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Sierra Club v. SCM Corp.

Citation: 14 ELR 20183
No. No. CIV-82-1076T, 572 F. Supp. 828/20 ERC 1395/(W.D.N.Y., 10/17/1983) Ruling on diligent prosecution

The court holds that a consent order settling an administrative enforcement proceeding initiated by a state agency against the defendant for violation of Federal Water Pollution Control Act (FWPCA) permit standards is not diligent prosecution barring plaintiff's FWPCA § 505 citizen suit. Section 505 bars commencing a citizen suit if the Environmental Protection Agency or a state has commenced and is diligently prosecuting a civil or criminal action on the matter in a court of the United States or a state. The court rules that the administrative proceeding brought by the New York Department of Environmental Conservation (DEC) against defendant did not provide plaintiff with an opportunity to be heard on the merits of the consent order and is therefore not equivalent to a court proceeding. The court holds that plaintiff's failure to join DEC does not require dismissal of the suit. Plaintiff has no cause of action against DEC under § 505. However, DEC has the right to intervene in the citizen suit at any time.

Counsel for Plaintiff
Christopher Denton
110 Baldwin St., Elmira NY 14901
(607) 734-8144

Anthony Z. Roisman
Trial Lawyers for Public Justice
2000 P St. NW, Washington DC 20036
(202) 463-8600

Counsel for Defendant
Ragna Henrichs, G. Robert Witmer, Mark C. Davison Jr.
Nixon, Hargrave, Devans & Doyle
Lincoln First Tower, Rochester NY 14603
(716) 546-8000