The United States Court of Appeals for the Ninth Circuit reversed the dismissal of a citizen suit brought by the California Sportfishing Protection Alliance against Chico Scrap Metal, Inc. and associated defendants, alleging violations of a National Pollutant Discharge Elimination System (NPDES) permit related to industrial storm water discharges at their recycling facilities. The court found that 33 U.S.C. § 1365(b)(1)(B) did not bar the plaintiff's claims because the state had not initiated any court action to enforce compliance with the storm water permit. Additionally, the court determined that 33 U.S.C. § 1319(g)(6)(A)(ii) was inapplicable, as there had been no comparable administrative penalty action taken by the state. The panel, led by Judge Graber, remanded the case for further proceedings. Defendants operate three recycling facilities in Butte County, California, which are subject to the California Industrial Activities Storm Water General Permit issued under state authority.
A violation of the Permit constitutes a violation of the Act, which prohibits discharging pollutants into U.S. waters unless compliant with an NPDES permit. In 2007, the California Department of Toxic Substances Control investigated Defendants after discovering concrete and debris dumped in wetlands on their property, subsequently extending the investigation to their recycling facilities, revealing hazardous contamination. The Department ordered Defendants to assess the contamination, but they failed to comply. In 2007 and 2008, the Butte County district attorney initiated civil and criminal actions against Defendants for multiple violations of state environmental and safety laws, including improper handling and disposal of hazardous waste and unfair business practices. The civil complaint cited California Health and Safety Code sections regarding hazardous waste, while the criminal charges included various Health and Safety Code violations, failure to report hazardous substance releases, air quality violations, and more. In October 2008, Defendants entered a plea agreement resolving both civil and criminal cases, which included fines, probation, and compliance with remedial action orders to clean up hazardous substances. The agreement permitted Defendant Chico Scrap Metal to operate during probation to fund cleanups. In January 2010, the EPA found non-compliance with storm water management systems at Defendants' facilities, leading Plaintiff to send a notice of intent to sue for ongoing Permit violations. No enforcement actions were initiated by state or federal officials following these notices.
In May 2010, the Plaintiff initiated a lawsuit citing violations of a Permit related to storm water management, specifically alleging failures to prevent polluted discharges, prepare a Storm Water Pollution Prevention Plan, utilize required pollution control technologies, and implement monitoring and reporting programs. Following inspections in January 2010, the California Water Quality Control Board notified the Defendants of these violations and requested a compliance report. The Defendants moved to dismiss the lawsuit, claiming that the Plaintiff's claims were precluded by the "diligent prosecution" bars under 33 U.S.C. 1319(g)(6)(A)(ii). The district court requested additional briefing on the applicability of another bar, 1365(b)(1)(B), and ultimately ruled that this bar prohibited the Plaintiff's citizen suit, dismissing the case without addressing 1319(g)(6)(A)(ii). The Plaintiff appealed.
The Act permits citizens to enforce environmental standards (33 U.S.C. 1365(a)(1)) but includes four statutory bars that may prevent such suits if government enforcement actions are in progress regarding the same violations (33 U.S.C. 1319(g)(6)(A)(i), (iii), 1365(b)(1)(B)). The Defendants argued that both 1365(b)(1)(B) and 1319(g)(6)(A)(ii) were applicable. The discussion highlighted that only actions "in a court" trigger the bar under 1365(b)(1)(B), excluding administrative proceedings, and clarified that the phrase "has commenced and is diligently prosecuting" should be interpreted consistently across related statutory sections. Importantly, the court had not previously defined what constitutes enforcement actions "to require compliance" under 1365(b)(1)(B). The analysis of the statute began with its text, emphasizing the distinction between citizen suits for alleged violations and government actions aimed at enforcing compliance.
Subsection (b) specifies that the referenced clean-water standard must be identical to that which underlies the citizen suit in subsection (a). Defendants contend that a government action only needs to be comparable to the one under the Act to activate the 1365(b)(1)(B) bar, but this interpretation contradicts the statute. Unlike the 1319(g)(6)(A)(ii) bar, which applies when a state diligently prosecutes actions under comparable state laws, 1365(b)(1)(B) does not mention comparable state standards. The legislative use of different language suggests distinct meanings were intended. Consequently, the bar applies solely when the government's action seeks compliance with the specific standard, limitation, or order involved in the citizen suit. The interpretation that a state’s comparable enforcement could hinder citizen enforcement of the Clean Water Act is unfounded, as it would improperly elevate state enforcement over federal enforcement of analogous laws. In this case, the Plaintiff claims Defendants breached four conditions of the Permit, necessitating an analysis of whether the government’s action aimed to enforce the same Clean Water Act standard regarding stormwater discharges. Records from prior proceedings reveal that California did not seek judicial enforcement of the Permit or any Clean Water Act standard, focusing instead on violations of various state laws related to air quality, hazardous waste, vehicle dismantling, occupational safety, and other regulatory areas.
None of the criminal offenses or civil causes of action discussed relate to the Clean Water Act, and the government did not allege that the Defendants violated storm water management regulations under the Permit. The plea agreement and probation order from state court confirm that compliance with the Clean Water Act was not addressed in those proceedings, which focused on the alleged dumping of hazardous waste and other environmental violations. The agreement specified that the state would dismiss certain counts, with Defendants pleading no contest to the remaining charges, none of which mentioned violations of the Clean Water Act.
The probation order is limited to the state’s amended allegations, outlining fines and fees corresponding to those violations without any reference to the Clean Water Act. Although it includes a general requirement for Defendants to "obey all laws," this does not convert the actions into enforcement of the Clean Water Act. Defendants contend that earlier state actions trigger the 1365 (b)(1)(B) bar to citizen enforcement due to conditions in 2008 consent orders mandating compliance with storm water discharge requirements. However, these consent orders were issued administratively by the Department of Toxic Substances Control, not through a court, and thus do not activate the bar under 1365 (b)(1)(B), which applies only to court actions.
The state court’s reference to Permit requirements in the consent orders was merely to condition probation and did not establish compliance with the Clean Water Act. The consent orders focused on reducing human exposure risks and did not address effluent limitations or discharges into navigable waters, the primary concern of the Clean Water Act.
The 2008 orders did not enforce the Clean Water Act (CWA) as other state regulatory agencies held primary enforcement authority, and the Department did not conduct studies on surface water quality or issue the orders to address surface water discharges. The isolated reference to the Permit in the orders does not fulfill the 'diligent prosecution' standard required by the CWA, which necessitates actions capable of ensuring compliance. The 2007 and 2008 proceedings only sought to enforce non-CWA laws, allowing for the current action to proceed without being barred by 33 U.S.C. § 1365(b)(1)(B).
Regarding 33 U.S.C. § 1319(g)(6)(A)(ii), which prevents citizen suits if a state is diligently prosecuting a comparable action, the defendants contended that their prosecution under California statutes barred the current action. However, the court found that neither the criminal penalties nor the 2008 consent orders met the criteria to trigger this statutory bar. The enforcement actions taken by the state did not constitute administrative proceedings comparable to those under the CWA, which specifically delineates administrative penalty standards.
The 2008 consent orders indicated potential future liability for non-compliance but did not impose actual penalties, failing to meet the requirement for the statutory bar to apply. Since California has not initiated any administrative penalty proceedings comparable to those under the CWA, the statutory bar does not obstruct the plaintiff’s claims to enforce the storm water general permit.
As a result, the court reversed the prior ruling and remanded the case, affirming that neither cited statutes barred the plaintiff's citizen suit.
