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

ELR Citation: 16 ELR 20667
Nos. No. H-84-487 (JAC), 631 F. Supp. 1291/24 ERC 1902/(D. Conn., 04/04/1986)

The court holds that a state enforcement action precludes a Federal Water Pollution Control Act (FWPCA) citizen suit even though the settlement in the state action is less comprehensive than the remedy sought in the citizen suit. The court initially notes that it is undisputed that the state enforcement action was pending in state court when plaintiffs filed their citizen suit. The court then holds that the state enforcement action and the citizen suit both seek to enforce the terms of defendant's national pollutant discharge elimination system (NPDES) permit and thus involve the "same standard, order, or limitation" addressed by FWPCA §505(b)(1)(B). The court holds that there is a presumption of diligent prosecution, and plaintiffs have not offered evidence that the state failed to prosecute its suit diligently. The court holds that a settlement in the state enforcement action less comprehensive than the remedy sought by the citizen suit is not sufficient to overcome the presumption. Finally, the court rules that the diligent prosecution rule does not preclude plaintiffs from intervening in the state action as parties with an interest in the outcome, and observes that plaintiffs may file a new citizen suit should the state settlement fail to bring defendant into compliance with its NPDES permit.

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

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

Counsel for Defendant
Thomas H. Witherington
Pullman, Comley, Bradley & Reeves
855 Main St., Bridgeport CT 06601
(203) 334-0112