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PROFFITT v. MUNICIPAL AUTH. OF MORRISVILLE

June 22, 1989

RAYMOND PROFFITT
v.
THE MUNICIPAL AUTHORITY OF THE BOROUGH OF MORRISVILLE, et al.



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE

 The Federal Water Pollution Control Act, also known as the Clean Water Act (the "Act"), 33 U.S.C. § 1251 et seq., was enacted in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 1251(a). In order to achieve this goal, "§ 301(a) of the Act makes unlawful the discharge of any pollutant into navigable waters except as authorized by specified sections of the Act." Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S. Ct. 376, 379, 98 L. Ed. 2d 306 (1987). One of these specified sections, § 402, established the National Pollutant Discharge Elimination System ("NPDES"). § 1342. Pursuant to § 402(a), the Environmental Protection Agency ("EPA") may issue permits authorizing the discharge of specified levels of effluents from point sources by permit holders. § 1342(a). Pursuant to § 402(b), each State may establish and administer its own permit program if the program conforms to federal guidelines and is approved by the EPA. § 1342(b). In both instances, the "permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the [Act]." E.P.A. v. Cal. ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S. Ct. 2022, 2025, 48 L. Ed. 2d 578 (1976).

 The holders of federal or state NPDES permits are subject to enforcement action by the EPA for failure to comply with the conditions of the permit. 33 U.S.C. §§ 1319, 1342(b)(7). In the absence of federal or state enforcement, § 505 authorizes private citizens to commence civil actions against any person or entity "alleged to be in violation" of the "conditions of either a federal or state NPDES permit." § 1365(a)(1). The citizen suit is intended to supplement governmental enforcement by authorizing citizens to act as "private attorneys general" in seeking to enforce the Act. Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 14, 101 S. Ct. 2615, 2623, 69 L. Ed. 2d 435 (1981).

 Pursuant to § 505 of the Act, plaintiff Raymond Proffitt, on June 21, 1985, notified each of the defendants (municipalities and individuals alleged to be in violation of the NPDES permit) of his intention to file a citizen's suit to enforce the terms and conditions of the Morrisville Sewage Treatment Plant NPDES Permit No. PA-0026701. See 33 U.S.C. § 1365(b). The aforementioned permit was issued by the Pennsylvania Department of Environmental Resources ("DER"), on December 7, 1982, to defendant Morrisville Authority of the Borough of Morrisville ("Morrisville Authority"). Morrisville Authority owns and operates a 5.6 million gallons per day ("MGD") sewage treatment plant which discharges into the Delaware River. The plant receives sewage from a sewage collection system serving Morrisville Borough, Yardley Borough, Falls Township, and Lower Makefield Township.

 On August 16, 1985, some fifty-six days following plaintiff's notice of intent to file a citizen suit, Morrisville Authority entered into a Consent Order and Agreement ("CO&A") with DER in which Morrisville Authority, inter alia, both admitted it was in violation of the NPDES permit and agreed to undertake certain measures designed to upgrade its sewage treatment plant in order to come into compliance with the NPDES permit. The CO&A stated, in pertinent part, that "since December, 1982, . . . the Authority has consistently not been able to meet the effluent limits of the NPDES permit." In addition, the CO&A mandated the following compliance schedule:

 
July 1, 1986: Completion of all interim plant improvements
 
March 2, 1988: Completion of physical plant construction
 
July 1, 1988: Compliance with NPDES permit discharge limitations

 On May 12, 1986, the DER issued separate enforcement orders to the Morrisville Authority and Lower Makefield Township directing each to proceed with an earlier plan to expand the capacity of the existing sewage treatment plant from 5.6 MGD to 7.1 MGD. On June 19, 1986, Morrisville Authority directed its consulting engineer to both prepare the necessary materials for use in an appeal of the May 12, 1986 DER Order as well as to proceed with the design of the expanded sewage treatment plant.

 For approximately one year, plaintiff monitored the efforts by Morrisville Authority to achieve compliance with the CO&A. On July 22, 1986, the Morrisville Authority was granted by the DER, an extension in the interim deadlines for compliance contained in the CO&A. Additional extensions of interim deadlines were granted on September 5, 1986 and November 27, 1987. Actual construction of the expanded sewage treatment facility, mandated by the CO&A to be completed by March 1, 1988, did not commence until April 1988.

 A non-jury trial was scheduled to commence on May 16, 1988 for the purpose of determining both the liability, if any, of the remaining defendants, as well as the nature of the injunctive relief and the amount of damages. On the day of trial, the parties reached an agreement in principle and so stated on the record. A Consent Decree was filed with this Court on June 23, 1988. On August 16, 1988, following the forty-five day review period mandated by 33 U.S.C. § 1365(c)(3), this Court entered the Consent Decree as a final judgment. The Consent Decree contained, inter alia, the following points:

 
(1) the defendants agreed to design, construct and operate the sewage treatment plant in compliance with the Clean Water Act and the Pennsylvania Clean Streams Law;
 
(2) the defendants agreed to be bound to a compliance deadline of July 1, 1990 irrespective of any extensions authorized by DER;
 
(3) defendants Morrisville Authority, Yardley, and Lower Makefield agreed to commit sufficient funding to implement the expansion and upgrading of the sewage treatment plant;
 
(4) defendant agreed to pay $ 75,000 in civil penalties and $ 10,000 for the creation of a monitoring fund; and
 
(5) defendants agreed to cooperate with plaintiff in testing for effluent limits, including the providing of effluent samples.

 In addition, the Consent Decree provided that "defendants agree to pay plaintiff's reasonable attorney's fees and cost of suit in accordance with 33 U.S.C. § 1365(e)."

 On October 5, 1988, plaintiff filed a petition for attorneys' fees and costs. On December 16, 1988, defendants filed their response to plaintiff's petition, arguing that plaintiff is not entitled to any award of attorneys' fees and expenses or, in the alternative, that this Court should reduce downward plaintiff's requested lodestar. Defendants simultaneously filed a motion to dismiss the complaint on the ground that because plaintiff presently lacks standing to prosecute a citizen suit, this Court is without subject matter jurisdiction to hear this case. In addition, defendants moved this Court to vacate its Order of September 22, 1987, granting partial summary judgment in favor of plaintiff against defendant Morrisville Authority as well as its Order of August 16, 1988, entering as a final judgment the June 23, 1988 Consent Decree. In this opinion, we consider and deny defendants' motion to dismiss.

 I.

 It is well established that a basic justiciability element necessary for jurisdiction under Article III of the United States Constitution is "standing to sue", i.e., a sufficient stake in the controversy to obtain judicial resolution of it. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1848-49, 23 L. Ed. 2d 404 (1969); Flast v. Cohen, 392 U.S. 83, 94-101, 88 S. Ct. 1942, 1949-53, 20 L. Ed. 2d 947 (1968). Indeed, as the Supreme Court held in Allen v. Wright, standing to sue is "perhaps the most important" doctrinal outgrowth of the constitutional case-or-controversy requirement. 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315, 3324, reh'g denied, 468 U.S. 1250, 82 L. Ed. 2d 942, 105 S. Ct. 51 (1984). The concept of standing to sue "is surrounded by the same complexities and ...


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