ELR Citation: ELR 21438
No(s). 991-2203 (W.D. Ark. Apr 13, 1992)

The court holds that a nonprofit environmental corporation's Federal Water Pollution Control Act (FWPCA) §505 citizen suit is not precluded because of a concomitant U.S. Environmental Protection Agency (EPA) administrative action, and the corporation has standing to sue. The court first holds that the FWPCA §309(g)(6)(A)(i) only precludes citizen suits if EPA is diligently prosecuting a §309(g) action for administrative penalties, as opposed to a §309(a) action for compliance orders. Because EPA administrative action involves compliance orders entered pursuant to §309(a), and not administrative penalties under §309(g), the court holds that this action is not precluded. Congress has not barred citizen suits whenever an administrative action is under way or simply because there may be some duplication with a government proceeding. The court next holds that the corporation has met the requirements of associational standing. First, the affidavits of its members establish injury-in-fact. Second, a sufficient nexus exists between the allegation of numerous unpermitted discharges of pollutants harmful to the environment and humans and their effect on the corporation's members' enjoyment and use of the area in question. The court holds that this nexus satisfies the "fairly traceable" requirement. Third, the corporation's members' injuries are redressable by an injunction and by penalties. The "ongoing violation" requirement of a §505(a) citizen suit underlies the remainder of the court's analysis. First, the court holds that it has jurisdiction over the case, because there are ongoing violations. The allegations of ongoing and post-complaint permit violations do not involve wholly past violations over which federal jurisdiction would not exist. Second, in determining the appropriate relief, the court undertakes an ongoing permit violation test for each pollutant parameter separately and finds that the permit holder violated its permit for several pollutant parameters. Third, the court holds that ongoing violations must be established to prevail on the merits. The court observes that in assessing violations of the national pollutant discharge elimination system (NPDES) permits in this case, the correct baseline for illegal discharges in 1987 and 1988 is the permit holder's 1983 permit; not the data collected during the holder's 1987 permit application. However, because the 1983 permit did not set limits, the applicable limitations and notification requirements are those set forth in the regulations. The court finds that the permit holder did not comply with these regulatory requirements, because the holder failed to notify, as instructed in the permit, the appropriate agencies of discharges of any toxic pollutant not limited by the permit. Finally, the court enjoins the NPDES permit holder to meet an EPA compliance schedule and to avoid further monitoring and reporting violations, because the corporation made a showing of irreparable harm in connection with both the past and ongoing violations.

Counsel for Plaintiff
Samuel E. Ledbetter
Nichols, Wolff & Ledbetter
212 Centre Pl., Ste. 900, Little Rock AR 72203
(501) 372-5659

Counsel for Defendant
Randolph C. Jackson
Jones, Gilbreath, Jackson & Moll
401 N. Seventh St., P.O. Box 2023, Fort Smith AR 72902
(501) 782-7203