ELR Citation: ELR 20286
No(s). 88-0992 (M.D. Pa. Jun 23, 1989)

The court holds that a proposed consent decree in a Federal Water Pollution Control Act (FWPCA) citizen suit is unapprovable because it fails to comply with the mitigation project provisions of the Environmental Protection Agency's (EPA's) Penalty Policy for Civil Settlement Negotiations. The proposed consent decree required the defendant to pay $35,000 to Trout Unlimited but did not require that the money be used to mitigate the environmental harm caused or threatened by the defendant's violation of the statute. EPA's Penalty Policy requires that mitigation projects "closely address the environmental effects of the defendant's violation." The court first holds that it has the discretion to consider comments filed by EPA as amicus curiae when EPA is not a party to the action, and that it would consider the comments in light of their timeliness and usefulness. The court then holds that the consent decree need not require the defendant to pay civil penalties to the United States but should conform to the mitigation project provision.

Counsel for Plaintiff
John E. Childe Jr.
1389 Bradley Ave., Hummelstown PA 17036
(717) 566-5626

Counsel for Defendant
James M. Sheehan, Barbara Reynolds
Goldberg, Katzman & Shipman
319 Market St., P.O. Box 1268, Harrisburg PA 17108
(717) 234-4161

Counsel for Amicus
Amelia S. Salzman
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-1442