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The river avenger. Ray Proffitt tells polluters, `Go ahead, make my day'

RAYMOND PROFFITT eases the throttle on his amphibious car as he zeroes in on a suspect. Heaped on one bank of the Neshaminy Creek - a soupy tributary of the Delaware River - is a mound of crumpled asphalt and concrete. The rubble is being used to turn marsh into dry ground. ``That wasn't there six months ago, and I'm sure it isn't legal; I'm going to have to go after whoever did it.''

Coming from Ray Proffitt, that's no idle threat.

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The feisty former test pilot and stockbroker has made suing polluters in this region of eastern Pennsylvania his No. 1 activity. He has some 20 lawsuits under way, including one against a local marina that dumped 800 truckloads of fill into another nearby wetland.

Mr. Proffitt is one of a growing number of activists who are taking polluters to court. And, more often than not, they're winning.

Such ``citizen suits'' began in the early 1970s, when Congress passed environmental laws that included provisions allowing individuals to sue polluters as well as government officials who fail to enforce the laws. The purpose was to ensure that regulations are enforced, even if government agencies become lax.

Most of the early suits were aimed at government officials. But in recent years, they've increasingly focused on the polluters themselves.

Since 1980, it's estimated that more than 500 citizen suits have been filed. Most are brought by large environmental organizations, such as the Natural Resources Defense Council or the Sierra Club. These groups are considered individuals for the purposes of the law.

``The average citizen who might be inclined to bring a suit is most often concerned with a particular polluter, usually in the individual's own backyard,'' says Samuel Sage, executive director of the Atlantic States Legal Foundation, an environmental group that is working on about 200 of its own citizen suits.

Proffitt, he says, is atypical in that he works on many cases and has interests that extend far beyond his immediate surroundings. ``Proffitt is an environmental organization,'' says Mr. Sage. ``An organization of one.''

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Proffitt has wrangled with local officials to get them to improve their sewage-treatment facilities. He has sued corporations, land developers, and even the top administrator of the federal Environmental Protection Agency (EPA).

``I only started suing people after I found that I couldn't get anywhere by talking to all the right agencies,'' says Proffitt, who prides himself on his can-do reputation.

His earliest lawsuits were hand-written, filed without the help of a lawyer. It was a learning process, he says.

Proffitt's first major case was against Bristol Township, which was discharging untreated sewage into the Delaware River. In 1983, he began trying to get state and federal agencies to act on the problem.

When nothing was done, he filed a federal suit against the town and lost.

Eventually, he found a lawyer who specializes in citizen suits who helped him craft his case.

They appealed the Bristol decision and won. As a result, the town has agreed to spend $1.5 million on upgrading its sewage-treatment facilities. The town also dropped an $8 million countersuit that it had brought against Proffitt for ``harassment'' of local officials.

Bristol became the first in a string of Proffitt victories.

Another community, Morrisville, Pa., is spending $1.3 million on sewage treatment as a result of Proffitt's legal gymnastics. Meanwhile, US Steel Corporation (now known as USX), which has a plant on the river, has agreed to pay a hefty fine, improve its waste-treatment facilities, and donate money to two local conservation groups.

Proffitt's fans refer to him as the ``River Vigilante,'' and a local newspaper has opined that he ``is worth his weight in gold.'' A local chapter of the National Audubon Society recently proclaimed him environmentalist of the year.

Not everyone, however, is thrilled with his activities. Proffitt has challenged powerful economic and political interests. He says he's been stopped on the highway and threatened, and harassed with phone calls.

And not all of his battles seem destined for victory.

Proffitt's suit against a group of federal officials, for example, charges that they are failing to enforce environmental regulations. Among those named as defendants in the case are EPA administrator Lee Thomas and US Attorney General Edwin Meese III.

Lawyers were unwilling to take on the case, so Proffitt filed it himself. It is unlikely that he will win, says a lawyer familiar with the case, ``but I have a sense that it will still help the federal government focus on some administrative problems.''

It's Proffitt's style, as much as the substance of his charges, that has made him something of a local folk hero.

A collector of vintage vehicles - motorcycles, airplanes, and cars - he uses a private plane to patrol the river. He watches for plumes of pollution or illegal development in secluded wetlands.

Later, behind the wheel of his trusty 1965 Amphicar, a German import, he cruises the river and its tributaries looking for more clues.

On a recent August afternoon, he edged his way along the Neshaminy Creek, looking for anything suspicious.

``They go crazy trying to figure out where I get my information,'' says Proffitt. ``But usually, it's just something I've seen.''

A telltale drain pipe might lead him to a new source of industrial waste. A layer of foam might reveal that a local sewage plant is being allowed to overflow.

``Most of the sources you can't even see,'' says Proffitt, ``because they run pipes out into the middle of the channel.''

Proffitt spends about $10,000 a year on his pollution-busting activities - to fuel airplanes, photocopy documents, and make phone calls. He also sometimes advances fees for attorneys.

Under citizen suits, individuals are entitled to recoup legal fees and a limited amount of other expenses, if they are successful. But only a small fraction of Proffitt's leads ever develop into court cases.

``I don't do this for money,'' says Proffitt; ``I do this for the river.''

Bruce Terris, a Washington lawyer who specializes in citizen suits, says most polluters try to settle disputes rather than risk a court battle. ``These's no question about it - there's a lot of scrambling done to bring themselves into compliance with the regulations before they ever see a judge.''

The most successful citizen suits, including Proffitt's, are brought under the Clean Water Act. This law establishes legal limits for pollution discharges and requires generators to report regularly to the government on their compliance. If reported discharges exceed permitted levels, it amounts to a legal admission of guilt. Violations under other environmental laws are more difficult to substantiate.

Proffitt is too busy chasing polluters to give much thought to such fine points. Indeed, the biggest battle for him now appears to be holding on to past victories.

In the case of the marina that dumped 800 truckloads of fill, for example, the owner agreed to remove the material and pay a hefty fine. But the material was merely moved from one piece of wetland to another farther out of view. And the fine has not been paid.

The Township of Bristol, meanwhile, hasn't complied with all of the actions called for by the court, and construction of new sewage-treatment facilities is behind schedule.

Despite these setbacks, Proffitt says he still hopes to stop the destruction of the Delaware. ``I'm discouraged,'' he says. ``But don't get in my way.''

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