ELR Citation: ELR 20788
No(s). 89-7232 (11th Cir. Apr 5, 1990)

The court holds that plaintiffs in Federal Water Pollution Control Act (FWPCA) §505 citizen suits may seek injunctive and civil penalties if a defendant is in violation on or after the date the complaint is filed. The court, referring to the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., first holds that if defendant complies with the Act after the complaint is filed and there is no reasonable likelihood the violation will recur, the injunctive relief issue is moot. The court also holds that the mooting of injunctive relief will not moot the civil penalties requests that were properly sought when the claim was filed. The court notes that civil penalties are important to deter future violations and as an incentive for citizens to bring the suits. The court's holding also discourages violators from delaying litigation and escaping liability. The court remands the case to the district court and dictates the following guidelines for calculating civil penalties: (1) because violations occurred before and after the FWPCA penalty provisions were revised, maximum penalties will be assessed in accordance with pre-and post-amendment language of the statute; (2) distinct violations occurring on the same day are subject to a separate daily penalty assessment; (3) a violation of a monthly average is a violation of each day of that month; and (4) no daily penalties are imposed when a polluter violates a monthly average for a given pollutant. The court holds that the district court erred in refusing to impose any civil penalties, based on its equitable powers. FWPCA §309(d) requires courts to consider the seriousness of the violation, the economic benefit resulting from the violation, the history of violations, good-faith efforts to comply, and the economic impact of the penalty. The court holds that plaintiffs are entitled to attorney fees and costs under §505(d). Where a citizens group succeeds on the merits, fees and costs must be awarded.

[The district court decision is published at 18 ELR 20924.]

Counsel for Plaintiff-Appellant
David Pope
Carr, Tabbs & Pope
2620 The Equitable Bldg., 100 Peachtree St. NW, Atlanta GA 30303
(404) 688-7993

Counsel for Defendant-Appellee
H. Thomas Wells, Jr.
Maynard, Cooper, Frierson & Gale
2400 AmSouth/Harbert Plaza, Birmingham AL 35203
(205) 254-1000

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.