Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc.

Decision Date22 July 2013
Docket NumberNo. 11–16959.,11–16959.
Citation728 F.3d 868
PartiesCALIFORNIA SPORTFISHING PROTECTION ALLIANCE, Plaintiff–Appellant, v. CHICO SCRAP METAL, INC.; George Scott, Sr.; George Scott, Jr.; George W. Scott, Sr., Revocable Inter Vivos Trust, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Andrew L. Packard (argued) and Emily J. Brand, Law Offices of Andrew L. Packard, Petaluma, CA; Michael R. Lozeau, Lozeau Drury LLP, Oakland, CA, for PlaintiffAppellant.

Therese Y. Cannata, Cannata, Ching & O'Toole LLP, San Francisco, CA, for DefendantsAppellees.

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

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, Jr., Senior District Judge, Presiding. D.C. No. 2:10–CV–01207–GEB–GGH.

Before: SUSAN P. GRABER and MORGAN CHRISTEN, Circuit Judges, and JOHN R. TUNHEIM,* District Judge.


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 therefore reverse the judgment of the district court and remand for further proceedings. 1


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 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 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 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.


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 actionswith 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....


(b) No [citizen suit under § 1365(a)(1)] may be commenced—



(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., ...

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