ELR Citation: ELR 20666
No(s). H-83-1082 (JAC) (D. Conn. Mar 31, 1986)

The court holds that neither a state judicial enforcement action resulting in a stipulated judgment nor a subsequent state administrative enforcement of the judgment constitutes "diligent prosecution" barring a Federal Water Pollution Control Act citizen suit. The court initially holds that defendant is liable for violations of its national pollutant discharge elimination system (NPDES) permit since it has not offered any evidence disputing plaintiffs' allegations. The court next holds that a state civil action resulting in a stipulated judgment prior to the date the citizen suit was filed is not a "diligent prosecution" barring the suit under §505(b)(1)(B) of the Act. On the date the citizen suit was filed, the state was not pursuing any action to enforce the terms of defendant's NPDES permit. The court also holds that Connecticut's subsequent administrative enforcement of the stipulated judgment does not preclude plaintiffs' citizen suit, ruling that an administrative enforcement action cannot constitute diligent prosecution under §505(b)(1)(B).

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

Katherine H. Robinson
Connecticut Fund for the Environment
32 Grand St., Hartford CT 06106
(203) 524-1639

Counsel for Defendant
Alan M. Kosloff
Rome, Case, Kennelly, and Klebanoff
693 Bloomfield Ave., P.O. Box 588, Bloomfield CT 06002
(203) 242-7745