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Mumford Cove Ass'n v. Groton, Town of

ELR Citation: 16 ELR 20911
Nos. No. H84-1256(JAC), 640 F. Supp. 392/24 ERC 1409/(D. Conn., 02/26/1986) Motions for partial summary judgment granted

The court holds that a violator of a national pollutant discharge elimination system program (NPDES) permit can be held liable in a Federal Water Pollution Control Act (FWPCA) citizen suit absent proof of a link between the violations and local water pollution, and that reasonable efforts to comply with an NPDES permit are not a defense to liability. The court first holds that a town violating its NPDES permit can be held liable under the FWPCA even though no correlation has been shown between its violations and the pollution. The FWPCA is a strict liability statute, and NPDES permit violations may not be excused because they are technical or insignificant. The court then rules that reasonable efforts to comply with a permit's requirements do not negate liability under the Act and holds defendant strictly liable for its violations. The court rejects defendant's argument that this citizen suit is precluded by a pending governmental enforcement action pursuant to §505(b)(1)(B), since no such action has been filed. The court holds that the Department of Environmental Protection's (DEP's) withdrawal of an earlier enforcement action seeking to compel construction of a sewer outfall that was a condition of defendant's permit does not constitute a modification of that permit condition. The DEP did not formally modify the requirement, and the purpose of the FWPCA's citizen suit provision would be thwarted if informal discussions between the regulator and polluter could modify formally promulgated enforcement orders. Finally, the court holds state law does not prohibit the construction of the sewer outfall by the town without the consent of a city whose territory the outfall will cross.

[A related decision in this case is published at 16 ELR 20532.]

Counsel for Plaintiffs
Mark R. Sussman
Murtha, Cullina, Richter & Pinney
City Place, P.O. Box 3197, Hartford CT 06103
(203) 240-6000

Counsel for Defendant
Thomas B. Wilson
Suisman, Shapiro, Wool, Brennan, Gray & Faulkner
Mariner Sq., Eugene O'Neill Dr., P.O. Box 1591, New London CT 06320
(203) 442-4416

Counsel for Plaintiff-Intervenor
Richard F. Webb, Ass't Attorney General
Capitol Annex, 30 Trinity St., Hartford CT 06106
(203) 566-2026