ELR Citation: ELR 20055
No(s). s. 88-704P, -705P (D.R.I. May 18, 1990)

The court holds that the owners of a private septic system are liable under the Federal Water Pollution Control Act (FWPCA), state clean water laws, and the common law of public nuisance for discharging raw sewage into the Sakonnet River. The case is the consolidation of citizen suits filed by private and state plaintiffs against the owners of a housing development that has been discharging raw sewage into the Sakonnet River since 1969. The court holds that owners of the system are liable and in violation of FWPCA §301(a). The court relies on Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 18 ELR 21275, to hold that past owners of the septic system are not liable for wholly past FWPCA violations. The court holds, however, that past owners may be held liable for nuisance because the past owners were in control of the system that allegedly created the nuisance. The court has no authority to enforce state violation notices against past owners because there was no hearing or final adjudication on the notices. Finally, the court holds owners of the system liable for nuisance, since the pollution from the septic system unreasonably interferes with the health and safety of the general community. The court enjoins the owners from releasing the raw sewage from their septic systems.

Counsel for Plaintiffs
Michael Rubin, Special Ass't Attorney General
72 Pine St., Providence RI 02903
(401) 274-4400

Charles P. Messina, Kendra Beaver
Department of Environmental Management
9 Hayes St., Providence RI 02908
(401) 277-6607

Counsel for Defendants
Bruce Hunter Cox
Slepkow, Slepkow & Bettencourt, Inc.
1481 Wampanoag Trail, East Providence RI 02915
(401) 437-1100

Stephen B. Lang, Barry Kusinitz, Martin Aisenberg
Temkin & Miller
1400 Turks Head Pl., Providence RI 02903
(401) 751-2400