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Sierra Club v. Simkins Indus.

Citation: 17 ELR 20346
No. Nos. HM84-4018 et al., (D. Md., 07/31/1986) Defendant's motion for reconsideration denied, plaintiff's attorneys fees awarded

In a Federal Water Pollution Control Act (FWPCA) citizen suit, the court declines to reconsider its earlier holding that defendant is liable for failing to file discharge monitoring reports (DMRs) as required by defendant's national pollutant discharge elimination system (NPDES) permit, holds defendant liable for a $977,000 civil penalty, and awards plaintiff attorneys fees. The court first holds that the citizen suit is proper because the suit was filed after the required 60-day notice period and the state's criminal investigation of defendant does not constitute diligent prosecution in a court within the meaning of FWPCA § 505(b)(1)(A). Although the state had informed plaintiff that it would be initiating an action against defendant, it had not done so when this suit was filed. The court reaffirms its earlier holding that defendant is liable for the violations of its NPDES permit monitoring requirements. In determining the defendant's maximum civil penalty, the court observes that defendant's failure to file quarterly DMRs required by its NPDES permit precludes the court from determining whether defendant violated its quarterly average discharge limitations. Since defendant has not met its burden of proving compliance with the limitations, the court holds that it must find that defendant violated the NPDES permit limitations for the entire three-year period. Following the Fourth Circuit's decision in Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 16 ELR 20636, the court finds that that defendant's maximum civil penalty would be $10,000 for each day of the three-year period, or $9,770,000. Concluding that defendant's behavior was not so egregious to warrant the maximum penalty, the court assesses a penalty of $1,000 for each day of violation, or $977,000. Finally, the court finds plaintiff's applications for fees reasonable and holds defendant liable for plaintiff's attorneys and expert witness fees.

[The court's previous decision is published at 15 ELR 21012.]

Counsel for Plaintiff
G. Macy Nelson
Anderson, Coe & King
800 Fidelity Bldg., Baltimore MD 21201
(301) 752-1630

Counsel for Defendant
Jack Harvey, Benjamin Rosenberg
Venable, Baetjer & Howard
1800 Mercantile Bk. & Trust Bldg., 2 Hopkins Plaza, Baltimore MD 21201
(301) 244-7400