Jump to Navigation
Jump to Content

Jones v. Lakeland, City of

ELR Citation: 29 ELR 21108
Nos. No. 97-5917, 175 F.3d 410/48 ERC 1353/(6th Cir., 04/20/1999) opinion vacated

The court holds that Federal Water Pollution Control Act (FWPCA) §309(g) bars an FWPCA and Tennessee Water Quality Control Act (TWQCA) citizen suit against a city that discharged pollutants into U.S. waters in violation of its national pollutant discharge elimination system permit. The court first holds that the state environmental agency's continued enforcement against the city represents diligent prosecution as contemplated by FWPCA §505(b). Four orders had been entered between the city and the agency, the last of which was entered one month before the citizens' filing of this claim. The fourth order also required the city to pay a fine as well as additional fines should the city fail to satisfy the full requirements of the order. The court next holds, however, that because neither the state agency nor the Administrator of the U.S. Environmental Protection Agency initiated an action in any court against the city, FWPCA §505(b) does not apply. Section 505(b) of the FWPCA unambiguously requires an action to be prosecuted in a court. Administrative proceedings involving the state water quality board or the state environmental agency in seeking to enforce the TWQCA against a suspected polluter unquestionably are not actions taken in court as contemplated by Congress when it enacted FWPCA §505(b).

Nevertheless, the court then holds that FWPCA §309(g)(6) bars the FWPCA citizen suit. Once a state has commenced and is diligently pursing an action under a state law that is comparable to FWPCA §309(g), a citizen suit is barred. The court already determined that the state agency's efforts constitute diligent prosecution. Further, the overall goals of the FWPCA and the TWQCA are comparable, as are the enforcement procedures for obtaining those goals.

A dissenting judge argues that the FWPCA and the TWQCA are not comparable and, therefore, would reverse the district court's decision and remand the case for further proceedings to provide the citizens a judicial forum before which to develop evidence of whether or not the state's enforcement action has been diligently prosecuted.

Counsel for Plaintiffs
Saul C. Belz
Waring & Cox
Morgan Keegan Tower
50 N. Front St., Ste. 1300, Memphis TN 38103
(901) 543-8000

Counsel for Defendant
Richard L. Winchester Jr.
The Winchester Law Firm
6060 Poplar Ave., Ste. 295, Memphis TN 38119
(901) 685-9222

Before Siler, J., with Krupansky, J., dissenting