ELR Citation: ELR 20775
No(s). 91-CV-6471T (W.D.N.Y. Dec 28, 1992)

The court holds that a citizen suit under § 505 of the Federal Water Pollution Control Act (FWPCA) against the holder of a state pollution discharge elimination system (SPDES) permit issued under the national pollution discharge elimination system may not be based on discharges of pollutants not listed in the permit. The court first holds that given the Act's focus on the SPDES permit, the defendant's liability must be determined in light, not of the Act's general prohibition of pollutant discharges, but of the conditions of its SPDES permit. The court rules that the Act, its legislative history, and regulations promulgated under the Act support the interpretation that a permit prohibits only discharges of pollutants that it expressly restricts and only when they are discharged in excess of the levels permitted in the permit. The Act itself and the regulations promulgated thereunder prescribe such detailed and involved procedures for establishing discharge limits under permits that it strains credulity to propose that Congress could have contemplated that a discharge by a permit holder of a pollutant never referenced in its permit would form the basis of a permit violation cognizable under the Act's citizen suit provision. The court also holds that plaintiff may not base its citizen suit on New York Environmental Conservation Law §17-0815(3), which requires New York SPDES permits to include a provision that the discharge of any pollutant not identified and authorized by the permit constitutes a violation of the permit. Federal regulation precludes enforcement under the FWPCA and its regulatory scheme of restrictions that are broader in scope than federal law requires. Imposing liability for any discharge of a pollutant, whether it has been the subject of the administrative permit procedure or not, would broaden the parameters of enforcement of a citizen suit under the Act.

[A related case is published at 21 ELR 21047.]

Counsel for Plaintiff
Charles M. Tebbutt
Allen, Lippes & Shonn
1260 Delaware Ave., Buffalo NY 14209
(716) 884-4800

Counsel for Defendant
Philip H. Gitler
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600