ELR Citation: ELR 21047
No(s). 90-7931 (2d Cir. May 14, 1991)

The court rules that a settlement between the defendant in a properly commenced Federal Water Pollution Control Act (FWPCA) citizen suit and state officials is grounds for dismissing the citizen suit if the settlement has caused the violations to cease and eliminated any reasonable likelihood of recurrence. An environmental group provided the Environmental Protection Agency, New York, and defendant manufacturer with notices of intent to sue defendant alleging violations of the effluent standards in the manufacturer's FWPCA permit. Subsequently, defendant and officials of the New York Department of Environmental Conservation (DEC) entered into a civil consent order settling all civil and administrative claims involved in the citizen suit, and entered a criminal plea agreement with state authorities admitting its unlawful dealing in hazardous wastes and failing to notify the DEC of excessive releases in a timely fashion. Before the district court could rule on the environmental group's motion to amend the original complaint a second time, the court granted summary judgment in favor of the defendant and dismissed the case, from which the environmental group appeals.

The court first observes that although FWPCA §505(b)(1) permits citizen suits to begin if the appropriate state and federal authorities have not acted within the 60-day notice period, whether plaintiff's properly commenced action may continue in the face of a dispositive administrative and criminal settlement is a different issue. The court holds that a citizen suit must be dismissed if a state enforcement proceeding causes the violations alleged in the citizen suit to cease without any likelihood of recurrence. Citing the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Smithfield Chesapeake Bay Foundation, Inc., 18 ELR 20142, the court holds that plaintiff's citizen suit may not be addressed wholly to past violations or seek to recover fines and penalties that the government has elected to forego. Thus, the citizen suit must be prospective and supplement, not supplant, state enforcement of the FWPCA, and plaintiff may not challenge the terms of the settlement unless realistic prospects exist that the alleged violations will continue notwithstanding the settlement. The court notes that the FWPCA cannot and should not be read to discourage governmental enforcement once a citizen suit has been commenced or prevent state and local authorities from achieving a settlement as to conduct that is the subject of a citizen complaint. However, the court remands to the district court to make an express finding whether the settlement has caused the violations alleged by plaintiff to cease and eliminated any realistic prospect of their recurrence. Finally, the court rules that because the function of the citizen suit, to stop violations of the FWPCA, will have been served even though the case is subject to dismissal due to the settlement, plaintiff may seek an award of expenses and attorney fees. When the polluter's settlement with state authorities follows the proper commencement of a citizen suit, it is reasonable to infer that the existence of the citizen suit was a motive for the polluter's settlement and that the citizen suit plaintiff is a prevailing party.

Counsel for Appellant
Alan J. Knauf
20 N. Main St., Pittsford NY 14534
(716) 248-3674

Counsel for Appellee
Philip H. Gitlen, Kathryn G. Hart
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600