Jump to Navigation
Jump to Content

Proffitt v. Rohm & Haas

ELR Citation: 18 ELR 21165
Nos. No. 87-1563, 850 F.2d 1007/27 ERC 2033/(3d Cir., 06/29/1988) Rev'd

The court holds that an amendment to defendant's national pollutant discharge elimination system permit precluding the Environmental Protection Agency (EPA) from enforcing the permit pending an appeal to a state administrative agency does not bar a citizen suit under the Federal Water Pollution Control Act, since the stay of enforcement expired when defendant withdrew its appeal. The court observes that it is questionable whether EPA can bar a citizen suit other than by its own diligent prosecution. The court holds that the permit amendment was invalid because it was issued without any public notice or hearings. The court holds that even if the permit amendment was valid, the stay of enforcement expired when defendant withdrew its appeal before the Pennsylvania Environmental Hearing Board. Defendant's efforts to negotiate further amendments to the permit with EPA does not stay the effectiveness of existing permit limitations. The court holds that plaintiff may bring its claim under the Pennsylvania Clean Streams Law, since the Pennsylvania Department of Environmental Resources stated that it had not waived its right to prosecute violations of that law when it waived its right to certification of the permit.

[The district court's decision is published at 18 ELR 21162.]

Counsel are listed at 18 ELR 21162.

Before Stapleton and Mansmann, JJ.