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O'Neil v. Q.L.C.R.I., Inc.

Citation: 21 ELR 20291
No. Nos. 88-0704 P, -0705 P, 750 F. Supp. 551/32 ERC 1661/(D.R.I., 10/29/1990)

The court holds that the Federal Water Pollution Control Act (FWPCA) does not preempt a common law claim that a credit union aided and abetted a violation of the FWPCA. The court first holds that claims relating to the credit union's possible future foreclosure on the property at issue do not present a case or controversy. While there is a distinct possibility that the credit union will foreclose, these claims also depend on the credit union buying the property at public auction and then doing nothing to remedy the sewage problem. These claims depend on a series of contingencies and thus lack the necessary immediacy for the court to assume jurisdiction. The court next holds that the FWPCA does not preempt the common law aiding and abetting claim. Plaintiff Rhode Island alleged that the credit union had influence over the principal polluters because it knew of the land's sewage problem and could have conditioned the loans on the problem being fixed. The FWPCA does not specifically preclude the use of the aiding and abetting doctrine, and the doctrine could be useful in interpreting whois in violation of the FWPCA. The court holds that Rhode Island has alleged sufficient involvement and control by the credit union to present a viable aiding and abetting claim, and that the state may amend its complaint to add this claim. The court refuses to dismiss Rhode Island's claim seeking a determination that the credit union's present mortgage is subject to a 1979 order of the Department of Environmental Management. The court orders the credit union to disclose customer records requested by the state, since communications between a bank and its customers are not privileged. However, the credit union may shield the identity of nonparty borrowers. The court holds that a Rhode Island statute does not create such a privilege.

Counsel for Plaintiffs
Michael Rubin, Special Ass't Attorney General
72 Pine St., Providence RI 02903
(401) 274-4400

Counsel for Defendants
Barry Kusinitz
Temkin & Miller
1400 Turks Head Pl., Providence RI 02903
(401) 751-2400

Counsel for Third-Party Defendant
Matthew Medeiros
Flanders & Medeiros
One Turks Head Pl., Ste. 700, Providence RI 02903
(401) 831-0700