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Sierra Club v. Kerr-McGee Corp.

ELR Citation: 16 ELR 20083
Nos. No. 84-1764-S, 23 ERC 1685/(W.D. La., 10/29/1985)

In a Federal Water Pollution Control Act §505 citizen suit to enforce a national pollutant discharge elimination system permit, the court holds that plaintiff has standing, that an Environmental Protection Agency (EPA) administrative enforcement action was not a "court" proceeding within the meaning of §505(b)(1)(B), that plaintiff must allege violations occurring at the time the complaint was filed, and that evidence of violations in defendant's discharge monitoring reports (DMRs) and noncompliance reports (NCRs) is conclusive unless the defendant can establish its affirmative defense of "upset."

The court first holds that plaintiff satisfied the standing requirement for environmental groups by alleging injury to the aesthetic, recreational, and environmental interests of its members, including specified individuals, in the area affected by the defendant's discharges. Next, the court rules that the citizen suit is not barred by a completed EPA administrative action. EPA orders are not court proceedings and do not provide equivalent rights to the parties involved. Third, the court rules based upon case law and statutory interpretation, that civil penalties cannot be imposed for violations corrected before the suit is filed and defendant is entitled to summary judgment for such prior violations. The court declines to grant summary judgment to defendant, however, because there are issues of fact as to whether certain violations were occurring when plaintiff filed suit. Finally, the court holds that the plaintiff is not entitled to summary judgment on defendant's liability based on the violations reported in its DMRs and NCRs as the defendant has asserted the affirmative defense of upset to excuse its noncompliance.

Counsel for Plaintiff
Katherine P. Ransel
Advocates for the Public Interest
1575 Eye St. NW, Washington DC 20005
(202) 371-0199

Michael Osborne
Osborne, McComiskey & Richardson-Harp
3420 Prytania St., New Orleans LA 70115
(504) 891-4418

Counsel for Defendant
Theodore L. Garrett
Covington & Burling
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

Alex F. Smith Jr.
Mayer, Smith & Roberts
1700 Buckner Square, Suite 240, Shreveport LA 71101
(318) 222-2135