ELR Citation: ELR 20404
No(s). 00-5179, -5244 (6th Cir. Jan 4, 2002)

The court upholds a district court's imposition of civil penalties and attorney fees against a city that allowed untreated or partially treated sewage and wastewater to discharge over a property owner's land and into U.S. waters. The city and property owner entered into a consent decree, but the city failed to comply with the decree's deadlines. A court then ordered the city to pay attorney fees to the property owner and civil penalties to the U.S. Treasury. Both parties appealed. The court first holds that although the city had ceased operating its wastewater treatment plant when the district court imposed civil penalties, the city's voluntary cessation of a challenged practice after the filing of a suit, but before entry of judgment, does not deprive the court of the ability to impose civil penalties for Clean Water Act (CWA) violations. To hold otherwise would encourage polluters to delay litigation as long as possible. Moreover, the court holds that the district court properly ordered that the penalty be paid to the U.S. Treasury rather than to the property owner who filed the suit. The district court imposed civil penalties for CWA violations and not for contempt of court. The court also holds that the district court did not abuse its discretion in the amount of civil penalty assessed. The district court fully considered each of the factors listed in CWA §309 in reaching its conclusion as to the proper amount of civil penalties to award. In addition, the district court properly awarded attorney fees to the property owner. Although the city entered into a consent decree prior to trial, it did not comply with that consent decree until after the property owner sought a court order to enforce compliance. Lastly, the court holds that the amount of attorney fees awarded was reasonable.

Counsel for Plaintiff
David S. Bunn
Law Offices of David S. Bunn
523 State St., Bristol VA 24203
(423) 652-0655

Counsel for Defendant
Mark S. Dessauer
Hunter, Smith & Davis
1212 N. Eastman Rd., Kingsport TN 37664
(423) 378-8840

Williams,^* J. Before Boggs and Ryan, JJ.

* The Hon. Glen M. Williams, Senior United States District Judge for the Western District of Virginia, sitting by designation.