California Sportfishing Protec v. Chico Scrap Metal, Inc., et al

Filing

FILED OPINION (SUSAN P. GRABER, MORGAN B. CHRISTEN and JOHN R. TUNHEIM) REVERSED AND REMANDED. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [8711908]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE ,
Plaintiff-Appellant,
v.

No. 11-16959
D.C. No.
2:10-CV-01207GEB-GGH

CHICO SCRAP METAL, INC.; GEORGE
SCOTT , SR.; GEORGE SCOTT , JR.;
GEORGE W. SCOTT , SR., Revocable
Inter Vivos Trust,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted
April 16, 2013—San Francisco, California
Filed July 22, 2013
Before: Susan P. Graber and Morgan Christen, Circuit
Judges, and John R. Tunheim,* District Judge.
Opinion by Judge Graber

*

The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.

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SUMMARY**

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.

COUNSEL
Andrew L. Packard (argued) and Emily J. Brand, Law Offices
of Andrew L. Packard, Petaluma, California, for PlaintiffAppellant.
Therese Y. Cannata, Cannata, Ching & O’Toole LLP, San
Francisco, California, for Defendants-Appellees.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Harold M. Thomas, Special Deputy District Attorney, Office
of Butte County District Attorney, Oroville, California, for
Amicus Curiae.

OPINION
GRABER, Circuit Judge:
The Federal Water Pollution Control Act, or Clean Water
Act (“the Act”), 33 U.S.C. § 1365(a)(1), allows a citizen to
sue to enforce the Act’s prohibition against discharging water
pollutants without a National Pollutant Discharge Elimination
System (“NPDES”) permit. In this citizen suit, Plaintiff,
California Sportfishing Protection Alliance, a conservationist
organization, alleges that Defendants, Chico Scrap Metal,
Inc.; George Scott, Sr.; George Scott, Jr.; and George W.
Scott, Sr., Revocable Inter Vivos Trust, have violated an
NPDES permit that governs industrial storm water discharges
at three scrap metal recycling facilities that Defendants
operate.
The district court dismissed this action after ruling that
33 U.S.C. § 1365(b)(1)(B) bars Plaintiff’s claims. On appeal,
Defendants argue that another statutory bar, 33 U.S.C.
§ 1319(g)(6)(A)(ii), also applies.
We hold that
§ 1365(b)(1)(B) does not apply because the state has
commenced no action in court “to require compliance” with
the storm water permit and that § 1319(g)(6)(A)(ii) does not
apply because the state has commenced no administrative
penalty action comparable to one under the Act. We

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therefore reverse the judgment of the district court and
remand for further proceedings.1
FACTUAL AND PROCEDURAL BACKGROUND
Defendants own and operate three scrap metal recycling
facilities in Butte County, California. The facilities receive
scrap metal, salvage vehicles, and process other waste for
recycling and disposal.
Defendants’ facilities are subject to the requirements and
conditions contained in California’s Industrial Activities
Storm Water General Permit (“the Permit”), an NPDES
general permit issued by the California State Water Resources
Control Board (“the Board”) pursuant to its authority under
the Porter-Cologne Water Quality Control Act, Cal. Water
Code §§ 13370–13389.2 A violation of the Permit is a
violation of the Act, because the Act prohibits the discharge
of any pollutant into the waters of the United States, except
in compliance with an applicable NPDES permit. 33 U.S.C.
§§ 1311(a), 1342(a)(1), (b) & (p).
In 2007, the California Department of Toxic Substances
Control (“the Department”) initiated an investigation of

1

2

W e express no view on the merits of any of Plaintiff’s claims.

The Board has authority to issue NPDES permits under the PorterCologne Act because the Clean W ater Act allows states, after obtaining
federal approval, to implement NPDES through state law and
administrative actions. 33 U.S.C. § 1342(b); see also Cal. W ater Code
§ 13370(c) (providing that the state act “authorize[s] the state to
implement the provisions of [the federal Act]”); 40 C.F.R. § 122.28(a)
(authorizing the use of general permits in lieu of individualized NPDES
permits).

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Defendants’ facilities after discovering that concrete and
construction debris had been dumped in wetlands on some of
Defendants’ land. The Department extended the investigation
to Defendants’ three recycling facilities and found high levels
of hazardous contamination. The Department ordered
Defendants to “characterize” the extent of contamination, but
Defendants did not comply.
In 2007 and 2008, the Butte County district attorney filed
civil and criminal actions against Defendants, alleging
numerous violations of state environmental and occupational
safety laws. The civil complaint alleged that Defendants
were liable under various state laws for “unlawfully stor[ing],
transport[ing,] and dispos[ing] of hazardous waste.”
Specifically, the state asserted claims under California’s
Health and Safety Code, sections 25189.5 and 25189.6
(improper handling and disposal of hazardous waste);
Business and Professions Code, sections 17203, 17204,
17206(b) (engaging in unfair business practices); and Fish
and Game Code, section 5650(f) (depositing substances that
are deleterious to fish, plant, or bird life into state waters). In
two criminal actions, the state charged Defendants with
violations of the Health and Safety Code, 25189.5(a)
(disposing of hazardous waste without a permit), 25189.6(a)
(reckless handling of hazardous waste), 25503.5(a) (failing to
submit a hazardous material release response plan after
notice), 25507 (failing to report immediately a release of
hazardous substances), 25509(a) (failing to inventory
hazardous substances), sections 42400(a) (violating air
quality rules), 42400.1(a) (negligently emitting air
contaminants), 42400.2(a) (knowingly emitting air

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contaminants); Vehicle Code, section 11500 (acting as an
automobile dismantler without a license or in violation of site
requirements); Labor Code, section 6423 (violating hazardous
substances removal protective standards in a workplace);
Penal Code, sections 166 (criminal contempt), 373a (failing
to abate a nuisance after notice), and 374.8 (depositing
hazardous substances onto a road, street, highway, or into
waters of the state); and Code of Regulations, title 22,
section 66262.34(f) (failing to label hazardous waste
containers).
In October 2008, Defendants entered into a plea
agreement that resolved both the civil and the criminal
proceedings. The agreement provided that Defendants would
pay fines and serve a term of probation. Among other things,
the agreement required Defendants to abide by three remedial
action consent orders that the Department had issued during
the previous month. Among other requirements, the consent
orders required Defendants to clean up hazardous substances
detected at the three facilities and to reduce potential human
exposure to those substances. The plea agreement allowed
Defendant Chico Scrap Metal to continue operating the
facilities during the probation term so as to generate revenue
to pay for the cleanups.
In January 2010, the Federal Environmental Protection
Agency (“EPA”) inspected Defendants’ three facilities and
found that the sites’ storm water management systems failed
to comply with the Permit. In March, Plaintiff sent
Defendants, as well as state and federal agencies, notice of its

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intent to sue Defendants under the Act for violations of the
Permit. The notices alleged ongoing violations of the storm
water permit at Defendants’ three facilities. Neither state nor
federal officials commenced any enforcement proceedings
under the Act after receiving the notices.
In May 2010, Plaintiff filed this action. The complaint
alleges violations of provisions of the Permit that (1) prohibit
discharges of polluted storm water, (2) require preparation of
a “Storm Water Pollution Prevention Plan,” (3) require the
use of certain pollution control technologies for storm water
discharges, and (4) require implementation of a storm water
monitoring and reporting program.
In June 2010, the California Water Quality Control Board
issued notices to Defendants that they were in violation of the
Permit, citing the January 2010 inspections. The notices
requested that Defendants submit a report describing how the
violations were being addressed.
Defendants then moved to dismiss this action, arguing
that Plaintiff’s claims were barred by one of the Act’s
“diligent prosecution” bars, 33 U.S.C. § 1319(g)(6)(A)(ii).
The district court ordered supplemental briefing on whether
a different “diligent prosecution” bar, § 1365(b)(1)(B), also
applied. The court ultimately ruled that § 1365(b)(1)(B)
barred Plaintiff’s citizen suit, without reaching the potential
application of § 1319(g)(6)(A)(ii), and dismissed the action.
Plaintiff timely appeals.

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DISCUSSION3

The Act allows citizens to enforce its standards.
33 U.S.C. § 1365(a)(1). But any of four statutory bars may
prohibit a citizen suit if the state or federal government is
pursuing enforcement actions with respect to the same alleged
violations.
33 U.S.C. §§ 1319(g)(6)(A)(i)–(iii),
1365(b)(1)(B). Defendants argue that two of those statutory
bars, §§ 1365(b)(1)(B) and 1319(g)(6)(A)(ii), apply here. For
the reasons that follow, we disagree.
A. Section 1365(b)(1)(B)
The first “diligent prosecution” bar at issue is contained
within the same statutory section that authorizes citizen suits
to enforce the Act, § 1365, which provides, in relevant part:
(a) Except as provided in subsection (b)
of this section and [33 U.S.C. § 1319(g)(6)],
any citizen may commence a civil action on
his own behalf—
(1) against any person . . . who is alleged
to be in violation of (A) an effluent standard
or limitation under this [Act] or (B) an order
issued by the [EPA] or a State with respect to
such a standard or limitation . . . .

3
W e review de novo the district court’s order of dismissal. NRDC, Inc.
v. S. Coast Air Quality Mgmt. Dist., 651 F.3d 1066, 1070 (9th Cir. 2011).
W e also review de novo questions of law, including the interpretation of
a statute. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.), cert.
denied, 133 S. Ct. 256 (2012).

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....
(b) No [citizen suit under § 1365(a)(1)]
may be commenced—
(1) . . . .
....
(B) if [a state or federal authority] has
commenced and is diligently
prosecuting a civil or criminal action
in a court of the United States, or a
State to require compliance with the
standard, limitation, or order . . . .
Our prior decisions clarify two points with respect to the
interpretation of § 1365(b)(1)(B). First, we have held that
only an action that is “in a court” triggers the statutory bar;
administrative proceedings do not. Sierra Club v. Chevron
U.S.A., Inc., 834 F.2d 1517, 1525 (9th Cir. 1987). Second,
we have construed the phrase “has commenced and is
diligently prosecuting,” as it appears in § 1319(g)(6)(A)(ii),
though not as it appears in § 1365(b)(1)(B). In the former
context, we have held that the phrase requires an inquiry as to
whether the government was diligently prosecuting its action
at the time when the citizen filed his or her complaint. Knee
Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514, 516 (9th
Cir. 1996); Citizens for a Better Env’t-Cal. v. Union Oil Co.
of Cal., 83 F.3d 1111, 1118 (9th Cir. 1996). We now extend
that construction to the identical statutory phrase, as it

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appears in § 1365(b)(1)(B).4 See Sprint Telephony PCS, L.P.
v. County of San Diego, 543 F.3d 571, 578 (9th Cir. 2008) (en
banc) (“When Congress uses the same text in the same
statute, we presume that it intended the same meaning.”).
But we have not previously considered what kinds of
enforcement actions constitute ones “to require compliance”
for purposes of the § 1365(b)(1)(B) bar. Our analysis begins
with the text of § 1365. BedRoc Ltd. v. United States,
541 U.S. 176, 183 (2004). In subsection (a), the statute
authorizes a citizen suit against a defendant “who is alleged
to be in violation of (A) an effluent standard or limitation
under [the Act] or (B) an order issued . . . with respect to such
a standard or limitation.” 33 U.S.C. § 1365(a)(1). Then, in
subsection (b), the statutory bar refers to government
enforcement actions “to require compliance with the standard,
limitation, or order.” Id. § 1365(b)(1)(B) (emphasis added).
Subsection (b)’s reference to “the” clean-water standard
makes clear that it must be the same standard, limitation, or

4

Other courts, construing § 1365(b)(1)(B), have reached the same
conclusion. See Friends of Milwaukee’s Rivers v. Milwaukee Metro.
Sewerage Dist., 382 F.3d 743, 754–55 (7th Cir. 2004) (holding that “the
clear and unambiguous language of § 1365(b)(1)(B) and its uniform
interpretation by the courts” require the conclusion that the statute did not
bar a citizen suit that was filed several hours before a government
enforcement action); Chesapeake Bay Found. v. Am. Recovery Co.,
769 F.2d 207, 208 (4th Cir. 1985) (per curiam) (“[T]he verb tenses used
in subsection (b)(1)(B) and the scheme of the statute demonstrate that the
bar was not intended to apply unless the government files suit first (and is
diligently prosecuting such suit).”); Long Island Soundkeeper Fund, Inc.
v. N.Y.C. Dep’t of Envtl. Prot., 27 F. Supp. 2d 380, 383 (E.D.N.Y. 1998)
(“The language of this statute ‘clearly contemplates action prior to the
filing of a citizen suit.’” (quoting Conn. Fund for Env’t v. Job Plating Co.,
623 F. Supp. 207, 215 (D. Conn. 1985))).

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order that is the subject of the citizen suit under subsection
(a).
Defendants argue that, to trigger the § 1365(b)(1)(B) bar,
it is sufficient that the government action be comparable to
the one brought under the Act. That view is at odds with the
statute. Although the § 1319(g)(6)(A)(ii) bar applies when a
state is diligently prosecuting “an action under a State law
comparable to [certain actions under the Act],”
§ 1365(b)(1)(B) contains no reference to comparable state
laws. “‘[W]hen the legislature uses certain language in one
part of the statute and different language in another, the court
assumes different meanings were intended.’” United States
v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir. 2008) (alteration
in original) (quoting 2A Sutherland, Statutory Construction
§ 46.6 (6th ed. 2006)). Because Congress omitted any
reference to “comparable” state standards in § 1365, and
because § 1365(b)(1)(B) specifically refers to an action “to
require compliance with the standard, limitation, or order”
that is the subject of the citizen suit, we hold that its bar
applies only if the government’s action seeks to do exactly
that.
Our conclusion follows not only from the statute’s text,
but also from consideration of the odd consequences that
would result from reading § 1365(b)(1)(B) to bar citizen
enforcement of an NPDES permit when a state enforces its
other environmental laws. The Act’s “diligent prosecution”
bars do not apply when a government seeks enforcement in
court of other federal environmental laws, such as the Clean
Air Act, 42 U.S.C. §§ 7401–7671q, or the Resource
Conservation and Recovery Act of 1976, 42 U.S.C.
§§ 6901–6992k. See 33 U.S.C. § 1365(a)(1), (b)(1)(B)
(limiting statutory bar to enforcement to require compliance

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with a “standard, limitation, or order” of the Clean Water
Act). According to Defendants’ interpretation, though, a
state’s enforcement of state environmental laws that mirror
those federal ones (for example, California’s Air Resources
Act or Hazardous Waste Control Law) might preclude citizen
enforcement of the Clean Water Act, merely because the
enforcement action was somehow “comparable” to the citizen
suit. Nothing in the statute suggests that Congress intended
that incongruous result, which would give state enforcement
greater preclusive effect than parallel federal enforcement of
analogous laws.5
In this action, Plaintiff alleges that Defendants have
violated four conditions of the Permit. We therefore must
determine whether the government’s enforcement action
sought compliance with the same Clean Water Act standard:
that is, the requirement that Defendants’ storm water
discharges comply with the Permit. But to answer that
question, we must first decide how to determine what the
state’s previous action sought to do. In this case, we look to
the records from those proceedings: the pleadings, the
parties’ briefing, the plea agreement, and the court’s

5

W e note that this case does not involve a government action to enforce
a state law or regulation that, like California’s Porter-Cologne Act, itself
implements the standards and limitations of the Clean W ater Act. See
Cmty. Ass’n for Restoration of Env’t v. Henry Bosma Dairy, 305 F.3d 943,
956 (9th Cir. 2002) (noting that the Act creates citizen standing “to
enforce permit conditions based on both EPA-promulgated effluent
limitations and state-established standards” (internal quotation marks
omitted)). In such a case, the state-law action could be one to require
compliance with the Clean W ater Act.

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probation order and judgment.6 Those documents, all of
which predated the filing of this action, show that California
has never sought judicial enforcement of the Permit—or, for
that matter, of any standard under the Clean Water Act.
The pleadings and briefs in the 2007 and 2008 actions
show that the state sought relief for alleged violations of
California’s air quality laws, Cal. Health & Safety Code
§§ 39000–44474; its hazardous waste handling, treatment,
and disposal laws, id. §§ 25100–25258.2, 25500–25546.5; its
occupational licensing requirements for vehicle dismantlers,
Cal. Veh. Code §§ 11500–11541; its occupational safety and
health laws, Cal. Lab. Code §§ 6300–6719; provisions of its
penal code prohibiting contempt of court, general nuisance,
and improper waste disposal, Cal. Penal Code §§ 166, 373a,
374.8; its unfair business practices laws, Cal. Bus. & Prof.
Code §§ 17000–17101; and its wildlife conservation laws,
Cal. Fish & Game Code §§ 5650–5656. None of those
criminal offenses or civil causes of action relates to the Clean
Water Act, and none of the government’s allegations asserted
that Defendants discharged or managed storm water in
violation of the Permit.
The plea agreement and probation order that concluded
the proceedings in state court confirm that compliance with
the Clean Water Act was not a subject of those actions. The
plea agreement purported to settle only the state’s claims that
were asserted in the complaints, as amended, which it

6
W e consider those documents to be relevant in this case. W e do not
decide, though, whether it is necessary to review all the same kinds of
documents in every case or whether a subset of documents from the state
court record may suffice to determine the nature of the state enforcement
action in another case.

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described as allegations of “dumping of hazardous industrial
waste,” “endangering the health of employees,” and “various
hazardous material, waste, and air quality violations.” The
agreement provided that the state would dismiss some counts
and that Defendants would plead no contest to the counts that
were not dismissed. The agreement contains no reference to
storm water discharges, and none of the counts alleged
violations of the Clean Water Act, either as originally stated
or as amended.
The scope of the probation order is likewise limited to the
government’s allegations, as amended. The order lists the
fines and fees that correspond to each state-law violation to
which Defendants pleaded no contest; none of those penalties
is listed as arising from violations of the Clean Water Act.
Although the probation order contains a general requirement
that Defendants “[o]bey all laws,” that boilerplate provision
merely requires that Defendants abide by the law as a
condition of probation. It did not transform the action into
one to enforce the Clean Water Act.
Defendants argue that the 2007 and 2008 actions
nonetheless trigger the § 1365(b)(1)(B) bar to citizen
enforcement because their probation conditions include the
requirement that they comply with the 2008 consent orders
issued by the Department of Toxic Substances Control.
Under the consent orders, Defendants agreed to “maintain
drainage control” at their facilities that meets, at a minimum,
“the Waste Discharge Requirements for Discharges of Storm
Water Associated with Industrial Activities as adopted by the
California State Water Quality Control Board.” Defendants
assert that the state’s 2007 and 2008 enforcement actions
thereby had the effect of requiring compliance with the
Permit and the Clean Water Act.

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The 2008 consent orders themselves do not trigger
§ 1365(b)(1)(B)’s bar because they are not the result of any
action in a court. The orders were issued by the Department,
pursuant to its authority to issue remedial action orders in
response to releases of hazardous substances that present an
“imminent or substantial endangerment” to public health, Cal.
Health & Safety Code §§ 25358.3(a), 25355.5(a). Because
the orders resulted from administrative action, not a judicial
proceeding, they do not trigger § 1365(b)(1)(B), which
applies only if the government has undertaken an action “in
a court” to enforce the Clean Water Act. Sierra Club,
834 F.2d at 1525.
Moreover, the state court considered the Permit
requirements mentioned in the 2008 consent orders only to
the extent that it made compliance with them a condition of
Defendants’ probation. Like the “obey all laws” provision,
that condition merely requires Defendants to abide by legal
obligations other than those that the parties litigated before
the court. It does not transform the 2007 and 2008 actions
into ones to require compliance with the Clean Water Act.7
We need not, and do not, decide whether a different result
would obtain had the court conditioned Defendants’
probation on compliance with orders that did seek to enforce
the Clean Water Act—such as one issued by the Board under
its NPDES enforcement authority. Here, the 2008 consent
7

Consider, by way of analogy, a defendant who is convicted of
possession of cocaine and placed on probation. Suppose further that the
court includes, as a condition of probation, a requirement that the
defendant abide by the terms of a previously entered restraining order.
The inclusion of such a condition does not turn the present proceeding
into one that is designed to enforce the restraining order, as distinct from
one that is designed to enforce the drug laws.

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orders expressly intend to mitigate human risks of on-site
exposure through skin contact, inhalation of fumes, and
ingestion of dust. They do not refer to effluent limitations or
to the discharge of pollution into navigable waters, which is
the concern of the Clean Water Act, see 33 U.S.C. §§ 1311,
1362(12) (prohibiting discharges of pollutants into navigable
waters). Indeed, the record shows affirmatively that the 2008
orders did not enforce, or seek to enforce, the Act. According
to the declaration of Leona Winner, a scientist from the
Department, other state regulatory agencies have primary
authority to enforce the Act and the Department did not study
surface water quality or issue the 2008 consent orders to
address discharges into surface waters. In context, the orders’
isolated reference to the Permit does not constitute “diligent
prosecution” of the Clean Water Act. See Friends of
Milwaukee’s Rivers, 382 F.3d at 759 (holding that the term
“diligent prosecution” requires that the government action is
both “capable of requiring compliance” with the Act and
“calculated to do so” (internal quotation marks omitted)).
Thus, even if a plea agreement or probation condition that
requires compliance with an administrative order may, in
some cases, constitute action in court to enforce the Act, that
plainly is not true here.
In sum, because the 2007 and 2008 proceedings aimed to
enforce only laws other than the Clean Water Act,
§ 1365(b)(1)(B) does not bar this action.
B. Section 1319(g)(6)(A)(ii)
The second statutory bar at issue, § 1319(g)(6)(A)(ii),
provides that “any violation . . . with respect to which a State
has commenced and is diligently prosecuting an action under
a State law comparable to this subsection . . . shall not be the

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subject of a [citizen suit] civil penalty action.” As previously
noted, whether a state’s enforcement action meets the
statute’s requirements is assessed as of the time the citizensuit complaint is filed. Knee Deep, 94 F.3d at 516.
Defendants argue that § 1319(g)(6)(A)(ii) bars this action
because they have been prosecuted under California statutes
that provide for penalties, see, e.g., Cal. Health & Safety
Code § 25189, and because violation of the 2008 consent
orders will render them liable for administrative penalties,
see, e.g., id. §§ 25359.2, 25359.3. We hold that neither the
state’s actions in court nor the Department’s consent orders
trigger § 1319(g)(6)(A)(ii).
Section 1319(g)(6)(A)(ii) does not apply on account of
the state’s actions in court, which resulted in criminal
penalties and probation, because those civil and criminal
actions were not administrative proceedings. The statutory
bar applies only when a state has pursued an action that is
“comparable to this subsection.” Subsection 1319(g) sets
forth the standards and procedures by which the EPA may
assess administrative penalties only; the Act’s criminal and
civil penalties and enforcement procedures are set forth in
subsections 1319(a)–(d). Thus, the state’s successful
prosecution of the 2007 and 2008 actions in court, and the
court’s assessment of criminal fines in those actions, do not
trigger the statutory bar even if the state laws under which the
penalties were assessed were “comparable” to the Clean
Water Act in a general sense.8

8

As explained with respect to the § 1365(b)(1)(B) statutory bar, those
laws include California’s hazardous waste laws, occupational safety laws,
and air quality laws. Those laws are not substantially comparable to the
Clean W ater Act’s effluent limitations and water-quality standards.

Case: 11-16959

18

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ID: 8711908

DktEntry: 41-1

CAL. SPORTFISHING V . CHICO SCRAP METAL

Nor do the 2008 consent orders trigger § 1319(g)(6)(A)’s
bar to citizen enforcement. We have held that a state
administrative action must seek and assess administrative
penalties to trigger the § 1319(g)(6)(A) bar. Knee Deep,
94 F.3d at 516 (“[F]or § 1319(g)(6)(A) to apply, the
comparable state law must contain penalty provisions and a
penalty must actually have been assessed under the state
law.” (citing Citizens for a Better Env’t v. UNOCAL, 83 F.3d
1111, 1115 (9th Cir. 1996))); cf. Wash. Pub. Interest
Research Grp. v. Pendleton Woolen Mills, 11 F.3d 883,
885–87 (9th Cir. 1993) (holding that an administrative
compliance order issued by the EPA did not trigger the
§ 1319(g)(6)(A)(i) bar, which applies if the EPA has
commenced federal administrative penalty proceedings under
§ 1319(g)). In other words, “the comparable state law must
contain penalty provisions and a penalty must actually have
been assessed under the state law.” Knee Deep, 94 F.3d at
516. Although the 2008 consent orders notify Defendants
that they “may be liable for penalties” in the future if they fail
to comply with the terms of those orders, see Cal. Health &
Safety Code § 25359.2 (providing that the failure to comply
with a remedial action order may result in administrative
penalties), the state did not actually assess any penalties in the
orders themselves. Thus, even if the cited provision of the
Health and Safety Code might be “comparable” to § 1319(g)
for these purposes, Defendants’ potential liability under the
consent orders does not trigger the bar of § 1319(g)(6)(A)(ii).
Because California has commenced no administrative
penalty proceeding that is comparable to a proceeding by the
EPA under § 1319(g), the statutory bar of § 1319(g)(6)(A)(ii)
does not apply to Plaintiff’s claims.

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Case: 11-16959

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ID: 8711908

DktEntry: 41-1

CAL. SPORTFISHING V . CHICO SCRAP METAL

Page: 19 of 19

19

CONCLUSION
Because the state has brought neither a court action to
require compliance with the Clean Water Act nor an
administrative penalty action comparable to one under the
Act, neither 33 U.S.C. § 1365(b)(1)(B) nor
§ 1319(g)(6)(A)(ii) bars Plaintiff’s citizen suit to enforce
California’s storm water general permit.
REVERSED and REMANDED.