By Katherine J. Hart
In reversing the U.S. District Court, the U.S. Court of Appeal for the Ninth Circuit held in California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., ___ F.3d ___, 2013 U.S. App. LEXIS 14777 (9th Cir., No. 11-16959, July 22, 2013), that where the state of California had not brought either a court action to require compliance with the Clean Water Act (“CWA”), or commenced an administrative penalty action comparable to one under the CWA, neither 33 U.S.C. section 1365(b)(1)(B) nor section 1319(g)(6)(A)(ii) barred a citizen suit to enforce California’s storm water general NPDES permit.
Chico Scrap Metal, Inc. and its owners (“Defendants”) own three separate scrap metal recycling facilities in Butte County, California. As such, the facilities are subject to the California Industrial Activities Storm Water General Permit, a general National Pollutant Discharge Elimination System (“NPDES”) permit adopted by the State Water Resources Control Board (“General Industrial Permit”) to control and limit the discharge of waste and pollutants into federal waters.
In 2007, the Butte County District Attorney filed civil and criminal charges against Defendants for a myriad of code violations including, improperly handling and disposing of hazardous waste, engaging in unfair business practices, endangering fish, plant, and bird life in state waters, disposing of hazardous waste without a permit, violating air quality rules, criminal contempt, failing to abate a nuisance after notice, and failing to label hazardous waste containers, among other things.
In October 2008, Defendants entered into a global plea agreement that placed Defendants on “probation,” and which required, among other things, Defendants to clean up the hazardous substances and to reduce potential human exposure to the hazardous substances.
A few months thereafter, in December 2009, the Central Valley Regional Water Quality Control Board issued letters (presumably Section 13267 letters) to Defendants advising them that storm water runoff from Defendants’ facilities exceeded EPA benchmarks identified in the General Industrial Permit and that Defendants were required to respond to the exceedances. No enforcement or administrative actions were filed against Defendants by the Regional Board.
One month later, the federal Environmental Protection Agency investigated Defendants’ facilities and found that storm water runoff from the scrap metal facilities violated the General Industrial Permit.” No enforcement or administrative actions were filed against Defendants by the federal EPA.
In March 2010, Plaintiff sent a Notice of Intent To Sue (“60-Day Notice”) to Defendants and the state and federal agencies in accordance with the Clean Water Act for violations of the General Industrial Permit. No enforcement proceedings were commenced by either the federal EPA or the Central Valley Regional Water Quality Control Board upon receipt of Plaintiff’s 60-Day Notice. As a result, Plaintiff filed this citizen suit action against Defendants in May 2010 for four violations of the General Industrial Permit.
One month after Plaintiff filed its case, the Regional Board issued Defendants notices that they were in violation of the General Industrial Permit.
The U.S. District Court, Eastern District, held that Plaintiff’s civil CWA claims were barred and dismissed Plaintiff’s action for lack of jurisdiction. The district court reasoned that 33 U.S.C. section 1365(b)(1)(B) prescribes that a federal court is without jurisdiction over a CWA citizen enforcement action if the state has commenced and is diligently prosecuting a criminal action in state court to require compliance with an effluent standard or limitation. Plaintiff appealed.
On appeal, the Ninth Circuit Court of Appeals reversed. The Ninth Circuit held that Section 1365(b)(1)(B) did not bar the citizen suit litigation because the state had not commenced any action in court “to require compliance” with the General Industrial Permit. The court explained that “only an action that is ‘in a court’ triggers the statutory bar; administrative proceedings do not.” Further, the fact that the Defendants entered into consent orders with the Department of Toxic Substances Control and agreed to a provision to “maintain drainage control” at their facilities, did not address the concerns intended to be addressed by the requirements of the Clean Water Act and General Industrial Permit – that of prohibiting discharges of pollutants into navigable waters. Instead, the record on appeal indicated that the consent orders did not enforce, or seek to enforce, the Act. (A deposition taken by Defendants of a staffer at the Department of Toxic Substances Control indicated that DTSC was not concerned with enforcing the Clean Water Act.) Thus, the isolated reference in the consent orders to the General Industrial Permit did not constitute “diligent prosecution” of the Clean Water Act.
Additionally, the Court held that Section 1319(g)(6)(A)(ii) did not bar the Plaintiff’s citizen suit because the state had not commenced any administrative action comparable to one under the Clean Water Act. Specifically, the claims prosecuted by the Butte County District Attorney and the probation and penalties sought under the consent orders entered into with the DTSC, were not “comparable” to those of the Clean Water Act because no Clean Water Act violations were the subject of those claims. Instead, those claims related solely to California’s hazardous waste, occupational safety, and air quality laws – laws not substantially comparable to the Clean Water Act’s effluent limitations and water-quality standards.
Katherine J. Hart is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.