author: BRYAN, District Judge.

text:
    Dennis W. KOONTZ, et al., Plaintiffs, v. Richard JAFFARIAN, et al., Defendants.
    Civ. A. No. 84-551-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    May 14, 1985.

      David A. Blumenthal and Peter G. Mack, Alexandria, Va., for plaintiffs.
    Theodore A. Breiner and Alfred W. Breiner, Alexandria, Va., for defendants.
   MEMORANDUM OPINION

BRYAN, District Judge.

This is a copyright infringement, trade secret misappropriation and unfair competition action which probably would never have occurred but for the modern computer. It evolves from an electrical estimating labor manual used by electrical contractors and estimators to prepare bids on contracts for the construction of projects such as office buildings, schools and hospitals. Each manual contains a comprehensive data compilation of labor units — a tabulation of over 57,000 entries showing the amount of labor hours necessary to install the multitude of electrical items used in nearly every type of construction project.

Sample pages of the plaintiff’s manuals are attached as Appendices B and C.

The plaintiff, Dennis W. Koontz (Koontz), who has been in the electrical estimating business for 25-30 years, began working on a manual in 1962. In 1968 his manual (PX 1-A) was published. A copyright for it was registered in the United States copyright office (PX A-2). That copyright is not at issue in this case. In 1974 an update of the 1968 manual was published by Koontz. It was in two volumes (PX A-3A, 3-B). A registration for a copyright on this publication was had on March 11, 1974 (PX A-4).

Prior to 1975 Koontz would use the manual in this way: he would “take off” the electrical requirements from a set of plans and then go through his manual and assign code numbers, page numbers, and quantities necessary to estimate the job. Koontz then gave the information to his secretary to do the computations and come up with an estimate. The figures thus reached would be allocated by percentage to certain code designations (PX F-6) and compared with tables developed in the past to determine whether the percentages were out of line with what experience had shown was the usual percentage. If they were, the estimate would be reexamined. Forms and instructions for these various steps were included in the manual.

In 1975 Koontz discussed with Hewlett-Packard Company (H-P), a seller of computer hardware, the possibility of computerization of the steps necessary to come up with an estimate from the manual. This was advantageous to H-P because it gave H-P a software program to use in selling its hardware. It was advantageous to Koontz since it was an opportunity to sell manuals without much cost to him or his corporation, plaintiff Master Service Corporation, through the extensive marketing system of H-P. The discussions resulted in a February 1, 1976 agreement between Koontz and H-P (PX A-23). In it Koontz agreed to provide H-P with the mathematical algorithms and assistance necessary to develop a computerized version of Koontz’s electrical estimating system and H-P agreed to create a software program so that the information Koontz had formerly given to his secretary when preparing an estimate could be used as input for a computer. H-P agreed to pay Koontz a $3,000 fee. Koontz agreed to supply the manuals (PCP-5) which were in turn to be supplied by H-P to each H-P customer who purchased H-P’s hardware and electrical software package. H-P agreed to pay Koontz $250.00 per manual supplied to a customer. By this time Koontz had updated and revised his two volume 1974 manual, producing a one volume 1975 version (PX A-7A), and developing and adding such things as labor code and material code designations, as shown on the samples, Appendices B and C.

Koontz worked with a H-P programmer, Ray Wells, and gave Wells the procedural, step-by-step information needed for the writing by Wells of an electrical estimating program, designed to operate on the hardware H-P desired to market. The program, including significant portions of data taken from the 1975 manual (the data compilation), was transferred to and stored on magnetic tape. With the program and data compilation on tape, estimates could be obtained by a customer electrically in the same way Koontz had obtained estimates manually. However, it was still necessary to use the manual since the tapes’ storage capacity was limited and the information contained on them was referenced by code numbers and abbreviated descriptions (as opposed to full) not known to the average estimator. The code numbers also appeared in the manual, along with catalog numbers, descriptions and drawings of the item itself, and were the key which enabled the contractor to do a complete estimate. A customer could input the code numbers from the manual and the computer would look up the corresponding labor units and price and print out the result. The deposition testimony of Ronald Schwitzer, a defendants’ witness, while perhaps indicating that he does not need a manual because he has memorized most of what is in one, does not persuade the court that the data base need not be used in conjunction with a manual. A computer can print out, with the exceptions just noted, an entire data compilation from the manual (PX A-7C) although such a printout was not intended as nor could it serve as a substitute for the manual. The data compilation printout is part of what is referred to as the electrical estimating software. That software also includes the electrical estimating program which is the set of instructions to the computer to enable it to perform certain electrical estimating tasks by using the stored data compilation and other input data taken from the manual by the customer to produce the estimate. It is this software which the defendants used, which they say is not copyrightable and which they say was provided without restriction to H-P and through H-P to the defendants. The plaintiff does not assert that the program is copyrightable, only the data compilation.

Copyright

The 1974 manual was registered within five years of its first publication. Such a registration is consequently prima facie evidence of the validity of the copyright. 17 U.S.C. § 410(c). The 1975 and 1979 manuals were not registered until 1984, and the weight to be accorded those registrations is discretionary with the court. Id.

The court has no difficulty in finding that the 1974 copyright, even without the aid of the statutory presumption, is valid. The manual was original with Koontz, its author. It is true that there were other manuals in the field, principally the NECA (National Electric Contractors Association) manual. But Koontz’s manual differs substantially from the NECA manual, and certainly is not copied from it. The same is true of the 1975 and 1979 manuals, which were Koontz updates, revisions and improvement. As to the copyrightability of the subject matter of the data compilation portions of the manuals, there can be no question that while facts or data are not themselves copyrightable, compilations of those facts or data can be. Under the 1909 Act which governs the 1974 and 1975 manuals, such compilations were protected [former] 17 U.S.C. § 7. And of course the 1976 Act, which governs the 1979 manual, also provides protection for compilations, 17 U.S.C. § 103(a). Indeed, the court does not understand the defendants to contest the copyrightability of the manuals. The tapes and the data on those tapes, however, contained no copyright notice, and the issue raised by the defendants is that, without a copyright notice, the copyright did not extend to the data stored on the tapes which, defendants assert, were therefore injected into the public domain. This defense does not apply to the 1974 manual because that was not computerized, and there is no data base or tape related to it. The defendant also contends that the agreement with H-P constituted a transfer to H-P without restriction of the software, including the data stored on the tapes.

The court rejects both assertions. As to the lack of copyright notice on the software, plaintiff asserts that the manual and the tapes or disks on which were stored the data base and program were registered as a unit publication. While there is no statutory recognition of a unit publication doctrine, the courts have in certain instances ruled that affixation of the copyright notice to one element of a publication containing various elements gives copyright protection to all elements of the publication. The rule has been confined to situations where the elements are integral or essential parts of one another. Lydiard-Peterson Co. v. Woodman, 204 Fed. 921 (8th Cir.1913); Patterson v. Century Productions, 93 F.2d 489, 493 (2nd Cir. 1937). The rule has been enunciated not just with respect to physically connectable elements, but has been applied where the notice was attached only to instruction sheets. Monogram Models, Inc. v. Indertro Motive Corporation, 492 F.2d 1281 (6th Cir.1974); Data Cash Systems, Inc. v. JS & A Group, Inc., 628 F.2d 1038, 1041 (7th Cir.1980) (dicta). It is appropriate to apply the rule here. The software, hardware and a manual were always sold, and intended to be sold as a unit. While the manual could be sold separately, the software, including the tapes, were not sold without a manual. Indeed, while there is a conflict in the evidence on this, the court finds that the average customer could not use the software without a manual. The manual was, for all intents and purposes, the instruction sheet for the use of the software.

The purpose of copyright notice, as highlighted by 17 U.S.C. § 405(b), is to protect innocent infringers. Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851 (2nd Cir.1967); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406, 409 (2nd Cir.1946). Moger v. WHDH, Inc., 194 F.Supp. 605, 606 (D.Mass., 1961). These defendants were well aware that the data compilation on the tapes which formed the basis of their own publication came from the plaintiffs manuals. They are not innocents misled by any omission of a copyright notice on the software.

As to the February, 1976 agreement with H-P, a careful reading of it, and particularly the addendum, taken in light of Koontz’s testimony, reveals that what was released to H-P was the work product which came about as a result of the agreement. The 1975 manual and data compilation were in existence prior to the agreement and were not the work product of the agreement. The reversion to the plaintiff after a year of the right to revise and update the data compilation was only to allow Koontz to deal with the customers of H-P who had purchased the package. Agreeing to “supply” the manuals for sale to a customer with the hardware was not an agreement to assign the copyright in previously prepared material. The data itself was put on tapes which were “secure,” i.e., the program, as distinguished from data, could not be printed out.

From the foregoing the court finds that Koontz is the owner of copyrights in the 1974, 1975 and 1979 manuals and the data compilations from those manuals which are part of the information stored on the H-P tapes (subsequently transferred onto Texas Instrument disks).

Infringement

In order for there to be infringement, it must of course be shown that the defendants copied the plaintiff’s works. And this is so even if the works of the defendants are identical to the copyrighted works, although similarity between the two works coupled with access will support an inference of copying.

The Jaffarian manual and the Labbie software (other than the program) are the allegedly infringing publications. Defendants concede that “... the basis of the Jaffarian manual and the Labbie software is the uncopyrightable H-P software provided by H-P without restriction to Labbie.” (Defendants’ Proposed Findings of Fact, ¶ 33.) The court has already determined that the data compilation portion of the software, and it is that from which the Jaffarian manual was taken, is copyrightable and copyrighted. But the court need not rely on this concession. Both Labbie and Jaffarian had access to Koontz’s manuals. Jaffarian had access when he was working in and adjacent to Koontz’s office in Dallas, Texas, in the 1975-1976 period, during which Jaffarian had use of the 1974 manual and the 1975 update manual. Jaffarian came back to work for Koontz in 1978, as an exclusive agent for Koontz in Florida for the sale of the Koontz manuals. This relationship lasted until November 1979. Prior to this termination Koontz had formed a joint venture with Labbie, who was an OEM (original equipment manufacturer) for H-P, as a means of both getting a better discount from H-P through cooperative buying of hardware. This business relationship terminated in March 1981. Labbie had received copies of the electrical estimating tapes from a H-P employee, Ron Myers, for a period of time, beginning in 1977 and lasting approximately 18 months. Labbie had asked for and received unsecured tapes from Myers so that, according to Labbie, he could make changes and enhance the package through program modifications. During the time Koontz and Labbie worked together certain changes were made in the manual and data compilation. The changes were Koontz’s changes. Labbie’s role was to fit them into the computer program.

After Labbie severed his relationship with Koontz, Labbie and Jaffarian began working together in 1982. Labbie sold to Jaffarian, for the latter’s use, the system including the hardware and the data compilation, the vast majority of which was what Labbie had obtained from H-P, although in 1982 the data compilation was transferred from the tapes onto disks which were compatible with Texas Instrument hardware. These disks were supplied to Jaffarian by Labbie. Labbie continues to sell electrical estimating software exclusively to Jaffarian, and Jaffarian buys all of the software for his manuals from Labbie. The basis of what Labbie has and is supplying to Jaffarian is the data compilation and modifications to the data compilations made by Koontz and programmed by Labbie during the joint venture.

In 1977 and 1978 Jaffarian had purchased a computer from H-P. Included in the package were the tapes. He already had a manual. He used these tapes until fall of 1982 when he got the Texas Instrument hardware and disks from Labbie.

On April 3, 1983, Jaffarian published his manual (PX A-16). A comparison of it with his own manuals prompted the filing of this action by Koontz on June 1, 1984.

A physical viewing of the parties’ manuals, that of Jaffarian on the one hand and the 1975 and 1979 Koontz on the other is the best evidence that the similarities are “... so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.” Arnstein v. Porter, 154 F.2d 464, 468 (2nd Cir.1946). For this purpose the court has attached, for comparison, page 11.4 of the Jaffarian manual (App. A), and page 11.4 of the 1975 and 1979 manuals of Koontz (App. B & C). In addition to being visually similar, the following likenesses appear:

1. Both manuals have six major code sections, numbered 1-6 and identified by nearly identical tabbed titles.

2. Each manual has thirty-eight subsections with substantially the same titles.

3. Each manual has the same page numbering sequence which begins each subsection with a number followed by a decimal point subsequently followed by consecutive numbers after the decimal point, i.e., Section 17 of each manual has page numbers 17.1-17.8.

4. Each manual begins each subsection with a “.1” as the first decimal page number, with the exception of section 20 which begins with “20.0” for each manual.

5. Each manual has pictures on the left-hand side, a material code column, a description column and three labor columns ordered from left-to-right in the same fashion.

6. Each manual divides labor units into three columns and uses the same labor code numbers, 2, 4, or 6, to identify each column.

7. Each manual has a material code number to identify each line item.

8. Each manual employs exactly the same odd-digit number coding scheme for the material code.

9. Each manual employs a non-decimal point consecutive integer for an “ID” or “page verify” number, and these numbers are each correlated to the same decimal point page number, i.e., page 15.2 of each manual corresponds to ID or verify number 114.

10. The description and labor codes used in each manual are substantially similar.

11. Substantial portions of the compiled labor units, are identical or virtually the same.

The copying even went so far as to reproduce errors. On page 28.30 of Koontz 1979 manual (PX All A), there is inserted for the voltage for the item with catalog no. 1104 the figure 120V. This figure should be 208-277 (PX B-13). Similarly, at the same page, Koontz inserted for the voltage for the item with catalog no. 7300L the figure 277V. This figure should be 120V. Id. The printout (PX A11C) at this page shows no voltage for either of these catalog numbers. Jaffarian’s manual, however (PX A-16), shows 120V for the equivalent of catalog no. 1104 and 277V for the equivalent of catalog no. 730QL, the same mistakes made in the Koontz manual but not reproduced in the printout. Consequently Jaffarian had to have used the Koontz manual for this copying.

While normally only circumstantial evidence of copying is present, in this case there is direct evidence that, in preparing his own manual in January 1983, Jaffarian did so by referring to the Koontz 1979 manual in producing a page by page display of the data base on the computer viewing screen, making some modifications from the 1979 data compilation given him by Labbie. This evidence came from the witness Evans, a former employee of Jaffarian, and while her credibility was subjected to an attack for bias, the court found her testimony convincing. Jaffarian’s testimony that he was only using a “cannibalized” version of a Koontz manual in accomplishing what Evans observed is unpersuasive.

That Labbie was in part the source of Jaffarian’s copying and fully participated in it is amply supported by the evidence.

In sum, as to the copyright infringement claim, the court finds that the copyright on the 1979 manual, including the data compilation (Registration TX-431-204) is valid and infringed by the defendants. And because it is derivative of the 1975 manual which in turn is derivative of the 1974 manual, each being based on the next earlier work, the two early copyrights [Registration No. A511,454 (1974) and TX 1-433-354 (1975) are also valid and infringed.

Trade Secrets Misappropriation

While the court has held that what the plaintiff developed was copyrightable and copyrighted, it does not follow that what was developed was a trade secret. The method by which Koontz developed and compiled his data was not secret. There was no process which was known only to him or a few confidants. His method, as he explained it on the witness stand, was to put down in tabular and coded form, on a unit and per foot basis, the labor pricing for installation of a particular item of electrical equipment. This he developed over the years from his experience and the experience of others. While not everyone, or even a substantial number of people, could do what he did, his method is a matter of public knowledge, not a secret. The computer program, qua program, was not developed by Koontz.

The trade secret misappropriation claim will be dismissed.

Unfair Competition

This claim arises under § 43(a), of the Lanham Act, 15 U.S.C. § 1125(a), and is directed at the advertisements and brochures disseminated by Jaffarian. Assertedly within the proscription of § 43(a) are the laudatory endorsements of Jaffarian which the plaintiffs say more properly apply to them, statements as to how the Jaffarian manual was developed, and statements as to the professional experience and background of Jaffarian. These are no more than “puffing” which are unlikely to mislead the public or damage the plaintiff. To the extent that the plaintiff’s claims for unfair competition go beyond these enumerated activities, they are subsumed in the copyright infringement claim.

The unfair competition claim will be dismissed.

Laches

The defendants devote a very minor portion of their brief to their defense of laches — this is understandable. There is no evidence that the plaintiff has slept on his rights. This action, filed in June 1984, was prompted by the April 1983 publication of the Jaffarian manual. This is not an undue delay. Nor, even with an awareness as early as 1981 that Labbie was continuing to use and market the plaintiffs data compilation, does there appear an unreasonable delay. Laches would not bar injunctive relief under the circumstances here in any event. Cf. Rothman v. Greyhound Corporation, 175 F.2d 893 (4th Cir. 1949). Nor, in the opinion of the court, would any delay equitably bar an award of damages not otherwise barred by the three year limitation imposed by 17 U.S.C. § 507(b). As stated before the defendants are not innocent infringers.

Offer of Evidence

After trial the parties brought to the attention of the court that they had overlooked moving into evidence certain exhibits, PX G-l, H and I for the plaintiff, and DX 135, 136, 137 and 138 and a letter of April 17, 1985 from counsel for the defendants to counsel for the plaintiff. All are received in evidence.

The plaintiffs devote a portion of their argument to “piercing the corporate veil.” The court does not understand the defendants to contest that any relief awarded in the action should be awarded against not only the individuals but against the corporations under whose name the individuals trade. In any event, while the individuals, Jaffarian and Labbie, are the culpable defendants, they operate through corporations which they control, and which should be held liable to the same extent the individuals are held liable.

Counterclaims

It follows from the foregoing that the defendants’ counterclaims for a declaration of copyright invalidity and non-infringement must be denied. And since there has been shown no unfair competition by the plaintiffs or tortious interference with defendants’ business relationship, the counterclaims for those torts will also be denied. Koontz’s advice to IEC that if it purchased Jaffarian’s manual for resale to its members it might be liable for copyright infringement was not tortious, it was correct.

Relief

Counsel have not addressed in their post trial brief the issue of damages since, with the court’s acquiscence, that issue was delayed to await a liability ruling. This now having occurred, counsel for the plaintiff should promptly prepare and forward for entry a form of injunction. Counsel for all parties should confer with a view to settlement of the damage issue. If this cannot be accomplished, counsel should submit their positions on the question of damages promptly, and in any event within two weeks of this date.

Appendix A - Jaffarian Manual

Appendix B - 1975 - Koontz Manual

Appendix C - 1979 - Koontz Manual

      . There are actually two plaintiffs, Koontz and his corporation, Master Service Corporation. As used in this opinion, Koontz refers to both plaintiffs.

      . The 1974 manual was divided into an operations volume and a data compilation volume. The 1975 manual is also divided into an operations part and a data compilation part, in the same volume. The operations volume and operations part are not challenged as being infringed. The data compilation in both the 1974 and 1975 manual are.

      . Although the amended complaint charges infringement of the 1968 manual, that allegation was withdrawn at trial.

      . 17 U.S.C. § 410(c) states:
      “In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.”

      . "Computer programs" are enumerated as being one example of work produced by the agreement. As indicated, no claim is made that any use of the program is infringing.

      . The plaintiff is a citizen of the United States. 17 U.S.C. § 104(b)(1). No issue is raised by the defendants as to plaintiff’s compliance with the statutory formalities of registration, including the correction of errors in the original registration of the 1975 manual and data.

      . The language of the tabulation of similarities is taken from the plaintiff's proposed findings of fact, but coincides with the testimony at trial and an actual comparison of the manuals.

      . These modifications included placing title headings on all pages, changing prices of some labor units, and removing references to manufacturers’ catalog numbers.

      . The first date of publication of what has been referred to as the 1975 manual was actually June 15, 1976. It also has registration Nos. TX 1-299-176 and TX 1-433-355.

      . Claims of common law unfair competition and violation of Va.Code § 18.2-216 (1982 Repl. Vol.) are included with the Lanham Act claim. The plaintiff does not assert that there is any difference in the elements of these claims from the Lanham Act claim.


source: Caselaw Access Project

author: HERBERT F. MURRAY, District Judge.

license: Public Domain

text:
    SIERRA CLUB v. SIMKINS INDUSTRIES, INC. SIERRA CLUB v. NUEVA ENGINEERING, INC. SIERRA CLUB v. KEYSTONE AUTOMOTIVE PLATING CO.
    Civ. Nos. HM84-4018 to HM84-4020.
    United States District Court, D. Maryland.
    June 18, 1985.

      John F. King, G. Macy Nelson and Anderson, Coe & King, Baltimore, Md., for plaintiff Sierra Club.
    Jack A. Meyerson, Philadelphia, Pa., Thomas B. Eastman and Ober, Kaler, Grimes & Shriver, Baltimore, Md., for defendant Simkins.
    James D. Reed and Reed, Reed & Kelly, Ralph K. Rothwell, Jr., and Maslan & Roth-well, Baltimore, Md., for defendant Nueva.
    Benjamin Rosenberg, John L. Harvey and Venable, Baetjer & Howard, Baltimore, Md., for defendant Keystone.
   MEMORANDUM AND ORDER

HERBERT F. MURRAY, District Judge.

Plaintiff Sierra Club has filed three citizen’s suits pursuant to § 505 of the Clean Water Act, 33 U.S.C. § 1365, against defendants Simkins Industries, Inc., Civil No. HM84-4018 (hereinafter Simkins); Nueva Engineering, Inc., Civil No. HM84-4019 (hereinafter Nueva); and Keystone Automotive Plating Co., Civil No. HM84-4020 (hereinafter Keystone). The complaint in each of the three actions charges the defendant with violating “the terms and provisions of its National Pollutant Discharge Elimination System (NPDES) permit” in violation of the Clean Water Act, 33 U.S.C. § 1251, et seq. Specifically, plaintiff alleges that the defendants’ discharge of treated wastes into the Patapsco River pursuant to NPDES permits violates the waste water discharge limits contained in such permits and thus violates § 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a). As relief for the alleged violations, plaintiff seeks a declaratory judgment that defendants have violated the Clean Water Act, 33 U.S.C. §§ 1311 and 1342; an injunction prohibiting defendants from further violating their NPDES permits; a mandatory injunction requiring defendants to provide to plaintiff a copy of all future reports submitted by defendants to the state or federal government regarding defendants’ NPDES permits; an assessment of civil penalties of $10,000 per day for each violation against each defendant; and an award of costs, including attorney, witness and consultant fees. Various motions are presently pending before the court; namely:

(1) Defendant Simkins’ Motion for Entry of Judgment on the Pleadings;
(2) Defendant Nueva’s Motion to Dismiss and/or Motion for Judgment on the Pleadings;
(3) Defendant Keystone’s Motion to Dismiss;
(4) Plaintiff’s Motions for Partial Summary Judgment as to each defendant;
(5) Plaintiff’s Motion for Leave to File Amended Complaint; and
(6) Defendant Nueva’s Motion for Continuance.

The court held a hearing on these motions on May 3, 1985, and has reviewed the memoranda submitted and is now prepared to rule.

Background

Plaintiff Sierra has brought these actions against defendants Simkins, Nueva and Keystone pursuant to the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365. That provision provides:

(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be and to apply any appropriate civil penalties under section 1319(d) of this title.

This court, per Judge Young, has recently discussed the statutory scheme of the Federal Water Pollution Control Act (hereinafter the Clean Water Act or the Act), 33 U.S.C. § 1251 et seq., in Chesapeake Bay Foundation, et al. v. Bethlehem Steel Corporation, 608 F.Supp. 440, 443-444 (D.Md.1985), and will not repeat it herein. Relevant portions of the Act having bearing on the issues at bar will be discussed where appropriate.

As required by § 505(b)(1)(A) of the Act, 33 U.S.C. § 1365(b)(1)(A), plaintiff gave notice on Aug. 31, 1984, of the alleged violations and of its intent to file suit, to the Administrator of the United States Environmental Protection Agency; to the Regional Administrator, Region 3, United States Environmental Protection Agency; to the Assistant Secretary of Environmental Programs, Department of Health and Mental Hygiene; to the Director of Water Management Administration, Office of Environmental Programs; and to the defendants herein. After the lapse of 60 days from plaintiff’s giving of notice and after neither the Environmental Protection Agency (hereinafter EPA) nor the state commenced prosecution to redress the alleged violations, plaintiff brought the instant actions.

Plaintiff Sierra Club is a national, nonprofit corporation with its principal place of business in San Francisco, California and with members in the Chesapeake Bay area. It is a public interest organization dedicated to protecting and conserving natural resources. Defendant Keystone, a corporation organized under the laws of the State of California, operates a business consisting of repairing damaged automobile bumpers. Defendant Simkins, a corporation organized under the laws of the State of Connecticut, operates a papermill which manufactures cardboard. Defendant Nueva, a corporation organized under the laws of the State of Maryland, operates a business consisting of the engineering, manufacturing and sale of electronic systems, components and equipment. Each of the defendants discharges treated wastes from its operations into the Patapsco River pursuant to NPDES permits issued by the Maryland Department of Health and Mental Hygiene, Office of Environmental Programs, and authorized by the Administrator of the EPA under § 402(a), (b) of the Act, 33 U.S.C. § 1342(a)-(b).

The instant actions against defendants charge that defendants have violated the waste water discharge limits of their NPDES permits in violation of § 301(a) of the Act, 33 U.S.C. § 1311(a). Plaintiff also charges the defendants with failure to report in violation of the act. Each defendant has moved to dismiss the actions on various grounds. Plaintiff has moved for partial summary judgment as to liability. The court will now examine each of these motions.

I. Sierra Club v. Keystone Automotive Plating

Presently pending before the court in the above-captioned case are plaintiff’s Motion for Leave to File Amended Complaint, Defendant’s Motion to Dismiss, and Plaintiff’s Motion for Partial Summary Judgment. A discussion of each motion follows.

A. Plaintiffs Motion for Leave to File Amended Complaint

Plaintiff files the instant motion requesting the court to grant it leave to file an amended complaint. In support of the motion, plaintiff contends that since it filed its original complaint charging defendant Keystone with violations of the Clean Water Act between April 1, 1976 and September 20, 1983, it has discovered additional violations of the Act by defendant occurring between October 1, 1983 and June 30, 1984. The amended complaint, in essence, only differs from the original complaint in that it alleges additional violations of the Act. Plaintiff thus requests that all of the alleged violations be tried together in the interest of judicial economy. Defendant Keystone has not filed opposition to the motion.

Rule 15 of the Federal Rules of Civil Procedure permits a party to amend his pleading by leave of the court and requires the court to grant such leave to amend when justice so requires. The court believes that justice and judicial economy, in the instant case, mandate permitting plaintiff to amend its complaint in light of the similarity of the issues and parties. There is no reason to subject identical parties to separate trials regarding the same alleged permit violations. Plaintiffs Motion for Leave to File Amended Complaint is therefore Granted.

B. Defendant’s Motion to Dismiss

Defendant Keystone initially filed its Motion to Dismiss on January 16, 1985. However, in response to plaintiffs Motion for Leave to File Amended Complaint filed on February 4, 1985, defendant Keystone filed a second Motion to Dismiss on February 27, 1985. Defendant Keystone seeks dismissal of the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Rule 12(b) permits dismissal for failure to state a claim upon which relief can be granted. Dismissal is not proper, however, unless it appears beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle it to relief. See Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The court will now turn to examine defendant Keystone’s grounds for dismissal in light of these principles.

1. Statute of Limitations

In support of its Motion to Dismiss, defendant asserts that the one-year statute of limitations provision set forth in § 5-107 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code applies in the instant case and bars 403 of Sierra’s 453 claims that defendant violated its permit between April 1, 1976 and June 30, 1984. Keystone claims that 403 of the alleged permit violations are time-barred because they occurred more than one year prior to the filing of the suit by plaintiff. Keystone asserts also that 50 of the alleged violations occurred within the year prior to the filing of the suit and, therefore, are not barred by the statute of limitations; however, only 8 of the 50 concern allegedly illegal discharges for which relief may be sought. See Memorandum in Support of Motion to Dismiss, pp. 6, 9-10. Alternatively, Keystone argues that if the court finds the one-year statute is inapplicable, then Maryland’s three-year statute of limitation applicable generally to civil actions would govern plaintiff’s claim. Id. at 11.

In opposition to defendant’s Motion to Dismiss, Sierra argues that 28 U.S.C. § 2462, the statutory period applicable in government actions to recover civil penalties, applies to the citizen suit provision of the Clean Water Act. Plaintiff argues that because it is seeking the same relief as would the government, specifically, civil penalties for past violations and future compliance, the same statute of limitations should apply to plaintiff’s action as would apply to an action by the government. Because the interest of the government and plaintiff citizen are identical, plaintiff contends that the five-year statute of limitations as set forth in 28 U.S.C. § 2462, is applicable and not the state statute of limitations as urged by defendants. Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss, pp. 3-5.

The issue before the court is whether, in the absence of a limitations provision in a federal statute, a federal court should apply the analogous state statute of limitations or a federal statute of limitations to a citizen suit instituted under § 505 of the Clean Water Act. This court recently has decided this precise issue.

On April 30, 1985, Judge Young of this court, in Chesapeake Bay Foundation v. Bethlehem Steel Corporation, 608 F.Supp. 440 (D.Md.1985), held that 28 U.S.C. § 2462 applies to citizen suits for civil penalties as well as government actions for penalties under the Clean Water Act. The court noted that where a federal statute fails to provide a limitations period, federal courts generally apply the period of limitations most appropriate under state law; however, where application of a state statute would frustrate a federal policy underlying the cause of action under consideration, the general rule concerning application of an appropriate state statute of limitations should not apply. Chesapeake at 446-47 (citing Johnson v. Railway Express Agency, 421 U.S. 454, 462, 465, 95 S.Ct. 1716, 1721-23, 44 L.Ed.2d 295 (1975)). The court reasoned that application of a state statute of limitations would frustrate several policies of the Clean Water Act because such application would produce nonuniform citizen suit enforcement from state to state and would also produce non-uniform enforcement as between citizens and the government. Chesapeake, at 447-449. The court then ruled that even though 28 U.S.C. § 2462 was designed to apply to suits brought by the government, the five-year limitations period set forth in the statute is equally applicable in a citizen suit for civil penalties under the Clean Water Act. The court reasoned:

The plaintiffs are suing as private attorneys general, and they seek the enforcement of federal law. Although the statute provides that a citizen sues “on his own behalf,” any penalties recovered from such an action are paid into the United States Treasury. ... [I]n this action a plaintiff recovers nothing. Any benefit from the lawsuit, whether injunctive or monetary, inures to the public or to the United States. The citizen suit provision was designed to supplement administrative enforcement, not to provide a private remedy. Under these circumstances it seems most appropriate that the same statute of limitations applies to a citizen action as to a federal administrative action. Chesapeake at 449-50. Accord Friends of the Earth, et al. v. Facet Enterprises, Inc., Civil No. 84-357T (W.D.N.Y. Dec. 28, 1984). Compare Chesapeake and Friends of the Earth, supra, (applying five-year federal statute of limitations found in 28 U.S.C. § 2462) with Student Public Interest Research Group of New Jersey, et al. v. Tenneco Polymers, 602 F.Supp. 1394, 1398-99 (D.N.J.1985) (refusing to apply both state statute of limitations and federal statute of limitations).

The court agrees that the five-year federal statute of limitations found in 28 U.S.C. § 2462 applies to this instant citizen suit for civil penalties and relies upon the rationale articulated by Judge Young of this court in Chesapeake.

2. Section 505(b)

In further support of its Motion to Dismiss, Keystone asserts that § 505(b) of the Clean Water Act also bars plaintiffs suit because the state has commenced and is diligently prosecuting administrative proceedings against Keystone based upon the alleged violations of Keystone’s NPDES permit. Defendant Keystone’s Memorandum in Support of Motion to Dismiss, pp. 11-13, 15. In response, plaintiff argues that § 505(b) of the Clean Water Act does not bar the present suit because the state’s administrative proceeding was commenced after plaintiff filed its complaint. Plaintiff filed suit on October 31, 1984 and the State of Maryland issued its “Notice of Violation” on December 13, 1984. Moreover, plaintiff asserts that even if the state’s action preceded plaintiff’s suit, plaintiff’s suit still would not be barred because the state’s administrative hearing is not tantamount to a “diligent prosecution” in a court within the meaning of § 505(b). Id. at 6-8.

Section 505(b) of the Clean Water Act, 33 U.S.C. § 1365(b), provides that no citizen suit can be maintained “if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.” Preliminarily, the court notes that it finds the state’s administrative proceeding was instituted after plaintiff commenced its action. Significantly, plaintiff filed its complaint on October 31, 1984 and the state filed its Notice of Violation on December 13, 1984. Defendant argues that the state’s administrative proceeding was instituted two months prior to plaintiff’s filing of its Amended Complaint on February 4, 1984. The court finds this argument unpersuasive. The dispositive date is that on which the original complaint was filed, not the date on which the plaintiff sought amendment of the complaint. Plaintiff’s suit was instituted prior to the state’s institution of administrative proceedings against defendant Keystone and, therefore, is not barred by § 505(b) of the Clean Water Act.

Secondly, the court also notes that it does not find the state’s administrative proceeding equivalent to a diligent prosecution in a court for purposes of § 505(b) of the Clean Water Act. The court recognizes that under certain circumstances an administrative proceeding may be considered the equivalent of court action and thus bar citizen suits, see Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); however, in order to be accorded court status, a state agency must possess the full remedial powers inherent to traditional judicial courts. In the instant case, plaintiff seeks a declaratory judgment, injunctive relief, civil penalties and costs. Keystone notes that the state in an administrative proceeding has the power to revoke a discharge permit, impose civil penalties, issue orders requiring corrective action within a specified time and execute a consent order. However, Keystone also notes that the state agency may only seek injunctive relief from a court. Defendant Keystone’s Memorandum in Support of Motion to Dismiss, p. 14. The state agency, therefore, does not possess the full remedial powers available to a court but must seek the injunctive relief plaintiff requests in a court. The state court proceeding possibly may be inadequate to fully protect the plaintiff herein and therefore would not be so diligent as to preempt the citizen suit. The court thus believes that it would not be appropriate to denominate the state agency as a court within § 505(b) and, accordingly, will not bar plaintiff’s suit. Cf. Student Public Interest Research Group of New Jersey, Inc. v. Monsanto Company, 600 F.Supp. 1479, 1482 (D.N.J.1985). See also Student Public Interest Research Group of New Jersey v. Fritzsche, Dodge & Olcott, 759 F.2d 1131 (3d Cir.1985); Brewer v. City of Bristol, 577 F.Supp. 519 (E.D.Tenn.1983).

3. Civil Penalties

Keystone asserts that § 505 of the Act entitles Sierra as a citizen plaintiff to prospective relief only for continuing violations of the Act and not civil penalties for alleged permit violations occurring prior to the filing of the suit. Defendant Keystone’s Memorandum in Support of Motion to Dismiss, pp. 15-19, 27. Plaintiff, in turn, contends that the language of the Act, the legislative history of the Act, and court constructions of the Act support the proposition that citizens may recover civil penalties for past permit violations. Plaintiff’s Response to Motion to Dismiss, pp. 8-14.' Moreover, plaintiff contends that it has sufficiently alleged continuing violations to warrant injunctive relief.

Whether civil penalties for past violations may be awarded in a citizen’s suit under the Clean Water Act has not been addressed by this court. However, a number of other federal courts have addressed the issue and have determined that courts, in fact, may assess civil penalties for violations of the Act alleged to have occurred prior to the filing of the case. See Illinois v. Outboard Marine, Inc., 680 F.2d 473, 480-81 (7th Cir.1982); Student Public Interest Research Group of New Jersey v. Monsanto, 600 F.Supp. 1474, 1476-77 (D.N.J.1985); Sierra Club v. Aluminum Company of America, 585 F.Supp. 842, 853-54 (N.D.N.Y.1984); Friends of the Earth v. Facet Enterprises, Civil No. 84-357T (W.D.N.Y.1984). These courts have rejected defendants argument that plaintiff’s recovery should be limited to prospective relief and have conclusively held that § 1365(a) of the Clean Water Act authorizes citizen suits for imposition of civil penalties for past violations. The court agrees with the ruling of these cases and adopts their reasoning in full. The court also notes that it finds the cases cited by defendant in support of its position inapposite because such cases involved the recovery of damages and not the recovery of civil penalties.

For the foregoing reasons, the court finds that defendant has failed to show beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Defendant Keystone’s Motion to Dismiss is therefore Denied.

C. Plaintiffs Motion for Partial Summary Judgment

Plaintiff seeks summary judgment on the issue of liability contending that defendant has not complied with its NPDES permit. In support of its motion, plaintiff contends that defendant has violated a condition of its NPDES permit and, thus has violated the Act, specifically, §§ 301 and 402 of the Act, 33 U.S.C. §§ 1311, 1342; that plaintiff has standing to bring the instant action; that defendant has admitted in its DMRs its violations of its NPDES permit for which liability may attach; and that plaintiff is entitled to judgment as a matter of law because no genuine issue as to any material fact about liability exists in light of Keystone’s admissions.

In opposition to plaintiff’s motion for partial summary judgment, defendant Keystone argues that the majority of Sierra’s claims are barred by the applicable statute of limitations; that Sierra’s instant proceedings are barred by § 505(b) of the Clean Water Act because the State of Maryland has commenced and is diligently prosecuting Keystone for alleged violations of its permit; and that Sierra is not entitled to the imposition of civil penalties for past permit violations. Moreover, defendant argues that further proceedings by Sierra are barred by the defendant’s entry into a consent decree with the state whereby the defendant agreed to remit to the state a penalty in the amount of $10,000 for alleged violations of Keystone’s NPDES permit. Defendant further argues that Sierra’s claims of permit violations amount to allegations of improper recording or technical violations and not substantive violations by defendant of its NPDES permit. ■ Finally, defendant argues that Sierra has not demonstrated that it has standing to prosecute its claims against Keystone.

Summary judgment is appropriate only if the pleadings “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The court believes that Keystone’s pleadings do not raise material factual disputes and that the law weighs in favor of plaintiff Sierra Club. Both the factual and legal bases for the court’s findings are set forth infra.

The essential facts in the instant case are uncontroverted. The Maryland Water Resources Administration issued NPDES permit number MD0025046 to defendant in accordance with § 402 of the Act on January 29, 1976. The permit authorizes defendant to discharge limited amounts of the treated waste from its operations into the Patapsco River in accordance with the provisions of the permit. The permit also requires defendant to file periodic Discharge Monitoring Reports (DMRs) indicating the contents and quality of its wastewater discharge. Both Keystone’s current NPDES permit and DMRs have been authenticated. The DMRs indicate that Keystone has committed excessive discharges and has failed to report in various instances. Having found no genuine issue as to a material fact, the court will now examine the law bearing on the issue at bar.

As this court stated in Chesapeake, “[sjection 308 of the Act, 33 U.S.C. § 1318, provides that the Administrator of the EPA shall require all NPDES permit holders to monitor their discharges. Permit holders must maintain records of the results of this monitoring, and report the results to the relevant state or federal agency in a DMR. 40 C.F.R. 122.41(l)(4)(i). Permit holders must certify the accuracy of information contained in their DMRs. 40 C.F.R. 122.-22(d). The DMRs must contain a complete and accurate record of pollutant monitoring by the permit holders. 40 C.F.R. §§ 122.-22(d), 122.41(l)(4)(i).” Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.Supp. 440, 451 (D.Md.1985). Courts generally have held that reports or records which are required to be kept by law may be used to establish a defendant’s liability. Chesapeake, supra, at 451-52; Student Public Interest Research Group of New Jersey v. Tenneco Polymers, 602 F.Supp. 1394, 1400 (D.N.J.1985); Student Public Interest Research Group of New Jersey v. Fritzsche, Dodge & Olcott, 579 F.Supp. 1528, 1538 (D.N.J.1984); Student Public Interest Research Group v. Monsanto Co., 600 F.Supp. 1479, 1485 (D.N.J.1985). Defendant’s DMRs in the instant case indicate that defendant has violated its NPDES permit by exceeding its permit limitations and by failing to report. “[T]o violate a NPDES permit is to violate the Act.” Chesapeake, supra, at 451 (citing Environmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976); Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1374-77 (D.C.Cir.1977)). “Summary Judgment is appropriate on the issue of liability for violations of the Act.” Student Public Interest Research Group v. Monsanto Co. 600 F.Supp. at 1485. The court thus finds that partial summary judgment as to liability is appropriate as a matter of law.

The court finds defendant’s opposition to the motion unconvincing and insufficient to raise genuine issues of material fact. As to defendant’s arguments that summary judgment is inappropriate because of the state’s diligent prosecution against defendant for the alleged permit violations and because the alleged permit violations amount only to technical and not substantive violations of defendant’s NPDES permit, the court finds Student Public Interest Research Group of New Jersey v. Fritzsche, Dodge & Olcott, 579 F.Supp. 1528 (D.N.J.1984), worthy of mention. In Fritzsche, the court rejected such claims by defendant finding that defendant’s claim of diligent prosecution by an agency was relevant only to defendant’s Motion to Dismiss and that defendant’s argument regarding “technical” permit violations was relevant only to the issue of damages. Id. at 1538. The court believes the same reasoning applies in this case. The court also believes that the state proceeding and defendant’s entry into a settlement with the state is irrelevant to the case at bar. As discussed supra, the instant citizen suit is not barred by the state proceeding and any state investigation, resolution, or negotiation does not affect plaintiff’s right.to prosecute permit violations. Moreover, the court believes that defendant’s characterization of its permit violations as technical and not substantive is unmeritorious. Defendant’s DMRs indicate that it has violated its NPDES permit. Enforcement of NPDES permits is based on strict liability. Student Public Interest Research Group of New Jersey v. Tenneco Polymers, 602 F.Supp. 1394, 1400 (D.N.J. 1985). The Act thus places a heavy emphasis on accuracy. See Chesapeake, supra, at 452-453. Good faith and improper recording, therefore, are not good defenses.

As to defendant’s arguments concerning the applicable statute of limitations and the imposition of civil penalties, the court finds that its earlier discussion is equally applicable in the summary judgment context. Such arguments, therefore, are insufficient to withstand plaintiff’s Motion for Partial Summary Judgment.

Finally, as to defendant’s claim that plaintiff has not adequately demonstrated that it has standing to prosecute its claims, the court finds such argument equally unmeritorious. In paragraph seven of plaintiff’s complaint, plaintiff alleges that “[mjembers of the Sierra Club reside in Maryland, in the vicinity of the Patapsco River, and recreate in, on or near, and otherwise use and enjoy, the Patapsco River and the water system of which it is a part. The quality of the Nation’s waters and the waters of the State of Maryland directly affects the health, recreational, aesthetic and environmental interests of Sierra Club’s members. The interests of Sierra Club’s members have been, are being and will be adversely affected by the failure of defendant, Keystone Automotive Plating Company, to comply with its NPDES permit requirements.” Plaintiff has also submitted numerous affidavits from various individual members of the Sierra Club who indicate that their interest and activities with respect to the Patapsco River has been adversely affected physically, aesthetically and emotionally by defendant’s failure to comply with its NPDES permit and resulting pollution.

The court is satisfied that plaintiff has sufficiently demonstrated that it has standing to bring this suit. Allegations of harm to one’s aesthetic or recreational interest are sufficient to establish standing to sue. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365-66, 31 L.Ed.2d 636 (1972). In the case at bar, plaintiff has alleged that Sierra Club members’ aesthetic and/or recreational interests and use of the Patapsco River will be harmed by continued pollution of the river. Other courts have also found that plaintiffs on equal footing with the plaintiff herein have standing to sue. See Student Public Interest Research Group v. Monsanto Co., 600 F.Supp. 1479, 1484 (D.N.J.1985); Sierra Club v. Aluminum Company of America, 585 F.Supp. 842, 843, 844-53 (N.D.N.Y.1984); Friends of the Earth v. Facet Enterprises, Civil No. 84-357T, p. 4 (W.D.N.Y.1984). Having found that plaintiff has satisfied the Sierra Club v. Morton standing requirements, the court finds that plaintiff is a proper party in the instant action.

For the foregoing reasons, the court has determined to grant plaintiff’s Motion for Partial Summary Judgment as to liability. A hearing will be scheduled at a later date to determine the appropriate remedies under the Act.

II. Sierra Club v. Nueva Engineering

Various motions are pending before the court in the above-captioned matter. The outstanding motions, a discussion of which follows, are Defendant’s Motion to Dismiss and/or Motion for Judgment on the Pleadings, Plaintiff’s Motion for Partial Summary Judgment, and Defendant’s Motion for Continuance.

A. Defendant’s Motion to Dismiss and/or Motion for Judgment on the Pleadings

Defendant files the instant motion seeking relief pursuant to Rule 12(b) of the Federal Rules of Civil Procedure or, alternatively, Rule 12(c). In support of its motion, defendant claims that plaintiff improperly seeks declaratory and injunctive relief and civil penalties for past violations of defendant’s NPDES permit which is not authorized by § 505 of the Act.; that plaintiff does not have standing to bring the instant action; that defendant has ceased all operations at the plant which is the subject of plaintiff’s complaint and no longer discharges any wastes into the Patapsco River; that the State of Maryland has informed Nueva’s counsel that it intends to initiate an action against Nueva regarding the alleged permit violations by Nueva; that plaintiff’s claim is barred by the analogous one-year state statute of limitations; and that plaintiff’s allegations of fact are insufficient at law to support plaintiff’s action under § 505 of the Act. Plaintiff opposes defendant’s motion. Plaintiff argues that defendant’s Motion to Dismiss should be denied because the permit violations are not barred by the applicable five-year statute of limitations; because the State of Maryland has not commenced and is not diligently prosecuting Nueva for violations of Nueva’s permit and, thus, plaintiff’s citizen suit is not preempted; because the citizen suit provision of the Clean Water Act provides for the imposition of civil penalties for past permit violations; and because plaintiff has sufficiently demonstrated that it has standing.

The court has addressed each of the arguments advanced supra and will not repeat its discussion again. (See, supra pp. 1124-26, 1128-29). Summarily, however, the court finds that the five-year statute of limitations set forth in 28 U.S.C. § 2462 is the applicable statute of limitations in a citizen suit for civil penalties under the Clean Water Act. The court also finds that plaintiff’s citizen suit is not barred by § 505(b) of the Act because the state’s action or lack thereof does not amount to a diligent prosecution in a court within the meaning of § 505(b). Moreover, the court finds that plaintiff has sufficiently alleged, with supporting affidavits, that it has standing to bring the present action. Finally, the court finds that the Act permits citizens to seek civil penalties for past permit violations. The fact that Nueva no longer operates the plant in question and no longer discharges refuse into the Patapsco River has no effect on plaintiff’s right to prosecute the alleged permit violations. Defendant’s actions may indicate that it does not intend to commit future permit violations, but such actions do not null and void plaintiff’s cause of action.

B. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff files the instant motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff claims that summary judgment as to liability is appropriate because defendant has violated its permit and, thus, has violated the Act; because plaintiff has standing to bring this action; because defendant has admitted its violations of the Act; and because no material facts are in dispute and it is entitled to judgment on the issue of liability as a matter of law. Defendant opposes the motion contending that the pleadings and answers to Requests for Admission demonstrate that there exist genuine disputes as to material facts alleged by the plaintiff; that defendant has filed its response to plaintiff’s Requests for Admission of Genuineness of Documents in a timely manner, and has not admitted the alleged permit violations; and that the arguments advanced in defendant’s Motion to Dismiss present genuine disputes as to material facts.

Preliminarily, for the reasons articulated supra in the court’s denial of defendant’s Motion To Dismiss, the court believes that the arguments advanced in defendant’s Motion to Dismiss and adopted in opposition to plaintiff’s motion do not raise genuine disputes as to material facts. The court believes, however, that defendant’s response to plaintiff’s Requests for Admission of Genuineness of Documents may raise an issue of fact, but not a material issue. Significantly, Paul Thompson, Regional Chief of the Enforcement Program of the Waste Management Administration of the Department of Health & Mental Hygiene of the State of Maryland (the state agency in charge of NPDES permits and DMRs), has authenticated copies of defendant’s DMRs and NPDES permit filed with the court. The DMRs indicate violations of defendant’s NPDES permit. Defendant simply has not admitted the authenticity of its NPDES permit or DMRs but has offered no evidence contradicting its DMRs authenticated by Mr. Thompson. In the absence of contradictory evidence, the court cannot find a genuine issue as to any material fact and finds that summary judgment as to liability is appropriate as a matter of law because of the violations evidenced by the authenticated DMRs.

C. Defendant’s Motion for Continuance

Sierra Club v. Nueva Engineering is scheduled for trial on July 15, 1985. Defendant requests the court to continue the trial date because defense counsel Rothwell will be out of the country and, therefore, unavailable to try the case. Plaintiff opposes the motion contending that plaintiff will be prejudiced by a continuance of the trial date and that defendant will not be prejudiced by a denial of the request because defendant is already represented by defense counsel Reed.

The court has considered the arguments advanced and has reviewed the court’s calendar and has determined to grant defendant’s request. The court has rescheduled the trial to begin on Monday, September 16, 1985 at 10:00 a.m.

III. Sierra Club v. Simkins Industries

Presently pending before the court in the above-captioned case are defendant’s Motion for Entry of Judgment on the Pleadings and Plaintiff’s Motion for Partial Summary Judgment. A discussion of each motion follows.

A. Defendant’s Motion for Entry of Judgment on the Pleadings

Defendant Simkins moves the court to enter judgment on the pleadings in favor of the defendant. In support of its motion, defendant asserts that:

“(a) Plaintiff lacks standing to bring a private action as plaintiff has not alleged that any member of plaintiff suffered an injury in fact stemming from defendant’s alleged failure to file past monitoring reports;
(b) The complaint fails to state a claim as it does not allege either a violation of an effluent standard or limitation or a violation of the terms and conditions of the Simkins permit;
(c) Plaintiff’s private action before this court has been foreclosed by defendant’s prompt satisfaction of the alleged violations set forth in plaintiffs sixty-day letter; and
(d) The relief sought by plaintiff is inappropriate as the request for injunctive relief has been mooted by the absence of a continuing violation, and under such circumstances, courts may not impose civil penalties.”

In opposition to defendant’s motion, plaintiff argues that Sierra Club has standing to bring this action; that the permit at issue contains an enforceable reporting requirement; that defendant’s actions to rectify the alleged violations do not bar plaintiff’s claim; and that plaintiff may request the court to impose civil penalties for past failures to report. Plaintiff thus asks the court to deny defendant’s motion.

As discussed supra page 1128, the court again finds that plaintiff has standing to bring the instant action. Both the complaint and the affidavits of individual Sierra Club members are sufficient to show that the interest of Sierra Club members may be adversely affected by defendant’s noncompliance with its permit requirements. Such a showing satisfies the Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), test and is a sufficient claim on which a cause of action may be maintained.

Secondarily, the court believes that plaintiff may maintain an action against defendant for past violations even if defendant now complies with the terms of its NPDES permit. Defendant's permit requires defendant to file DMRs on a quarterly basis. Defendant’s Reply Memorandum in Response to Plaintiff’s Memorandum in Opposition to Defendant’s for Entry of Judgment, p. 7. Plaintiff charges, and defendant admits, that defendant has failed to file DMRs in the past. Defendant’s failure to file DMRs thus violated its permit requiring such reporting. A violation of a permit requirement is a violation of the Act. Courts generally have held that civil penalties may be recovered in citizen suits for past violations. See Illinois v. Outboard Marine, 680 F.2d 473 (7th Cir. 1982); Sierra Club v. The Aluminum Company of America, 585 F.Supp. 842, 853-54 (N.D.N.Y.1984). That defendant is now complying with its NPDES permit is irrelevant to plaintiff’s cause of action. Such compliance, however, may be considered in assessing the amount of penalties. For a fuller discussion of civil penalties, see supra pp. 1126-27.

Defendant urges that the court should read Hamker v. Diamond Shamrock Chemical Company, 756 F.2d 392 (5th Cir. 1985) to stand for the proposition that the court lacks jurisdiction to entertain a citizens complaint under the Clean Water Act where no allegation of a present violation of an effluent standard is made. The court believes such a reading of Hamker is too broad. This broad reading of Hamker ostensibly would preclude the court from considering an action in which the polluter stops polluting the day, the hour, or the minute before the suit is filed. The court believes that Hamker is more narrowly limited to stand for the proposition that a court lacks jurisdiction to impose penalties for a single past violation ended long before the filing of the suit.

In the instant action, defendant is not a one-time violator of the Act but a multiple violator of its NPDES permit. In such a case, imposition of civil penalties is appropriate even if defendant is now in compliance with its permit.

Accordingly, for the foregoing reasons, plaintiff has sufficiently stated a claim upon which relief can be granted. Defendant’s Motion for Entry of Judgment on the Pleadings is therefore denied.

B. Plaintiff’s Motion for Partial Summary Judgment

As plaintiff alleged in its Motion for partial Summary Judgment against defendants Keystone and Nueva, plaintiff again argues that partial summary judgment against Simkins is appropriate because defendant has violated its permit condition and, thus, has violated the Act; that plaintiff has standing to bring this action; that defendant’s admissions demonstrate its violations of the Act; and that it is entitled to judgment as a matter of law because no material facts are in dispute. Defendant Simkins opposes plaintiff’s motion and contends, as it did in its Motion for Entry of Judgment on the Pleadings, that factual issues are raised by the court’s consideration of whether plaintiff has standing; whether plaintiff can maintain an action where the alleged violation consists of a past failure to file state monitoring reports; whether defendant’s prompt action to redress the alleged grievances precludes a private suit; and whether plaintiff’s claim is barred by the Maryland one-year statute of limitations.

The court has addressed each of these arguments in this memorandum and will not repeat its analysis again. For the reasons set forth supra, the court finds that defendant’s arguments do not create any material factual disputes.

Significantly, defendant has admitted that it failed to file DMRs as required by its permit prior to receiving plaintiff’s 60-day letter. Liability attaches for violation of a permit condition whether such violation consists of an excessive discharge or a failure to report. Again, a violation of a permit is a violation of the Act. Summary Judgment as to liability is therefore appropriate.

ORDERED:

(1) that defendant Simkins’ Motion for Entry of Judgment on the Pleadings be, and the same hereby is, Denied;

(2) that defendant Nueva’s Motion to Dismiss and/or Motion for Judgment on the Pleadings be, and the same hereby is, Denied;

(3) that defendant Keystone’s Motion to Dismiss be, and the same hereby is, Denied;

(4) that plaintiff’s Motions for Partial Summary Judgment as to each defendant be, and the same hereby are, Granted;

(5) that plaintiff’s Motion for Leave to File Amended Complaint be, and the same hereby is, Granted;

(6) that defendant Nueva’s Motion for Continuance be, and the same hereby is, Granted; and

(7) that the Clerk of the Court provide to all parties in these actions copies of this memorandum and order.

      . 28 U.S.C. § 2462 provides:
      Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five (5) years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

      . The court instructs plaintiff to file a memorandum by August 1, 1985 indicating which claims, if any, are time-barred by the five-year statute of limitations.

      . Discharge Monitoring Reports