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Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp.

Citation: 17 ELR 20374
No. No. 86-1227, 807 F.2d 1089/25 ERC 1425/(1st Cir., 12/18/1986) Aff'd

The court rules that private parties may maintain an action under § 505 of the Federal Water Pollution Control Act (FWPCA) for civil penalties for violations that have ceased prior to the filing of the suit only if good-faith allegations warranting injunctive relief are also made. The court first rules that the FWPCA does not authorize citizen suits for past violations seeking civil penalties only. The court finds the language of § 505(a)(1) allowing the imposition of civil penalties against any violator who is "in violation" not to be ambiguous, contrary to the Fourth Circuit's ruling in Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 16 ELR 20636. Once an improper discharge has ceased, a violator is not "in violation." Congress could easily have used the language "has violated" in the statute, if it had intended to allow civil penalties for past violations. Section 505(f)(6) also uses only the present tense in its definition of "effluent standard or limitation," used in § 505(a), as a permit or condition that is in effect under the Act. The statute and the legislative history, taken together, indicate that the primary purpose of citizen suits is to enhance enforcement of the Act. Past permit violations are relevant to the extent they indicate the propriety of an injunction, but are inappropriate if, as in this case, there is no longer a permit. The court rules that a goodfaith allegation that violations are likely to continue is sufficient for a citizen suit requesting civil penalties for past violations to be maintained, even if it later turns out that the violations have in fact permanently ceased. A persistent violator could otherwise prevent a citizen suit from being brought by ceasing discharges after being notified of the intent to sue.

[The district court opinion is published at 14 ELR 20685.]

Counsel for Appellants
Jeffrey A. Lanphear
2139 Broad St., Cranston RI 02903
(401) 781-0180

Counsel for Appellee
Katherine L. Rhyne
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Counsel for Amici Curiae
Karen H. Edgecombe
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005

James Thornton
Natural Resources Defense Council, Inc.
122 E. 42nd St., 45th Fl., New York NY 10168
(212) 949-0049

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.