ELR Citation: ELR 21087
No(s). 96-2063 (7th Cir. Jun 17, 1997)

The court holds that an environmental group's suit may proceed against a metal castings plant for allegedly violating the Federal Water Pollution Control Act (FWPCA) by discharging wastewater into a municipal sewer system. The court first holds that the group's notice of intent to sue sufficiently informed the plant about the group's claim that the plant's handling of wastewater did not comply with the FWPCA. The fact that the plant subsequently secured a permit that covered these discharges, constructed a treatment facility, and re-routed the discharges to a new outfall does not change the adequacy of the original notice. Outfall-by-outfall notice is not required in all cases and nothing in the statute says that plaintiffs must refrain from filing suit when a company is attempting to take corrective action. The court next holds that the group adequately alleged that the plant was "in violation" of the FWPCA. For summary judgment purposes, the plaintiff must only allege in good faith the present nature of the violation. Here, the plant made no showing that the group's allegations were not made in good faith, and it is clear that if the notice encompassed the new outfall, the violation had not ceased by the time the group's amended complaint was filed. The court then holds that various delays in the suit do not affect the group's ability to go forward on its claims. The district court in its discretion accepted the group's amended complaint six months after it dismissed the group's first complaint. The court refuses to second-guess the district court's handling of the case, given the breath of the district court's discretion and the fact that the plant failed to move for entry of a Rule 58 final judgment. Also, neither party is at fault for the four-year delay between the filing of the new motions for summary judgment and the district court's ruling.

The court then holds that the district court correctly dismissed the group's claims that the plant exceeded its permit's daily maximum discharge limits for oil and grease at one of its outfalls. The record is devoid of any evidence that relates to this outfall. The district court, however, erred in dismissing the group's claims relating to oil and grease discharges at another outfall. Although the lab report showing that excess oil and grease had been discharged from the outfall was based on a faulty test, the court held that if the plant discharged excess oil and grease on one occasion after the date of the suit, a finder of fact could infer that the plant had not fully cured all past violations by the time suit was brought.

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

Counsel for Defendant
John H. Niebler
Niebler, Pyzyk & Wagner
16975 Richfield Way, N. 95 W., Menomonee Falls WI 53051
(414) 251-5330

Before MANION, DIANE P. WOOD, and EVANS, Circuit Judges.