ELR Citation: ELR 21162
No(s). 85-4966 (E.D. Pa. Aug 12, 1987)

The court holds that a citizen may not bring suit under §505 of the Federal Water Pollution Control Act (FWPCA) for alleged violations of defendant's national pollutant discharge elimination system (NPDES) permit because an amendment to the permit precludes the Environmental Protection Agency (EPA) from enforcing the permit pending further state administrative proceedings. The court first holds that the permit amendment bars EPA from enforcing the permit's effluent limitations. Public notice is not required for this amendment, since it merely limits enforcement pending further administrative proceedings. The court holds that plaintiff may not maintain an FWPCA citizen suit because a private citizen has no greater right to enforce the permit than does EPA. The court holds that defendant has not violated the Pennsylvania Clean Streams Law because the Pennsylvania Department of Environmental Resources revoked its prior certifications of the NPDES permit and waived its right to certify all effluent limitations.

[A Third Circuit decision reversing the district court is published at 18 ELR 21165.]

Counsel for Plaintiff
Randall J. Brubaker
125 S. 9th St., Philadelphia PA 19107
(215) 627-6395

Counsel for Defendant
Hershel J. Richman
Cohen, Shapiro, Polisher, Shiekman & Cohen
22nd Fl., PSFS Bldg., 12 S. 12th St., Philadelphia PA 19107
(215) 922-1300