ELR Citation: ELR 20820
No(s). 89-3146 (HLS) (D.N.J. May 17, 1990)

The court holds that a preexisting state environmental enforcement action and a civil penalty assessment against a chemical company do not bar a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA) for alleged violations of the company's pollutant discharge permit. The court holds that enforcement of a consent decree arising from the state action does not immunize the company from suit. The state's role on a committee created under the consent decree to monitor the plant's remediation program was not comparable to that of a prosecuting agency. Further, although the state maintained the right to bring subsequent enforcement proceedings, the court concludes that the state began to prosecute the company's environmental violations only when the state actually brought penalty proceedings. The court further holds that the state's civil penalty assessment was untimely and therefore does not preclude the citizen suit. The state served the penalty assessment only after the citizen group filed notice of its intention to sue. The court holds that abstention from asserting jurisdiction is not appropriate. The FWPCA anticipates duplicative proceedings by allowing simultaneous litigation and penalty assessments, and the company is attempting to use its prior violations as a shield to further liability. The court holds that the citizen group's use of the waters into which the company discharged pollution is sufficient to establish standing. The court also holds that the federal five-year limitations period under 28 U.S.C. §2462 applies because the plaintiff who brings a citizen suit effectively represents the United States, and the doctrine of laches does not apply because it is not a defense to a suit to enforce a public right.

Counsel for Plaintiff
Edward Lloyd
15 Washington St., Newark NJ 07102
(201) 648-5576

Counsel for Defendant
Alfred C. Constants III
Carella, Byrne, Bain & Gilfillan
6 Becker Farm Rd., Roseland NJ 07068
(201) 994-1700