ELR Citation: ELR 20924
No(s). s. 87-G-1390-S, -PT-1505-E (N.D. Ala. Mar 4, 1988)

The court holds that a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA) alleging violations at one of defendant's plants is barred by the issuance of a state administrative order, and stays a citizen suit alleging violations at a second plant that may be rendered moot when defendant's upgraded wastewater facility becomes operational. The court holds that the first suit is barred under FWPCA §309(g)(6), since an administrative order issued by Alabama constitutes diligent prosecution under a state law comparable to §309(g). The administrative order precludes citizen suits arising from violations occurring after it was issued, since it clearly applies to future permit violations. The order represents diligent prosecution by Alabama, not merely an extension of an existing deadline. The language of the order purporting to allow citizen suits does not override the terms of §309(g)(6).

The court stays the second citizen suit until the effectiveness of defendant's upgraded wastewater facility can be evaluated. The court holds that it has jurisdiction under §505, since plaintiff has satisfied the requirements of the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, by alleging that defendant is still not complying with its permit and is likely to continue to pollute. The court, however, stays the suit because defendant's upgraded facility should eliminate permit violations and thus the suit would be rendered moot under Gwaltney.

Counsel for Plaintiff
Eugene Rutledge, Clyde Riley
Rutledge & Kelly
1300 Brown Marx Tower, Birmingham AL 35203
(205) 322-8761

Counsel for Defendant
H. Thomas Wells Jr., Alfred F. Smith Jr.
Maynard, Cooper, Frierson & Gale
Third Ave. N. & 20th St., Birmingham AL 35203
(205) 252-2889