Cal. Sportfishing v. Chico Scrap Metal, No. 11-16959 (9th Cir. 2013)
Annotate this CasePlaintiff, a conservationist organization, filed suit under the Clean Water Act (the "Act"), 33 U.S.C. 1365(a)(1), alleging that defendants violated a National Pollutant Discharge Elimination System (NPDES) permit that governed industrial storm water discharges at three scrap metal recycling facilities that defendants operated. Defendants claimed that two statutory bars, 33 U.S.C. 1319(g)(6)(A)(i)-(iii) and 1365(b)(1)(B), prohibited plaintiff's citizen suit. The court concluded that section 1365(b)(1)(B) did not bar this action because the 2007 and 2008 proceedings aimed to enforce only laws other than the Act. The court also concluded that the statutory bar under section 1319(g)(6)(A)(ii) did not apply to plaintiff's claims because California has commenced no administrative penalty proceeding that was comparable to a proceeding by the EPA under section 1319(g). Accordingly, the court reversed and remanded for further proceedings.
Court Description: Environmental Law. The panel reversed the dismissal of a citizen suit under the Clean Water Act alleging that the defendants violated a National Pollutant Discharge Elimination System permit governing industrial storm water discharges at their scrap metal recycling facilities. The panel held that 33 U.S.C. § 1365(b)(1)(B) did not bar the plaintiff conservation organization’s claims even though a district attorney had filed prior criminal and civil actions against the defendants. The panel concluded that the state had commenced no action in court “to require compliance” with the storm water permit. The panel held that § 1319(g)(6)(A)(ii) also did not bar the plaintiff’s claims because the state had commenced no administrative penalty action comparable to one under the Clean Water Act.
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