ELR Citation: ELR 20437
No(s). 91-1255 (1st Cir. Nov 27, 1991)

The court holds that a citizen suit alleging violation of the Federal Water Pollution Control Act (FWPCA) in connection with discharges from a town's sewage treatment facility is barred under FWPCA §309(g)(6) because the Massachusetts Department of Environmental Protection (DEP) is diligently prosecuting the same violation under a comparable state law. The court first holds that the state statute under which DEP's order was issued contains a penalty provision and is comparable to the FWPCA; DEP's decision not to assess penalty does not alter the statute's comparability to the federal act. The court next holds that the state is diligently prosecuting the violation. The town has complied with various mandatory and ongoing tasks since the order was issued and the order leaves open the possibility of future civil penalties. The court also rejects the appellant's contention that §309(g) bars civil actions only and not injunctive and declaratory relief because §505, which authorizes citizen suits, does not make that distinction. The court emphasizes that citizen suits are supplemental to the government's enforcement actions and are only proper if the government fails to exercise its enforcement responsibility.

The district court's decision is published at 22 ELR 20436.

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

Peter Shelley, Darshan Brach
Conservation Law Foundation of New England, Inc.
3 Joy St., Boston MA 02108
(617) 742-2540

Counsel for United States Amicus Curiae
Catherine M. Flanagan, Anne H. Shields, Anne S. Almy
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before TORRUELLA, Circuit Judge, HILL,^* Senior Circuit Judge, and SELYA, Circuit Judge.