ELR Citation: ELR 20436
No(s). 89-2405-T (D. Mass. Jan 31, 1991)

The court holds that a citizen suit alleging violation of the Federal Water Pollution Control Act (FWPCA) in connection with discharges from the town's sewage treatment facility is barred under FWPCA §309(g)(6) because the Massachusetts Department of Environmental Protection's (DEP's) issuance of an administrative order for the same violation constitutes diligent prosecution under a comparable state law. The court first holds that the Massachusetts Clean Water Act is a comparable state law to FWPCA §309(g) because it contains penalty assessment and public notice and participation provisions equivalent to the federal act. DEP's failure to employ the state penalty assessment provisions in the order does not alter this conclusion. The court next holds that DEP's order, which requires the town to follow a timetable in taking all necessary steps to treat the sewage wastewater and leaves open the possibility of future criminal or civil penalties, constitutes diligent prosecution.

Counsel for Plaintiff
Gary D. Thomas
Kelly, Kethro, Flannigan & Thomas
720 Washington St., Hanover MA 02339
(617) 826-4450

Counsel for Defendant
John W. Giorgio
Kopelman & Paige
101 Arch St., Boston MA 02110
(617) 951-0007