ELR Citation: ELR 20108
No(s). 83-CV-1506 (N.D.N.Y. Dec 27, 1984)

The Court holds that the entry of a consent order prior to formal administrative action, coupled with reasonably responsible compliance with that order, constitute the diligent state prosecution necessary to preclude a citizen enforcement action under §505 of the Federal Water Pollution Control Act (FWPCA). In a footnote the court observes that plaintiff environmental groups have satisfied standing requirements. The court further notes that the chronology submitted by plaintiffs of defendant's violations of its state pollutant discharge elimination system water pollution permit, which was issued pursuant to authority delegated to the state by the federal government under the FWPCA, is sufficient to state a cause of action. After reviewing cases establishing that administrative proceedings may be deemed court actions for the purpose of precluding citizen suits under §505(b)(1)(B) if the proceedings are the substantial equivalent of those available in federal court, the court concludes that a comparison of state and federal enforcement authorities and procedures is unnecessary. It rules that a consent order carried out with reawsonable diligence satisfies the requirements of §505 and in this case, substantial compliance with the consent order successfully terminated defendant's excessive pollution. The court concludes that diligent prosecution is a factual issue to be resolved by the court and, in light of its finding of diligent prosecution dismisses plaintiffs' action for lack of subject matter jurisdiction.

Counsel for Plaintiffs
Bruce J. Terris, Lee Ann Meyer
Terris & Sunderland
1121 12th St., Washington DC 20005
(202) 682-2100

Jan Kublick
Davoli, McMahon & Kublick
500 South Salina St., Syracuse NY 13202
(315) 424-1105

Counsel for Defendant
John R. Jenchura, Abbi L. Cohen
Consolidated Rail Corp.
1138 Six Penn Center Plaza, Philadelphia PA 19103
(215) 977-4000

Taylor Obold
Hiscock & Barclay
Financial Plaza
221 Warren St., P.O. Box 4878, Syracuse NY 13221
(315) 422-2131