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Sierra Club v. Port Townsend Paper Corp.

Citation: 19 ELR 20532
No. No. C87-316C, 28 ERC 1676/(W.D. Wash., 05/02/1988)

The court holds that plaintiff in a citizen suit under the Federal Water Pollution Control Act (FWPCA) has provided sufficient evidence on defendant's motion for summary judgment to show that defendant "is in violation" of its national pollutant discharge elimination system (NPDES) permit. Plaintiff alleged that defendant violated its permit at least three times since the suit was filed and defendant admitted that it was likely to violate its permit again. Even though defendant's recent permit violations are less numerous than in the past, the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, emphasizes that an intermittent polluter is just as much "in violation" as a continuous polluter. The court holds that plaintiff is not limited to alleging the particular types of violations that continue to recur at defendant's facility. The court then holds that the FWPCAhs citizen suit provision does not violate the separation of powers principle. The court holds that plaintiff has standing to pursue this action, since two of its members claim that they regularly use the affected bay and that their enjoyment of this use has been diminished by the pollution. The court holds that FWPCA citizen suits are governed by a five-year statute of limitations. The court holds that defendant may assert an upset defense, since the defense was included in its NPDES permit. The court holds that it cannot assess damages for alleged permit violations that are the subject of a state administrative enforcement action, since the state law is "comparable" to the federal law pursuant to FWPCA § 309(g)(6)(A).

[On October 28, 1988, the court approved a consent judgment requiring defendant to comply with its NPDES permit, pay $ 137,500 to The Nature Conservancy for acquisition of wetlands around Puget Sound, and pay $ 55,000 to cover plaintiff's attorneys fees.]

Counsel for Plaintiff
Victor M. Sher, Todd D. True, Corrie J. Yackulic
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Henry C. Jameson, Steven R. Loitz
Ferguson & Burdell
2900 One Union Square, Seattle WA 98101
(206) 622-1711