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United States v. Detrex Chem. Indus.

Citation: 5 ELR 20585
No. No. C 74-259 Y, 393 F. Supp. 735/10 ERC 1811/(N.D. Ohio, 05/08/1975)

A complaint seeking to collect civil money penalties for alleged water pollution discharges in violation of an NPDES permit and an EPA order is dismissed with leave to amend. Section 309(d) of Federal Water Pollution Control Act Amendments does not provide for a fine of $10,000 per day for each separate violation, as asserted in the complaint, but allows only a maximum penalty of $10,000 per day, regardless of the number of violations shown. This construction of the FWPCA is supported by the legislative history and by the court's judgment that $10,000 per day is sufficient deterrence for even the largest of companies. The court rejects, hoever, the defendant's contention that EPA's compliance order, authorized by § 309(a)(3), constitutes a waiver of the government's right to sue under § 309(b) for earlier violations, or that such an Order should estop such a suit, since it was the intent of Congress to provide alternative, but not mutually exclusive, enforcement procedures for such violations.

Counsel for Plaintiff
Frank M. Coleman U.S. Attorney
Joseph Cipollone Ass't U.S. Attorney
400 U.S. Court House
Cleveland, Ohio 44114

Counsel for Defendant
Thomas H. Truitt
Suite 601
910 17th St., N.W.
Washington, D.C. 20006