ELR Citation: ELR 21215
No(s). 86-1673 (M.D. Pa. Feb 25, 1988)

The court holds that plaintiffs in a Federal Water Pollution Control Act (FWPCA) citizen suit have adequately raised the issue of ongoing violations to support the court's jurisdiction, and that the Environmental Protection Agency's (EPA's) involvement in a remedial investigation/feasibility study (RI/FS) does not bar plaintiffs' citizen suit under the FWPCA or the Resource Conservation and Recovery Act (RCRA). The court first holds that it has jurisdiction over the FWPCA claims, even though plaintiffs' allegations of FWPCA violations are phrased in the past tense. Plaintiffs' prayer for relief could be interpreted to imply that the alleged violations are continuing, and defendant's discharge monitoring reports (DMRs) indicate that it violated its permit after the commencement of the citizen suit. The court holds that the complaint sufficiently alleges permit violations, as well as injury resulting from the alleged effluent discharges. Following its opinion in Fishel v. Westinghouse Electric Corp., 16 ELR 20001, the court holds that plaintiffs' notice of violation to defendants complied with the requirements of FWPCA §505(b). Fishel had held that a notice was adequate because it was timely and detailed enough to enable a defendant to identify the specific regulations and conduct at issue. The court also holds that EPA and the state authorities had actual notice of defendant's alleged violations because they were published in defendant's DMRs. Turning to the issue of EPA's involvement in the RI/FS, the court holds that plaintiff's FWPCA and RCRA citizen suits are not barred by EPA's actions. There is no evidence that EPA is actually engaging in a removal action or diligently proceeding with a remedial action, nor has EPA taken any action to ensure that the RI/FS progresses satisfactorily. In addition, the court declines to exercise the doctrine of primary jurisdiction to stay plaintiffs' federal and state claims pending completion of the RI/FS, since the court's exercise of jurisdiction would not disrupt EPA's exercise of authority.

[Other decisions in this litigation are published at 18 ELR 21218 and 21220.]

Counsel for Plaintiffs
Rex F. Brien, Mark R. Cuker, Gerald J. Williams
Slap, Williams & Cuker
Suite 960, One Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

Counsel for Defendant
Joseph Donley
Kittredge, Kaufman & Donley
5th Fl., The Bank Bldg., 421 Chestnut St., Philadelphia PA 19106
(215) 829-9900