19 F. Supp. 3d 426
D. Conn.2014Background
- Plaintiffs allege ongoing unlawful stormwater discharges from Defendants’ auto salvage facility at 54 Wrobel Place, East Hartford, CT 06108, in violation of the Clean Water Act (CWA) provisions governing point-source discharges and permit requirements.
- Defendants previously engaged DEEP inspections and issued memoranda finding that a stormwater General Permit was not required as of 2010 and 2012.
- Plaintiffs served a Notice of Violation on April 6, 2012, and filed suit on June 6, 2012.
- Defendants later submitted DEEP memoranda and an engineering report (2012) suggesting no current point-source discharge requiring a permit, in contrast to Plaintiffs’ allegations.
- The court evaluates subject matter jurisdiction under Rule 12(b)(1), considering whether a citizen suit under §505 is precluded by prior agency determinations or enforcement actions.
- The court ultimately denies Defendants’ motion to dismiss, finding that the case is not barred by §1319(g) and that standing is not lacking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a citizen suit proceed when the EPA/DEEP previously found no permit required? | Plaintiffs may challenge discharges as violations of §301/§402 regardless of prior determinations. | DEEP findings preclude a citizen suit. | Yes; suit may proceed despite prior determinations. |
| Does §1319(g) bar the suit where the state agency is or was diligently prosecuting? | No bar where no ongoing state action meets §1319(g) criteria. | §1319(g) precludes when a state action is underway. | No preclusion given record insufficient to show ongoing diligent prosecution. |
| Did Plaintiffs comply with §1365 notice requirements given prior DEEP conclusions? | Notice was proper; compliance not defeated by later statements. | Notice premature/defective due to DEEP’s prior stance. | Not dismissed for notice issues. |
| Is the court obligated to dismiss for lack of subject matter jurisdiction under 12(b)(1)? | Court has jurisdiction to hear §505 citizen suits. | Lack of permit/agency determinations defeat jurisdiction. | Jurisdiction retained; motion denied. |
| Do Peconic Baykeeper-like precedents support standing despite agency determinations? | Citizens may sue over discharges regardless of agency permit decisions. | Agency determinations defeat standing. | Supports standing and ability to proceed. |
Key Cases Cited
- Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180 (2d Cir.2010) (permit determination not required supports citizen suit under §505)
- Peconic Baykeeper, Inc. v. Suffolk County, 585 F.Supp.2d 377 (E.D.N.Y.2008) (district court decision cited for similar reasoning)
- No Spray Coalition, Inc. v. City of New York, 351 F.3d 602 (2d Cir.2003) (circuit recognizes citizen suits under §505)
- Waterkeeper Alliance v. U.S. EPA, 399 F.3d 486 (2d Cir.2005) (policy and enforcement context of CWA citizen suits)
- San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700 (9th Cir.2007) (agency determinations do not bar citizen suits for certain discharges)
- Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546 (5th Cir.1996) (discharge without permit may be challenged in citizen suit)
- Connecticut Fund for the Environment v. Acme Electro-Plating, Inc., 822 F.Supp. 57 (D.Conn.1993) (discussion of §1319(g) preclusion principles)