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New Penalty/505(a) Preemption Case

Updated: Feb 23

This case addresses issues that commonly arise in NDPES permit enforcement cases: preemption and daily max versus monthly average counting for days of violation. The holding on preemption is worth reading because it comes up often and defendants lose this one more often than not.


Lower Susquehanna Riverkeeper v. Keystone Protein Co., No. 1:19-cv-01307 (M.D. Pa. 2021) (on motion for summary judgment in case involving alleged violations of NPDES permit, held that plaintiffs had representational standing; prior state consent agreements negotiated with defendant that did not involve public notice and comment did not preclude the present lawsuit under § 505(a)(1) or § 309(g)(6)(A) because they were not brought under a law comparable to the CWA; court adopted the “rough comparability” test for determining comparability to the CWA; CWA is a strict liability statute; court granted SJ on 288 daily max violations, but deferred until the penalty phase SJ on all monthly average violations to determine whether they overlapped with the daily max violations)

51 SJ opinion
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