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

Citation: 14 ELR 20685
No. No. 83-0470 S, 21 ERC 1393/(D.R.I., 05/17/1984)

The court rules that Federal Water Pollution Control Act (FWPCA) citizen enforcement suits are limited to actions to enjoin ongoing violations and actions for civil penalties, which must be paid to the government. Upholding for the most part the legal conclusions of a magistrate, the court first rules that § 505 of the FWPCA does not authorize injunctive relief concerning violations previously abated. Nor, the court rules, does the Act create implied private rights of action for damages. As the Supreme Court made clear in Middlesex County Sewerage Authority v. National Sea Clammers Association, 11 ELR 20684, the FWPCA preempted any federal common law damage remedies. Civil penalties may be imposed in an FWPCA citizen enforcement suit, but, the court rules, they must be paid to the government, not to the private plaintiff. Whilethe magistrate correctly stated the law on these points, he applied it somewhat too strictly in calling for final dismissal of plaintiff's action. Generously read, the complaint avers ongoing violations of the FWPCA. Plaintiff did fail to allege compliance with the 60-day notice requirement of § 505, but the court merely dismisses with leave to refile within 20 days an amended complaint drafted in accord with its holdings on the scope of § 505.

Counsel for Plaintiff
Jeffrey Lanphear
2139 Broad St., Cranston RI 02905
(401) 781-0180

Counsel for Defendant
Gregory L. Benik
Hinckley & Allen
2200 Fleet Nat'l Bank Bldg., Providence RI 02903
(401) 274-2000

Douglas Kliever
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700