ELR Citation: ELR 20785
No(s). Y-84-1620 (D. Md. May 6, 1985)

The court rules that the five-year statute of limitations in 28 U.S.C. §2462 applies in citizen enforcement suits under the Federal Water Pollution Control Act (FWPCA) and that violations recorded in defendant's discharge monitoring reports (DMRs) are conclusive on the issue of liability except those for which defendant presented a possible defense. The court first holds that plaintiffs, a regional and a national environmental group, have standing to sue on behalf of their members. Two of the three requirements for representational standing are clearly met in that both groups seek to protect interests that are germane to their purposes and it is not necessary for individual members to participate in the suit. The regional organization meets the third requirement, that its members suffered sufficient injury in fact to entitle them to bring the suit, with affidavits from three members alleging injury to their health, aesthetic, and recreational interests. The court rules that it is not necessary that plaintiffs prove that these injuries are directly traceable to specific discharges by defendant. Although it is a close case, the national group also meets this third requirement by identifying one member who uses the waterway and would thus have individual standing to bring this suit.

The court next holds that the five year statute of limitations in 28 U.S.C. §2462 applicable to Environmental Protection Agency (EPA) enforcement actions also applies to FWPCA citizen suits. The court declines to borrow a one-year state statute of limitations as urged by defendant because it would frustrate several policies of the FWPCA. Application of state statutes of limitations would produce non-uniform citizen suit enforcement from state-to-state, as well as non-uniform enforcement between citizens and the government. Also, subjecting citizen suits to a much shorter statute of limitations would interfere with EPA's enforcement decisions. Since the citizen suit mechanism was designed to supplement administrative enforcement, the court concludes that the same statute of limitations should apply to both.

The court then holds that plaintiffs satisfied the notice requirements in §505(b)(1) for those violations that occurred during the 60-day notice period. It would be inconsistent with the right to sue for continuing violations to bar action against violations during the notice period, where both defendant and EPA had actual notice that defendant continued to violate its permit. Finally, the court holds that plaintiff's are entitled to summary judgment on the issue of liability based on the violations listed in defendant's DMRs. The court rules that claims of inaccurate reporting are no defense. However, defendant's allegations that some of its reported violations would be excused under EPA regulations as "upsets" is sufficient to withstand summary judgment for those violations.

Counsel for Plaintiffs
James Thornton
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 262-0049

Scott Burns
Chesapeake Bay Foundation
162 Prince George St., Annapolis MD 21401
(301) 262-8816

Counsel for Defendants
Benjamin Rosenberg, G. Stewart Webb Jr., Jack L. Harvey
Venable, Baetjer & Howard
2 Hopkins Plaza, Baltimore MD 21201
(301) 244-7400