ELR Citation: ELR 20633
No(s). C87-1122A (N.D. Ohio Oct 24, 1989)

The court holds that the government can bring suit to recover civil penalties for past Federal Water Pollution Control Act violations and that the state environmental protection agency could not grant national pollutant discharge elimination system (NPDES) variances without first giving the notice to the public and an opportunity to be heard. The court also holds that the U.S. Environmental Protection Agency (EPA) did not waive any objection to the variance by not objecting to or opposing the action. Two letters sent by the state EPA advising the U.S. EPA of the NPDES variance were not sufficient to modify the NPDES permit, even though the U.S. EPA did not object. The court holds that fault is not required to support a penalty, but that fault is relevant to the size of the penalty and, therefore, the court denies defendant's motion for summary judgment as to the assessment of penalties for past violations. The court grants the defendant's motion for injunctive relief from enforcement of the original NPDES permit requiring defendant to build a cooling tower because a revised NPDES permit was issued by the state EPA after public comment.

Counsel for Plaintiff
Kathleen Ann Sutula, Ass't U.S. Attorney
Gregory Fess, Special Ass't U.S. Attorney
1404 E. Ninth St., Ste. 500, Cleveland OH 44114-1748
(216) 363-3900

Robert H. Oakley Sr.
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5466

Counsel for Defendant
Robert L. Brubaker, Brenda J. Lynch
Porter, Wright, Morris & Arthur
41 S. High St., Columbus OH 43215-3406
(614) 227-2000