source: Caselaw Access Project

author: CRABB, Chief Judge.

license: Public Domain

text:
    Virginia MUENCHOW, James A. Olson, and all other plaintiffs whose names, addresses and phone numbers are found on Attachment No. 1, attached hereto and expressly incorporated by reference herein, Plaintiffs, v. The PARKER PEN COMPANY, Defendant.
    No. 84-C-966-C.
    United States District Court, W.D. Wisconsin.
    Aug. 19, 1985.

      Richard V. Graylow, Lawton & Cates, Madison, Wis., for plaintiffs.
    Edward W. Bergmann, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, III, for defendant.
   ORDER

CRABB, Chief Judge.

On or about November 20, 1984, plaintiffs commenced a civil action for equitable relief against defendant Parker Pen Company in the Circuit Court for Rock County alleging that defendant had made misrepresentations of fact intended to induce them to terminate their seniority rights and accept severance pay benefits. On December 7, 1984, defendant Parker Pen Company filed a petition for removal of the action to this court pursuant to 28 U.S.C. § 1441(b), claiming that this court has original jurisdiction over the action pursuant to 29 U.S.C. §§ 185(a) and 1132(e)(1), because plaintiffs’ claims are preempted under principles of federal labor law and by the provisions of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.

The case is before the court on plaintiffs’ motion for remand to the state court. From defendant’s verified petition for removal, the affidavits and exhibits submitted by the parties, and the record transmitted from the state court, I find the following facts.

FACTS

Prior to April 29, 1983, all of the plaintiffs in this action were employed by defendant Parker Pen Company at its Arrow Park plant, which is located in Janesville, Wisconsin. Defendant Parker Pen Company is an employer in an industry affecting commerce within the meaning of 29 U.S.C. §§ 185(a) and 1002(5).

Plaintiffs are former members of Local No. 663 of the United Rubber Workers, which represents employees of defendant and is a labor organization in commerce within the meaning of 29 U.S.C. § 185(a). At all times material to this action, plaintiffs were covered by a collective bargaining agreement between the United Rubber Workers and defendant.

In response to losses in several key world markets, defendant sought to modernize its Arrow Park plant. Defendant anticipated that modernization of the plant would require a reduction in the work force, and began discussing this concern with union representatives in March, 1983. As a result of these discussions, defendant and union representatives reached agreement on several measures, including a severance pay plan, designed to reduce the production work force and increase management flexibility. On March 27, 1983, the union membership ratified the measures.

Under the severance pay plan, employees of defendant who terminated their employment would receive (1) two weeks’ wages per year of service up to 26 weeks, with a minimum severance pay of thirteen weeks; (2) medical insurance coverage up to a maximum of one year from the date of termination; (3) immediate payment of vacation pay earned in 1982 and 1983; (4) immediate vesting in the Parker Retirement Plan; and (5) extension of unemployment eligibility. In effect, employees of defendant were given the option of accepting benefits under the severance pay plan and terminating seniority, or of taking layoff and retaining recall rights under the basic collective bargaining agreement.

The company conducted informational meetings on April 26 and 27, 1983, to answer employee questions concerning implementation of the severance pay plan. Subsequently, plaintiffs applied for benefits under the severance pay plan by signing and submitting an “APPLICATION FOR SEVERANCE,” with the understanding that they had terminated their employment by submitting the application.

On or about November 20, 1984, plaintiffs commenced this action in the Circuit Court for Rock County. The complaint alleges that defendant made statements at informational meetings beginning in late March and continuing through April, 1983, to the effect that a maximum of 200 jobs would exist after modernization of the Arrow Park plant; that these statements constituted misrepresentations or material mistakes of fact; that plaintiffs relied on these statements in deciding whether to accept benefits under the severance pay plan and terminate their seniority; and that plaintiffs would not have accepted severance benefits or terminated their seniority but for the misrepresentations or material mistakes of fact. The relief requested in the complaint is rescission of the severance pay plan and reinstatement of plaintiffs to their previous positions at defendant’s Janesville plant, together with back pay and full rights and benefits under the collective bargaining agreement.

Previously, plaintiff Muenchow had filed an unfair labor practice charge against defendant with the National Labor Relations Board alleging that defendant violated 29 U.S.C. § 158(a)(1) and (3) by representing at informational meetings that a maximum of 200 jobs would exist after modernization of the Arrow Park plant was completed, and thereafter exceeding that level of employment. In a letter dated March 31, 1984, the regional director informed plaintiff Muenchow that he was refusing to issue a complaint, finding that the charge was untimely and concluding that, in any event, “[defendant’s] incorrect forecast of employment levels after plant renovation, in the absence of any independent violations of the Act, does not itself demonstrate discrimination against employees because of their union activities.”

In early June, 1984, plaintiff Muenchow and four others filed a grievance under the provisions of the collective bargaining agreement between defendant and the United Rubber Workers. The grievance alleged that, during informational meetings concerning the severance pay plan, defendant misrepresented that a maximum of 200 jobs would exist after modernization of the plant was completed. Claiming that this alleged misrepresentation caused them to terminate their seniority, plaintiff Muenchow and the others who filed the grievance sought “reinstatement of severed employees with full benefits.” Later, the union membership voted at a meeting against taking the grievance to arbitration. Defendant has not received a demand for arbitration.

OPINION

Federal question removal is governed by 28 U.S.C. § 1441(b), which provides that:

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.

Generally, an action is removable under § 1441(b) only where it appears from the face of the complaint, unaided by the answer or petition for removal, that a right arising under federal law is an essential element of the plaintiff’s claim and is the subject of a genuine and present controversy. Gully v. First National Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936); Oglesby v. RCA Corp., 752 F.2d 272, 275 (7th Cir.1985).

This so-called “well-pleaded complaint rule” has an exception. A plaintiff cannot defeat the defendant’s right of removal by using “artful pleading” to disguise an essentially federal claim in terms of state law. Oglesby v. RCA Corp., 752 F.2d at 275. See generally 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722 at 266-76 (1985). Where the essential nature of plaintiff’s claim is federal, because of preemption or otherwise, the case may be removed regardless of the manner in which the claim was characterized in the complaint. 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722 at 273-75 (1985). In these situations, a court may examine the record to determine the true nature of plaintiffs claim. Oglesby v. RCA Corp., 752 F.2d at 277-78.

Once federal question removal jurisdiction is challenged, the party seeking removal has the burden of establishing that removal was proper. Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). The complaint in this ease does not allege any violation of federal law. Nevertheless, defendant contends that plaintiffs’ claims of misrepresentation and mutual mistake of fact must be recharacterized as arising under federal law because they are preempted both by the primary jurisdiction of the NLRB over unfair labor practice disputes and by 29 U.S.C. § 185(a). Defendant argues therefore that federal question removal is proper under principles of federal labor law. In addition, defendant contends that federal question removal is proper under 29 U.S.C. § 1132(e)(1) because plaintiffs’ state law claims are preempted by ERISA, 29 U.S.C. § 1144(a).

Federal Labor Law Preemption and Removal Based On § 185(a)

Defendant contends that plaintiffs’ claims must be preempted to protect the primary jurisdiction of the NLRB over unfair labor practice disputes. The primary jurisdiction doctrine has its origins in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In Garmon, the United States Supreme Court held that the jurisdiction of state courts or agencies must yield to the exclusive primary competence of the NLRB if the activities sought to be regulated are either arguably protected as “concerted activities” under 29 U.S.C. § 157 or arguably prohibited as unfair labor practices under 29 U.S.C. § 158. Id. at 244-45, 79 S.Ct. at 779. The rule is designed to avoid the potential for jurisdictional conflict between state courts or agencies and the NLRB by ensuring that primary responsibility for interpreting and applying §§ 157 and 158 remains with the NLRB. Brown v. Hotel & Restaurant Employees & Bartenders, — U.S. —, 104 S.Ct. 3179, 3186-87, 82 L.Ed.2d 373 (1984).

However, there are exceptions to the primary jurisdiction doctrine. The doctrine does not apply if the activity sought to be regulated is a “merely peripheral concern” of the NLRA, or if the activity touches interests that are “so deeply rooted in local feeling and responsibility” that it cannot be inferred that Congress intended to deprive the states of the power to act. San Diego Building Trades Council v. Garmon, 359 U.S. at 245-46, 79 S.Ct. at 779-80. As the Court recently noted in Allis-Chalmers Corp. v. Lueck, — U.S. —, 105 S.Ct. 1904, 1912 n. 9, 85 L.Ed.2d 206 (U.S. April 16, 1985), application of the primary jurisdiction doctrine established in Garmon essentially “requires a balancing of state and federal interests.”

Plaintiffs argue that the nature of the activity sought to be regulated in this case by state law is not arguably protected or prohibited because the regional director of the NLRB refused to issue a complaint. The United States Supreme Court rejected a similar contention in Garmon, concluding that a refusal by the general counsel to file a charge did not mean that a decision had been made that the conduct was not arguably protected or prohibited. 359 U.S. at 245-46, 79 S.Ct. at 779-80. See also Local 926, International Union of Operating Engineers v. Jones, 460 U.S. 669, 680, 103 S.Ct. 1453, 1461, 75 L.Ed.2d 368 (1983) (stating that “the Garmon pre-emption doctrine not only mandates the substantive pre-emption by the federal labor law in the areas to which it applies, but also protects the exclusive jurisdiction of the Board over matters arguably within the reach of the Act”).

The activity sought to be regulated in this case is arguably protected or prohibited under §§ 157 and 158. See Moore v. General Motors Corp., 739 F.2d 311 (8th Cir.1984) cert. denied — U.S. —, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985) (holding that federal labor law preempted plaintiff’s claims that the defendant employer had engaged in negligent misrepresentation and fraud by inducing her to sell her St. Louis home at a loss to move to Kentucky for a promised job which did not materialize). In signing and submitting the applica-' tions for severance, plaintiffs were exercising a right derived from the collective bargaining agreement which governed the terms and conditions of their employment; namely, the right to choose whether to accept benefits under the severance pay plan and terminate seniority or to forgo severance benefits and retain recall rights. In alleging that defendant misrepresented maximum employment levels to induce plaintiffs to accept severance benefits, plaintiffs have alleged conduct that relates to the terms and conditions of their employment. Such conduct is arguably protected or prohibited under §§ 157 and 158. Id. at 315.

Nevertheless, even where the activity sought to be regulated by state law is arguably protected or prohibited, state regulation may be permissible if the interest of the state in protecting its citizens is not counterbalanced by the harm to the federal regulatory scheme. Local 926, International Union of Operating Engineers v. Jones, 460 U.S. at 676, 103 S.Ct. at 1459; Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 188-89, 98 S.Ct. 1745, 1752-53, 56 L.Ed.2d 209 (1978). Plaintiffs’ state causes of action do not involve conduct that falls within any of the established exceptions to the Garmon preemption doctrine, see International Union, United Automobile Workers, 356 U.S. 634, 640, 78 S.Ct. 932, 935, 2 L.Ed.2d 1030. (1958) (violence or threats of violence); id. at 649, 78 S.Ct. at 941 (Warren, C.J., dissenting) (same); Linn v. United Plant Guard Workers, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (malicious libel); Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (outrageous conduct intended to cause severe emotional distress), but plaintiffs urge that an exception should be recognized for the state causes of action alleged in this case, because those state causes of action encompass conduct that is of only peripheral concern to federal labor policy.

Plaintiffs emphasize that their claims focus on misrepresentations made by defendant during “face-to-face” encounters that preceded the signing by plaintiffs of the individual agreements to accept severance benefits and terminate seniority, and not on the negotiations underlying the collective bargaining agreement itself, contending that this supports a conclusion that defendant’s conduct is only a peripheral concern to federal labor policy. This contention is not persuasive. As I have already stated, defendant’s alleged conduct related to the exercise by plaintiffs of a right derived from the collective bargaining agreement between defendant and the United Rubber Workers. Such conduct cannot be said to be activity that is of only peripheral concern to the NLRA. Moore v. General Motors Corp., 739 F.2d at 316.

Plaintiffs also appear to rely on Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983) as support for the contention that their misrepresentation claim regulates activity that is of only peripheral concern to the NLRA. In Belknap, replacement employees who were laid off to make room for returning strikers brought suit against the employer to recover damages for misrepresentation, alleging that the employer had hired them with false promises of permanent employment. The Court held that the replacement employees’ misrepresentation action would not interfere with the NLRB’s determination of matters within its jurisdiction, and that the misrepresentation action was of no more than peripheral concern to the NLRA. Id. at 510-11, 103 SiCt. at 3183.

Unlike the laid off replacement employees in Belknap, plaintiffs in the case before the court were entitled to the benefits of a collective bargaining agreement between the United Rubber Workers and defendant, and the relief they seek—reinstatement with back pay and full benefits—is relief that the NLRB can provide. Cf. id. at 510, 103 S.Ct. at 3183 (stating that “[t]he strikers cannot secure reinstatement, or indeed any relief, by suing for misrepresentation in state court. The state courts in no way offer them an alternative forum for obtaining relief that the Board can provide.”) Thus, Belknap provides no support for plaintiffs’ contention.

Plaintiffs appear to argue also that any potential for interference with the federal regulatory scheme is lessened by the fact that federal labor law and their state law claims address distinctive concerns. According to plaintiffs, the central concern of federal labor law is whether defendant’s misrepresentations constituted an unfair labor practice, whereas the only issues in the state court are whether defendant made misrepresentations to plaintiffs, and, if so, whether plaintiffs relied on those misrepresentations to their detriment. Plaintiffs contend that whatever risk of interference exists is outweighed by the interest of the state in protecting its citizens.

However, the fact that the NLRB would be concerned primarily with whether defendant’s conduct constituted an unfair labor practice does not save plaintiffs’ causes of action from federal preemption. The NLRB would have to focus on the same conduct alleged to support a misrepresentation claim in state court to determine whether defendant was guilty of an unfair labor practice, and plaintiffs have not alleged any injury that could. not be remedied or requested any relief that could not be awarded by the NLRB if it found that defendant’s conduct constituted an unfair labor practice. Cf. Farmer v. Carpenters, 430 U.S. at 304-05, 97 S.Ct. at 1065-66 (emphasizing the discrete concerns of the federal scheme and the state tort law, including the NLRB’s lack of concern with whether the conduct of the defendant union caused severe emotional distress and physical injury and its inability to award damages for pain, suffering, or medical expenses). Moreover, although the state certainly has an interest in protecting its citizens from misrepresentation, see Belknap, Inc. v. Hale, 463 U.S. at 511, 103 S.Ct. at 3183, the state does not have as much interest in awarding reinstatement with back pay and full benefits as a remedy as it does in awarding damages as compensation for injuries that cannot be remedied by the NLRB. Cf. Linn v. Plant Guard Workers, 383 U.S. at 64 n. 6, 86 S.Ct. at 664 n. 6 (stating that the NLRB’s lack of concern with and inability to provide redress for the “personal injury” caused by malicious libel aggravates the state’s concern because “the refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to take matters into his own hands”). I conclude that the state’s interest in regulating the conduct at issue in this case does not counterbalance the risk of interference with the exclusive jurisdiction of the NLRB, and, therefore, that the primary jurisdiction doctrine preempts plaintiffs’ state law claims.

The general rule is that a case is not removable to federal court unless the case would have been within the subject matter jurisdiction of the federal court in the first instance. See generally 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3721 at 189 (1985). The primary jurisdiction doctrine provides no basis for removal jurisdiction in this court because it deprives both federal and state courts of subject matter jurisdiction over unfair labor practice disputes. See Amalgamated Association of Motor Coach Employees v. Lockridge, 403 U.S. 274, 286, 91 S.Ct. 1909, 1917, 29 L.Ed.2d 473 (1971); San Diego Building Trades Council v. Garmon, 359 U.S. at 245, 79 S.Ct. at 779; Moore v. General Motors Corp., 739 F.2d at 311. Viewing the case before the court solely in terms of the primary jurisdiction of the NLRB, I would have to dismiss plaintiffs’ claims for lack of jurisdiction. No purpose would be served by remanding the case to the state court because the primary jurisdiction doctrine also deprives the state courts of jurisdiction over plaintiffs’ claims.

However, I must consider the alternative possibility that the preemptive force of § 185(a) makes this case one that is properly subject to federal question removal. The United States Supreme Court has held that a suit under § 185(a) for violation of a collective bargaining agreement may be brought in state or federal court even though the conduct sought to be regulated in the suit is arguably protected or prohibited. Smith v. Evening News Association, 371 U.S. 195, 197, 83 S.Ct. 267, 268, 9 L.Ed.2d 246 (1962); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). Underlying this exception to primary jurisdiction is the rationale that by enacting § 185(a), Congress “deliberately chose to leave the enforcement of collective agreements ‘to the usual process of the law.’ ” Teamsters v. Lucas Flour Co., 369 U.S. 95, 101 n. 9, 82 S.Ct. 571, 575 n. 9, 7 L.Ed.2d 593 (1962) quoting Charles Dowd Box Co. v. Courtney, 368 U.S. at 513, 82 S.Ct. at 525. The distinguishing characteristic of a § 185(a) suit is that it arises out of an alleged breach of a collective bargaining agreement. By contrast, although it is an unfair labor practice for an employer to refuse to bargain collectively with employee representatives, see 29 U.S.C. § 158(a)(5), such a refusal would not give rise to a suit under § 185(a).

Since plaintiffs do not allege that defendant violated the terms of a collective bargaining agreement, the issue is whether plaintiffs’ claims are nevertheless preempted by § 185(a). Unlike the Garmon preemption doctrine, which protects the primary jurisdiction of the NLRB over unfair labor practice disputes, § 185(a) preemption is based on actual federal protection of the conduct at issue. Allis-Chalmers Corp. v. Lueck, — U.S. —, 105 S.Ct. 1904, 1912 n. 9, 85 L.Ed.2d 206. Section 185(a) expresses a federal policy that the substantive law to be applied in suits for violation of a collective bargaining agreement “is federal law, which the courts must fashion from the policy of our national labor law.” Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957). State courts have concurrent jurisdiction in § 185(a) cases, Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, but they are bound to interpret collective bargaining agreements according to the substantive principles of federal labor law, Teamsters v. Lucas Flour Co., 369 U.S. at 103, 82 S.Ct. at 576, and the United States Supreme Court has held that § 185(a) preemption is so complete that any complaint that comes within the scope of its terms necessarily “arises under” federal law and is removable under 28 U.S.C. § 1441(b). Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23-24, 103 S.Ct. 2841, 2853-54, 77 L.Ed.2d 420 (1983) explaining Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).

The terms of the collective bargaining agreement between the United Rubber Workers and defendant do not refer expressly to any rights or obligations that are similar to those created by the state law claims of deceptive misrepresentation pleaded in plaintiffs’ complaint. This does not mean, however, that the dispute giving rise to plaintiffs’ claims is outside the terms of the collective bargaining agreement. See Allis-Chalmers Corp. v. Lueck, 105 S.Ct. at 1913; United Steelworkers of America v. Warmer Gulf Navigation Co., 363 U.S. 574, 583-84, 80 S.Ct. 1347, 1353-54, 4 L.Ed.2d 1409 (1960) (stating that “[t]he labor arbitrator’s source of law is not confined to the express provisions of the contract, as the industrial common law—the practices of the industry and the shop—is equally a part of the collective bargaining agreement although not expressed in it”).

In many instances, the scope of the terms of a collective bargaining agreement may be found in the scope of the parties’ agreement to arbitrate. The collective bargaining agreement between the United Rubber Workers and defendant contains a broad arbitration clause. Paragraph (c)(6) of Article VIII of the agreement provides that “[a]ny grievance or dispute including disputes over the interpretation of this contract may be arbitratable [subject to certain procedural requirements].” Because the dispute involved in this case raises the question whether defendant misled plaintiffs about their future work opportunity, it relates to the terms and conditions of plaintiffs’ employment, and it is not unreasonable to conclude that the dispute is appropriate for arbitration. By definition, such a dispute can be brought in state or federal court under § 185(a) as a suit for violation of a collective bargaining agreement.

Nevertheless, the recent decision of the United States Supreme Court in Allis-Chalmers Cory, suggests that although this suit may be brought under § 185(a), the preemptive effect of that section does not require that the suit be so brought. In Allis-Chalmers Corp., the Court examined the preemptive effect of § 185(a) on a suit alleging the tort of bad-faith handling of an insurance claim, specifically, a claim under a disability plan included in a collective bargaining agreement. In examining this question, the Court stated that § 185(a) preempts only those suits grounded on “state, law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties,” and concluded that the preemption analysis under § 185(a) “must focus ... on whether the tort action for breach of the duty of good faith as applied here confers non-negotiable state law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.” Id. 105 S.Ct. at 1912.

The Court’s analyis in Allis-Chalmers suggests that the question for purposes of § 185(a) preemption is not simply whether the dispute underlying plaintiffs’ claims may be subject to the terms of the collective bargaining agreement, but whether plaintiffs’ claims rely upon state rules that do not exist independently of private agreements and that can be prospectively waived or altered by such agreements, and thus cannot be resolved without consideration of the collective agreement. In the case before the court, preemption would not apply because plaintiffs’ state law claims of deceptive misrepresentations rely upon state rules that exist independently of private agreements and that cannot be prospectively waived or altered by such agreements. Cf. id. 105 S.Ct. at 1914 (suggesting that, under Wisconsin law, the tort of bad faith handling of an insurance claim may be waived by private agreement because “it appears that the parties to an insurance contract are free to bargain about what ‘reasonable’ performance of their contract obligations entails”). I conclude therefore that plaintiffs’ state law claims are not preempted by § 185(a).

Plaintiffs may have implied rights under the terms of the labor contract that duplicate the substantive rights secured by the state causes of action pleaded in the complaint. But § 185(a) does not preempt a separate action to enforce parallel fights having legally independent origins simply because the underlying dispute may be subject to arbitration. See Alexander v. Gardner Denver Co., 415 U.S. 36, 50, 94 S.Ct. 1011, 1020, 39 L.Ed.2d 147 (1974) (discharged union member could pursue his statutory rights under Title VII in court and his contractual rights through arbitration, because “no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums”) cited in Allis-Chalmers Corp. v. Lueck, — U.S. —, 105 S.Ct. 1904, 1912 n. 8, 85 L.Ed.2d 206.

Having concluded that § 185(a) does not preempt plaintiffs’ claims, I conclude also that those claims cannot be re-characterized as “arising under” § 185(a), and, therefore, that they are not properly subject to federal question removal on the basis of that section. Because plaintiffs’ claims are nevertheless preempted by the primary jurisdiction of the NLRB, those claims must be dismissed for lack of jurisdiction.

ERISA Preemption and Removal Based On § 1132(e)(1)

ERISA contains an express preemption provision that provides, in relevant part, as follows:

Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(a) of this title....

29 U.S.C. § 1144(a) (emphasis added).

The preemptive scope of § 1144(a) is as broad as its language. If a state law has a “connection with or reference to” an employee benefit plan, it “relates to” such a plan within the meaning of that section. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983).

Defendant argues that the severance pay plan is subject to ERISA, see 29 C.F.R. § 2510.3-l(a)(3); Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th Cir.1984) (severance pay plan established or maintained by any employer or employee organization engaged in commerce or in any industry or activity affecting commerce is an employee welfare benefit plan within the meaning of ERISA), and that plaintiffs’ claims of misrepresentation and mutual mistake of fact are preempted by § 1144(a) because they “relate to” the severance pay plan. Plaintiffs do not dispute that the severance pay plan is subject to ERISA. Instead, plaintiffs argue that the relationship between their claims and the severance pay plan is too tenuous to justify preemption under ERISA because they do not contest benefits under ERISA or protest the administration of those benefits, and because they seek rescission of the “APPLICATION FOR SEVERANCE,” not rescission of the severance pay plan.

There are only two reported cases dealing with the preemptive effect of ERISA on state law claims of misrepresentation. In Provience v. Valley Clerks Trust Fund, 509 F.Supp. 388, 391-92 (E.D.Cal.1981), the court held that ERISA did not preempt plaintiff’s state law claim that defendant had fraudulently misrepresented the nature of benefits available under its medical plan. The court noted that the law of fraud did not have a direct effect on the plan and that it was a law of general application pertaining to an area of important state concern. Id. at 391. In addition, the court emphasized that allowing a state fraud claim would not conflict with the purposes of ERISA, but instead would further them. Id. at 392.

However, the opposite conclusion was reached by the court in Ogden v. Michigan Bell Telephone Co., 571 F.Supp. 520, 522-24 (E.D.Mich.1983). In that case, plaintiffs brought a claim alleging that plan fiduciaries made false statements concerning the future availability of certain retirement benefits and that plaintiffs relied on those statements in electing early retirement. Following the decision of the Court of Appeals for the Eighth Circuit in Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1214-16 (8th Cir.1981) cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384, the court stated that “state claims are preempted if two conditions are satisfied: (1) Congress has indicated its intent to ‘occupy the field’ in the subject being regulated; and (2) Congress has provided a remedy for the wrong alleged.” Ogden v. Michigan Bell Telephone Co., 571 F.Supp. at 523. The court held that plaintiffs’ fraudulent misrepresentation claim was preempted by ERISA, stating that § 1144 was an unambiguous expression of congressional intent to “occupy the field;” that defendants arguably violated both their fiduciary duty under ERISA to administer the plan solely in the interest of its participants and their duty to release to participants pertinent information concerning the plan; and that ERISA provided plaintiffs an express remedy for such violations. Id. at 523-24.

I agree that § 1144 is an unambiguous expression of congressional intent to “occupy the field.” Moreover, I conclude that ERISA supplies a remedy for the wrong alleged in plaintiffs’ complaint. To the extent that defendant had discretionary authority and responsibility in informing its union-member employees concerning their option to elect the severance pay plan, it acted in the capacity of a fiduciary within the meaning of 29 U.S.C. § 1002(21)(A)(iii), which makes a person a fiduciary to the extent he or she has “discretionary authority or discretionary responsibility in the administration of such plan.” As a fiduciary under ERISA, defendant was charged with a duty to administer the plan solely in the interest of plan participants. See 29 U.S.C. § 1104(a)(1). See also Blau v. Del Monte Corp., 748 F.2d at 1352 (fiduciary responsibility standards of ERISA apply to employee welfare benefit plans such as severance plans).

Not surprisingly, defendant does not argue either that ERISA supplies plaintiffs a remedy for the wrong alleged in their complaint, or that ERISA imposed fiduciary duties upon it in providing information to its union-member employees concerning the availability of jobs after modernization of the plant. But assuming, as I must, that defendant made false statements of fact in informing its union-member employees concerning their option to elect the severance pay plan, defendant may have violated § 1104(a)(1), and plaintiffs have a remedy for such a violation under § 1132(a)(2).

Although plaintiffs do not allege that defendant was acting as a fiduciary under ERISA in making statements concerning its future employment needs, plaintiffs cannot avoid the preemptive effect of § 1144(a) by simply omitting from their complaint all references to a violation of § 1104(a)(1). See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at 24, 103 S.Ct. at 2854 (suggesting that, as with 29 U.S.C. § 185(a), “any state action coming within the scope of [§ .1132(a) ] of ERISA would be removable to federal district court, even if an otherwise adequate state cause of action were pleaded without reference to federal law”) (emphasis added). Because ERISA supplies a remedy for the wrong alleged in plaintiffs’ complaint, and because plaintiffs’ claims of misrepresentation and mutual mistake of fact arise out of a common nucleus of fact, I conclude that both of plaintiffs’ claims are preempted by § 1144(a). Dependahl v. Falstaff Brewing Co., 653 F.2d at 1214-16; Ogden v. Michigan Bell Telephone Co., 571 F.Supp. at 523.

The United States Supreme Court has suggested that the impact of state action on an employee benefit plan may be too tenuous, remote, or peripheral to warrant a finding that the act or law in question “relates to” the plan. Shaw v. Delta Air Lines, Inc., 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21 citing American Telephone and Telegraph Co. v. Merry, 592 F.2d 118, 121 (2d Cir.1979), which held that state garnishment of a spouse’s pension income to enforce alimony and support orders was not preempted. Cf. San Diego Building Trades Council v. Garmon, 359 U.S. at 243, 79 S.Ct. at 778 (1959) (no preemption of state regulation where the activity regulated is of only peripheral concern to the Labor Management Relations Act). Having concluded that ERISA supplies plaintiffs a remedy for the wrong alleged in their complaint, I conclude also that defendant’s activity is not of merely peripheral concern to ERISA.

Nevertheless, the conclusion that plaintiffs’ claims are preempted by § 1144(a) does not mean that this court has removal jurisdiction based on § 1132(e)(1). Where, as in this case, plaintiff has a remedy under ERISA for the wrong alleged in the complaint, the effect of § 1144(a) preemption is to make plaintiff’s claim “arise under” ERISA. Cf. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at 24-27, 103 S.Ct. at 2854-56 (holding that, even assuming that an action by the state to enforce a tax levy would be preempted by ERISA, the two claims pleaded by the state in its complaint were not removable because § 1132(a) limits the parties entitled to relief to participants, beneficiaries, or fiduciaries, and the state’s claims thus did not “arise under” ERISA). But it is well settled that a case removed from state court to federal court must be dismissed if the case is one that is within the exclusive jurisdiction of the federal courts. See id. at 24 n. 27, 103 S.Ct. at 2854 n. 27 (stating that “precedent involving other statutes granting exclusive jurisdiction to the federal courts suggests that, if such an action were not within the class of cases over which state and federal courts have concurrent jurisdiction, the proper course for a federal district court to take after removal would be to dismiss the case altogether, without reaching the merits”); Reid v. United States, 715 F.2d 1148, 1153-54 (7th Cir.1983) (holding that claims removed to the district court were properly dismissed because the district court’s jurisdiction over the claims was exclusive). The theoretical justification for this rule is that removal gives the federal courts only derivative jurisdiction, see generally 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722 at 284 (1985), and a federal court cannot acquire such derivative jurisdiction unless the case is one that was within the jurisdiction of the state court from which it was removed.

Section 1132(e)(1) provides that the federal district courts shall have exclusive jurisdiction of civil actions brought by the Secretary of Labor or by a participant, beneficiary, or fiduciary. Interpreting that section, the Court of Appeals for the Seventh Circuit has held that the federal district courts have exclusive jurisdiction over ERISA claims for breach of fiduciary duty. Central States, Southeast and Southwest Areas Health Fund v. Old Security Life Insurance Co., 600 F.2d 671, 676 (7th Cir.1979). See also H.R.Conf.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 5038, 5107.

Because the effect of § 1144(a) preemption is to make plaintiffs’ claims “arise under” ERISA, and because § 1132(e)(1) gives the federal courts exclusive jurisdiction over breach of fiduciary duty claims under ERISA, 29 U.S.C. § 1132(a)(2), I conclude that plaintiffs’ claims must be dismissed. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at 24 n. 27,103 S.Ct. at 2854 n. 27. In any event, plaintiffs’ claims must be dismissed because I concluded previously that they are preempted by the primary jurisdiction of the NLRB.

ORDER

IT IS ORDERED that plaintiffs’ motion for remand to the Circuit Court for Rock County is DENIED, and that plaintiffs’ claims of misrepresentation and mutual mistake of fact are DISMISSED without prejudice to their filing a new complaint to assert claims under either 29 U.S.C. § 185(a) or 29 U.S.C. § 1132(a)(2), or both.

      . The two exceptions to the primary jurisdiction doctrine do not apply if the conduct at issue is clearly protected by federal labor law, rather than arguably so protected. In that situation, Congress has provided that federal law must prevail and preemption follows as a matter of substantive right. Brown v. Hotel & Restaurant Employees & Bartenders, 104 S.Ct. at 3187.

      . Section 185(a) provides that:
      Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties____”

      . For an example of what would appear to be non-negotiable state law rights that exist independently of private agreements and that cannot be prospectively waived by such agreements, see Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at 25 n. 28, 103 S.Ct. at 2854 n. 28, where the Court suggested that "a state battery suit growing out of a violent strike would not arise under [§ 185] simply because the strike may have been a violation of an employer-union contract.” The conduct referred to in the Court's footnote also falls within the exception to Garmon preemption for conduct that is of only peripheral concern to the NLRA and that touches interests deeply rooted in local feeling and responsibility. See International Union, United Automobile Workers, 356 U.S. at 640, 78 S.Ct. at 935; id. at 649, 78 S.Ct. at 941 (Warren, C.J., dissenting). In this respect, it is unlike the conduct alleged in this case.

      . Plaintiffs may assert these implied rights under § 185(a), if they wish, by filing a new complaint in the state court or in this court.

      . In their original complaint, plaintiffs sought relief in the form of rescission of the severance pay plan. After defendant removed the case to this court, plaintiffs filed an amended complaint seeking rescission of the "APPLICATION FOR SEVERANCE." This amendment does not affect the disposition of plaintiffs' motion for remand. In any event, the general rule is that a plaintiff cannot force a remand by filing an amended complaint to eliminate the federal claim after the case is removed. See generally 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722 at 276-78 (1985).

      . Derivative jurisdiction problems do not arise where removal is based on § 185(a) preemption because federal and state courts have concurrent jurisdiction over actions brought under that section.

      . Section 1132(e)(1), 29 U.S.C., provides as follows:
      Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B).
      Although § 1132(e)(1) provides that state courts have concurrent jurisdiction over actions under subsection (a)(1)(B), that subsection covers only suits to recover or clarify benefits due under a particular plan which do not involve application of ERISA. See H.R.Conf.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 5038, 5107. In this case, plaintiffs do not seek to recover or clarify the benefits due under the severance pay plan, and subsection (a)(1)(B) is thus inapplicable.


author: BROTMAN, District Judge.

text:
    STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and Friends of the Earth, Plaintiffs, v. GEORGIA-PACIFIC CORPORATION, Defendant.
    Civ. A. No. 84-1063.
    United States District Court, D. New Jersey.
    Aug. 19, 1985.

      Edward L. Lloyd, Trenton, N.J. and Bruce J. Terris, James M. Hecker, Carolyn A. Smith, Terris & Sunderland, Washington, D.C., for plaintiffs.
    Bruce S. Haines, Cohen, Shapiro, Polisher, Shiekman & Cohen, Cherry Hill, N.J., and Hershel J. Richman, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for defendant.
   BROTMAN, District Judge.

This matter concerns defendant Georgia-Pacific Corporation’s alleged violations of a United States Environmental Protection Agency (“EPA”) water pollution discharge permit. Plaintiffs Student Public Interest Research Group of New Jersey, Inc. (“SPIRG”) and Friends of the Earth (“FOE”) bring this action under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act” or “Act”). The complaint charges defendant with emitting unlawfully high levels of pollutants into the Delaware River from a wastepaper recycling and chipboard production plant in Delair, New Jersey. Pursuant to Section 505 of the Act, 33 U.S.C. § 1365, the “citizen suit” provision, plaintiffs seek a declaration that defendant committed some 162 violations of their EPA discharge permit between January 1, 1979 and December 31,1983. Plaintiffs also ask the court to impose civil penalties and various forms of injunctive relief.

Presently before the court are a series of dispositive motions. Defendant requests summary judgment, pursuant to Fed.R. Civ.P. 56, on the grounds that plaintiffs lack standing to sue. Georgia-Pacific also moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a cause of action. Fed.R.Civ.P. 12(b)(1), (6). Plaintiffs ask for partial summary judgment restricted to the issue of liability. For reasons set forth below, the court will deny defendant’s motions to dismiss and for summary judgment, and will grant in part plaintiffs’ motion for partial summary judgment.

Factual Background and Procedural History

An EPA discharge permit (also known as a “national pollution discharge elimination system" permit, or “NPDES”) went into effect at defendant’s Delair plant on July 31, 1974. In April, 1982, EPA delegated to the states the authority to issue water pollution discharge permits pursuant to Section 402(b) of the Clean Water Act. 33 U.S.C. § 1342(b). Nevertheless, the EPA permit, NPDES Permit No. NJ0004669, remained in force until February 1, 1984, when a New Jersey Department of Environmental Protection (“DEP”) discharge permit went into effect.

EPA initiated a permit enforcement action against Georgia-Pacific on May 17, 1979. United States v. Georgia-Pacific Corporation, Civ. No. 79-1550 (D.N.J.). On May 12, 1981, defendant and EPA entered into a Consent Judgment whereby Georgia-Pacific agreed to pay $75,000.00 in fines to the United States and to install a “clarifier” in order to reduce effluents into the Delaware River.

A major contested issue in this case is the scope of the Consent Judgment. The document purports to cover “all claims asserted” by the United States. Plaintiffs maintain the decree covers only violations specified in the original complaint; violations between February, 1977 and December, 1978. Defendants contend the order covers all violations up to May 12,1981, the day the order was signed.

On March 4, 1983, plaintiffs directed a letter to Georgia-Pacific informing the company that they intended to initiate a citizen suit. The notification cited 398 specific instances in which defendant’s discharges exceeded its NPDES permit limits between July, 1977 and May, 1982. Complaint, Appendix A. At the same time, plaintiffs also sent similar notice letters to EPA and DEP. Plaintiffs derived their list of purported violations by comparing defendant’s permit limits with data contained in monthly Discharge Monitoring Reports (“DMRs”) and Non-Compliance Reports (“NCRs”) submitted to the EPA by defendant in accordance with its permit.

During the twelve months after issuance of plaintiffs’ notice letters, the parties exchanged information and conducted settlement negotiations. In spite of such efforts, the parties were unable to reach an amicable resolution of this matter. Consequently, plaintiffs filed this action on March 19, 1984.

Since the entry of the Consent Judgment between defendant and the United States on May 12, 1981, both EPA and DEP have monitored the discharge of pollutants at defendant’s Delair plant. At various times between May 12, 1981 and March 19, 1984, EPA has issued reports concerning defendant’s compliance with its NPDES permit. In addition, Georgia-Pacific officials have met and corresponded with federal and state environmental regulators on various oceasiuns during this period. Between December, 1981 and the fall of 1983, DEP monitored defendant’s Delair operations and had numerous contacts with defendant’s legal staff regarding development of a state water pollution discharge permit. Defendant’s Reply Brief in Support of Motion to Dismiss, Exhibits B, D, G.

Subsequent to the filing of this lawsuit, plaintiffs conducted a review of defendant’s monthly DMRs through January, 1984. Plaintiffs’ Brief in Opposition to Motion to Dismiss, Exhibit D. Based on this research, plaintiffs now allege defendant violated the Clean Water Act, by exceeding effluent levels in its NPDES permit, 162 times between January 1, 1979 and December 31, 1983. Plaintiffs’ Brief in Support of Partial Summary Judgment, Appendix II, Exhibit D.

Defendant’s Motions

Defendant Georgia-Pacific originally moved to dismiss the complaint on two grounds: plaintiffs’ lack of standing to sue and plaintiffs’ failure to state a cause of action under the citizen suit provision of the Clean Water Act. 33 U.S.C. § 1365. In addition, defendant charges that certain aspects of the relief plaintiffs request is not available in a citizen suit. Subsequently, both parties submitted affidavits relevant to the issue of standing. In accordance with Fed.R.Civ.P. 12(b)(6), defendant now contests plaintiffs’ standing in the form of a motion for summary judgment, pursuant to Fed.R.Civ.P. 56. As plaintiffs’ standing to sue is a question which concerns the power of the court to hear this matter, the court will address this aspect of defendant’s motions first.

1. Standing

The standard for granting summary judgment is a stringent one. Rule 56(c), Fed.R.Civ.P., provides that summary judgment may be granted only when the materials of record “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Special Jet Services, Inc. v. Federal Insurance Co., 643 F.2d 977 (3rd Cir.1981); Ely v. Hall’s Motor Transit Co., 590 F.2d 62 (3rd Cir.1978). In deciding whether an issue of material fact does exist, the court is obligated to view all doubt in favor of the nonmoving party. Tomalewski v. State Farm Insurance Co., 494 F.2d 882 (3rd Cir.1974); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3rd Cir.1972).

Article III of the United States Constitution imposes certain minimum requirements on parties who seek to invoke the judicial power. In order to establish the existence of a bona fide “case or controversy,” and thus, a basis for subject matter jurisdiction, a plaintiff must have suffered an “injury-in-fact” causally related to a defendant’s actions. In other words, a plaintiff must have “personally ... suffered some actual or threatened injury as a re-suit of the putatively illegal conduct of the defendant.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). The Supreme Court has also recognized further limits of a prudential nature, which courts may apply in order to “avoid deciding questions of broad social import where no individual rights would be vindicated.” Id. at 99-100, 99 S.Ct. at 1607-08. Although Congress may not tamper with the constitutional minima, the legislature may grant a right to sue to those otherwise barred by prudential restrictions. Id. at 99-100, 99 S.Ct. at 1607-08.

Plaintiffs base this lawsuit on Section 505 of the Clean Water Act, which provides, in pertinent part, that “any citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of ... an effluent standard.” 33 U.S.C. § 1365(a)(1)(A). A “citizen” is defined to be “a person or persons having an interest which is or may be adversely affected.” 33 U.S.C. § 1365(g). The legislative history of the statute demonstrates that Congress intended the citizen suit provision to create standing in a manner consistent with the Supreme Court’s ruling in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 16-17, 101 S.Ct. 2615, 2624-25, 69 L.Ed.2d 435 (1981). The major principle established by Sierra Club v. Morton was that standing may be based on an injury to noneconomic interests, such as aesthetic, conservational or recreational values. 405 U.S. at 738, 92 S.Ct. at 1367. A public interest group, that is, an organization of persons with shared interests, such as the plaintiffs in this case, may sue on the basis of noneconomic injury provided it or any of its members has been injured. Id. 734-35, 92 S.Ct. at 1365-66.

Defendant initially challenged plaintiffs’ standing to sue on the grounds that they had failed to “plead facts demonstrating that particular members of the organization are adversely affected in some specific way.” Defendant’s Brief in Support of Motion to Dismiss at 14. This position is no longer tenable in light of plaintiffs’ submission of nine affidavits from members of SPIRG and FOE who live in the region adjacent to the Delaware River downstream from defendant’s Delair facility. These individuals describe various actual and potential detrimental impacts on their aesthetic, recreational, conservational, economic and health interests due to pollution of the Delaware River.

While Georgia-Pacific concedes that plaintiffs have satisfied the injury-in-fact requirement, the company claims that plaintiffs have failed to show that the alleged injuries to its members are causally related to discharges from defendant’s plant. Defendant focuses on the Supreme Court’s admonition that a plaintiff must show that an alleged injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976).

In support of its motion for summary judgment, Georgia-Pacific offers the testimony of an environmental engineer. Affidavit of Dr. Robert Dresnack, Defendant’s Brief in Support of Summary Judgment, Exhibit C. Dr. Dresnack states that his research indicates that the contribution of defendant’s Delair plant to the pollution of the Delaware is “so small that it is not discernible; and therefore, does not and cannot change the nature of the water uses within those respective areas.” Id. at 3-4, 5-6. Defendant notes that plaintiffs do not allege, either in their complaint, in the affidavits of their members, or in the answer to defendant’s interrogatories, that Georgia-Pacific caused the pollution that has harmed plaintiffs’ interests in use and enjoyment of the Delaware. Defendant’s Brief in Support of Summary Judgment at 8-10. Defendant also would have plaintiffs prove that elimination of Georgia-Pacific’s illegal discharges “would permit them to enjoy the recreational activities” which they claim are ruined or prevented by pollution of the Delaware. Id. Defendant claims plaintiffs have failed to rebut these factual contentions, and therefore, that it is entitled to judgment as a matter of law.

The theory advanced by defendant has little if anything to do with the constitutional requirement of causation and thus, is meritless. Georgia-Pacific uses language concerning causation in order to veil an attempt to impose a quantitative test for proof of an injury-in-fact. Defendant acknowledges that its Delair plant emits effluents in excess of the levels specified in its discharge permit and concedes that plaintiffs are injured by pollution of the Delaware. Nevertheless, Georgia-Pacific contends that its contribution to the soiling of the Delaware is so small that plaintiffs are not injured thereby.

The issue of fact defendant purports to raise has already been resolved by Congress. The Clean Water Act presumes unlawful discharges to reduce water quality because definite proof of the proposition is often nearly impossible. Under previous legislation,

which had relied on water quality standards as the primary method of pollution control, [enforcement] had been largely unsuccessful. It was too difficult to establish the necessary correlation between effluent discharges by particular sources and the quality of the body of water into which the effluent flowed. To solve the dilemma, the Act, while retaining water quality standards, predicated pollution control on the application of control technology on the plants themselves rather than on the measurement of water quality.

Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 623 (2d Cir.1976) (footnote omitted). Accord SPIRGNJ v. Tenneco Polymers, Inc., 602 F.Supp. 1394, 1397 (D.N.J.1985).

Defendant asks the court to find that the company’s effluents do not cause actual harm even though the court may later determine that such effluents violate defendant’s permit, and so, the Clean Water Act. Consequently, defendant would have the court apply a stricter test for standing than for liability itself. Such a result is in conflict with the intent of the Clean Water Act. As the court noted in SPIRGNJ v. Tenneco Polymers, Inc., supra,

obviously the pollution of a portion of a major interstate waterway as the Delaware River, is caused by a combination of discharges from many different sources. The effect of defendant’s argument would prohibit any citizens’ suit against violators of the [Act] 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 [Act] would be directly contrary to its intent.

602 F.Supp. at 1397. Accord Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.Supp. 440, 444-46 (D.Md. 1985).

Defendant’s view of standing is also inconsistent with Article III of the Constitution, as interpreted in Sierra Club v. Morton, supra. The Constitution requires only that the relief sought may redress an injury allegedly caused by defendant, not that the relief sought may correct all related harm jointly caused by a series of actors. Plaintiffs need not show that this lawsuit will restore the Delaware to a pristine state, only that defendant’s role in polluting the river may be lessened thereby. For purposes of establishing standing to sue, the size of an injury is not a valid criterion for determining whether an injury has occurred at all. In United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the Court rejected an invitation to limit standing to those “significantly” affected by an alleged wrong. Instead, the Court held that plaintiffs may sue so long as they can demonstrate an “identifiable trifle” constituting actual or threatened injury, because such harm is sufficient to guarantee that plaintiffs have a concrete interest in the outcome of the litigation. 412 U.S. at 689, n. 14, 93 S.Ct. at 2417, n. 14. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Congress has identified NPDES violations, however trifling, as injurious to persons such as plaintiffs’ members, who use bodies of water into which a permit-tee’s effluents flow.

The testimony of Dr. Dresnack does not undermine plaintiffs’ claims of injury due to defendant’s alleged misconduct. Thus, defendant has failed to rebut the factual basis for standing to sue advanced by plaintiffs. Accordingly, the court will deny defendant’s motion for summary judgment.

2. The Requirements of Section 505

Georgia-Pacific asks the court to dismiss this action, pursuant to Fed.R.Civ.P. 12(b)(1) and (6), on the grounds that plaintiffs’ claims are inconsistent with the requirements of the Clean Water Act’s citizen suit provision. The court will now consider each of defendant’s objections in turn.

Dismissal of a complaint for failure to state a claim is permissible only when it appears that a plaintiff can prove no set of facts sufficient to support its claims for relief. Conley v. Gibson, 355 U.S. 41, 44-45, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Bryson v. Brands Insulations, Inc., 621 F.2d 556, 559 (3rd Cir.1980). Accordingly, the court has viewed plaintiffs’ allegations in the light most favorable to them, and has drawn all reasonable inferences in their favor. Bryson, supra; Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977).

i. Relief for Past Violations

The first alleged defect in the complaint is that plaintiffs seek relief based on past violations. According to defendant, the citizen suit provision only permits prospective relief for ongoing violations.

There is no merit to this argument. Numerous eases in this district and elsewhere have declared that the Clean Water Act does not limit citizen plaintiffs to prospective relief. United States v. Earth Sciences, 599 F.2d 368, 376 (10th Cir.1979); SPIRGNJ v. Tenneco Polymers, 602 F.Supp. 1394, 1399 (D.N.J.1985); SPIRGNJ v. Monsanto Co., 600 F.Supp. 1474, 1476-77 (D.N.J.1985); SPIRGNJ v. Anchor Thread Co., 22 ERC 1150, 1154 (D.N.J. 1984); Sierra Club v. Raytheon Corp., 22 ERC 1050, 1053-55 (D.Mass.1984); Sierra Club v. Aluminum Co. of America, 585 F.Supp. 842, 20 ERC 1916, 1926 (N.D.N.Y. 1984). These decisions are based on unmistakeable evidence in favor of such a result in the legislative history of the Clean Water Act and the language of the statute itself.

In suits under Section 505 of the Clean Water Act, citizens have access to the same remedies available to the EPA. Middlesex County Sewerage Authority v. National Sea Clammers Association, supra, 453 U.S. at 13-14, 101 S.Ct. at 2622-23. Section 505(a) defines the right of citizens to seek civil penalties with reference to Section 309(d) of the Act, which permits such penalties against any party which “violates” the Act. This language has been held to sustain civil penalties for past violations. See United States v. Earth Sciences, supra, 599 F.2d at 376. Such an interpretation is supported by the remarks of Senator Muskie, primary Senate sponsor of the legislation which, in modified form, became the Clean Water Act of 1972. Regarding the final version of the citizen suit provision, Senator Muskie stated that

a citizen has the right under Section 505 to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been, in violation, whether the violation be a continuous one, or an occasional or sporadic one.

A Legislative History of the Water Pollution Control Act amendments of 1972, Senate Committee on Public Works, 93d Cong., 1st Sess. (January 1973) at 179 (emphasis added). Furthermore, to allow defendant to avoid liability for past violations would severely lessen the intended deterrent effect of the Act’s civil penalty provisions. SPIRGNJ v. Anchor Thread Co., supra, 22 ERC at 1154; Sierra Club v. Aluminum Co. of America, supra, 585 F.Supp. 842, 20 ERC at 1926.

The eases cited by defendant for the contrary proposition are unpersuasive. Several consider and reject a private right of action for damages under Section 505 based on past violations. See City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1145-46 (E.D.Pa.1982); Love v. New York State Department of Environmental Conservation, 529 F.Supp. 832, 838 (S.D.N.Y.1981). Plaintiffs have made no such claims; thus, such authorities are simply inapplicable to this case. Accord SPIRGNJ v. Monsanto Co., 600 F.Supp. 1479, 1486 (D.N.J.1985). Two other decisions offered by defendant appear to disfavor citizen suits based on past violations. City of Evansville v. Kentucky, 604 F.2d 1008 (7th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980); Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 (5th Cir.1985). In both of these cases, however, claims for damages played a central role and had a heavy influence on the court’s resistance to civil penalties for past violations of the Clean Water Act. Consequently, both cases are analogous to the results in Stepan Chemical Co., supra, and Love v. NYS Dept. of Environmental Conservation, supra, and may be limited to their specific facts.

Defendant claims that if Section 505 allows suits for past violations, plaintiffs may at most seek civil penalties and are barred from receiving injunctive relief. Accordingly, defendant asks the court to strike from the complaint plaintiffs’ requests for equitable relief.

While defendant has argued at length that prospective relief for past misconduct is unfair, defendant has presented no specific authority for the proposition that such' relief is unavailable. The court finds plaintiffs’ request for injunctive relief to be consistent with the language in Section 505(a) permitting a citizen to seek “to enforce ... an effluent standard or limitation.” The parties’ debate as to whether Georgia-Pacific’s recent behavior merits prospective sanctions is premature. It is enough that plaintiffs have made a colorable claim that defendant’s violations of the Clean Water Act have been chronic and have continued to occur as recently as December, 1983, three months prior to the filing of the complaint. This constitutes a valid basis for plaintiffs’ assertion that defendant’s misconduct is likely to continue in the future, and therefore, that injunctive relief may be required to enforce defendant’s discharge permit. See United States v. Detrex Chemical Industries, Inc., 393 F.Supp. 735, 737 (N.D.Ohio 1975).

The nature and extent of past violations are good indicators of a defendant’s future behavior. See, e.g., S.E.C. v. Bonastia, 614 F.2d 908, 913 (3rd Cir.1980). Nevertheless, the court need not now address the proper standards for determining whether plaintiffs are actually entitled to injunctive relief.

ii. Diligent Prosecution

Under Section 505(b)(1)(B) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(B), no citizen suit may be initiated to enforce a discharge permit standard “if the [EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard.” In some instances, agency proceedings may be equivalent to action in a court for purposes of Section 505(b)(1)(B). Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 217-18 (3rd Cir.1979). Diligent prosecution is considered to be underway, so as to bar a citizen suit, when an agency is engaging in activity in which it has the “power to accord relief which is the substantial equivalent to that available to the EPA in federal courts.” Id. at 219.

Defendant originally moved to dismiss on the grounds that EPA and DEP have been monitoring Georgia-Pacific’s compliance with its NPDES/NJPDES throughout the period covered by plaintiffs’ lawsuit. According to defendant, the Consent Judgment of May 12, 1981 reflected prosecution “in a court” of all alleged violations through that date; administrative surveillance of Georgia-Pacific by EPA and DEP since then constitute the equivalent of actual prosecution. Georgia-Pacific also argues that various EPA and DEP reports, covering defendants emissions between October, 1980 and May, 1984, demonstrate that both agencies found further enforcement action unnecessary because the company has been in full, or at least substantial compliance with the Clean Water Act. Defendant’s Reply Brief in Support of Motion to Dismiss, at 23-24.

Since entry of the Consent Judgment in this case, there has been no actual prosecution of an action in court against defendant by EPA or DEP. Nor has either agency taken any administrative action with respect to defendant which is the functional equivalent to court action, sufficient to satisfy Section 505(b)(1)(B). Under Section 309 of the Act, 33 U.S.C. § 1319, EPA is required to go to federal court to obtain civil penalties or injunctive relief to enforce the Act. Because EPA cannot on its own provide relief equivalent to that available in federal court, EPA administrative enforcement activity of the sort present in this case is incapable of barring a citizen suit. SPIRGNJ v. Fritzsche, Dodge & Olcott, 759 F.2d 1131, 1138-39 (3rd Cir.1985).

DEP proceedings leading up to the issuance of defendant’s new discharge permit also are not the functional equivalent of court action under the test set forth in Baughman v. Bradford Coal Co., Inc., supra. Such administrative activity could not have led to sanctions against defendant for violations of its old permit, such as DEP might obtain in court.

Defendant’s allegations as to the views expressed by EPA and DEP concerning defendant’s compliance with the Act between 1980 and 1984 are irrelevant for purposes of assessing plaintiff’s right to bring this lawsuit. Section 505(b)(1)(B) was intended to preclude citizen suits only when comparable action by an administrative agency is underway, not whenever an agency sees fit to approve the actions of private parties subject to its jurisdiction. Defendant’s interpretation of the Act would render citizen suits impossible when they are required most: instances where an agency encourages a polluter to believe its unlawful behavior will go unpunished.

Defendant raises a legitimate question as to the scope of the Consent Judgment of May 12, 1981. While the court must address the issue in order to determine the extent of defendant’s liability, if any, the issue is not germane to plaintiffs’ compliance with Section 505(b)(1)(B).

In light of the foregoing, defendant’s motion to dismiss on the grounds that plaintiffs have failed to comply with Section 505(b)(1)(B) of the Clean Water Act is denied.

iii. Notice of Intent to Sue

Defendant also asks the court to exercise its powers of equity to dismiss the Complaint for being filed over one year after plaintiffs gave notice of their intent to sue. Plaintiffs are conceded to have satisfied Section 505 (b)(1)(A) of the Act, 33 U.S.C. § 1365(b)(1)(A), which provides that no citizen suit may be commenced unless plaintiff has given sixty days’ notice of alleged violations of the Act to EPA, the State in which the violations allegedly took place, and the supposed violator. There is no dispute that on March 10, 1983, plaintiffs notified all relevant parties of their intent to sue defendant based on allegations that defendant committed various violations of its NPDES/NJPDES permit. Nevertheless, defendant contends that the complaint, filed on March 19, 1984, is barred by the doctrine of laches. Defendant asserts that plaintiffs’ claims are “stale” and that plaintiffs’ failure to act more quickly is inconsistent with the goals of the citizen suit provision.

Defendant’s arguments on this point are frivolous. Defendant does not seriously contest plaintiffs’ contentions that the delay in the filing of this lawsuit is largely attributable to plaintiffs’ attempt to reach an amicable resolution of its claims with defendant. Furthermore, plaintiffs have supplemented their original allegations as to defendant’s permit violations by specifying numerous similar incidents during the period from June, 1982 through December, 1983, the latest of which allegedly occurred just three months prior to the filing of the Complaint. Plaintiffs’ Brief in Support of Partial Summary Judgment, Appendix II, Exhibit D. Accordingly, this portion of defendant’s motion to dismiss is denied.

iv. Authorization for Novel Equitable Relief

Initially, defendant asked the court to strike two aspects of the relief sought by plaintiffs. By now it is clear that plaintiffs do not seek an award of damages. Consequently, this aspect of the motion to dismiss is moot. Defendant still objects, however, that there is no statutory basis for plaintiffs’ request, in paragraphs C and D of the Complaint, that the court permit plaintiffs to establish and operate a one-year discharge monitoring program to be financed by Georgia-Pacific. According to defendant, Section 505 of the Act specifically limits the relief available to citizen plaintiffs so as to preclude the extraordinary remedy SPIRG and FOE propose.

The remedy challenged by defendant would (1) “[ajuthorize ... plaintiffs ... to sample or to arrange sampling” of pollutant discharges from defendant’s plant and (2) “[ojrder defendant to provide the plaintiffs ... with a copy of all reports and other documents which the defendant submits to the Federal or State government regarding the defendant’s NPDES/NJPDES permit at the time it is submitted to these authorities.” Complaint, ¶¶ C, D. Plaintiffs maintain that such measures are “necessary to provide complete relief” in light of the failure of EPA and DEP to seek any sanctions against defendant since May, 1981. Plaintiffs’ Brief in Opposition to Motion to Dismiss at 32-33.

The broad language of Section 505(a) constitutes the basis for plaintiffs’ novel request for injunctive relief: “the district courts shall have jurisdiction ... to enforce ' ... an effluent standard or limitation.” Plaintiffs also contend that a federal trial court has great leeway in implementing its equitable powers, in order to secure “the enforcement of prohibitions contained in a regulatory enactment.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 291-92, 80 S.Ct. 332, 334-336, 4 L.Ed.2d 323 (1960). See also Porter v. Warner Holding Co., 328 U.S. 395, 397-98, 66 S.Ct. 1086, 1088-89, 90 L.Ed. 1332 (1946).

Defendant has failed to persuade the court that the remedy proposed by plaintiffs may not, as a matter of law, be required, if it is deemed necessary to assure effective enforcement of the Clean Water Act. In light of the detailed discharge permit program set forth in the Act, which requires periodic evaluation of permittee DMRs and NCRs, plaintiffs carry a heavy burden to show that a supplementary sampling and reporting program, involving private parties, is required. Furthermore, the present agency in charge of enforcing defendant’s permit, DEP, is not the same entity plaintiffs charge with ineffective enforcement of defendant’s NPDES permit through 1984. At this stage of the litigation, however, the court need not decide whether any particular form of relief is appropriate. Accordingly, the court will deny this portion of defendant’s motion to dismiss.

Plaintiffs’ Motion for Partial Summary Judgment

Plaintiffs ask the court for summary judgment only as to the issue of liability. In support of their motion, plaintiffs present the court with defendant’s water pollution discharge permits (federal and state), Plaintiffs’ Brief in Support of Partial Summary Judgment, Appendix II, Exhibits A, B, C, and defendant’s monthly discharge monitoring reports to the EPA, id., Exhibit D. By comparing the effluent limits in defendant’s permits and the discharge levels recorded in defendant’s DMRs, plaintiffs identify 162 alleged violations of the permits between January 1, 1979 and December 31, 1983. According to plaintiffs, each of these instances in which defendant’s discharges exceeded prescribed limits constitutes a per se violation of the Clean Water Act.

Georgia-Pacific does not dispute plaintiffs’ factual allegations as to the content of its discharge permits and DMRs. Nor does defendant contest plaintiffs’ contentions that Georgia-Pacific exceeded its NPDES/NJPDES discharge limits 162 times since December 31, 1978. Furthermore, defendant concedes that the Clean Water Act imposes strict liability for violations of its provisions. As a result, the issues outstanding with respect to plaintiffs’ Rule 56 motion are quite narrow. In particular, defendant asserts that summary judgment in plaintiffs’ favor is barred by two questions of fact: (1) whether defendant’s exceedences of its permit discharge limits constitute violations of the Clean Water Act; and (2) whether there has been a lack of diligent prosecution of such alleged violations by relevant government agencies. Defendant also maintains that an issue of fact exists as to whether defendant’s alleged violations prior to May 12, 1981 have already been adjudicated by the Consent Judgment agreed to on that date by defendant and EPA.

1. Permit Violations Recorded in DMRs

Defendant contends that not all violations of limits specified in a water pollution discharge permit and reported in a company’s DMRs constitute violation of the Act. Georgia-Pacific claims the EPA expects permittees to exceed such standards upon occasion. According to defendant, EPA sets permit discharge limits based on statistical calculations which assure that “no permit ... will be complied with 100% of the time.” Defendant’s Brief in Opposition to Motion for Partial Summary Judgment at 8-9; Id., Exhibit B at 6. Consequently, defendant asks the court to find that “there is more to a determination of compliance [with a permit] ... than simply checking for an exceedence reported in a DMR,” id. at 10, and that “[i]t is the ‘long-run’ performance [of a permittee] which will be assessed in determining whether compliance has been achieved by a facility.” Id. at 8-9.

Based on the foregoing analysis, defendant asserts that under the Clean Water Act, a permittee is only strictly liable for exceeding a permit limit when the permit-tee fails to rebut uncontradicted or unambiguous evidence of such a violation. Id. at 11. Defendant presents numerous exhibits which purport to sustain a factual inference that the company has complied with its permit despite having exceeded the limits set forth therein.

It is well established that records required to be kept by law, such as DMRs, may be deemed to be admissions for purposes of establishing civil liability. Garner v. United States, 424 U.S. 648, 665, 96 S.Ct. 1178, 1188, 47 L.Ed.2d 370 (1976). Such a practice has been approved for reports kept pursuant to requirements of the Clean Water Act. United States v. Ward, 448 U.S. 242, 254, 100 S.Ct. 2636, 2644, 65 L.Ed.2d 742 (1980). Consequently, there can be no question that the data disclosed in defendant’s DMRs may be accepted as true. Furthermore, it is clear that failure to comply with an NPDES permit constitutes a violation of the Act. 33 U.S.C. §§ 1311(a), 1342(k). The question remains however, whether an exceedence of an NPDES permit limit constitutes conclusive evidence of noncompliance with the permit, that is, of a violation of the Act.

There is little authority for defendant’s position that exceedences of permit limits constitute prima facie evidence of noncompliance with the Act, which may be rebutted by proof that the EPA or a comparable state agency does not consider the exceedences serious enough to merit sanctions. Furthermore, such a position is illogical and completely inconsistent with the policies underlying the citizen suit provision. Section 505 of the Act is intended to permit private attorneys general to come forward when public enforcement has not occurred. Defendant’s interpretation of Section 505 would allow unwillingness to prosecute on the part of regulators to be a defense to private enforcement actions.

The proposition that permit violations revealed in DMRs constitute only strong evidence of noncompliance with the Act is inconsistent with the statute’s legislative history. The Clean Water Act represents a major departure in water pollution abatement strategy. In the Act, Congress turned away from direct regulation of water quality and established a NPDES as a means to improve water quality indirectly, by regulating effluent levels. This approach was intended to achieve “swift and direct” enforcement based on “simple numerical standards.” Corn Refiners Association, Inc. v. Costle, 594 F.2d 1223, 1226 (8th Cir.1979). See also 44 Fed.Reg. 3263 (June 7, 1979) (“Congress intended that prosecution for permit violations be swift and simple.”). Under the Act, the NPDES permit “defines and facilitates compliance with, and enforcement of, a preponderance of a discharger’s obligations.” EPA v. Water Resources Board, 426 U.S. 200, 204, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976).

Courts interpreting the Act have been very reluctant to limit the legal effect of permit violations revealed in DMRs. For instance, defendants may not avoid summary judgment as to liability under the Act simply by challenging the accuracy of the data set forth in DMRs. SPIRGNJ v. Tenneco Polymers, supra, 602 F.Supp. at 1400; Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.Supp. 440, 452 (D.Md.1985); Sierra Club v. Simkins Industries, Inc., 617 F.Supp. 1120, 1127-28 (D.Md.1985); SPIRGNJ v. Fritzsche, Dodge & Olcott, 579 F.Supp. 1528, 1538-39 (D.N.J.1984), aff’d, 759 F.2d 1131 (3rd Cir.1985). But cf. Friends of the Earth v. Facet Enterprises, 618 F.Supp. 532, 536 (W.D.N.Y. 1984). In SPIRGNJ v. Tenneco Polymers, supra, the court rejected a more ambitious attempt to rebut the validity of violations revealed in DMRs. As in this case, the defendant argued that a high number of the alleged violations cited in defedant’s DMRs were “within the margin of analytic error.” The trial court found such a claim did not consitute a basis for denial of summary judgment. 602 F.Supp. at 1400.

There is little substance to the evidence defendant presents to show that discharges in excess of permit limits are not necessarily violations of the Clean Water Act. First, defendant relies on various documents which suggest EPA sets discharge limits at levels which it expects to be exceeded, although infrequently. See, e.g., “Development Document for Effluent Limitations Guidelines and Standards for the Pulp, Paper and Paperboard Point Source Category,” U.S. EPA, Washington, D.C., October, 1982 (“Development Document”), Defendant’s Brief in Opposition to Motion for Partial Summary Judgment, Exhibit F. Defendant fails to come forward with any proof, however, that the adoption of such a methodology indicates Congress’ willingness to allow defendants to challenge ex-ceedences on the grounds that they are “minor” and resulted from “normal variations” in effluent levels. On the contrary, the very documents cited by defendant indicate that EPA takes into account the natural variation in effluent levels in setting discharge limits. Development Document at 470. Thus, any discharge in excess of permit limits is almost certain to reflect the kind of irresponsible activity the Act is designed to prevent and punish.

Defendant also cites regulations which allow dischargers to contest liability for exceeding a permit limit by arguing that it constitutes an “upset,” that is, an “exceptional incident in which there is unintentional and temporary non-compliance.” 40 C.F.R. § 122.41(h)(1); N.J.A.C. 7:14A-3.-10(c). These provisions clearly concern isolated and unusual occurrences. They do not raise an inference that Congress intended for courts to examine the factual circumstances underlying each of a series of exceedences over an extended period of time. Therefore, the “upset” regulations are irrelevant to this case, which involves more than one hundred and fifty exceedences over five years.

Even if the court were to credit defendant’s interpretation of the Act and allow defendant to rebut the prima facie evidence of liability established by defendant’s DMRs, the company would be no better off. The factual material defendant has submitted regarding the innocence of its behavior fails to raise an issue of fact as to the company’s liability for the violations alleged by plaintiffs.

Defendant attempts to create an issue of fact as to liability by offering documentation of assurances the company received from EPA and DEP, in reports and personal communications. The message allegedly conveyed by the agencies was that Georgia-Pacific's record between 1979 and 1984 contains no evidence of serious deviations from its permit limits sufficient to constitute noncompliance with the Act.

Contrary to defendant’s assertions, virtually every official report cited by plaintiffs acknowledges defendant’s noncompliance with the Act. EPA seems to recognize that defendant has violated its permit; however, the agency characterizes such noncompliance as of little concern. See Defendant’s Brief in Opposition, Exhibit G, item 2(a), (b), (d) (“The permitee has been in substantial compliance.”), (e) (“No significant violations.”). Likewise, the personal assurances defendant refers to seem to reflect EPA’s and DEP’s enforcement priorities rather than a legal opinion as to liability. Indeed, such representations merely underline the important role citizen suits may play in providing an alternative means of enforcing the Clean Water Act. Evidence of regulators’ views of the seriousness of a permittee’s misconduct is irrelevant to the issue of liability. In a Section 505 suit, such evidence is germane, if at all, to a court’s determination as to the nature and extent of the relief which is appropriate to remedy the violations in question.

2. Diligent Prosecution

The subject matter of this lawsuit is limited to defendant’s permit violations not covered by the Consent Judgment entered on May 12, 1981. In connection with its motion to dismiss, Georgia-Pacific argued that plaintiffs may not bring a citizen suit for the company’s permit violations because EPA and DEP have engaged in diligent efforts to assure the company’s compliance therewith since May 12, 1981. Defendant makes similar arguments in response to plaintiffs’ motion for partial summary judgment. According to Georgia-Pacific, an issue of fact exists as to whether EPA and DEP administrative actions subsequent to the Consent Judgment were the equivalent of “a civil ... action in a court of the United States.” 33 U.S.C. § 1365(b) (1)(B).

Earlier in its opinion, the court rejected such arguments. As a matter of law, EPA administrative enforcement activity of the kind present in this case cannot preclude a citizen suit. SPIRGNJ v. Fritzsche, Dodge & Olcott, supra, 759 F.2d at 1138-39. Pri- or to 1984, DEP was not involved in any proceedings with respect to defendant which could have resulted in sanctions for violations of the Clean Water Act. DEP simply monitored defendant’s compliance with its federal permit prior to issuance of a state discharge permit. As the court previously noted, such activities are also plainly insufficient to bar this action.

3. Scope of the May, 1981 Consent Judgment

The Consent Judgment which resolved the previous lawsuit against defendant forecloses subsequent litigation as to all claims adjudicated therein. The Consent Judgment purports to reach a final judgment as to “all claims of the United States asserted in this action.” Consent Judgment, May 12, 1981, ¶ 3.

The ambiguity of the language in the Consent Judgment has produced a dispute between the parties as to its scope. The logical place to look for the meaning of this language is the government’s own statement of its claims. The Complaint, filed on May 17, 1979, requests relief from defendant’s violation of its NPDES permit “From January 31, 1977 to the present ... including those occasions specified below: [list of dates between February 1, 1977 and January 1, 1979].” Complaint, 1110.

The language of the Consent Judgment, when read together with the language in the Complaint, indicates that plaintiffs are barred from asserting claims deriving from any time prior to the filing of the Complaint. On the other hand, plaintiffs assert that the Consent Judgment covers only those claims specified, through December, 1978. This interpretation is supported by an internal memorandum prepared by the EPA. “Fact Sheet, Georgia-Pacific Corporation ... NPDES Permit No. NJ0004669,” Plaintiffs’ Supplemental Brief in Support of Motion for Partial Summary Judgment, Attachment B, at 2, 3. It is noteworthy however, that the same document also characterizes the present lawsuit as covering only the violations originally specified in plaintiffs’ Complaint: exceedences through May, 1982. Id. at 3. As this case has been deemed to incorporate other violations only specified by plaintiffs some time after the filing of the Complaint, it seems reasonable to conclude that the previous litigation covered violations referred to in the Complaint, but not specified therein. Nevertheless, the EPA document creates an issue of fact as to plaintiffs’ right to pursue claims based on defendant’s violations between December 31, 1978 and May 17, 1979.

Defendant maintains that the Consent Judgment precludes litigation as to all alleged violations prior to entry of the same, on May 12, 1981. This claim is founded principally on language in a draft of an internal EPA memorandum. Defendant’s Brief in Opposition to Motion for Partial Summary Judgment, Exhibit G. This evidence is of no help to defendant as the final version of the memo, discussed above, supports the much earlier cut-off date favored by plaintiffs: December 31, 1978. Defendant has offered no other significant evidence to support its theory. Consequently, defendant is unable to raise an issue of fact as to the effect of the May, 1981 Consent Judgment to preclude all the company’s violations through the filing date of the Consent Judgment.

In light of the foregoing, the court will grant plaintiffs’ motion for partial summary judgment as to' all defendant’s permit violations between June 1, 1979 and December 31, 1983. The court will deny plaintiffs’ motion, without prejudice, as to defendant’s violations between January 1, 1979 and June 1, 1979.

Conclusion

Defendant’s motion for summary judgment, which is brought on the grounds that plaintiffs lack standing to maintain this lawsuit, is denied. Defendant’s motion to dismiss the Complaint for failure to state a claim under Section 505 of the Clean Water Act, 33 U.S.C. § 1365, is likewise denied. The court will grant plaintiffs’ motion for summary judgment as to all defendant’s violations of its NPDES/NJPDES permit between June 1, 1979 and December 31, 1983. Plaintiffs’ motion is denied, without prejudice, as to defendant’s violations which occurred between January 1, 1979 and June 1, 1979. An appropriate order will be entered.

      . The EPA permit expired on July 31, 1979 but remained in effect by operation of law. 40 C.F.R. § 122.6; N.J.A.C. 7:14A-2.3. The DEP permit, NJPDES Permit No. 0004669, issued on December 16, 1983. Until the state permit’s effective date, February 1, 1984, the EPA permit continued to apply. 40 C.F.R. § 122.6(a); N.J. A.C. 7:14A-2.3(a). Like the NPDES permit, the state permit set effluent limits with respect to acidity, "total suspended solids," biological oxygen demand, zinc, lead and temperature. Defendant’s Brief in Support of Motion to Dismiss, Exhibits B, D.

      . The court also notes that ¶¶7 and 9 of the complaint contain allegations of individualized harm to plaintiffs’ members of sufficient specificity to withstand a motion to dismiss. Accord SPIRGNJ v. Monsanto Corp., 600 F.Supp. 1479, 1484 (D.N.J.1985); Sierra Club v. Aluminum Corp. of America, 585 F.Supp. 842, 20 ERC 1916, 1919, 1924 (N.D.N.Y.1984). "For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Consequently, it is unnecessary for an environmental group to identify, and sufficient for it to allege, particular harm to particular members, when faced with a motion to dismiss. On the other hand, affidavits of the kind presented by plaintiffs are essential to defend against a Rule 56 motion, once a defendant challenges the factual basis for allegations of individualized harm contained in the complaint. Of course, an organization need only show specific harm to one of its members in order to defeat a motion for summary judgment as to standing. See Warth v. Seldin, supra, 422 U.S. at 511, 95 S.Ct. at 2211.

      . In City of Evansville v. Kentucky, supra, the court criticized citizen suits for past violations. 604 F.2d at 1014. This passage of the court's opinion was dictum. The conclusion that suits under Section 505 for past violations are barred was intimately connected to the court’s analysis rejecting a private right of action for damages under Section 505. The court erred in failing to distinguish between the two issues in this regard. The Hamker court was concerned that plaintiff invoked Section 505 merely as a vehicle to assert claims for damages under pendent state law causes of action. 756 F.2d at 396. Such is plainly not the case in this action.

      . In any case, the hearsay testimony as to such assurances presented by defendant, Defendant’s Brief in Opposition to Motion for Partial Summary Judgment, Exhibits B, D, is insufficient to raise an issue of fact as to liability.

      . As plaintiffs have specified defendant's violations by month, based on defendant's DMRs, the court will grant summary judgment as to all violations beginning with the first full month after the filing of the Consent Judgment: June, 1979.