California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc.
728 F.3d 868
| 9th Cir. | 2013Background
- Plaintiff California Sportfishing Protection Alliance sues Defendants for alleged violations of an NPDES storm water permit at three Chico Scrap Metal facilities under the Clean Water Act.
- Facilities are governed by California’s Industrial Activities Storm Water General Permit issued under Porter-Cologne; a violation of the Permit constitutes a violation of the Act.
- In 2007–2008 the State (California) pursued civil/criminal actions for various state-law environmental and occupational-safety violations; no Clean Water Act enforcement was pursued.
- Plea agreement/probation in state actions did not target Clean Water Act provisions or storm water discharges.
- In 2010 the EPA inspected the sites; in March 2010 Plaintiff notified Defendants of intent to sue under the Act; no enforcement action followed.
- District court dismissed on the theory that the actions were barred by § 1365(b)(1)(B) (and potential § 1319(g)(6)(A)(ii)); on appeal the court held § 1365(b)(1)(B) and § 1319(g)(6)(A)(ii) do not apply and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1365(b)(1)(B) bars the citizen suit. | Plaintiff argues government action to require compliance exists or was timely; the 2007–08 actions did not seek Clean Water Act enforcement, so the bar does not apply. | Defendants contend the state actions were diligent prosecutions to require compliance with the standard (comparable to the Act). | No; § 1365(b)(1)(B) does not bar. |
| Whether § 1319(g)(6)(A)(ii) bars the citizen suit. | Plaintiff contends state court actions or orders could be comparable to an EPA penalty action. | Defendants argue state court penalties or potential penalties under consent orders trigger the bar. | No; § 1319(g)(6)(A)(ii) does not bar. |
| What is the appropriate interpretation of “to require compliance” and “comparable to this subsection”? | N/A (treated with § 1365 interpretation elsewhere). | N/A (treated with § 1365 interpretation elsewhere). | The state actions here were not enforcement actions to require Clean Water Act compliance; no comparable administrative penalty action existed. |
Key Cases Cited
- Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 (9th Cir. 1987) (administrative proceedings not a § 1365(b)(1)(B) trigger)
- Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514 (9th Cir. 1996) (diligent prosecution inquiry evaluates time of filing; comparable-state-law trigger requires actual penalties)
- Citizens for a Better Env’t-Cal. v. Union Oil Co. of Cal., 83 F.3d 1111 (9th Cir. 1996) (time of filing needed for diligent prosecution under § 1319(g)(6)(A)(ii))
- Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (same text in § 1365 applies same meaning; same standard governing § 1365(b)(1)(B))
- Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th Cir. 2004) (interpretation of § 1365(b)(1)(B) requiring government action to require compliance with the Act)
- Conn. Fund for Env’t v. Job Plating Co., 623 F. Supp. 207 (D. Conn. 1985) (early interpretation related to the scope of diligent prosecution)