ELR Citation: ELR 21204
No(s). 3:89CV7690 (N.D. Ohio Feb 22, 1991)

The court holds that it lacks subject matter jurisdiction over claims in a Federal Water Pollution Control Act (FWPCA) citizen suit that owners/operators of an oil refinery in Lima, Ohio, are in violation of their National Pollutant Discharge Elimination System (NPDES) permit. Based on the Supreme Court decision in Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, and the subsequent Fourth Circuit and district court decisions on remand, the court rules that FWPCA §505 requires that plaintiffs, to prevail at the summary judgement stage, must provide evidence of either continuous violations on or after the date the complaint was filed or a reasonable likelihood of a recurrence in intermittent or sporadic violations. Plaintiffs also need to show an ongoing violation separately as to each pollutant parameter at issue.

The court first finds that reports of exceedances in several regulated pollutants before the complaint was filed do not constitute an ongoing violation. Exceedances reported after the statutory 60-day notice but before the complaint was filed are also not considered an ongoing violation; neither is a single exceedance, even if reported after filing of the complaint. The court further holds that a 41-month gap between multiple exceedances in ammonia reported before the complaint and one after makes the latter a single, isolated incident and not an ongoing violation. Similarly, the court does not consider two Biochemical Oxygen Demand (BOD) exceedances reported after filing of the complaint as a continuation of previous violations 42 months earlier. The court further concludes that the two latter exceedances in BOD are not separate and continuous violations but are at most evidence of only one violation resulting from one single operational upset, a "once in a 25-year storm event." Plaintiffs also failed to prove that three reported phosphorus exceedances, which resulted from completely unrelated causes, indicate a reasonable likelihood of continuing violations. Finally, the court rejects plaintiffs' unsubstantiated allegation that defendant's treatment facility was defective and resulted in the exceedances.

Counsel for Plaintiffs
Richard E. Siferd
Siferd & Siferd
210 Colonial Bldg., Lima OH 45801
(419) 222-5045

Counsel for Defendants
Louis E. Tosi
Fuller & Henry
One Seagate, Ste. 1700, P.O. Box 2088, Toledo OH 43603-2088
(419) 247-2500