ELR Citation: ELR 21209
No(s). 4:92CV0024 (N.D. Ohio Sep 24, 1992)

The court holds that Ohio law is not comparable to §309 of the Federal Water Pollution Control Act (FWPCA), making administrative orders issued by the Ohio Environmental Protection Agency (OEPA) under Ohio law against a company violating its national pollutant discharge elimination system (NPDES) permit insufficient to preclude environmental groups from bringing an FWPCA citizen suit at the same time. FWPCA §309(g)(4) provides safeguards to the public's right to participate in the administrative action process not found in Ohio's law. Thus, §309(g)(6)(A)'s bar to citizen suits, typically where a state has commenced and is diligently prosecuting an action under state law comparable to the FWPCA, does not preclude the environmental groups' FWPCA citizen suit against the company. The court also holds that the environmental groups have standing to bring an FWPCA citizen suit, because they have shown an injury-in-fact that affects them personally and is imminent, and an injunction will decrease pollution from the company. The court grants summary judgment to the environmental groups as to the company's FWPCA liability, but finds that material issues of fact remain as to the total number of violations by the company.

Counsel for Plaintiffs
Stephen P. Samuels
Samuels & Northrop
180 E. Broad St., Ste. 816, Columbus OH 43215
(614) 464-3232

Counsel for Defendant
Duane J. Dubsky, Jeffrey A. Ford
Diamond, Dubsky & Ford
4310 Main Ave., P.O. Box 1336, Ashtabula OH 44004
(216) 998-0173
Harry F. Klodowski Jr.
Doepken, Keevican, Weiss & Medved
USX Tower, 600 Grant St., 37th Fl., Pittsburgh PA 15219
(412) 355-2600