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Frilling v. Anna, Village of

ELR Citation: 26 ELR 21356
Nos. C-3-95-194, 924 F. Supp. 821/43 ERC 1117/(S.D. Ohio, 03/14/1996)

The court holds that §505(b)(1)(B) of the Federal Water Pollution Control Act (FWPCA) does not bar a citizen suit against a village for unpermitted discharges of wastewater into Clay Creek in Anna, Ohio, and that plaintiffs' notice of intent to sue a company for related violations is insufficient. The court first holds that because defendants did not object to evidentiary materials that were not properly authenticated, the court will consider the materials. But plaintiff riparian landowners must submit properly authenticated copies of the materials within 20 days of the court's decision. The court next holds insufficient plaintiffs' notice of intent to sue the company. Not only did they fail to identify the specific requirements in the company's indirect discharge permit that were allegedly violated, but they also completely failed to identify the permit itself in their notice letter. Although the company might have been able to infer that plaintiffs intended to sue for violations that caused Clay Creek to be polluted, neither the company, the U.S. Environmental Protection Agency, nor the state was put on notice as to which permit parameters, requirements, and laws would form the basis of plaintiffs' lawsuit. The court grants the company summary judgment on two counts of the complaint that refer to specific provisions of the company's permit that were not referenced in the notice letter, and on one count that refers to specific federal regulations that were not identified in the notice letter.

The court next holds that a state civil enforcement action that the Ohio Environmental Protection Agency filed against the defendant village does not bar plaintiffs' §505(a)(1) citizen suit. The state's act of simultaneously filing suit and a consent order that expressly declined to require compliance with four of the six allegedly violated permit parameters, and its failure to submit a copy of the village's permit until a week after the state action was filed and resolved, indicates that the allegations in the complaint were a mere formality, and that the state did not bring the civil action for the purpose of requiring compliance with the permit parameters. The court holds that the final effluent limitations in the permit are enforceable, because they were not revoked or modified by any provision in the consent order. The court next holds that the state did not seek to enforce compliance with any of the permit requirements or laws that provide the basis for the remaining claims against the village. The court also holds that while the state did commence a civil enforcement proceeding, the state denied plaintiffs an opportunity to intervene or to comment on the consent order, and thus did not diligently prosecute the action within the meaning of §505(b)(1)(B). Finally, the court holds that the consent order did not suspend the legal effect of the permit limitations, and that the village failed to raise a genuine issue of material fact as to the existence of ongoing violations of its permit. Thus, the court denies the village summary judgment on those violations.

Counsel for Plaintiffs
Rodney R. Blake Jr.
124 W. Poplar St., Sidney OH 45504
(513) 497-1000

Counsel for Defendants
Gordon D. Arnold
Freund, Freeze & Arnold
One S. Main St., Ste. 1800, Dayton OH 45402
(513) 222-2424