The question presented is whether the Alabama Water Pollution Control Act (the “AWPCA”), Ala.Code §§ 22-22-1 to 22-22-14, and the Alabama Environmental Management Act (the “AEMA”), Ala.Code §§ 22-22A-1 to 22-22A-16, constitute “State law comparable” to subsection 309(g) of the federal Clean Water Act (the “CWA”), 33 U.S.C. § 1319(g). Defendant-appellant City of Fort Payne, Alabama (the “City”) appeals the denial of its motion for summary judgment. The district court found that the Alabama statutory scheme and the CWA are not comparable and, therefore, allowed plaintiff-appellee Kim McAbee to bring her citizen suit under the CWA. We affirm.
1. BACKGROUND
The legislative history of subsection 309(g) of the CWA begins in 1972, the year that Congress enacted the first Federal Water Pollution Control Amendments. 1 This legislation, also known as the Clean Water Act, was intended to curb the damaging effects of water pollution on the environment. One way in which the CWA differed from previous congressional attempts to control water pollution was that it permitted private citizens — not just government agencies — to bring civil actions against alleged polluters. But Congress has placed certain limitations on the use of citizen suits, completely barring them in some circumstances. For example, under the original 1972 amendments, a private individual cannot bring a private suit if a state or the Administrator of the Environmental Protection Agency is diligently prosecuting an action against an alleged polluter in state or federal court. 2 The CWA’s 1987 amendments extended the bar on citizen suits, instructing that an administrative penalty action is enough to preclude a citizen suit, provided that the state is “diligently prosecuting” the penalty action under a “State law comparable to [subsection 309(g)].” 3 Since the 1987 amendments to the CWA, at least four other federal courts of appeals have grappled with the terms “diligently prosecuting” and “comparable” state law in interpreting the scope of citizen suits under the CWA. The present case requires us to deal with the second of these terms and thereby set a standard for determining *1250 when “a State law” is “comparable” to subsection 309(g) of the CWA.
MeAbee is a riparian landowner whose property abuts a tributary of Big Wills Creek in the vicinity of the Fort Wayne Waste Water Treatment Plant. The City has a permit 4 authorizing it to discharge certain pollutants from the waste-treatment plant, subject to specific discharge and monitoring requirements. The City has violated the permit’s effluent limitations on several occasions, and at the time MeAbee filed the complaint, the City was operating under an administrative enforcement order issued by the Alabama Department of Environmental Management (“ADEM”). The enforcement order obligated the City to pay a $11,200 fíne.
The enforcement order also required the City to give notice of the consent order in a newspaper of general circulation in the county where the violations occurred, and the City published a notice in the Fort Payne Times Journal on December 30, 1999. Although the notice identified the name of the plant where the violations occurred and the amount of the penalties, it did not identify the address of the plant, the nature of the violations, the waterways affected, or when the violations occurred. Further, the notice did not indicate that persons wishing to contest the penalty assessment had only fifteen days from the date of the notice to file an administrative appeal and gave only a mailing address for those wishing more information about the enforcement action.
MeAbee claims that the City is again in violation of its water-discharge permit at the waste-treatment plant. MeAbee filed her complaint against the City pursuant to the citizen-suit provisions of the CWA, 33 U.S.C. § 1365(a). 5 The City moved to dismiss or, alternatively, for grant of summary judgment, and the district court treated the filing as a motion for summary judgment. The basis of the City’s motion was that ADEM’s enforcement order and enforcement actions against it satisfied the CWA’s limitation-on-actions provisions, 33 U.S.C. § 1319(g)(6)(A).
The limitation-on-actions provisions bar citizen suits when, under comparable state law, a state has “commenced and is diligently prosecuting an action.” 33 U.S.C. § 1319(g)(6)(A)(ii). The provisions also bar all claims for which “the State has issued a final order not subject to further judicial review and the violator has paid a penalty under ... such comparable State law-” Id. § 1319(g)(6)(A)(iii). In comparing 33 U.S.C. § 1319(g) with the Alabama statutes, the district court determined that although the penalty provisions of the federal and state enforcement schemes are comparable, the public-participation and judicial-review provisions of the statutes are not. Accordingly, the district court held that the AWPCA and AEMA are not comparable to § 1319(g) and denied grant of summary judgment.
Given that the interpretation of § 1319(g) is an issue of first impression in *1251 the Eleventh Circuit, and recognizing a spilt among the circuits, the district court certified the action for appeal to this court pursuant to 28 U.S.C. § 1292(b).
II. STANDARD OF REVIEW
We review the district court's denial of a motion for summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the nonmoving party. Weeks v. Harden Mfg. Corp.,
III. ANALYSIS
The OWA generally authorizes a citizen to commence a civil action in federal court against any person who is alleged to be in violation of an effluent standard or limitation. 33 U.S.C. § 1365(a). But the City argues that two subsections of 33 U.S.C § 1319(g)(6) bar McAbee from bringin~ some or all of her claims. Section 1319(g)(6) provides in relevant part:
(A) Limitation on actions nnder other sections
Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator's or Secretary's authority to enforce any provision of this chapter; except that any violation-
(ii) with respect to which a State has commenced and is difigently prosecuting an action under a State law corn-parable to this subsection, or
(ill) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title.
33 U.S.C. § 1319(g)(6)(A).
Courts that have addressed § 1319(g)(6)(A)(ii)-the "diligent-prosecution bar"-have interpreted the statute to bar citizen suits when three requirements are satisfied. First, the state must have "commenced" an enforcement procedure against the polluter. Ark. Wildlife Fed'n ICI Americas, Inc.,
"Comparability" is also the only issue before the court with respect to § 1319(g)(6)(A)(ffi). Unlike subparagraph *1252 (ii), which can potentially bar an entire suit, subparagraph (iii) bars all claims for which “the State has issued a final order not subject to further judicial review and the violator has paid a penalty under ... such comparable State law 33 U.S.C. § 1319(g)(6)(A)(iii). There is no dispute that the consent order is a “final order not subject to further judicial review” or that the City has paid a penalty. Consequently, if Alabama’s administrative enforcement scheme is “comparable” to § 1319(g), subparagraph (iii) would bar, and the district court should have granted summary judgment as to, at least some of McAbee’s claims — namely, those claims that gave rise to the City’s $11,200 penalty. McA-bee’s other claims would be barred only if the diligent-prosecution bar applied.
A. The Standard for Determining Comparability
In deciding whether the Alabama administrative scheme is comparable to § 1319(g), we must first adopt the proper standard for evaluating comparability. This requires a review of the background principles governing CWA citizen suits and an analysis of the standards that other courts of appeals have adopted.
1. Background Principles
The text of the CWA and Supreme Court precedent suggest a broad interpretation of the phrase “comparable State law.” In the declaration of goals and policy under the CWA, Congress expressly states that “[i]t is the policy of the Congress to recognize, preserve, and protect
the primary responsibility and rights of the States
to prevent, reduce, and eliminate pollution....” 33 U.S.C. § 1251(b) (emphasis added). The text of § 1319(g) itself is also instructive: “the term ‘comparable’ means that the state law need only be sufficiently similar to the federal law,
not identical.” Ark. Wildlife Fed’n,
Furthermore, in examining the role that Congress intended citizen suits to play within the context of the CWA as a whole, the Supreme Court has declared that “the bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action.”
Gwaltney of Smithfield v. Chesapeake Bay Found.,
2. Standards Adopted by Other Courts
In deciding what standard to apply, we look to other circuits for guidance. In
North and South Rivers Watershed Association v. Town of Scituate,
Applying this standard, the First Circuit found the Massachusetts statutory scheme “comparable” to the CWA. In doing so, the court underscored two important bases for its holding. First, although the state *1253 statute must have administrative penalties comparable to those in subsection 309(g) of the CWA, it is not necessary that the state actually seek monetary penalties against the alleged polluter. Id. Second, when assessing whether the state public-participation provisions were comparable to those in the CWA, the court looked to the state’s “overall” statutory enforcement scheme (including rights of intervention and to a hearing under administrative-law statutes), not just to the particular statute under which the state commenced and prosecuted the enforcement action. See id. at 556 n. 7.
The Eighth Circuit was the next circuit to interpret the
meaning of
comparability. In
Arkansas Wildlife Federation v. ICI Americas, Inc.,
The Ninth Circuit’s approach in
Citizens for a Better Environment-California v. Union Oil Co. of California,
The UNOCAL court specifically rejected the First Circuit’s approach of looking at the entire state “statutory scheme” to see if there are penalty provisions comparable to the CWA’s penalty provisions. It reasoned that a comparability assessment is conducted by examining the particular statutory enforcement provision under which the state acted, not the state statutory enforcement scheme as a whole. Id. at 1117. In addition to holding that the “comparable” state law must contain a penalty provision, the court held that a penalty must have been assessed before the bar on citizen suits can apply.
In
Jones v. City of Lakeland,
Despite the similarity between the Sixth and Eighth Circuit standards, the Sixth Circuit applied the standard differently than the Eighth Circuit in
Arkansas Wildlife Federation.
The Eighth Circuit had held that the Arkansas clean-water law— which provided only an ex post facto citizen’s right to intervene, with no public notice at any time, and no opportunity to comment while the order is being proposed — was comparable to the federal CWA.
Ark. Wildlife Fed’n,
S. Our Standard
Before announcing our standard for determining comparability, we reject the standard proposed by the amicus curiae, which would have us compare only the penalty provisions of the applicable federal and state laws. No case law supports imposing a standard that compares only the penalty-assessment provisions. Furthermore, the text of § 1319(g) suggests that it is necessary to consider the public-participation and judicial-review provisions as well. When referring to comparability, § 1319(g)(6) instructs that state law has to be comparable “to this subsection.” See 33 U.S.C. §§ 1319(g)(6)(A)(ii), (in). Unlike many of the other paragraphs in § 1319(g), paragraph (6) makes no references to particular paragraphs within the subsection. Instead, paragraph (6) refers to the subsection as a whole, which includes not only penalty-assessment provisions but also public-participation and judicial-review provisions. Id. This is strong textual evidence that Congress intended courts to consider all three classes of provisions when deciding whether state law is “comparable” to § 1319(g) of the CWA. 7
Section 1319(g)(6)(A)’s text suggests that it is appropriate to compare all three classes of provisions, but the statute is not clear about whether courts should (1) insist that each class of state-law provisions be roughly comparable to its corresponding class of federal provisions or (2) perform a balancing test that compares the overall effect of a state statutory regime against the overall effect of the federal CWA. 8 The text itself offers little guidance in making this decision. Section 1319(g)(6)(A)(ii) merely states that, for the *1255 diligent-prosecution bar to apply, the action must be prosecuted “under a State law comparable to this subsection.... ” 33 U.S.C. § 1319(g)(6)(A)(ii).
As a rationale for applying an “overall” comparability test, the First Circuit suggested that the correct legal standard should be concerned primarily with “whether corrective action already taken and diligently pursued by the [state] government seeks to remedy the same violations as duplicative civilian action.”
Town of Scituate,
Nevertheless, we find the arguments against adopting such a loose standard more compelling. First, requiring compatibility between each class of provisions makes § 1319(g)(6) easier to apply. Under an “overall” balancing test for compatibility, judges would be forced to weigh incommensurable values
9
— for example, the positive value of identical penalty-assessment provisions against the negative value of starkly dissimilar public-participation provisions. The First Circuit was correct in asking whether the public-participation provisions of a “State Act adequately safeguarded] the substantive interests of citizens in enforcement actions.”
Town of Scituate,
The second argument for requiring rough comparability between each class of provisions is that such a standard reduces uncertainty not only for courts but also for potential litigants, state administrative agencies, and state legislatures. Though some uncertainty will remain about whether corresponding classes of provisions are themselves comparable, parties would no longer have to deal with the uncertainty produced by trying to weigh the “overall” effects of the two statutory regimes.
Finally, legislative history supports requiring rough comparability between each class of provisions. 10 Senator John Chaf- *1256 ee, the principal author and sponsor of the 1987 amendments to the CWA, stated:
[T]he limitation of 309(g) applies only where a State is proceeding under a State law that is comparable to Section 309(g). For example, in order to be comparable, a State law must provide for a right to a hearing and for public notice and participation procedures similar to those set forth in section 309(g); it must include analogous penalty assessment factors and judicial review standards; and it must include provisions that are analogous to the other elements of section 309(g).
133 Cong. Rec. S737 (daily ed., Jan. 14, 1987) (emphasis added).
Accordingly, we hold that for state law to be “comparable,” each class of state-law provisions must be roughly comparable to the corresponding class of federal provisions.
B. Applying the Standard
Under the proposed standard, we must compare each class of state-law provisions to its federal analogue, at least until one class of provisions fails the comparability test. Here, the penalty-assessment provisions are comparable. The federal statutory scheme allows the Administrator or the EPA to assess either a Class I or a Class II civil penalty. 33 U.S.C. § 1319(g)(2). A Class I penalty cannot exceed $10,000 per violation, with the maximum penalty capped at $25,000. Id. § 1319(g)(2)(A). A Class II penalty cannot exceed $10,000 per day, with the maximum penalty capped at $125,000. Id. at § 1319(g)(2)(B). By comparison, Alabama’s statutory scheme allows a civil penalty of not less than $100 and not more than $25,000 for each violation. Ala. Code § 22-22A-5(18)c. The total penalty under this subsection is capped at $250,000. Both regulatory regimes give their respective enforcement agencies discretion to assess administrative penalties within a comparable range and to use similar criteria when calculating penalties. Compare 33 U.S.C. § 1319(g)(3) with Ala. Code § 22-22A-5(18)c. Therefore, we determine the penalty-assessment provisions to be “comparable.”
The state and federal public-participation provisions, however, are not sufficiently comparable. The federal statutory scheme provides “interested persons” with the right to public notice and an opportunity to comment, the right to present evidence if a hearing is held, and the right to petition for a hearing if one is not held. 33 U.S.C. § 1319(g)(4). Specifically, before issuing an order assessing a civil penalty, the Administrator or Secretary must provide public notice and a reasonable opportunity to comment on the proposed assessment to any interested person. Id. § 1319(g)(4)(B). The Administrator or Secretary is also required to give notice of any hearing about a penalty assessment to any person who commented on the proposed assessment. Id. Finally, if no hearing is held before the issuance of an order assessing a penalty, any person who commented on the proposed assessment may petition the Administrator or Secretary to set aside the order and hold a hearing on the penalty. Id. § 1319(g)(4)(C).
The Alabama statutes do not contain analogous public-participation provisions. Unlike the federal provisions that ensure public notice before issuance of penalty orders, the AEMA requires only ex post facto notice of enforcement action. Notice comes in the form of a newspaper bulletin that must appear “no later than 15 days after issuance of any such order ... for one day in a newspaper of general circulation in the county where the violation has occurred.” Ala.Code § 22-22A-5(18)a.4.
*1257 Furthermore, the Alabama statute allows the general public limited opportunities for participation in the administrative enforcement process. Only the alleged polluter is allowed to participate in penalty proceedings before issuance of a final order. The public may not intervene in pre-order proceedings and may not submit comments, present evidence, or request a hearing on a proposed assessment and order. Id. Once an order is final, only the violator and other persons “aggrieved” by the administrative action have the right to request a hearing to contest the order. Ala. Admin. Code r. 335-2-1-.02. Providing public notice only after enforcement decisions is problematic, but we are particularly troubled that the AEMA gives even “aggrieved” parties only fifteen days after the publication of newspaper notice to request a hearing to contest a penalty assessment. See Ala.Code § 22-22A-7(c)(l). As submitted in oral argument, the fifteen-day deadline makes “proper requests [for a hearing],” id. § 22-22A-7(c), nearly impracticable.
By comparison, the federal provisions allow members of the general public, even those who have not suffered a threatened or actual injury in fact, to participate in the enforcement process. 11 Additionally, we agree with McAbee’s contention that a right to pre-order participation is markedly different from the right to post-decision participation. In pre-order proceedings, an agency has not hardened its position, and interested persons are not subject to the same technical pleading requirements or burdens of proof that are imposed once the state has issued an order. See Ala. Admin. Code r. 335 — 2—1—.21(4).
In holding that Alabama’s public-participation provisions do not satisfy the standard for comparability, we emphasize that the standard of rough comparability between classes of provisions is not stringent. The problem for the City in this case is that the differences in the statutes’ public-participation provisions, as described above, strike at the heart of whether the statute “provides interested citizens a meaningful opportunity to participate at significant stages of the decision-making process.”
Ark. Wildlife Fed’n,
IV. CONCLUSION
For the reasons stated, we AFFIRM the district court.
Notes
.Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33 U.S.C. §§ 1251—1387 (1994)).
. See 33 U.S.C. § 1365(b)(1)(B) (describing the circumstances in which court action will preclude citizen suits).
. See id. § 1319(g)(6)(A)(ii).
. The City’s permit is National Pollutant Discharge Elimination System Permit AL002311, which was issued by the Alabama Department of Environmental Management on November 17, 1997.
. Section 1365(a) provides in relevant part: Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....
33 U.S.C. § 1365(a)(1).
. The requirements of "commencement" and "diligent prosecution" are not at issue in this appeal. Neither the CWA nor the Eleventh Circuit has defined what specific acts constitute "commencement," but most courts that have addressed the issue have concluded that issuance of an administrative consent order-like the one here-would satisfy the "commencement" requirement. See, e.g., Ark. Wildlife Fed'n v. ICI Americas, Inc.,
. As discussed below, although the text appears to require consideration of all three classes of provisions, it does not indicate the relative importance of each class.
. The statute is also unclear about which state-law provisions count as "a State law” for purposes of the § 1319(g)(6)(A) analysis: that is, whether to look to the state's ''overall” statutory enforcement scheme in determining comparability or to look only to the particular statute under which the state commenced and prosecuted the enforcement action. Here, this means deciding whether to look not only to the AWPCA and the AEMA but also to provisions in the Alabama Administrative Code to assess Alabama's public-participation provisions. Other circuits have disagreed about whether the phrase "a State law” allows courts to consider a state's overall enforcement scheme when assessing comparability.
Compare Jones,
We need not resolve this issue in the present case, because Alabama's public-participation provisions are not comparable to the corresponding federal provisions, whether or not we consider the public-participation provisions in the Alabama Administrative Code. For purposes of the present analysis, however, we will consider administrative-law provisions in assessing comparability.
.
Cf. Bendix Autolite Corp. v. Midwesco Enters., Inc.,
. Admittedly, though, the most reliable indicator of congressional intent is the language of the statute itself.
. As the district court noted, Alabama law essentially bars the public from participating in hearings before ADEM, as the administrative code regulations governing such appeals provide only a limited right of intervention in these hearings. See Ala. Admin. Code r. 335-2-1-.08.