ELR Citation: ELR 20005
No(s). C-84-3435 SC (N.D. Cal. Oct 17, 1985)

The court rules that the five-year statute of limitations in 28 U.S.C. §2462 governs citizen enforcement suits under the Federal Water Pollution Control Act. The court first rules that plaintiff has not demonstrated that it was entitled to prevail as a matter of law on its motion for summary judgment on liability. The legal issues are in dispute: defendant argues that federal regulations excuse its alleged violations as upsets, and plaintiff counters that those regulations are inapplicable since defendant's permit was issued by the state and contains no upset provision. The court next rules that the five-year statute of limitations for penalty actions in 28 U.S.C. §2462 applies to plaintiffs' claim and precludes amending the complaint to include violations occurring before 1979. It also holds that plaintiff may not amend its complaint to add more recent violations that it knew about but failed to include in its original complaint, because the delay in raising the claims was due to plaintiffs' inadvertence and would prejudice defendant.

[Other opinions in this case appear at 15 ELR 20890, 16 ELR 20007.]

Counsel for Plaintiff
Catherine C. Volker
%Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Roger Beers
380 Hayes St., Suite 1, San Francisco CA 94102
(415) 861-1401

Counsel for Defendants
Robert L. Borden
P.O. Box 7442, San Francisco CA 94120
(415) 972-6643

Ronald Hausmann
450 Pacific Ave., San Francisco CA 94133
(415) 788-5000