Full opinion text
OPINION ROTH, Circuit Judge. Plaintiffs, Natural Resources Defense Council (“NRDC”) and Delaware Audubon Society, brought a citizen suit under the Federal Water Pollution Control Act (the “Clean Water Act” or the “Act”), 33 U.S.C. § 1251 et seq., against Texaco Refining and Marketing Inc. (“Texaco”), for alleged violations of a state-issued permit limiting effluent discharge from Defendant’s Delaware City oil refinery. In the present opinion, we will consider standing and jurisdiction questions, raised by the defendant. We also, on the basis of the evidence presented at trial, will make findings of fact and conclusions of law on the penalties applicable to defendant for violation of the Clean Water Act and on the question of whether a permanent injunction should issue. At an earlier stage of this proceeding, we considered the parties’ cross-motions for summary judgment: we denied defendant’s motions and granted plaintiffs’. Natural Resources Defense Council v. Texaco Refining, 719 F.Supp. 281 (D.Del.1989) (“Texaco F). Defendant’s motions had been based on several contentions: that we lacked jurisdiction to hear most of plaintiffs’ claims because they related wholly to past violations of the Act; that the NRDC representatives who submitted affidavits with the complaint were not NRDC members when many of defendant’s permit violations occurred; and that the reissuing of the permit in 1989 rendered plaintiffs’ claims moot. Plaintiffs’ motion for summary judgment was based on the determinative nature of defendant’s Discharge Monitoring Reports (“DMR’s”). We found that Texaco was liable for violation of the permit based on the “practically unassailable evidence” of the DMR’s. Id. at 289. Because we determined that plaintiffs had shown probable cause that the Act was being violated, we also at that time enjoined defendant from future violations of the 1989 permit. Defendant appealed the granting of the injunction to the Third Circuit Court of Appeals. Finding that we had applied the wrong standard and that it was instead the traditional equitable standard, including irreparable injury, inadequacy of legal remedies, and a balancing of competing claims of injury and the public interest, which had to be met, the Court of Appeals vacated that portion of our order enjoining Texaco from violating its new permit and remanded the issuing of the injunction to us for reconsideration. Natural Resources Defense Council v. Texaco, 906 F.2d 934 (3d Cir.1990) (“Texaco II). A three week bench trial was held in February 1991 and a further hearing on the issue of standing was held in June 1991. On the basis of the evidence presented, we conclude that the plaintiffs have standing to bring this action; that we have jurisdiction over 365 of the violations alleged by plaintiffs, but that we lack jurisdiction to hear the other 49; that as a result of the violations Texaco must pay a penalty of $1,680,000; and that Texaco will be permanently enjoined from further violation of the 1989 permit and directed to comply with the permit’s investigatory, reporting, and monitoring provisions. FINDINGS OF FACT On May 17, 1988, the day that the complaint was filed in this action, Texaco owned and operated an oil refinery on the banks of the Delaware River. The refinery was originally built by Tidewater Oil Company. Texaco has owned and operated the refinery since late 1984. The refinery has the capacity to process approximately 150,-000 barrels of crude oil per day. It draws an annual average of about 310 million gallons of water per day from the Delaware River for use in the refining process. About 300 million gallons are used as once-through noncontact cooling water to cool equipment at the refinery and an associated power station. This noncontact cooling water does not come into contact with the crude oil, intermediate process streams or refined petroleum products, or any waste produced at the refinery. It is routed through the equipment in totally enclosed tubular heat exchangers. Other water is used in various stages of the actual refining process. This “process” water comes into contact with raw materials, intermediate process streams or the products produced by the refinery. It absorbs some contaminants. The process wastewater is routed to the refinery’s wastewater treatment plant for treatment before discharge into the river. The plant also receives for treatment sanitary waste-water from the refinery offices and other buildings, as well as rain water and rain water runoff. The original treatment plant for the refinery was installed when the refinery was constructed in the mid-1950’s. A biological treatment system was installed in 1974. A second stage biological treatment facility and final filtration was added to the existing treatment plant and began operation in the fall of 1980. The principal stages of treatment through which the flow to the treatment plant passes are the following: oil/water separators, equalization tanks, flash mixing, flocculation, dissolved air flotation, aeration, clarification, additional aeration, additional clarification, and filtration, after which the stream is discharged into Guard Basin No. 4. The system includes two stages of biological treatment, in which there is a biomass of bacteria which actually eats the pollutants contained in the water. The bacteria population needs air and a constant supply of food and can be affected by many factors such as pH and temperature. . The refinery also has, upstream of the wastewater treatment plant, a sourwater stripping unit, which removes both ammonia and sulfides. The current sourwater stripper system began operation in 1980. Pursuant to the Federal Water Pollution Control Act, the Delaware Department of Natural Resources and Environmental Control (“DNREC”) issued a National Pollutant Discharge Elimination System (“NPDES”) permit to Texaco, effective July 1, 1977 (the “1977 permit”). This permit, numbered DE0000256, authorized the refinery to discharge into the Delaware River limited quantities of various pollutants. It established seven “outfalls” at the refinery, designated 001, 002, 101, 201, 301, 401, and 501, where pollutants are discharged. The permit also specified what are known as “parameters” at each outfall. A “parameter” in the permit is a particular attribute of the refinery’s discharges. Permit parameters included specific pollutants, such as ammonia, as well as other characteristics of the stream measured, such as temperature or flow rate. The permit specifically subjected most parameters to precise effluent limits. To assure that these limits were met, the permit required Texaco to sample each parameter at each outfall at specified intervals, using specified testing methods, and to report the results of those tests in Discharge Monitoring Reports which were submitted to DNREC monthly. Of concern here are twelve separate parameters, each of which measures a distinct aspect of refinery operation. A brief summary of these parameters follows. —Oil and grease can coat sediment or organisms and have either acute toxic or chronic sublethal effects. Compounds in the oil and grease group also accumulate in organisms, creating concentrations in tissues many times the concentration in the ambient water. The compounds of oil and grease- attach to particles suspended in the water and fall into sediments. They can remain there for months,' years, or decades. —Ammonia (NH3) and phenols can also be toxic. They can react with chlorine, which is found in the Texaco effluent, to form deadly compounds. —The nontoxic pollutants, namely total suspended solids (TSS), biological oxygen demand (BOD) and total organic carbon (TOC) can nevertheless have an adverse effect on the receiving system. BOD is a measure of the rate at which oxygen is removed from water by pollutants and microorganisms. The sensitive oxygen balance in an aquatic ecosystem can be thrown off by a high concentration of organic material. TSS measures both organic and inorganic materials. Solids in suspension burden aquatic life by depleting the oxygen content of water and clogging the respiratory passages of various fauna. Suspended solids can also carry other pollutants. TOC consists of the sum of dissolved and particulate carbon present in the water. While TOC occurs in nature, a high TOC level will provide the substrate for a high BOD due to microbial breakdown of organic matter. Particulate carbon can carry pollutants. The three are often interrelated. —“pH” is a quantitative measure of the acidity of liquid solutions. It ranges on a scale from 1 to 14. A pH of more than 7 is basic, while one of less than 7 is acidic. High or low pH can have severe effects on aquatic organisms. —Temperature changes can have adverse effects on life forms in a receiving stream. —High iron levels, like sulfide levels, are crucial because they can have a toxic effect on an aquatic ecosystem. —Bioassay tests measure the survival rate of organisms present in effluent from the Refinery. —Flow measures the discharge of water from a given point at the Refinery in gallons or meters per day. The 1977 permit expressly provided that the “discharge of any pollutant identified in ■ this permit ... at a level in excess of that authorized shall constitute a violation of the permit.” Plaintiffs’ Exhibit (“PEX”) 1, p. 18, 11 A.l. In the event of a violation of any daily maximum effluent limit, the 1977 permit required Texaco to “provide the State with ... [a] description of the discharge and cause of noncompliance; and [t]he period of noncompliance, including exact dates and times; or, if not corrected, the anticipated time the noncompliance is expected to continue, and steps being taken to reduce, eliminate and prevent recurrence of the noncomplying discharge.” PEX 1, p. 18, 1JA.2. The 1977 permit further directed Texaco to “take all reasonable steps to minimize any adverse impact to waters of the State resulting from this permit, including such accelerated or additional monitoring as necessary to determine the nature and impact of the noncomplying discharge.” PEX 1, p. 18, 11 A.4. The 1977 permit, as modified in March 1981, was in effect through January 1989. In December 1981, Texaco applied for a new permit, but continued thereafter to operate under the 1977 permit pending decision by DNREC on the terms of the new permit. On January 31, 1989, DNREC issued a new permit (“the 1989 permit”) to an entity known as Star Enterprise. Star, a joint venture created in part by Texaco, had then become the operator of the Refinery. The 1989 permit effected a number of changes from the 1977 permit, including the addition of a new outfall, the elimination of outfall 501, the addition of new parameters, the modification of numerous effluent limits, and various other changes. The 1989 permit also expressly provided for an upset defense. On the other hand, the new permit still flatly prohibited the discharge of any identified pollutant at a level in excess of the authorized effluent limit. PEX 2, p. 23, ¶ A.l. The reporting and monitoring provisions in the 1989 permit remained similar to those contained in the 1977 permit. PEX 2, p. 23,11 A.2; p. 24, 114. In a summary judgment order dated September 20, 1989, we found that Texaco had violated the effluent limits of the 1977 permit 369 times between March 1983 and January 1989. See Texaco I. At trial, plaintiffs alleged 385 such violations from March 1983 through January 1989. PEX 68. The additional violations were reported on Texaco’s DMR’s and were not rebutted by the defendant. In addition, during trial plaintiffs discovered 12 violations of the 1977 permit that had never been reported by Texaco. Texaco admitted these violations. Plaintiffs presented evidence derived from Texaco’s DMR’s of 15 violations of the 1989 permit from June 1989 through May 1990. PEX 68, violations 363-377; PEX 61-67. Texaco did not contest this evidence. After trial concluded, but before the record was reopened for testimony on the issue of standing, plaintiffs discovered evidence of two further violations. PEX 68, violations 378-79. This evidence was received by the Court. The plaintiffs thus alleged that Texaco committed a total of 414 violations of the effluent limitations embodied in the refinery’s NPDES permits from March 1983 through February 1991. Plaintiffs alleged further that in connection with some of these violations Texaco breached the reporting and monitoring obligations imposed by the 1977 and 1989 permits. As we explain below, there is merit to most, but not all, of these allegations. Plaintiffs seek civil penalties and injunctive relief as a result of Texaco’s permit violations. With regard to the latter, plaintiffs specifically seek an injunction (i) barring further permit violations by the refinery, (ii) requiring the refinery promptly and thoroughly to investigate and report to DNREC the cause of any future permit violation, and (iii) directing the refinery to sponsor a monitoring program adequate to assess the nature and impact on the receiving waters of its prior and any future noncomplying discharges. However, before we can determine what relief may be obtained, we must first consider issues, raised by defendant, of standing and jurisdiction. I. STANDING As it did earlier in this litigation, Texaco contends that the plaintiffs lack standing. See Texaco I at 287-88. We find this contention to be without merit. To establish representational standing, the plaintiffs, NRDC and the Delaware Audubon Society, must show that (a) their members would have standing, (b) the interests the organizations seek to protect are germane to their purposes, and (c) neither the claim asserted nor the relief requested requires the participation of individual members. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). Texaco does not dispute that the plaintiffs have satisfied the second and third elements of this test. We agree that they have. The interests in clean water that the plaintiffs seek to protect are germane to the purposes of the two organizations. See PEX 460 (NRDC Certificate of Incorporation) at 2; Tr. A-62 (Pierce-Beck) (describing purposes of Delaware Audubon Society). This litigation is particularly suited to the accomplishment of the plaintiffs’ organizational goals and expertise, see generally Associated Gen. Contractors of Connecticut, Inc. v. New Haven, 130 F.R.D. 4, 8-9 (D.Conn.1990), and the claims are asserted on a group rather than an individual basis. Finally, the requested penalties and injunctive relief would benefit all of plaintiffs’ members and would not require participation of individuals. See Sierra Club v. Aluminum Co. of America, 585 F.Supp. 842, 853 (N.D.N.Y.1984). Thus, all that remains for us to consider is whether plaintiffs’ members themselves would have standing to sue Texaco for its NPDES permit violations. For the reasons that follow, we find that they would have such standing. The appropriate standing analysis derives from the Clean Water Act and the United States Constitution. Any “citizen” may commence a civil enforcement action under the Clean Water Act. 33 U.S.C. § 1365(a). The Act defines “citizen” as a “person or persons having an interest which is or may be adversely affected.” 33 U.S.C. § 1365(g). These provisions confer standing to the limits permitted by the Constitution. Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 70 n. 3 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991); Chesapeake Bay Found. v. Bethlehem Steel Corp., 608 F.Supp. 440, 444 (D.Md.1985). Under the Constitution, a party has standing to sue when it possesses “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends. . . .” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The plaintiff in a citizen suit has a “sufficient stake” in a controversy where that plaintiff “personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” the injury “fairly can be traced to the challenged action,” and the injury “is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Powell Duffryn, 913 F.2d at 70. We now analyze these three factors. A. Injury in Fact We find that the plaintiffs have established the requisite injury in fact. Injury to aesthetic or recreational interests is sufficient to confer standing. See Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). See also, Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 16-17, 101 S.Ct. 2615, 2624-25, 69 L.Ed.2d 435 (1981); Natural Resources Defense Council, Inc. v. Outboard Marine Corp., 692 F.Supp. 801, 807 (N.D.Ill.1988). These interests need not be large; an “identifiable trifle” will suffice. Powell Duffryn, 913 F.2d at 71 (quoting United States v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973)). In the present case, the plaintiffs’ member-witnesses testified to injuries far more severe than an “identifiable trifle.” All four testified that the pollution they observed in the Delaware River near the Texaco plant interfered with their enjoyment of a variety of activities, including birdwatching, recreation in waterfront parks, and walking and driving along the River. See Tr. A-5-13 (Ednie); A-26-31 (Nickle); A-62-65 (Pierce-Beck); A-87-89 (Hotchkiss). These members also testified that because of the pollution they refrained from engaging in a number of activities they once enjoyed, including water skiing, swimming, boating, fishing, and consumption of local fish. See Tr. A-13-16 (Ednie); A-31-35 (Nickle); A-65-67 (Pierce-Beck); A-85-87, 90 (Hotchkiss). We find that this testimony describes injuries that satisfy the requirements of Article III. Texaco mounts three attacks on the testimony of these member-witnesses. First, it argues that their concerns relating to swimming and eating fish do not establish injury because the section of the River near the Texaco Refinery is allegedly swimmable and fishable. While it is true that the Delaware River Basin Commission has recommended upgrading the status of the area that encompasses the Refinery, the most recent report from that institution states that use of the area is still greatly threatened by industrial pollution. See PEX 373 at 21. Since the member-witnesses were deterred in the past from using the area because of such industrial discharges, are presently reluctant to use it, and face future deterioration of conditions there, the possibility that the area may now meet an administrative definition of swimmability and fishability does not detract from the palpability of the injuries, and threats of injury, felt by these member-witnesses. Texaco’s second concern is that member-witnesses Horace Hotchkiss and John Nickle either have not changed their fish eating habits or were slow to change them. This argument is misdirected, for Hotchkiss does not knowingly eat fish caught in the River and Nickle’s worries about the quality of River fish evolved over time. As the plaintiffs note, to establish standing these member-witnesses need not cut off all possibility of consumption of River fish. Rather, all that is required is that they show they have suffered some actual or threatened injury to their preferred eating habits. Finally, Texaco generally objects to the testimony of Nickle on the ground that he is not a member of the Delaware Audubon Society. Nickle’s father took out a family membership in 1981, and Nickle himself testified that he has since then considered himself a member of the Society even though he did not reside with his father. Texaco argues that since the Society has not affirmatively “resolved” Nickle’s precise membership status, “the logical inference” is that he is not a member. This argument is unavailing because there was ample testimony to establish his membership. For example, Grace Pierce-Beck, a former President of the Society, stated she thought Nickle was a full member by virtue of his father’s family membership. Moreover, Nickle’s participation in Society events bespeaks a full role in the organization, one far greater than the passive role that Texaco would ascribe to him. In sum, we find that the plaintiffs’ members have suffered the injury in fact necessary to confer standing on NRDC and Delaware Audubon Society. B. Traceability The plaintiffs can establish the element of traceability by showing that there is a “substantial likelihood” that Texaco’s conduct caused the plaintiffs’ harm. The plaintiffs here are able to make such a showing by demonstrating that Texaco has “1) discharged some pollutant in concentrations greater than allowed by its [NPDES] permit 2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that 3) this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.” Powell Duffryn, 913 F.2d at 72. Texaco challenges only the plaintiffs’ proof of the third element, claiming that the plaintiffs failed to show a sufficient link between their injuries and the Refinery’s permit violations. We find this contention to be without merit. Texaco would require the plaintiffs to demonstrate that the Refinery’s unlawful discharges specifically caused or contributed to the particular pollution they have observed in the River. This is not the correct test. The plaintiffs “need not show ‘to a scientific certainty’ ” that the pollutants they observed came from Texaco’s Refinery. Powell Duffryn, 913 F.2d at 73 n. 10. Indeed, Clean Water Act plaintiffs need not sue every party discharging into a given waterway “since the pollution of any one may be shown to cause some part of the injury suffered.” Powell Duffryn, 913 F.2d at 72 n. 8. If we were to accept Texaco’s rule, standing could be achieved only where the polluting event was so monumental or the waterway so small that one could identify precisely the specific source of observed pollution. This would contradict the overall purpose of the Act. We believe that the plaintiffs have shown that the injuries they allege are fairly traceable to Texaco’s behavior. The Powell Duffryn case provides an excellent model for analyzing this question. There the court found that plaintiffs satisfied the “fairly traceable” requirement because (a) they found offensive an oily sheen on the waterway in which they had an interest, (b) the defendant’s permit contained limits on oil and grease discharges, and (c) the defendant had violated the oil and grease permit limits. Powell Duffryn, 913 F.2d at 73. The plaintiffs here have had the same experience. Their witnesses observed oily sheens and smelled foul odors on the River in areas near the Refinery where these witnesses would like to engage in a variety of activities. Texaco’s 1977 and 1989 permits contain limits on oil and grease. Texaco violated these limits during the period covered by the complaint. Texaco has not, on the other hand, provided persuasive evidence that contradicts either the member-witness’s experience or the fact that these limits on oil and grease were violated. Id., 913 F.2d at 73 n. 10. Thus, the plaintiffs have, as the Powell Duffryn court put it, “satisfied the second prong of the Valley Forge test.” Id., 913 F.2d at 73. This conclusion is supported by the extensive testimony of Dr. Livingston, an expert witness presented by plaintiffs, about the immediate and long-term effects of Texaco’s excessive discharges on the River’s capacity to serve as a source of food, a sanctuary for wildlife, and a fertile ground for recreation. We found Dr. Livingston to be not only qualified to testify on these issues, but also persuasive. While Dr. Livingston did not supply empirical data regarding the specific effects of particular Texaco discharges on discrete activities, he did testify that Texaco’s discharges definitely posed a real and substantial threat to the aquatic environment. Tr. 504. According to Dr. Livingston, an ecosystem such as the River is a dynamic environment, one that is affected in a synergistic manner by introduction of pollutants. The impact of a single polluting discharge is not limited to a narrow geographic area. Depending on prevailing River conditions, as well as the behavior of the organisms inhabiting the ecosystem, pollutants are transported — either physically or via the food chain — far beyond the narrow locus of their introduction into the system. In light of Dr. Livingston’s testimony, we are further persuaded that the injuries complained of are fairly traceable to the Refinery. As we will explain below, we cannot give the same credit to the testimony of Texaco’s expert Lee Beetschen, who stated that there was no evidence of adverse impact. We find his methodology, and thus his resulting calculations, not to be helpful or persuasive. Moreover, even if his testimony had been helpful, it would not weigh in our decision on standing because standing is not analyzed on a strict parameter-by-parameter basis. Such an analysis would ignore both the governing Article III jurisprudence in this aréa and Congress’s desire to encourage citizen participation in the regulation of water pollution through suits such as this one. To summarize, we find that for purposes of analyzing the standing of the plaintiffs to sue, their injuries are fairly traceable to Texaco’s conduct. C. Redressability To clear the final hurdle to standing, plaintiffs must demonstrate that their injuries are “likely to be redressed by a favorable decision.” Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. Unlike the “fairly traceable” requirement, which addresses the connection between the plaintiff’s injury and the defendant’s conduct, redressability focusses on the connection between the plaintiff’s injury and the judicial relief sought. Powell Duffryn, 913 F.2d at 73. Here the plaintiffs seek both injunctive relief and civil penalties. Texaco argues that the plaintiffs’ alleged failure to demonstrate a link between their injuries and the Refinery’s discharges means there is no reason to believe that their injuries would be redressed by a judgment relating to such discharges. Texaco “is simply wrong.” Id., 913 F.2d at 73. The central purpose of the Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. Id. Where, as here, plaintiffs complain of harm to the waters in which they have cognizable interests, an injunction barring further permit violations will at least partially redress their injury. Id. If Texaco complies with its permit, pollution in the River will decrease. Id. Similarly, the purposes of the Act will be fulfilled (and the plaintiffs’ injuries redressed) if Texaco is, as the plaintiffs request, ordered to investigate and report the causes of future permit violations and sponsor a monitoring program. “Plaintiffs need not show the waterway will be returned to pristine condition in order to satisfy the minimal requirements óf Article III.” Id. There is also a strong connection between the requested civil penalties and the plaintiffs’ claimed injuries. Imposition of such penalties will serve as a deterrent to Texaco and other polluters. See id. Pollution in a major waterway like the River “must be redressed one illegal discharge at a time, even though the impact of a favorable decision may not by itself be readily noticeable.” Public Interest Research Group of New Jersey, Inc. v. Yates Indus., Inc., 757 F.Supp. 438, 444 (D.N.J.1991). Plaintiffs have demonstrated that their injuries are redressable by the relief they request. Because we conclude that the plaintiffs have satisfied all the requisite elements for standing, we now turn to the question of jurisdiction. II. JURISDICTION A. Parameter-by-Parameter Approach Earlier in 'this litigation Texaco moved for summary judgment on the ground that this court had no jurisdiction over the great majority of the violations alleged in the complaint. 719 F.Supp. at 287. Texaco argued that we must determine our jurisdiction over the permit violations on a parameter-by-parameter basis. We rejected this approach. 719 F.Supp. at 287. In light of the Fourth Circuit’s subsequent adoption of the parameter approach, Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 697-98 (4th Cir.1989) (“Gwaltney II”), Texaco now asks us to reconsider our earlier ruling. We have considered carefully the views of both sides on this issue. For the reasons that follow, we will employ a variation of the parameter-by-parameter jurisdictional analysis suggested by Gwaltney II. The reasons for our decision to alter our prior holding follow. 1. Background a. The Statute Other than Article III of the United States Constitution, the primary source of our jurisdiction in this case is, of course, the Clean Water Act. The Act was enacted by Congress in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a)(1). The Act prohibits the discharge of any pollutant into navigable waters except as authorized by designated sections of the statute. § 1311(a). One such designated section establishes the National Pollution Discharge Elimination System. § 1342. Pursuant to the NPDES, the Administrator of the Environmental Protection Agency (“EPA”) may issue permits authorizing the discharge of pollutants in accordance with specific conditions. § 1342(a). Alternatively, a state may adopt and administer its own permit program if the program conforms to federal guidelines and is approved by the Administrator. § 1342(b). Because Delaware has a state permit program, the issuance of federal permits is suspended in Delaware. § 1342(c)(1). The holder of a federal NPDES permit is subject to enforcement actions by the Administrator of the EPA for failure to comply with permit conditions. 33 U.S.C. § 1319. The holder of a state NPDES permit, like that at issue here, is subject to enforcement action by both the federal and state authorities for failure to comply. §§ 1319, 1342(b)(7). In the absence of a federal or state enforcement action, the Act authorizes interested citizens to file civil actions against an alleged violator of the terms of a state or federal permit. § 1365(a). The citizen suit provision provides, in relevant part, that: any citizen may commence a civil action on his own behalf— (1) against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter ... and to apply any appropriate civil penalties under section 1319(d) of this title. § 1365(a). The term “effluent standard or limitation” is defined in the Act to mean “a permit or condition thereof.” § 1365(f)(6). As the law has evolved, it has become clear that a party seeking to file a citizen suit under the Act must overcome two jurisdictional obstacles. First, the Act itself requires that, at least sixty days before a complaint is filed, the party give notice of the alleged violation to the Administrator of the EPA, to the state in which the violation is allegedly occurring, and to the alleged violator. The second jurisdictional hurdle derives from the Supreme Court’s holding in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (“Gwaltney I”), that the Act “does not permit citizen’s suits for wholly past violations” of a permit. Id. at 64, 108 S.Ct. at 384-85. The latter requirement is at issue here. b. Gwaltney I In Gwaltney I the Supreme Court held that 33 U.S.C. § 1365 (§ 505 of the Act) “confers jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation.” 484 U.S. at 64, 108 S.Ct. at 385. We have already reviewed this decision in some detail, see Texaco I at 286, and take it into consideration below. c. Our Prior Decision In light of Gwaltney I and Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1173 (5th Cir.), cert. denied, 484 U.S. 985, 108 S.Ct. 501, 98 L.Ed.2d 500 (1987)), Texaco urged us at the summary judgment stage to examine each parameter within each outfall independently to see if jurisdiction existed. The plaintiffs exhorted us to base our jurisdiction on the single permit and to go on to consider all violations of that permit, regardless of their date and location. We agreed with the plaintiff, finding that [njothing in the language of the [Act] or the Supreme Court’s opinion in Gwaltney supports the cumbersome jurisdictional analysis defendant insists is required. Instead, once a citizen suit has been properly commenced and subject-matter jurisdiction shown to lie, the court should be permitted to consider past, present, and potential future violations. Texaco I at 287. Because the plaintiffs had shown violations of several limits, we held that we had jurisdiction over all claims relating to- past, present and possible future violations. Id. d. Gwaltney II After we filed our opinion in Texaco I, the Fourth Circuit ruled that the jurisdictional determination of whether violations are “ongoing or intermittent” must be made on a parameter-by-parameter basis. Gwaltney II, 890 F.2d at 697-98. The Fourth Circuit expressly rejected the idea that under § 1365 a court may base its jurisdiction over many violations on ongoing violation of a single permit: [The plaintiff] contends that the jurisdictional requirement of § 1365 refers to finding an ongoing violation of the permit; having done so, the court may then impose penalties for any past violation of any permit parameter. We do not think the statutory language can support that position. Section 1365(a) permits citizen suits against persons alleged to be in violation of “an effluent standard or limitation.” Penalties under § 1319(d) may be assessed for violations of “any permit condition or limitation.” The entire structure of the Clean Water Act and regulations involves identifying specific pollutants and setting a permit limit for each pollutant of concern. It thus makes sense within this scheme to view each parameter separately for purposes both of determining ongoing violations and of assessing penalties. Id. at 698. In a footnote, the Gwaltney II court referred to Congress’s 1987 amendment of § 1319 to allow courts to impose fines “per day per violation.” The same amendment added a provision that single operational upsets leading to simultaneous violations of “more than one pollutant parameter shall be treated as a single violation.” These features of the amendment indicated to the Fourth Circuit that Congress “at least as of 1987,” intended that non-upset violations be treated on a parameter-by-parameter basis. Id. at 698 n. 7. The Gwaltney II court went on to comment that [i]f Congress wished to permit citizen suits only when a discharger fails to abate a problem and the government fails to take enforcement action, ... then it would make little sense to permit penalties for wholly past violations of one parameter simply because there are ongoing violations of another parameter. Id. at 698 (citation omitted). 2. Analysis The parties’ perspectives on the jurisdictional issue presented by Gwaltney II arise from divergent views of the language of the Act, the meaning of Gwaltney I, and matters of public policy. The plaintiffs first aver that the Gwaltney II decision is inconsistent with the actual language of the Act, which provides for citizen suits against person alleged to be “in violation of ... an effluent standard or limitation.” § 1365(a)(1). Noting that an “effluent standard or limitation” is defined in the statute as “a permit or condition thereof,” § 1365(f)(6) (emphasis added), they conclude that Congress intended there to be jurisdiction over all violations of permit parameters so long as the violator is in one way or another “in violation” of the permit. Texaco recognizes this statutory text but interprets it to require analysis of standards or limitations “as translated into the conditions of an NPDES permit.” EPA v. State Water Resources Control Board, 426 U.S. 200, 223, 96 S.Ct. 2022, 2033, 48 L.Ed.2d 578 (1976) (emphasis added). Texaco also points out that § 1319(d) allows courts to impose civil penalties for violations of specified sections of the Act and for violations of “any permit condition or limitation implementing any of such sections in a permit.” § 1319(d) (emphasis added). Texaco looks as well to § 1319(a), which authorizes government agencies to seek injunctive relief when any person is in violation of any condition or limitation ... in& permit issued by a State under an approved permit program____ § 1319(a)(1). Based on this statutory language, Texaco argues that there would be no reason for Congress, despite the text of § 1365, to have made the jurisdiction available in a citizen suit for injunctive relief any broader than that available in one brought by a government agency; such an interpretation would expand the supplemental role given to citizen suits by Congress. Texaco also points out that the EPA, under the authority delegated to it under the Act, applies a parameter-by-parameter analysis in establishing permit limits themselves. See 40 C.F.R. § 123.45, App. A (“Effluent violations should be evaluated on a parameter-by-parameter and outfall-by-outfall basis.”) Thus, in Texaco’s view, both the structure and the administration of the Act contemplate a parameter-by-parameter approach. The plaintiffs also point to the Gwaltney I decision for support, noting that the Supreme Court appeared to focus on a permit-tee’s overall state of compliance or noncompliance with the permit, not with individual parameters. See 484 U.S. at 56-57, 108 S.Ct. at 381. Indeed, the Court did, in discussing the need for a 60 day notice period, note that “the purpose of notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.” 484 U.S. at 60, 108 S.Ct. at 382-83. This general emphasis on complete compliance with the terms of a permit is, according to the plaintiffs, incompatible with the Fourth Circuit approach. Texaco, by contrast, argues that Gwaltney I repeatedly emphasized the Act’s focus on the present tense and on prospective relief. To Texaco, this factor, combined with the Supreme Court’s emphasis on the limited, supplemental nature of citizen suits, dictates a parameter-by-parameter approach. Without such an approach, argues Texaco, the plaintiff could use an ongoing violation of even a single effluent limit to open up and litigate long past violations of unrelated limits. This would improperly focus the litigation on the past and interfere with the EPA’s discretion on whether or not to enforce the Act with respect to past violations. Texaco also observes that the Gwaltney I court felt that the notice provision, which allows violators to come into complete compliance before suit is brought, would be rendered superfluous if the courts had jurisdiction over violations that had occurred wholly in the past. The final source of support to the plaintiff’s critique of Gwaltney II is the general policy interest, in having citizens supplement governmental enforcement so that full compliance with the Act is accomplished through full compliance with permits. The plaintiffs are concerned that adoption of the Gwaltney II approach could result in dismissal of citizen claims before there is an opportunity to develop proof, including evidence of defendants’ failure to investigate and report causes of permit violations. The plaintiffs are concerned that the jurisdictional inquiry would become a “mere parameter by parameter scan of a violations list.” In response to plaintiffs, Texaco points out that the Supreme Court has expressly rejected the idea that the scope of a citizen suit should be coextensive with that of a government suit. Gwaltney I, 484 U.S. at 58-59, 108 S.Ct. at 381-82. As to the claim that a parameter approach might impede full enforcement by precluding discovery, Texaco states that there would be no reason to preclude discovery. Finally, Texaco avers that litigation of citizen suits would be speeded, not slowed, by the parameter approach because wholly past violations would be jettisoned, thus streamlining the litigation. Having reconsidered the jurisdictional issue in light of developments since our ruling in Texaco I, we conclude that constricting jurisdiction to the Gwaltney II “parameter by parameter” standard is too narrow, but, on the other hand, that permitting one current violation to open a citizen’s suit up to review of all past violations of all parameters is too broad. At the trial of this case, we heard extensive testimony of the synergistic and cumulative effect of pollutants. We also heard how problems with different aspects of the refining process, such as the sourwater stripping plant or the bacteria in the biomass or the effects of extremely cold temperatures, could cause violations in a variety of one or more parameters. Moreover, the failure of the refinery adequately to identify the cause of such a violation or to take sufficient remedial measures to prevent its recurrence can cause continuing compliance difficulties. If these ongoing violations are related to the basic underlying problem, the fact that past violations show up in one parameter and a post-complaint violation occurs in a different parameter, should not, under our reading of Gwaltney I, deprive us of jurisdiction in a citizen’s suit to grant a remedy for what is essentially the same, inadequately resolved source of difficulty. We believe that public policy, at least as enunciated in the Act and in Gwaltney I, favors judicial pressure to fully comply with permit limits. These sources of policy do not encourage adjudication of violations that cease well before a complaint is filed. However, they do demand the effective means of correcting underlying causes of violations be identified and implemented. If appropriate remedial measures are not taken, the fact that the failure to solve the problem is manifested from time to time in different parameters should not preclude a citizen’s suit directed at the unresolved source of trouble. We find this conclusion consistent with Gwaltney I, where the Court noted that good faith allegations of ongoing or intermittent violations would suffice, at least until trial. At trial it becomes the plaintiffs responsibility to prove that the alleged violations were ongoing or intermittent. See also Gwaltney II, 890 F.2d 690, 697 (remanding for jurisdictional inquiry at penalty phase). We conclude further that the interrelationship of violations with a continuing problem and/or failure to remedy it must be demonstrated. In this way, citizen suits, like the present one, will neither be dismissed prematurely nor limited by an unrealistic focus on a particular parameter. A further consideration we must deal with under the holding of Gwaltney I is the extent to which risk of further violation must be demonstrated. We conclude that the plaintiffs need only show for each parameter, or for each parameter dependent upon a basic underlying source of violations, that the risk of further violation had not been “completely eradicated” at the time the complaint was filed. B. Application of Parameter Model to The Present Case Having established the standard by which we will determine whether a violation was “intermittent and ongoing” or “wholly past” at the time the complaint was filed, we will now apply that standard to the violations in this case. For the sake of convenience, this sorting process will be divided into two separate steps. First, we will examine the post-complaint violations in order to determine whether the relevant parameters were being violated on an “ongoing or intermittent” basis. This will necessarily require some analysis of Texaco’s proffered defenses to these violations. In the second stage of our analysis, we will examine those parameters for which there were no post-complaint violations to see if they otherwise fit within the jurisdictional tests outlined above. Violations not fitting into either category will be considered “wholly past” violations over which this Court has no jurisdiction. 1. Parameters Violated After the Complaint Was Filed One way for a citizen plaintiff to establish the existence of ongoing violations is simply by proving violations that continue on or after the date the complaint was filed. In the present case, plaintiffs allege that forty-two (42) post-complaint violations of pre-complaint parameters occurred. These alleged violations correspond to three hundred twenty-three (323) pre-complaint violations. In the hope of reducing the number of post-complaint violations that can be used to establish jurisdiction over pre-complaint violations, Texaco offers a number of substantive defenses to the post-complaint violations. We find these defenses to be without merit. First, Texaco asserts that three post-complaint exceedances (nos. 365, 377, and 379) were due to “sampling and testing errors.” In Texaco I, we held that this defense raised no genuine issue of material fact. 719 F.Supp. at 288-89. We then commented that; Regardless of the credibility of the proof that the defendant has submitted, defendant’s sampling error defense conflicts with the legislative motivation behind the [Act]____ “If an entity reports a pollution level in excess of the Permit limits, it is strictly liable, as Congress has manifested an intention that the courts not reconsider the effluent discharge levels reports.” ... Defendant’s complaints regarding the accuracy of the government-imposed testing method contained in its permit should have been made during the period set aside for appeal of the permit’s terms. It is, of course, too late for the defendant to do so now. Id. (quoting and citing Connecticut Fund for the Environment, Inc. v. Upjohn Co., 660 F.Supp. 1397, 1417 (D.Conn.1987)). At trial we heard nothing in the way of legal argument or factual evidence that persuaded us to alter this conclusion. Indeed, we found Texaco’s evidence of alleged sampling and testing errors to be weak and incredible. The sampling and testing error defense therefore is without merit as to any and all of the violations at issue in this case, regardless of their date. The second Texaco defense to the alleged post-complaint violations in the company’s claim that the exceedances leading to violations 354, 355, and 356 were “the result of a lost sample as indicated on the DMR.” This defense also lacks merit. While the terse notations “Sample lost except for metals analysis” appears on the relevant DMR, the same document contains clear measurements of other pollutants. See PEX 58 at 6. In light of this fact, we do not accept the bald assertion that the sample was lost. Acceptance of this defense would encourage polluters to “lose” samples that are required by the NPDES permit system when the results might not be favorable. Because the Act contemplates strict compliance with testing requirements, the “lost sample” defense will not be accepted absent far more compelling prove than that presented here. The third Texaco defense pertains to many pre-complaint violations, but only to one post-complaint violation, number 379 (TOC at outfall 201). Here Texaco claims that the test result obtained was a “statistical outlier,” or an aberrational value that is to be expected from time to time. In Texaco I, we rejected this defense, 719 F.Supp. at 289. We see no reason to change our position. Because we do not wish to lend credibility to a defense that is impermissible for the reasons articulated in Texaco I, we hesitate to elaborate on that opinion. Nevertheless, we do note that trial testimony exposed the fact that Texaco had undertaken no statistical analysis of the data it received and was merely relying on the equivalent of hunches when it labelled certain exceedances “outliers.” There is thus now even less reason to entertain this defense. It is, like the “sampling and testing error” defense, without merit as to any and all violations at issue in this case. The remaining defense is Texaco’s contention that many of the post-complaint violations were due to so-called “system upsets.” In Texaco I, we held that Texaco was barred from asserting this “upset defense” under its 1977 NPDES permit, which makes no reference to such a defense. 719 F.Supp. at 289 (40 C.F.R. § 122.41 provides that under a state-issued permit, the upset defense must be incorporated into the permit expressly or by reference to C.F.R. sections). Texaco’s 1989 permit, however, specifically allows Texaco to assert this defense, as it now does. Under EPA regulations, an upset is defined as “an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee.” 40 C.F.R. § 122.41(n)(l). An upset does not include “noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.” Id. To establish this defense to a permit violation, the permittee must demonstrate that (a) an upset occurred due to an identified cause, (b) the facility was being properly operated, (c) notice was given within 24 hours, which notice included a description and cause of noncompliance, exact dates of noncompliance, the anticipated time of continued noncompliance, and steps taken or planned to eliminate and prevent recurrence, and (d) remedial measures were taken to prevent or minimize noncomplying discharges. Id. § 122.41(n)(3). Texaco, like any permittee, has the burden of proving the existence of a system upset. Texaco considers the following phenomena to be system upsets under the 1989 permit: a leaking check valve (violations 363 and 364); pluggage in the stripping column of the sour water stripper (violations 366 and 367); unidentified problems with the final clarifiers of the waste-water treatment plant (violation 368); a buildup of solids in the clarifiers upstream of the filters (violations 369 and 370); problems with the desalters that caused a buildup of oil in the clarifiers (violations 371 through 371); and failure of the pumping system at the dissolved air flotation tanks, coupled with excess foaming (violations 375 and 376). Having heard all the evidence pertaining to these particular events, we are not convinced that they were either exceptional or beyond the reasonable control of the Refinery. Texaco, in other words, has not met its burden of proof regarding the upset defense. To summarize, we find that forty two (42) violations of various permit levels occurred after the filing of the complaint in this matter. These forty two (42) violations correspond directly to, and thus provide jurisdiction over, three hundred twenty-three (323) pre-complaint violations. 2. Parameters Violated Only Before the Complaint Was Filed There are forty nine (49) pre-complaint violations that do not correspond to any of the post-complaint violations just discussed. The jurisdictional question presented by these violations is whether the plaintiffs have presented evidence from which we could find a continuing likelihood either that that same parameter would be violated or that the inadequately corrected source of that violation would likely cause a future violation of another of the permit’s parameters. Having reviewed the evidence in some detail, we find that at the time of the filing of the complaint there was no real risk that these parameters would be violated again or that they were caused by as yet unresolved sources of difficulty. We therefore have no jurisdiction over these “wholly past” violations. a. Outfall 001 (1) Flow There were only three violations of this parameter (nos. 30, 43, and 86a) before the complaint was filed. The last of these fell on December 22, 1983. More than four years elapsed before the complaint was filed. This fact alone leaves the plaintiffs hard pressed to argue that violation of this parameter was “ongoing” in 1988. On the other hand, it does not preclude the possibility that the violations were intermittent, i.e., “coming and going at intervals” or “not continuous.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 632 (1986). For violations to be “intermittent” they need not appear at regular and predictable intervals; this would make them “ongoing.” Rather, “intermittent” violations appear randomly and unpredictably. There is a sense, however, in which the passage of time reduces to nil the realistic chance of repetition of even the most random violations. In the face of such passage of time it is the plaintiff’s burden to prove that the risk of a repeated violation of the parameter has not been completely eradicated. As the Gwaltney II court pointed out, this proof can consist of evidence that remedial actions were taken to cure violations of that parameter, an evaluation of the ex ante (or “prospective”) probability that such measures would be ineffective, or any other kind of appropriate evidence. Returning to outfall 001 flow violations, we find that the plaintiffs have not met their burden of proving that the risk of such violations had not been “completely eradicated.” At trial they presented evidence that the causes of some violations were uncertain, as well as evidence that there were continuing operational problems with plant overloads, the sour water stripper, cold weather, and reporting and monitoring of violations. A failure to investigate causes could, in the plaintiffs’ eyes, mean that no remedial measures were taken. Likewise, the existence of continuing mechanical problems could be interpreted to mean that everything was “business as usual” at the refinery, and that no change could reasonably be expected. We conclude that this vague presentation by plaintiffs is not sufficient to demonstrate that we have jurisdiction over these outfall 101 flow violations as being due to an unresolved underlying problem. The plaintiffs have, on the other hand, successfully shown that the continuing sourwater stripper problems made it likely that ammonia violations would occur, but we have already determined that we have jurisdiction over the pre-complaint ammonia violations by virtue of the existence of post-complaint violations. We do not mean to rule out the possibility that long periods of time may pass between “intermittent” violations. However, the plaintiffs here have made no effort to demonstrate that this may be the case. Thus, the plaintiffs have not convinced us that a reasonable trier would find that the flow violations at outfall 001 were likely to recur. They are simply too remote in time from the complaint. We have no jurisdiction over these flow violations. (2) pH There were six pre-complaint violations of the pH parameter at outfall 001, the last of which occurred in the month of May 1985. Three more years passed before the complaint was filed. Because plaintiffs have not demonstrated to our satisfaction that there was a real likelihood that this parameter will be violated again, we find we have no jurisdiction over these six violations. b. Outfall 002 (1) Oil and Grease There was only one violation of the Oil and Grease parameter at outfall 002. It occurred in the month of November 1983. For the reasons stated in section II.B.2.a.l above, we find we have no jurisdiction over this violation. (2) BOD There were five violations of the BOD limit at outfall 002, the last of which occurred in the month of November 1984, some three and one-half years before the complaint was filed. For the reasons stated in section II.B.2.a.l above, we find we have no jurisdiction over these violations. c. Outfall 101 (1) TOC There were fifteen pre-complaint violations of the TOC limit at outfall 101. The last violation in this category occurred on January 6, 1984, more than four years before the complaint was filed. For the reasons stated in section II.B.2.a.l above, we find we have no jurisdiction over these violations. (2) Phenols There were eight pre-complaint violations of the phenols limit at outfall 101. The last violation in this category occurred in the month of December 1983, more than four years before the complaint was filed. For the reasons stated in section II.B.2.a.l above, we find we have no jurisdiction over these violations. (3) Sulfides There were two pre-complaint violations of the TOC limit at outfall 101. The last violation in this category occurred on January 25, 1985, more than three years before the complaint was filed. For the reasons stated in section II.B.2.a.l above, we find we have no jurisdiction over these violations. d. Outfall 401 (1) pH There were six pre-complaint violations of the pH limit at outfall 401. The last violation in this category occurred in the month of May 1985, approximately three years before the complaint was filed. For the reasons stated in section II.B.2.a.l above, we find we have no jurisdiction over these violations. (2) Bioassay There was one pre-complaint violation of the bioassay limit at outfall 401. This violation occurred in the month of April 1984, more than four years before the complaint was filed. For the reasons stated in section II.B.2.a.l above, we find we have no jurisdiction over these violations. 3. Summary We find that we have jurisdiction over three hundred twenty-three (323) of the three hundred seventy-two (372) pre-complaint violations alleged by the plaintiffs. We lack jurisdiction over forty-nine (49) of the pre-complaint violations. In addition, we have jurisdiction over the forty-two (42) violations that occurred after the complaint was filed. This means that we have jurisdiction over three hundred sixty-five (365) of the violations alleged by the plaintiff. Our next task is to decide any liability issues that remain after our present and earlier opinions. III. LIABILITY Our decision in Texaco I, combined with our discussion above of the various defenses raised by Texaco, firmly establishes liability for the vast majority of the violations over which we have jurisdiction. There are, however, a few matters remaining. We turn first to the simplest of these issues. A. Alleged Reporting Errors With regard to violation 157, Texaco claims that there is a discrepancy between the reported TSS value on the DMR and the value indicated on a summary of test results. PEX 367. Texaco employee Richard Ladd testified that the DMR value was an “error,” and that the lower, non-violating measurement is correct. We do not accept this analysis. The DMR, which is the key reportage document in the administrative scheme set up by the Act, must control unless there is convincing evidence of an error. Here the summary of test results relied upon by Ladd is merely a competing source of the same information. It does not convince us that the DMR is in error. In this circumstance, we will rely on the DMR value, and violation 157 stands. We have a similar view of Texaco’s argument with regard to violation 173. Here Texaco claims that the correct value appears in Texaco’s NPDES log (DEX 66) at page 69. We do not find this value reported on this page. Thus, we accept the value reported on the waste