ELR Citation: ELR 21012
No(s). s. HM84-4018 et al (D. Md. Jun 18, 1985)

In three consolidated Federal Water Pollution Control Act citizen actions, the court holds that plaintiff has standing, that the suit is governed by a five-year statute of limitations, that the suit is not barred by a concurrent state administrative proceeding, and that plaintiff may seek relief for past violations. The court first allows plaintiff to amend its complaint against Keystone Automotive Plating to include alleged violations more recent than those in the original complaint. The court then holds that the action is governed by the five-year statute of limitations in 28 U.S.C. §2462 and not by shorter state statutes. The court holds that a pending state administrative action against Keystone does not bar plaintiff's suit because the action was commenced after plaintiff filed its original complaint and the state proceeding is not equivalewnt to diligent prosecution in a court. Also, the court rules that citizen suits may be brought to redress past violations of the Act. Since Keystone's Discharge Monitoring Reports (DMRs) show violations of its National Pollutant Discharge Elimination System permit (NPDES), the court grants summary judgment with respect to Keystone's liability. It rejects Keystone's defenses that its entry into a consent decree precludes judgment, that judgment is only appropriate on substantial violations and its own are trivial, and that plaintiff lacks standing.

In the second case, against Neuva Engineering, the court adopts many of the holdings made in the first case. Further, it holds that the fact that Neuva no longer operates the plant in question is no bar to the suit for past violations. The court grants summary judgment against Neuva on the issue of liability based on its DMRs. Noting that the DMRs and Neuva's NPDES permit have been authenticated by a state official and that Neuva has not offered evidence to the contrary, the court holds that Neuva's refusal to admit to the authenticity of the DMRs does not raise a material issue of fact.

In the third case against Simkins Industries, the court adopts its previous rulings on standing and past violations, elaborating that past violations may include past failures to file DMRs and distinguishing a Fifth Circuit case involving a single, isolated past violation. The court grants summary judgment on Simkins' liability for failure to file DMRs.

Counsel for Plaintiff
John F. King, G. Macy Nelson
Anderson, Coe & King
800 Fidelity Bldg., Charles at Lexington, Baltimore MD 21201
(301) 752-1630

Counsel for Defendants
Jack Harvey, Benjamin Rosenberg
Venable, Baetjer & Howard
1800 Mercantile Bank & Trust Bldg., 2 Hopkins Plaza, Baltimore MD 21201
(301) 244-7400