ELR Citation: ELR 21152
No(s). F 87-95 (N.D. Ind. Apr 23, 1990)

The court holds that an environmental organization has standing to bring a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA), and an automobile jack manufacturer is liable for violations of its national pollutant discharge elimination system (NPDES) wastewater treatment permit. The court first holds that the organization has standing. Its members have alleged sufficient injury to their recreational and aesthetic interests from the manufacturer's permit violations and have demonstrated that the manufacturer's compliance with its NPDES permit will redress their alleged injuries. The court next holds that a pending state administrative action does not bar the organization's suit. The state administrative agency lacks power to accord relief substantially equivalent to that available in a court action, and the pertinent state statutes are not comparable to the FWPCA penalty provisions because they fail to specify factors to be considered in assessing a penalty. Moreover, in light of the manufacturer's continuing violations after the suit commenced and the state's apparent willingness to bend its procedures on the manufacturer's behalf, the state action does not amount to diligent prosecution of the manufacturer's permit violations. Additionally, because the manufacturer has not met its burden of showing that it will not violate its NPDES permit in the future, the court holds that the action is not moot. Finally, the court rejects the manufacturer's argument that FWPCA §505 unconstitutionally violates the separation-of-powers doctrine and the appointments clause. The §505 citizen suit provision reflects Congress' authority to determine who will enforce the statutory rights and obligations it created in the FWPCA, and it does not expand Congress' power at the expense of the executive branch.

Counsel for Plaintiff
Peter G. Mallers II
Beers, Mallers, Backs & Salin
1100 Fort Wayne National Bank Bldg., Fort Wayne IN 46802-2381
(219) 426-9706

Richard J. Kilsheimer
Kaplan, Kilsheimer & Foley
685 Third Ave., New York NY 10017
(212) 687-1980

Counsel for Defendant
Milford M. Miller, Edward J. Liptak
Miller, Carson & Boxberger
1400 One Summit Sq., Fort Wayne IN 46802-3137
(219) 423-9411