ELR Citation: ELR 20654
No(s). 92 C 5564 (N.D. Ill. Oct 14, 1993)

The court refuses to dismiss or stay a Federal Water Pollution Control Act (FWPCA) citizen suit seeking civil penalties and an injunction against a chemical manufacturer alleged to be discharging pollutants in excess of the applicable U.S. Environmental Protection Agency (EPA) pretreatment standards and local limits. The court first holds that FWPCA §505(b), which bars citizen suits where EPA or a state has commenced prosecuting a civil or criminal action in a U.S. or state court, does not bar the suit. Although the Chicago Metropolitan Water Reclamation District (MWRD) is pursuing a show-cause prosecution against the manufacturer, the MWRD's action is not the functional equivalent of an action in court. Any administrative enforcement order resulting from the administrative proceeding will not be self-executing, but will require a separate court proceeding if the manufacturer fails to comply. The court next holds that the doctrine of primary jurisdiction does not apply. Although the MWRD has undisputed authority to determine the effluent limits applicable to the manufacturer under EPA's combined waterstream formula, the citizen suit is an action to enforce existing standards. The citizen suit thus does not require the court to review prematurely matters entrusted to the discretion and expertise of administrative agencies. Finally, the court refuses to abstain under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), which requires courts to abstain when substantially the same issues in a federal action are contemporaneously under consideration in a parallel state-court action. It is clear that relief in the state administrative proceeding would not be as broad as that granted by the court. Moreover, the court is adjudicating violation of current limits, not any that might ultimately be decided on by the MWRD. Any conflict in the rulings, which might cause cumulative sanctions, should be addressed at the remedy stage of the lawsuit.

Counsel for Plaintiffs
Robert J. Zaideman, James R. Epstein, Jerry A. Esrig
Epstein, Zaideman & Esrig
120 S. Riverside Plaza, Ste. 1150, Chicago IL 60606
(312) 207-0005

Counsel for Defendant
James A. Vroman, Kenneth T. Kristl
Winston & Strawn
35 W. Wacker Dr., Chicago IL 60601
(312) 558-5600