ELR Citation: ELR 20341
No(s). 88-1317 (4th Cir. Nov 30, 1989)

The court holds that plaintiffs proved ongoing violations at the time this Federal Water Pollution Control Act citizen suit was brought, but ongoing violations must be established for each permit parameter and not merely for the permit as a whole. The court first holds that the district court properly found an ongoing violation. The district court reasonably concluded that at the time the suit was brought, there was a reasonable likelihood that defendant's past violations would continue in the future. Defendant's near-perfect compliance record after the suit was filed is not relevant to the inquiry of whether plaintiff proved at trial a reasonable likelihood that intermittent or sporadic violations would recur. At the time of trial, there had been permit violations during the previous winter and both parties' witnesses expressed doubt about whether defendant could stay in compliance through the next winter. The court holds that plaintiffs have standing, since civil penalties paid to the U.S. Treasury are causally related to a citizen-plaintiff's injury and are thus likely to redress that injury. The court holds that the case is not moot. Litigation over penalties for past violations that are linked with ongoing violations presents a live case or controversy, even though defendant has come into compliance. However, the court holds that the district court lacked jurisdiction to impose penalties for defendant's wholly past chlorine violations, since ongoing violations must be established for each permit parameter and not merely for the permit as a whole. The court may award civil penalties based only on defendant's nitrogen violations, which were ongoing at the time suit was filed.

[Previous cases in this litigation are published at 15 ELR 20663, 16 ELR 20636, and 18 ELR 20142, 20941, and 21275.]

Counsel for Appellants
E. Barrett Prettyman Jr.
Hogan & Hartson
Columbia Sq., 555 13th St. NW, Washington DC 20004-1109
(202) 637-5600

Anthony F. Troy
Mays & Valentine
Sovran Ctr., 1111 E. Main St., P.O. Box 1122, Richmond VA 23208
(804) 697-1339

Counsel for Appellees
James K. Thornton, James F. Simon
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Patrick M. McSweeney
McSweeney, Burtch & Crump
9 S. Twelfth St., P.O. Box 1463, Richmond VA 23212
(804) 643-5192

Before RUSSELL and SPROUSE, Circuit Judges, and KAUFMAN, Senior District Court Judge for the District of Maryland, sitting by designation.