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Pennsylvania Envtl. Defense Found. v. Mazurkiewicz

Citation: 19 ELR 21445
No. No. 88-0931, 712 F. Supp. 1184/30 ERC 1480/(M.D. Pa., 03/28/1989)

The court holds that the Eleventh Amendment does not bar a citizen suit under the Federal Water Pollution Control Act (FWCPA) against prison officials for alleged violations of the prison's National Pollution Discharge Elimination System (NPDES) permit, even if the prison officials lacked authority to make capital improvements to the prison's sewage treatment plant. The Eleventh Amendment's grant of immunity to states and state officials is waived when the action of a state official violates the Constitution or federal law. The court first holds that the prison officials' lack of authority to make capital improvements required under the FWPCA to the prison's sewage treatment plant without the participation of other state officials and bodies does not bar a citizen suit seeking relief from the prison's NPDES permit violations. Similarly, prospective injunctive relief to assure compliance with the prison's NPDES permit does not violate the Eleventh Amendment, despite the expense to the state treasury. Based on the prison officials' admission of NPDES pollutant discharge violations, their supervisory role over the prison's sewage treatment plant, and the standard of strict liability for NPDES permit violations, the prison officials cannot escape liability even if they have no authority to make capital improvements to the sewage treatment plant, and capital improvements are the only way, save reducing the inmate population, to achieve NPDES permit compliance. Next, the court holds that the FWPCA action against a second prison official who did not have 60 days actual notice of the alleged NPDES permit violations should be dismissed, based on the official's sworn declaration under penalty of perjury and the address and salutation of the notice letter. To satisfy the FWPCA 60-day notice requirement, an alleged violator must be made aware not only of the alleged violation, but also that someone else is aware of the alleged violation and that legal action is being contemplated against the alleged violator. If the alleged violator does not receive such notice, there is less incentive for voluntary compliance with FWPCA requirements. Additionally, an action against a third prison official is dismissed for lack of perfection of service of process.

Counsel for Plaintiff
John E. Childe Jr.
1389 Bradley Ave., Hummelstown PA 17036
(717) 566-5626

Counsel for Defendants
Jules S. Henshell, Deputy Attorney General
Commonwealth of Pennsylvania
Strawberry Sq., 16th Fl., Harrisburg PA 17120
(717) 787-3391