ELR Citation: ELR 21024
No(s). 84-CV-413 (N.D.N.Y. Jan 6, 1992)

The court, on reconsideration, again refuses to approve a consent decree, which provides for payments to three private conservation organizations, in a citizen suit under the Federal Water Pollution Control Act (FWPCA). Relying on the ninth circuit's holding in Sierra Club, Inc. v. Electronic Controls Design, Inc., 20 ELR 21081, the court holds that the FWPCA mandates that a civil penalty be imposed on the defendant and requires that the penalty be paid to the Secretary of Treasury once there has been a judicial finding of liability. The fact that the defendant can seek to modify or appeal the finding does not eviscerate the court's establishment of its liability. Although the court notes that it could have exercised its equitable jurisdiction to allow monetary restitution as an alternative to a civil penalty, the court holds that it now lacks the jurisdiction after having rendered plaintiffs' injunctive relief claim moot. The court also refuses the parties' request to settle out of court after the government has actively participated in the case. Finally, the court finds that a detailed analysis of the penalty amount is impractical and not required under FWPCA §309(d), and holds that based on the limited record before it the penalty amount is reasonable.

[The court's previous decision in this litigation is published at 20 ELR 21385.]

Counsel for Plaintiffs
Bruce J. Terris
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendants
Richard B. Stewart, Ass't Attorney General
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000