ELR Citation: ELR 20086
No(s). CCB-98-1612 (D. Md. Aug 28, 2000)

The court holds that it lacks subject matter jurisdiction to review community groups' and individual plaintiffs' Clean Water Act (CWA) citizen suit alleging that a Maryland city routinely violated its national pollutant discharge elimination system (NPDES) discharge permit. In 1993, the state environmental agency issued a complaint against the city for violating effluent discharge limits in its NPDES permit. The city and the agency agreed to a consent order under which repairs would be made to fix the discharge problem. Subsequently, the groups and the individuals brought their action based on alleged continued dry weather discharges from the city's sewer system.

The court first holds that the groups' and the individuals' citizen suit is barred by CWA §505(b)(1)(B), which prohibits citizen suits against an alleged violator where the state has commenced and is diligently prosecuting a civil or criminal action requiring compliance. Here, the state agency is engaged in a diligent prosecution of the city for its failure to comply with the limitations imposed in the city's discharge permit as well as unlawful discharges under state law. The state agency brought a judicial action; sought and obtained a monetary penalty from the city; limited future connections to the city's sewer system; and required, reviewed, and approved the planning, development, and construction of a new sewer system to eliminate wastewater problems and unauthorized discharges. Further, the consent order entered into between the state agency and the city appear to address all sewerage overflows, including dry weather discharges. Moreover, a 1999 amendment to the consent decree requires action intended to prevent dry weather discharges to the street. In addition, the state agency's discretionary decision not to impose significant monetary penalties on the city does not support a finding of lack of diligence. The court also holds that it lacks subject matter jurisdiction over the individuals' CWA citizen suit because of improper notice. By failing to specifically identify all individual plaintiffs in their notice of intent to sue, the individuals failed to provide sufficient notice to the city under CWA's §505(b) citizen suit notice requirement.

[Counsel not available at this printing.]