CA Sportfishing Protection Alliance v. Chico Scrap Metal

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16959. Appealed from the United States District Court for the Eastern District of California. The Appeals Court explains that the Federal Water Pollution Control Act, or Clean Water Act (the Act) allows a citizen to sue to enforce the Act's prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; et al, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.

 

    The district court dismissed this action after ruling that 33 U.S.C. § 1365(b)(1)(B) bars Plaintiff's claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319(g)(6)(A)(ii), also applies. The Appeals Court rules, "We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court 'to require compliance' with the storm water permit and that § 1319(g)(6)(A)(ii) does not apply because the state has commenced no administrative penalty action comparable to one under the Act. We therefore reverse the judgment of the district court and remand for further proceedings." The Appeals Court says in a footnote that, "We express no view on the merits of any of Plaintiff's claims."

 

    § 1365(b)(1)(B)  bars a citizen suit as stated: "(B) if [a state or federal authority] 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 . . . ."

 

    The Appeals Court says, "Because Congress omitted any reference to 'comparable' state standards in § 1365, and because § 1365(b)(1)(B) specifically refers to an action 'to require compliance with the standard, limitation, or order' that is the subject of the citizen suit, we hold that its bar applies only if the government's action seeks to do exactly that. . . In sum, because the 2007 and 2008 proceedings aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action."

 

    On another bar claim by Defendants, the Appeals Court rules, "Because California has commenced no administrative penalty proceeding that is comparable to a proceeding by the EPA under § 1319(g), the statutory bar of § 1319(g)(6)(A)(ii) does not apply to Plaintiff's claims."

 

    In conclusion the Appeals Court says, "Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to one under the

Act, neither 33 U.S.C. § 1365(b)(1)(B) nor § 1319(g)(6)(A)(ii) bars Plaintiff's citizen suit to enforce California's storm water general permit. -- Reversed and Remanded."

 

    Access the complete opinion (click here). [#Water, #CA9]