1987 through January of 1989, the interval during which no
reports were made on these pollutants. (Id., ¶ 20). In
Loewengart's view, it should therefore be excused from any
reporting violations for these pollutants during this time
The defendant does not identify the "misleading information"
that it claims PaDER gave it, the PaDER agent who conveyed this
information, or any other circumstance relating to this
supposed misinformation. Additionally, Loewengart's position is
contrary to its permit which required it to monitor these
pollutants, and report them, until PaDER modified the permit.
(exhibit F at p. 5 to plaintiff's brief in support of summary
judgment). Defendant has presented no evidence that PaDER
agreed to a modification and plaintiff has presented evidence
to the contrary. (exhibit F to plaintiff's reply brief,
affidavit of Randy S. King, PaDER compliance specialist). It is
not enough that Loewengart requested the modification. (exhibit
F to defendant's opposition brief). PaDER had to agree to it.
We therefore reject the defendant's argument.
Some of the reporting violations claimed by plaintiff deal
with the permit's requirement that Loewengart provide
information as to the frequency of its testing and type of
samples used in generating its reports. Plaintiff asserts that
this information is just as important as the end results
because it allows the government and the public to determine if
the monitoring is being done properly. For a period of over
three years, October of 1985 through December of 1988,
plaintiff charges that defendant did not include this
information in its DMRs. Loewengart's response is that PaDER
provided it with pre-printed forms already containing this
information. It simply failed to put ditto marks in the
appropriate box indicating compliance with the sampling
standards established by the permit. We reject this response.
The blank spaces are there so that Loewengart can confirm it is
doing the testing properly. When Loewengart fails to positively
affirm this, it is not just a simple clerical error. We
therefore agree with plaintiff that liability should be imposed
for these reporting violations.
Loewengart has also argued that some of the violations
claimed by the plaintiff here were the subject of previous
ligation against the defendant by the Sierra Club, and subject
to the settlement it made with the Sierra Club which stipulated
to penalties to be paid through March 11, 1987. (exhibit N to
plaintiff's brief in support of summary judgment). However, we
accept the plaintiff's explanation as to why, despite its
stated intention that it would not seek penalties duplicative
of the Sierra Club litigation, it has sought judgment for
violations apparently overlapping with the previous lawsuit.
NRDC has limited its claims for the period prior to March 11,
1987, to violations other than those for "conventional
pollutants," as defined and covered in the Sierra Club
Defendant also argues that we should follow Atlantic States
Legal Foundation, Inc. v. Eastman Kodak Co., 933 F.2d 124 (2d
Cir. 1991) in disposing of this action. By way of some
background on this issue, section 1365(a) authorizes a
citizen's suit, but before the suit can be filed, section
1365(b)(1)(A)(i) requires a citizen to give sixty days notice
of his intention to do so to the state agency responsible for
protecting the environment. This allows governmental
authorities to bring their own actions first so that they can
control litigation over environmental concerns because section
1365(b)(1)(B) provides that no citizen suit can be filed once
the state "commences and is diligently prosecuting a civil or
In Eastman Kodak, the Second Circuit held that a citizen's
suit under the Clean Water Act had to be dismissed when the
state environmental agency subsequently settled the matter with
the polluter even though the agency had not filed suit within
the sixty days required by section 1365(b)(1)(A)(i). The court
allowed an exception if "there was a reasonable prospect that
the violations alleged in [the citizen's] complaint will
continue notwithstanding the settlement." 933 F.2d at 127
added). It supported its conclusion by noting that: (1) citizen
suits were intended to "supplement, not supplant, state
enforcement"; and (2) permitting the suit to proceed would
"discourage a governmental enforcement action once a citizen
suit has been commenced." Id. at 127. The court was also
concerned that allowing the suit to proceed would block
Pursuant to Eastman Kodak, Loewengart would therefore limit
the remainder of this action to determining whether the
provisions of its consent agreement with PaDER would eliminate
the reasonable prospect that the violations would continue
despite the settlement. The defendant would have us dismiss the
plaintiff's claims arising from the past violations, including
substantial penalties the plaintiff maintains is justified
here, even though plaintiff asserts the penalties under the
PaDER consent agreement are woefully inadequate.
NRDC argues that Eastman Kodak was wrongly decided and that
partial dismissal is inappropriate here. It contends that any
overlap with the PaDER proceedings can be handled at the
remedial stage of this lawsuit when the penalties and other
provisions of the PaDER consent decree can be coordinated with
whatever relief we order.
We agree with the plaintiff's position. Section 1365 clearly
provides that a citizen's suit can be commenced if the
government does not file its own lawsuit within sixty days of
the citizen's notice of its intent to do so. If Congress had
intended a citizen's suit to be dismissed when the government
took initiative against the polluter at any subsequent time, it
could have written the citizen's suit provision that way. There
is support for our conclusion. See Chesapeake Bay Foundation v.
American Recovery Co., Inc., 769 F.2d 207 (4th Cir. 1985) (per
curiam) (dicta); Connecticut Fund for the Environment, Inc. v.
Upjohn Company, 660 F. Supp. 1397 (D.Conn. 1987).
Therefore, the instant case will proceed since the record
reveals that PaDER did not commence an action against
Loewengart within the sixty day notice period. NRDC gave PaDER
notice on August 21, 1989, of its intention to file this
lawsuit. PaDER did not commence suit within the sixty day
period thereafter although it did give its own notice to
Loewengart of intent to sue on April 30, 1990. This litigation
was initiated on October 29, 1989. PaDER's eventual, and as yet
unconsummated, settlement with Loewengart therefore cannot be
a ground for dismissal of this action or a limitation upon the
relief to which the plaintiff is entitled — except to the
extent we consider the settlement agreement in the context of
the entire litigation.
Accordingly, we will grant plaintiff summary judgment on
liability as to those violations presented in its motion.
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