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United States v. Detroit, City of

ELR Citation: 27 ELR 21312
Nos. 89-72937, 963 F. Supp. 613/(E.D. Mich., 11/06/1996) NPDES preclusion

The court holds on a motion for reconsideration that the failure to incorporate an industrial pretreatment program within a national pollutant discharge elimination system (NPDES) permit precludes the United States from enforcing the industrial pretreatment program's terms against a city charged with violating the Federal Water Pollution Control Act. The court first holds that the United States presents no basis for reconsideration of the court's earlier decision. The court previously held that before an industrial pretreatment program may be enforced against a publicly owned treatment works such as that operated by the city, federal law requires the industrial pretreatment program to be incorporated within an NPDES permit. The court continues to believe that program conditions must be incorporated within an NPDES permit order to be enforceable conditions of the permit. Thus, because the permit issued to the city did not include the industrial pretreatment program, the United States had no basis to enforce the program's terms. The court rejects the U.S. due process argument because the court's earlier ruling rested firmly on the letter of the law, and not on any constitutional rationale behind the law. The court also rejects the U.S. arguments as to the legitimacy and fairness of the program approval process. Nothing in the court's previous decision invalidates the industrial pretreatment program. It simply bars the United States and the state from seeking damages for alleged violations of the program. Last, the court holds that the United States mischaracterizes the industrial pretreatment program when it seeks to portray it as a final, binding document. No program existed at the time the city's NPDES permit was granted, and after the program's approval, the parties failed to reach agreement on appropriate terms for its incorporation into the NPDES permit.

Counsel for Plaintiffs
Peter A. Caplan, Ass't U.S. Attorney
U.S. Attorney's Office
211 W. Fort St., Ste. 2300, Detroit MI 48234
(313) 234-9100

Counsel for Defendant
Beth S. Gotthelf
Seyburn, Kahn, Ginn, Bess, Deitch & Serlin
2000 Town Ctr., Ste. 1500, Southfield MI 48075
(810) 353-7620