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Connecticut Fund for the Env't v. Job Plating Co.

ELR Citation: 16 ELR 20596
Nos. No. H-83-963 (JAC), 623 F. Supp. 207/23 ERC 1596/(D. Conn., 09/17/1985)

The court rules that §505 of the Federal Water Pollution Control Act (FWPCA) authorizes a citizen suit seeking penalties for past violations of a permit regardless of the subsequent filing and settlement of a state suit for prospective relief. The court first rules that the five-year federal statute of limitations for analogous actions brought on behalf of the government is appropriate. Congress meant to imply a statute of limitations of sufficient length that the policies of the federal act are not frustrated. The court next rules that §505 authorizes suits for penalties for past violations. Most courts addressing this point have allowed such penalty actions, concluding that citizen enforcement authority should be coextensive with that of the government. The limited authority to the contrary is unpersuasive. The court also rules that the doctrine of primary jurisdiction does not bar plaintiffs' suit. The issues are not so complex that deference to the state agency would facilitate resolution.

The court next rules that a §505 citizen suit is not precluded by a subsequent state court enforcement action. The plain language of the statute limits preclusion to diligently prosecuted government actions filed before the citizen suits. Finally, the court rules that defendant is precluded from raising alleged deficiencies in its national pollutant discharge elimination system permit by its failure to challenge either the state or federal approval of the permit.

Counsel for Plaintiff
Katherine H. Robinson
Connecticut Fund for the Environment
32 Grand St., Hartford CT 06106
(203) 524-1639

James Thornton
Natural Resources Defense Council
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendant
Sharon Holland Purtill
Law Offices of Peter Jay Alter
155 Sycamore St., P.O. Box 935, Glastonbury CT 06033
(203) 659-0569