ELR Citation: ELR 20567
No(s). 3:91CV7646 (N.D. Ohio Mar 31, 1994)

The court holds that absent modification of a national pollutant discharge elimination system (NPDES) permit, a municipal wastewater treatment plant may not consider the state environmental agency director's findings and orders as a suspension of effluent limitations or a justification of exceedances of the plant's permit. The court first holds that the city may not rely on the state agency director's findings and orders as justification for exceedances of the plant's NPDES permit. In light of the supremacy of federal law in this area, a state cannot suspend the operation of the terms and conditions of an NPDES permit without following appropriate procedures. The court finds the absence of authority for the proposition that the director's findings and orders constitute a basis for suspension of the permit's conditions under state law noteworthy in light of the specific provisions in the federal regulations for modification, revocation and reissue, or termination of permits. The court next holds that Federal Water Pollution Control Act §309(g)(6)(A)(iii) does not bar this action because there is no evidence in the record that a civil penalty was assessed or paid. The court holds that the doctrine of equitable estoppel does not bar the U.S. Environmental Protection Agency (EPA) and the state environmental agency from bringing this action. Although the city developed a record of systemic indifference to the situation caused to permit holders by EPA's failure to clarify the lawfulness of reliance on the director's findings and orders, the standard of affirmative misconduct necessary for equitable estoppel is not met. At worst, EPA and the state were indifferent, despite awareness of the circumstances and the risks that they posed for the city and similarly situated permit holders. This indifference was not purposefully undertaken to cause harm or injury to the city. The court notes that the city's good-faith reliance on the state director's findings and orders and the reasonableness of its belief that it was complying with the law are factors that may weigh heavily in the city's favor when consideration is given to the penalty, if any, to impose on the city for the exceedances.

The court next holds that the "notice" given by the city in its permit modification materials that it would experience an indefinite number of bypasses at unknown times and of an indeterminate volume and unpredictable environmental significance does not constitute the notice of unanticipated bypasses envisioned by 40 C.F.R. §122.41(l)(6). The regulations require oral notice within 24 hours of awareness of a bypass and follow-up written notice must be submitted within five days thereafter. The court dismisses without prejudice EPA's claim that a bypass occurring on a day on which the plant treats less than its average daily design capacity could not have been unavoidable, as required by 40 C.F.R. §122.41(m)(4)(i) to avoid civil penalties. The court next holds that EPA is entitled to summary judgment on the issue of noncompliance with the reporting requirement. The city did not provide data in some instances and in other instances provided codes indicating data was lost, equipment was out of service, data was not valid, or a sample was not taken. The reason for the failure to report the requisite information is not a defense to a claim of noncompliance, but a matter for mitigation of the penalty to be imposed for failure to report essential information. Finally, the court holds that EPA's claim based on the city's failure to employ a state-certified operator is a new claim aim and should not relate back to the date of the original complaint under Fed. R. Civ. P. 15(c). There is no essential or even apparent causal connection between the circumstances giving rise to the original complaint and the lack of state certification. The court concludes, however, that the claim relates back to the date on which leave was sought to file the amended complaint.

Counsel for Plaintiffs
Lisa A. Cherup
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Charles R. McElwee
Squire, Sanders & Dempsey
4900 Society Ctr.
127 Public Sq., Cleveland, OH 44114
(216) 479-8500