ELR Citation: ELR 21464
No(s). 93-K-1713 (D. Colo. May 17, 1994)

The court holds that §309(g)(6)(A) of the Federal Water Pollution Control Act (FWPCA) bars an environmental group's citizen suit alleging that a refinery's discharges into a creek through groundwater violated FWPCA §301 and the refinery's national pollutant discharge elimination system (NPDES) permit. The court holds that the group's §301 claim is improper, because neither the U.S. Environmental Protection Agency (EPA) nor the state has failed to exercise its enforcement responsibility. The relief sought duplicates ongoing remedial efforts that EPA and the state approved and supervised concerning groundwater pollution. The court holds that §309(g)(6)(A)(ii) bars the group's NPDES claim, because the state is diligently prosecuting an action against the refinery for these unpermitted discharges. By issuing the refinery a notice of significant noncompliance, the state commenced an enforcement action before the group filed its notice of intent to sue. The court rejects the group's contention that the state must be attempting to assess penalties, to the exclusion of other remedies, to satisfy §309(g)(6)(A)(ii)'s diligent prosecution requirement. Although §309(g)(6)(A)(i) bars citizen suits only when the government is diligently prosecuting an action for administrative penalties, §309(g)(6)(A)(ii) contains no such limitation. The court holds that the group failed to raise an issue of triable fact regarding its claim that the refinery has failed to determine, as required by the FWPCA and its NPDES permit, the impact of its noncomplying discharges on the creek.

[A prior decision in this litigation is published at 24 ELR 20749.]

Counsel for Plaintiff
Reed Zars
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Denver CO 80202
(303) 571-5245

Counsel for Defendant
Daniel Patterson, Charles D. Henson
Holland & Hart
555 17th St., Ste. 2900, Denver CO 80201
(303) 295-8000