ELR Citation: ELR 20815
No(s). 89-0746-H (D. Mass. Mar 28, 1990)

The court holds that penalties for Federal Water Pollution Control Act (FWPCA) violations in a citizen suit are available for pre-complaint violations. Plaintiffs must prove that the polluter committed post-complaint violations or that, at the time of trial, there is a reasonable likelihood that sporadic or intermittent pollution will occur in the future. Relying on the Fourth Circuit's decision in Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 20 ELR 20341, the court grants the plaintiff's motion for revision of the court's memorandum and order to the extent the ruling stated as a matter of law that the court would impose penalties under FWPCA §505(a) only for post-complaint violations. The court will thus consider evidence of all "ongoing violations."

[A previous case in this litigation is published at 20 ELR 20548.]

Counsel for Plaintiff
Peter L. Koff
Murphy, DeMarco & O'Neill
20 Custom House St., Boston MA 02110
(617) 737-3000

James F. Simon, Nora J. Chorover
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendant
Gregory P. Deschenes, Tracey E. Madden, Frederick A. Kelly Jr.
Peabody & Brown
50 Rowes Wharf, Boston MA 02110
(617) 951-2100