ELR Citation: ELR 20815
No(s). 91-6461 (6th Cir. Jan 12, 1993)

The court holds that a district court properly terminated a 1981 consent decree between the Environmental Protection Agency (EPA) and a municipal wastewater treatment district, even though the district is currently in violation of its decree by failing to achieve compliance with its national pollutant discharge elimination system (NPDES) permit effluent limitations under the Federal Water Pollution Control Act (FWPCA). The district, with EPA-approved design plans, constructed a wastewater treatment plant in 1974 to process anticipated sewage flow of 105 million gallons per day. After EPA issued the plant an NPDES permit in 1977 requiring the plant to meet specific effluent limitations for biochemical oxygen demand and total suspended solids, substantial defects in the plant's design as well as some explosions, caused the plant to exceed its permit limitations. EPA brought an enforcement action against the plant, but entered a consent decree in which the plant would bring the operation into compliance with its permit in two steps. The decree also established equipment that EPA would fund. Although the plant indicated that a special reactor was necessary to comply with its permit, EPA disagreed and the plant nonetheless came into compliance with its permit between 1986 and 1989, and for several months in 1990, due to reduced waste delivery to the plant. EPA thereafter moved to terminate the consent decree certifying that the defendants had fully complied with its provisions, and the district court terminated the decree as completed.

The court holds that the purpose of the consent decree, to bring the plant's effluent discharges into compliance with its NPDES permit limitations, has been achieved. Although liability under the FWPCA for NPDES permit violations is strict, regardless of how efficiently an individual operates a plant, defendant was allowed to avoid penalties as long as it used its best efforts to run the plant as efficiently as possible and take steps required by the consent decree. However, the defendant consistently met its permit requirements for several years in a row, but seeks to maintain the protection from the potential $25,000 per day civil penalties until installation and testing of the reactor is completed. Moreover, there is no indication in the consent decree that compliance while processing the maximum planned sewage was required, and the FWPCA does not contemplate compliance with NPDES permits while operating at design capacity; rather, it requires only compliance with NPDES permits.

Counsel for Plaintiff-Appellee
Benedict Cohen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Appellant
Laurence Zielke
Pedley, Ross, Zielke & Gordinier
1150 Starks Bldg., 455 S. 4th Ave., Louisville KY 40202
(502) 589-4600