Paper, Allied-Industrial v. Continental

• Decision Date: 08 November 2005
• Docket Number: No. 036243.,036243.
• Parties: PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION and Ponca Tribe, Plaintiffs-Appellees, v. CONTINENTAL CARBON COMPANY, Defendant-Appellant, and Oklahoma Department of Environmental Quality; Environmental Federation of Oklahoma; Environment Colorado; New Mexico Public Interest Research Group; United States Public Interest Research Group; The Sierra Club, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

428 F.3d 1285

PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION and Ponca Tribe, Plaintiffs-Appellees, v. CONTINENTAL CARBON COMPANY, Defendant-Appellant, and Oklahoma Department of Environmental Quality; Environmental Federation of Oklahoma; Environment Colorado; New Mexico Public Interest Research Group; United States Public Interest Research Group; The Sierra Club, Amici Curiae.

No. 036243.

United States Court of Appeals, Tenth Circuit.

November 8, 2005.

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Malcolm E. Wheeler, Wheeler Trigg & Kennedy, LLP, Denver, CO, (Darcy M. Goddard, Wheeler Trigg & Kennedy, LLP, Denver CO, and Mark D. Coldiron, Ryan, Whaley, Coldiron & Shandy, Oklahoma City, OK, and Jim T. Priest, McKinney & Stringer, P.C., Oklahoma City, OK, with him on the briefs) for Defendant-Appellant.

David Frederick, Frederick-Law, Austin, TX, (Richard W. Lowerre, Lowerre & Kelly, Austin, TX, and Rick W. Bisher, Ryan, Bisher & Ryan, Oklahoma City, OK, with him on the briefs) for Plaintiffs-Appellees.

Donald D. Maisch and Robert D. Singletary, Oklahoma City, OK, filed an Amicus Curiae brief for Oklahoma Department of Environmental Quality in support of Defendant-Appellant.

James R. Barnett, Kerr, Irvine, Rhodes & Ables, Oklahoma City, OK, filed an Amicus Curiae brief for Environmental Federation of Oklahoma, Inc., in support of Defendant-Appellant.

Charles C. Caldart, National Environmental Law Center, Seattle, WA, filed an Amici Curiae brief for Environment Colorado, New Mexico Public Interest Research Group, United States Public Interest Research Group, and The Sierra Club in support of Plaintiffs-Appellees.

Before EBEL, O'BRIEN, Circuit Judges, and STEWART, District Judge.^*

EBEL, Circuit Judge.

This case involves a citizen suit under the Clean Water Act ("CWA") brought pursuant to 33 U.S.C. § 1365(a) (2000). The district court dismissed the suit under 33 U.S.C. § 1319(g)(6)(A)(ii), which deprives federal courts of jurisdiction over CWA citizen enforcement actions when a state has commenced and is diligently prosecuting the same violations under a state law "comparable" to subsection 1319(g).

This court has not previously enunciated the proper standard for judging whether a particular state's laws are comparable to § 1319(g), and we take this occasion to do so. We hold that in order to satisfy 33 U.S.C. 1319(g)(6)(A)(ii), three categories of state-law provisions — penalty-assessment, public participation, and judicial review — must be roughly comparable to the corresponding categories of federal provisions. Applying this standard, we hold that Oklahoma's state-law provisions, and more particularly its public participation provisions, are comparable to § 1319(g) and therefore conclude that Oklahoma's proceedings bar federal jurisdiction under 33 U.S.C. § 1319(g)(6)(A)(ii) for claims pertaining to civil penalties.

Next, we turn to another question of first impression in this circuit: Whether the jurisdictional bar contained in 33 U.S.C. § 1319(g)(6)(A)(ii) applies to equitable relief in addition to civil penalty claims. Affirming the district court, we hold that the bar applies only to civil penalty claims and that Plaintiffs' equitable claims should not be dismissed for lack of jurisdiction.

BACKGROUND

I. Factual Background

Defendant-Appellant Continental Carbon Company ("CCC") manufactures carbon black, a compound used in the manufacture of tires and other rubber and plastic products. Since 1954, CCC has maintained and operated a plant in close proximity to the Arkansas River in Ponca City, Oklahoma. Approximately ninety-five of the employees at CCC's Ponca City plant are members of the Paper, Allied-Industrial Chemical and Energy Workers International Union ("PACE"), a plaintiff in the instant case.¹

CCC plant operations produce wastewater which is then discharged into retention lagoons along the plant's eastern side near the Arkansas River. Such activities require a permit from the Oklahoma Department of Environmental Quality ("ODEQ"), which CCC applied for and received in 1998.

In January 2002, PACE began voicing concerns with the wastewater disposal practices at CCC's Ponca City plant to ODEQ. Specifically, PACE representatives alleged in a citizen complaint that industrial wastewater was being discharged into the marsh area east of the lagoons and near the Arkansas River. This information prompted ODEQ to conduct an on-site evaluation at the Ponca City plant on January 9, 2002. The investigator noticed that the color of the water in the marshland was black, and oily substances were evident on the surface of the water. Samples taken from the marshland area had identical chemical components to samples taken from CCC's wastewater impoundments.

This investigation led ODEQ to issue a Notice of Violation ("NOV") to CCC. The NOV largely dealt with regulatory violations related to CCC's unauthorized discharges of polluted wastewater. CCC and ODEQ entered into a consent decree whereby CCC agreed to take a number of remedial measures, including an agreement to conduct a permeability study, submitting a water balance report, completing an approved Supplemental Environmental Project, and monitoring emissions from the facility.

Several months later, ODEQ also discovered a discrepancy in CCC's 1998 permit application related to the depth between the wastewater impoundments and the groundwater beneath the impoundments ("depth-to-groundwater"). In that permit application, CCC reported the depth-to-groundwater level for the impoundments as eighty feet. However, upon looking at data from other water wells in the vicinity, ODEQ believed the true depth-to-ground water level was less than fifteen feet. According to ODEQ's letter, placing a wastewater impoundment in an area with such a shallow depth-to-groundwater level violated Oklahoma law. CCC and ODEQ agreed to resolve the issues dealing with depth-to-groundwater in an upcoming permit renewal process. On June 1, 2005, ODEQ issued CCC a new wastewater disposal/treatment permit, effective through May 31, 2010.²

Plaintiffs did not consider the matter closed. In a series of letters to ODEQ, they stated numerous objections to CCC's performance under the decree and ODEQ's enforcement thereof. Specifically, Plaintiffs objected to the fact that the consent decree called for an investigation that ignored the portion of CCC land where the violations took place. Plaintiffs also sought a meeting with ODEQ representatives and were turned away. The relationship between Plaintiffs and ODEQ continued to grow increasingly acrimonious, with ODEQ representatives restricting access to CCC records and refusing to divulge the substance of conversations with CCC officials on legal privilege and work product grounds. Finally, on June 19, 2002, Plaintiffs served notice of intent to sue upon the U.S. Attorney General, the EPA, the State of Oklahoma, and CCC.

II. Procedural history

A. The complaint

On November 26, 2002, Plaintiffs filed suit against CCC under section 505 of the Clean Water Act ("CWA"), 33 U.S.C. § 1365. Their first amended complaint outlines three claims: (1) unauthorized discharges of wastewater; (2) misrepresentation of facts in the 1998 permit application; and (3) failure to report unauthorized discharge in its lagoons, including but not limited to the discharges identified in Claim 1. In their prayer for relief, Plaintiffs requested the following:

1. A declaratory judgment that CCC violated the CWA and Oklahoma statutes through unsafe operation of its plant.

2. Civil Penalties authorized by the CWA up to a maximum of $25,000 per day per violation.

3. An injunction that would prohibit all unpermitted discharges and impose a compliance schedule on CCC.

B. CCC's motion to dismiss

Before submitting its answer, CCC moved to dismiss for failure to state a claim and for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). CCC's argument was predicated on 33 U.S.C. § 1319(g)(6)(A)(ii), which states, in relevant part:

[A]ny violation [of the Clean Water Act] . . . 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 subject of a civil penalty action under. . . section 1365 of this title.

In evaluating the motion to dismiss, the district court focused on whether Oklahoma law was "comparable" to the Clean Water Act. After reviewing the factual materials provided by CCC and the relevant statutes, the court concluded that Oklahoma law was comparable and therefore that § 1319(g)(6)(A)(ii) applied to Plaintiffs' claims.

Next the court turned to the question of whether § 1319 barred only the civil penalty remedies or whether it also barred Plaintiffs' claims for injunctive and declaratory relief. Noting that "the plain language of Section 1319(g)(6) indicates that only civil penalty actions are precluded when the conditions set forth in § 1319(g)(6)(A)(ii) are satisfied[,]" the district court granted CCC's motion to dismiss with respect to the civil penalty claims only, stating that § 1319 deprived it of jurisdiction only of the civil penalties claims. The injunctive and declaratory claims were left intact. Recognizing that it had, to some extent, waded into uncharted waters, the district court stayed its order to permit an interlocutory appeal under 28 U.S.C. § 1292(b). CCC subsequently filed a petition with this court for permission to appeal under 28 U.S.C. § 1292(b), which we granted.

DISCUSSION

I. Scope of issues on appeal

CCC's petition for interlocutory appeal raised the limited question of whether 33 U.S.C. § 1319(g)(6)(A)(ii) operated to bar civil penalty suits only, or whether the bar extended to declaratory and injunctive relief. Plaintiffs subsequently briefed and argued several other issues, including (1) whether Oklahoma law was actually "comparable" to federal law; (2) whether the state was ...