ELR Citation: ELR 21285
No(s). C2-95-898 (S.D. Ohio Sep 3, 1996)

The court holds that §505(b)(1)(B) of the Federal Water Pollution Control Act (FWPCA) does not bar environmental groups' citizen suit against a wastewater treatment company for allegedly violating the FWPCA and municipal pretreatment standards. The court first addresses the company's assertion that the court lacks subject matter jurisdiction because the groups failed to comply with FWPCA §505(b)(1)(A)'s 60-day notice requirement. The company asserts that the groups' notice letter, dated July 12, 1995, was not served on its statutory agent until July 25, 1995. The groups filed suit on September 13, 1995. The court notes that because the company has not provided the court with any evidence supporting its assertion, the inquiry is bound to the complaint's facial sufficiency. The groups allege compliance with §505(b)(1)(A). The court notes that if the company wishes to contradict this allegation with evidence, it should do so promptly by motion to the court. In the meantime, the court refuses to dismiss the case on this basis.

The court holds that FWPCA §505(b)(1)(B) does not bar the citizen suit, even though two cities have already commenced a civil action against the company for failure to cure alleged violations of city pretreatment standards. The court holds that municipalities are not included in the definition of "state" under §505(b)(1)(B). Had Congress chosen to merge the separate definitions of "state" and "municipality" in FWPCA §502, it could have done so. The rights of private citizens to enforce the requirements of the Act are subordinate only to the Administrator of the U.S. Environmental Protection Agency and the states, whom Congress made the primary enforcers of the FWPCA. Therefore, the court holds that it is not deprived of subject matter jurisdiction over this citizen suit by virtue of §505(b)(1)(B).

The court next rejects the company's contention that because of the effect of §505(b)(1)(B), plaintiffs have failed to state a claim on which relief can be granted under Fed. R. Civ. P. 12(b)(6). Because the court holds that §505(b)(1)(B) does not preclude federal jurisdiction in this case, the groups need only allege violations of effluent standards or other limitations on the discharge of regulated pollutants. They have done so repeatedly in their complaint. Regarding those allegations as true, the court holds that the groups' claims cannot be dismissed for failure to state a claim on which relief can be granted. The court also rejects the company's contention that the court lacks subject matter jurisdiction because the alleged violations predate commencement of this action. The court holds that, as is required, the groups have alleged in good faith that the company will continue to violate the FWPCA. The court holds that the mere fact that good-faith allegations of continuing violations are premised in part on specific violations that occurred before the commencement of the suit does not render the allegations impotent for the purpose of supporting a finding of subject matter jurisdiction. The groups have not only made reasonable contentions that there was an evidentiary foundation underlying their factual assertions of continuing violations, but they have also provided evidence that this is the case.

Counsel for Plaintiff
Charles C. Caldart
National Environmental Law Center
29 Temple Pl., Boston MA 02111
(617) 422-0880

Counsel for Defendant
Larry H. James
Crabbe, Brown, Jones, Potts & Schmidt
500 S. Front St., Ste. 1200, Columbus OH 43215
(614) 228-5511