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Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc.

ELR Citation: 26 ELR 20457
Nos. No. 3:92-1697-17, 890 F. Supp. 470/40 ERC 2063/(D.S.C., 04/07/1995) motion to dismiss denied

The court holds that a state agency's action against a wastewater treatment plant operator for violations of the operator's national pollutant discharge elimination system (NPDES) permit did not constitute "diligent prosecution" sufficient under §505(b)(1)(B) of the Federal Water Pollution Control Act (FWPCA) to bar an FWPCA citizen suit seeking to enforce the operator's NPDES permit. The court notes that whether the state's lawsuit, which was settled by a consent order, constituted "diligent prosecution" involves a delicate balance between the Act's preference for governmental enforcement efforts and the recognized policy of allowing private citizens to participate in the enforcement process. The court indicates concern that because the state settled its action against the operator only one day after the lawsuit was filed, the plaintiff environmental groups had no chance to intervene. Due to the importance of public participation in the FWPCA's enforcement processes, the absence of a meaningful opportunity for the groups to intervene triggers a heightened scrutiny into the settlement of the state's case against the operator. Examining the totality of the circumstances, the court concludes that this procedural deficiency weighs in favor of the groups. The court holds that substantive deficiencies in the consent order alone are not dispositive of the issue of diligent prosection; however, when viewed in light of all the circumstances surrounding the state's settlement, these factors also weigh in favor of allowing the citizen suit to proceed. The court notes that the $100,000 penalty the state imposed against the operator is lenient. Further, in imposing the penalty, the state failed to recover, or even to calculate, the economic benefit that the operator received by not complying with its permit. Removing a violator's economic benefit is central to the FWPCA's enforcement provisions. Moreover, the U.S. Environmental Protection Agency's (EPA's) policy that civil penalties must recover at least the amount of the violator's economic benefit of noncompliance suggests that a state enforcement agency's failure to do so is some evidence that the agency's prosection was not diligent. The court also notes that EPA's decision not to file a separate action or recover additional penalties does not indicate that the penalty was adequate or that the state's prosecution was diligent.

The court next denies the operator's motion for reconsideration. The failure of the state to calculate, or even consider, the economic benefit of noncompliance with the permit in question was evidence of nondiligent prosection in the judicial enforcement action, but was not the only factor on which the decision rests. The court finds no basis for overturning its decision. Finally, the court denies the operator's request to certify its earlier ruling for interlocutory appeal. Interlocutory appeal would be especially inappropriate in this case, because the remaining issues have been narrowed, and an appeal would not materially advance the termination of the litigation.

Counsel for Plaintiffs
Bruce J. Terris
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Donald A. Cockrill
Ogletree, Deakins, Nash, Smoak & Stewart
3800 One Atlantic Ctr.
1201 W. Peachtree St. NW, Atlanta GA 30309
(404) 881-1300