## Facts

- Simkins Industries, Inc. held an NPDES permit requiring quarterly discharge monitoring reports (DMRs) to Maryland and compliance with discharge limits, including quarterly average limits.
- From August 1, 1981, through March 31, 1984, Simkins failed to file the required quarterly DMRs.
- Sierra Club brought a Clean Water Act citizen suit seeking declaratory and injunctive relief, civil penalties, and litigation costs, including attorneys’ and expert fees.
- In a prior ruling, the court granted partial summary judgment on liability, finding Simkins violated the Clean Water Act by failing to comply with its NPDES permit reporting requirements.
- In the penalty phase, Simkins moved for reconsideration, arguing the citizen suit was barred because Maryland was conducting a criminal investigation and contemplated enforcement.

## Issues

1. Whether a state criminal investigation or anticipated enforcement action constitutes “commenced and diligently prosecuting” an action “in a court” that bars a Clean Water Act citizen suit under 33 U.S.C. § 1365(b)(1)(B).
2. Whether Simkins’s failure to file DMRs prevented proof of compliance and justified treating the NPDES permit limits as violated for the entire three-year reporting gap.
3. How to calculate the statutory maximum civil penalty, including whether violations tied to quarterly average limits can be treated as daily violations for penalty purposes.
4. What civil penalty amount and fee award were appropriate under the Clean Water Act.

## Decision

- The court denied Simkins’s motion for reconsideration, holding the citizen suit was not barred by the state’s criminal investigation because no enforcement action had been commenced in court when the suit was filed.
- The court reaffirmed liability and found Simkins’s failure to file DMRs prevented a determination of compliance with quarterly average limits; Simkins bore the burden of showing compliance and failed to meet it.
- The court treated the permit limitations as violated for the entire period of missing reports and calculated the maximum civil penalty as $10,000 per day over the three-year period, totaling $9,770,000.
- Exercising discretion, the court imposed a penalty of $1,000 per day, totaling $977,000.
- The court awarded Sierra Club reasonable attorneys’ fees and expert witness fees.

## Legal Principles

- A Clean Water Act citizen suit is barred under 33 U.S.C. § 1365(b)(1)(B) only if the government has commenced and is diligently prosecuting a civil or criminal action in a court; an investigation or stated intent to sue does not qualify.
- NPDES permittees have enforceable duties to monitor and report; failure to submit required DMRs can shift the practical burden to the permittee to demonstrate compliance.
- When a permittee’s failure to report prevents verification of compliance with average limitations, a court may treat the permit limits as violated throughout the unreported period for purposes of remedies.
- For penalty calculations, violations tied to average limits may be assessed on a per-day basis across the relevant period, subject to the statutory maximum.
- Courts may impose substantial penalties below the statutory maximum based on the circumstances and may award reasonable attorneys’ and expert fees to prevailing citizen-suit plaintiffs.

## Conclusion

The court held that a pending state criminal investigation did not bar a Clean Water Act citizen suit absent an action commenced and diligently prosecuted in court, treated Simkins’s three-year failure to file DMRs as supporting continuous permit-limit violations for penalty purposes, imposed $977,000 in civil penalties, and awarded Sierra Club its reasonable attorneys’ and expert witness fees.


Sierra Club v. Simkins Indus., Inc., 17 Env’t L. Rep. 20,346 (D. Md. 1986)