ELR Citation: ELR 20765
No(s). 91-1628 (8th Cir. Jan 3, 1992)

The court holds that the district court properly entered a consent decree between the U.S. Environmental Protection Agency (EPA), Missouri, and a sewer district resolving an enforcement action under the Federal Water Pollution Control Act (FWPCA), but vacates the district court's orders dismissing the intervenors' FWPCA §101(e) claim and their cross-claim under the Freedom of Information Act (FOIA). The consent decree requires improvements to the sewer district's facilities and a $100,000 civil penalty. The schedule for improvements required in the federal consent decree is virtually identical to the schedule included in a state court consent decree entered in 1987. The court first holds that the intervenor environmental groups lack standing to raise the defense of res judicata to the federal consent decree. The court next holds that the denomination of Missouri as a plaintiff rather than a defendant does not deprive the district court of jurisdiction. FWPCA §309(e) does not prohibit the joinder of a state as a plaintiff and the alignment of the state is irrelevant to the court's authority to enter a consent decree. The court holds that the district court's decision not to hold an evidentiary hearing prior to entering the decree does not affect the district court's jurisdiction to enter the decree. Further, the district court did not abuse its discretion in approving the decree without holding an evidentiary hearing. The right to The right to intervene does not include an unconditional right to an evidentiary hearing. The court holds that the district court was not required to apply the criteria in FWPCA §309(d) for assessing civil penalties in reviewing the decree. The court holds that the district court did not abuse its discretion in approving the decree.

The court next holds that the district court erred in declining to rule on the intervenors' separate claim under FWPCA §101(e), which requires EPA and the state to provide for and encourage public participation in the development and enforcement of any plan established by EPA or the state. The court remands to the district court to determine whether the intervenors have a private enforceable right under FWPCA §101(e). Finally, the court holds that the government's draft consent decrees are exempt from disclosure under FOIA §552(b)(5). However, the court remands the intervenors' FOIA claim to the district court to determine whether the government's alleged disclosures of draft consent decrees constitute a waiver of the §552(b)(5) exemption.

[A previous decision in this litigation is published at 19 ELR 21076. Briefs are digested at ELR PEND. LIT. 66189.]

Counsel for Intervenors-Appellants
Lewis C. Green, Bruce A. Morrison
Green, Hennings & Henry
314 N. Broadway, Ste. 1830, St. Louis MO 63102
(314) 231-4181

Counsel for Plaintiffs-Appellees
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

James W. Erwin
Thompson & Mitchell
1 Merchantile Ctr., Ste. 3400, St. Louis MO 63101
(314) 231-7676

Joseph P. Bindbeutel
Attorney General's Office
Supreme Court Bldg., 101 High St., Jefferson City MO 65102
(314) 751-3321

Before BOWMAN and BEAM, Circuit Judges, and VAN SICKLE,^* District Judge.