ELR Citation: ELR 20908
No(s). LR-C-91-681 (E.D. Ark. Apr 8, 1993)

The court holds that state administrative enforcement action against an herbicide manufacturer for national pollutant discharge elimination system permit violations bars a citizen suit against the manufacturer for civil penalties and injunctive relief under the Federal Water Pollution Control Act (FWPCA). The court holds that the civil penalties imposed in the original consent administrative order between the state and the manufacturer, and amendments to the order, cover all violations alleged in the citizen suit. The court holds that provisions for assessing administrative penalties under Arkansas law are comparable to FWPCA §309(g). Although the maximum penalty under Arkansas law is less than the FWPCA's, the factors used to determine the penalty amounts are similar. The court holds that Arkansas law provisions for notice and comment are also comparable to §309(g), because they permit intervention as of right, provide meaningful opportunities for public participation, and provide adequate procedural safeguards. The court also holds that the state is diligently prosecuting its enforcement action against the manufacturer. The state imposed sufficient penalties and acted reasonably in granting extensions for the manufacturer to correct problems. The court holds that the state's issuance of a corrected consent administrative order and amendments to it represent an ongoing enforcement action, and not the commencement of a new action since the citizen group gave notice of its intent to sue. Finally, the court holds that §309(g)(6)'s ban on simultaneous citizen suits applies not only to civil penalty actions, but also to requests for injunctive and declaratory relief.

Counsel for Plaintiff
Samuel E. Ledbetter
Nicholas, Wolff & Ledbetter
200 W. Capitol Ave., Ste. 1650, Little Rock AR 72201
(501) 372-5659

Counsel for Defendant
Charles R. Nestrud
Chisenhall, Nestrud & Julian
2840 First Commercial Bank Bldg., 400 W. Capitol Ave., Little Rock AR 72201
(501) 372-5800