ELR Citation: ELR 20868
No(s). 88-50142-RV (N.D. Fla. Oct 27, 1989)

The court holds that a citizen suit under the Federal Water Pollution Control Act (FWPCA) to enforce a national pollutant discharge elimination system permit is not moot. The Environmental Protection Agency (EPA) has not yet answered a permittee's request for an evidentiary hearing to contest the permit conditions, even where EPA seems to indicate that it has granted a stay of those conditions since EPA lacks statutory authority to stay contested permit conditions without an evidentiary hearing. The court denies the permittee's request for a stay, pointing to a record of past violations and current discharges that exceed the permit limits. Even if the permit conditions were stayed, defendant would be in violation of the terms of the previous permit. The court rejects the permittee's claim that the stay should be granted because the permit is about to expire. Under the FWPCA, the existing permit remains in effect until renewal or issuance of a new permit. The court also holds that although state civil or criminal court action preempts FWPCA citizen suits, Florida's administrative action does not preempt this citizen suit because the administrative enforcement provision does not authorize the imposition of penalties. The court holds that the doctrine of primary jurisdiction does not apply, since this case turns on whether defendant has violated its permits and not on scientific or technical issues.

Counsel for Plaintiff

David Ludder
Legal Environmental Assistance Foundation, Inc.
203 N. Gadsden St., Ste. 5, Tallahassee FL 32301
(904) 681-2591

Counsel for Defendant

Nevin J. Zimmerman
Burke & Blue
221 McKenzie Ave., P.O. Box 70, Panama City FL 32401
(904) 769-1414