra Club lacks standing as a matter of law since section 505(a) of the FWPCA, 33 U.S.C. § 1365(a), authorizes only suits brought by a plaintiff "on his own behalf." Second, Alcoa argues that even if an organization acting as a representative may maintain an action under section 505(a), the Sierra Club is not acting as a proper representative of its members in the case at bar. Treating each of these arguments in turn, this Court is persuaded that plaintiff does in fact possess the requisite standing to maintain the present suit.
The starting point for this Court's analysis must begin with the relevant wording of the statute here at issue. Section 505(a) of the FWPCA provides that:
(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 or (B) an order issued by the Administrator or a State with respect to such a standard or limitation
33 U.S.C. § 1365(a) (emphasis added).
The parties do not dispute the now familiar principle that under article III of the Constitution, an association "may have a standing in its own right to seek judicial relief from injury to itself. . . ." Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211, 45 L. Ed. 2d 343 (1975). Nor do the parties take issue with the corollary principle that, under certain circumstances, an association which cannot show injury to itself may nevertheless have standing under the Constitution since "[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members." Id. Defendants, however, argue that in enacting legislation, Congress often does not exercise its full constitutional power in conferring standing to sue. Noting that where there is a specific statutory provision defining standing, "the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff," Sierra Club v. Morton, 405 U.S. 727, 732, 92 S. Ct. 1361, 1365, 31 L. Ed. 2d 636 (1972) (footnote omitted), defendant urges that in enacting the 1977 amendments to the Clean Water Act, Congress did not confer a right to sue upon all parties who might have had standing under the Constitution but, instead limited standing to a plaintiff who commenced an action "on his own behalf." See 33 U.S.C. § 1365(a). Defendant then concludes that because the Sierra Club has acknowledged that its standing here is not based on any injury to itself, dismissal is required.
Plaintiff suggests, however, that defendant's hypertechnical reading of the statute is not justified, particularly in light of the Supreme Court decision in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), and a number of lower court cases construing the standing requirement under the FWPCA more broadly. This Court agrees.
At the outset, it is important to note that a number of courts already have implicitly approved representational suits under section 505. See RITE -- Research Improves the Environment, Inc. v. Costle, 650 F.2d 1312 (5th Cir.1981); Montgomery Environmental Coalition v. Costle, 207 U.S. App. D.C. 233, 646 F.2d 568 (D.C.Cir.1980); Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton, 506 F. Supp. 902 (W.D.Pa.1980), aff'd, 644 F.2d 995 (3d Cir.1981); Loveladies Property Owners Association, Inc. v. Raab, 430 F. Supp. 276 (D.N.J.1975), aff'd mem., 547 F.2d 1162 (3d Cir.1976); Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261 (D.D.C.1973). Defendant attempts to distinguish these cases by arguing that the organizations involved were composed solely of local memberships and were formed specifically for the purpose of commencing the suits challenging allegedly adverse environmental action. Whatever other value this distinction may serve, it nonetheless remains the case that the organizations were permitted to maintain their suits under section 505 notwithstanding the fact that the suits were not brought by an individual plaintiff or organization "on [its] own behalf."
The decision of the former Fifth Circuit in RITE -- Research Improves the Environment, Inc. v. Costle, 650 F.2d 1312 (5th Cir.1981) is instructive. In the context of an associational suit ...