Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PENNSYLVANIA ENVTL. DEFENSE FOUND. v. BELLEFONTE B

June 23, 1989

PENNSYLVANIA ENVIRONMENTAL DEFENSE FOUNDATION, Plaintiff
v.
BELLEFONTE BOROUGH, Defendant



The opinion of the court was delivered by: MUIR

 MALCOLM MUIR, UNITED STATES DISTRICT JUDGE

 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

 I. Introduction.

 Pennsylvania Environmental Defense Foundation (the Foundation) commenced this citizen suit pursuant to 33 U.S.C. § 1365 (which is § 505 of the Clean Water Act, also known as the Federal Water Pollution Control Act, see Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, , 108 S. Ct. 376, 378, 98 L. Ed. 2d 306 (1987)) by filing a complaint on June 27, 1988, in which it named as the sole Defendant Bellefonte Borough Sewage Authority. By order of July 5, 1988, we granted the Foundation's motion filed the same day to amend its complaint by changing the name of the Defendant from Bellefonte Borough Sewage Authority to Bellefonte Borough. The primary allegation made by the Foundation in its complaint is that Bellefonte Borough (Bellefonte) operates a sewage treatment plant in Centre County, Pennsylvania, that this plant discharges waste water into Spring Creek, and that the discharge from the plant has repeatedly violated the terms and provisions of its National Pollutant Discharge Elimination System permit by emptying more pollutants into Spring Creek than it was authorized so to do by its National Pollutant Discharge Elimination System permit.

 On January 31, 1989, Bellefonte filed a motion to enter consent decree. The Foundation concurred in this motion. Bellefonte filed along with its motion to enter consent decree a copy of a proposed consent decree between the Foundation and Bellefonte and served a copy upon the Attorney General of the United States and the Administrator of the Environmental Protection Agency as required by 33 U.S.C. § 1365(c)(3). On March 20, 1989, the United States filed "comments" with regard to the Foundation's and Bellefonte's proposed consent decree. We issued an order on March 24, 1989, setting forth a briefing schedule concerning (1) whether we should consider the comments filed by the United States regarding the proposed consent decree and (2) whether we should grant Bellefonte's motion to enter consent decree. On March 27, 1989, the Foundation filed a motion to preclude the comments of the United States to the proposed consent decree and a brief in support thereof. Bellefonte concurred in the Foundation's motion to preclude the comments of the United States to the proposed consent decree. On March 31, 1989, we issued an order setting forth a briefing schedule on the Foundation's motion to preclude the comments of the United States to the proposed consent decree. Briefing has been completed with regard to both Bellefonte's motion to enter consent decree and the Foundation's motion to preclude the comments of the United States to the proposed consent decree and both motions are ripe for disposition.

 II. Discussion.

 A. The Foundation's Motion to Preclude the Comments of the United States to the Proposed Consent Decree.

 
1. May we Consider the Comments Filed by the United States Regarding the Proposed Consent Decree in this Case.

 The first issue we must resolve in ruling upon the Foundation's motion to preclude the comments of the United States to the proposed consent decree is whether we may consider the United States's comments. Section 1365(c) of 33 U.S.C. provides in pertinent part as follows:

 
(2) In such action under this section, the Administrator [of the Environmental Protection Agency], if not a party, may intervene as a matter of right.
 
(3) Protection of Interests of United States
 
Whenever any action is brought under this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator.

 The Foundation argues that the above-quoted portions of 33 U.S.C. § 1365(c) do not specifically authorize the United States to file comments regarding a proposed consent decree in a case in which the United States is not a party without first becoming a party to the action. The Foundation further asserts that the purpose of the 45-day notice provision in 33 U.S.C. § 1365(c)(3) is to give the Administrator of the Environmental Protection Agency an opportunity to intervene in the action pursuant to 33 U.S.C. § 1365(c)(2). Based upon (1) its view of the purpose of 33 U.S.C. § 1365(c)(2) and (3), (2) its assertion that there is no indication that Congress intended to give the United States or any of its officials or agencies the "extra-judicial authority" to affect the outcome of citizen suits brought pursuant to the Clean Water Act without first becoming a party thereto, and (3) its claim that permitting the United States to comment on a judicial proceeding without it first becoming a party thereto deprives the parties of "their rights under ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.