ELR Citation: ELR 20099
No(s). 88-263-JRR (D. Del. Aug 18, 1989)

The court holds that the citizen suit provision of the Federal Water Pollution Control Act (FWPCA), §505, grants jurisdiction over suits alleging continuing permit violations at the same facility, even if not of the same specific permit parameters. The Supreme Court had held in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, that under FWPCA, §505 permit violations must be ongoing or intermittent, but did not specify how to determine that this is so. The court observes that nothing in the FWPCA or the Gwaltney decision requires a parameter-by-parameter approach to jurisdiction. The court next holds that the plaintiff environmental group has standing, despite allegations that the named members it represents were not members when some of the violations occurred. Environmental damage caused by permit violations can be cumulative. The court next holds that the facility's discharge-monitoring reports establish its liability, despite assertions that the reported violations are the result of sampling errors, system upsets, and statistical aberrations. The defendant should have articulated its concerns about the accuracy of the monitoring process specified in the permit at the time the permit was issued; it is too late now, based on FWPCA §509's provision that permits not be subject to judicial review during enforcement proceedings. Moreover, although the upset defense is codified in Environmental Protection Agency regulations and is thus available for all federally issued FWPCA permits, for a state-issued permit it must be affirmatively included to be available. The state-issued permit for this facility does not include the upset defense. The court next holds that when a permit has been reissued, the court can enjoin violations of permit conditions that were carried over into the new permit or made more stringent. The court also holds that its injunction is effective against the former permit holder and the current permit holder, even though the current permit holder has sold a 50 percent share of the facility and created a new jointly owned entity to operate the facility. Finally, the court holds that it need not find irreparable harm to issue an injunction under the FWPCA.

Counsel for Plaintiffs
Richard R. Cooch
Cooch & Taylor
Marine Midland Plaza, Ste. 1000, 824 Market St. Mall, P.O. Box 1680, Wilmington DE 19899-1680
(302) 652-3461

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

Counsel for Defendant
Richard D. Allen, Palmer L. Whisenant
Morris, Nichols, Arsht & Tunnell
1105 N. Market St., P.O. Box 1347, Wilmington DE 19899-1341
(302) 658-9200