The Old Timer v. Blackhawk-Central Sanitation

• Decision Date: 17 June 1999
• Docket Number: No. Civ. 93-WM-249.,Civ. 93-WM-249.
• Parties: The OLD TIMER, INC. and Robert L. Grisenti, Plaintiffs, v. BLACKHAWK-CENTRAL CITY SANITATION DISTRICT, En-Tech Inc. a/k/a Environmental Technicians, Inc., Water Quality Management Corp., Inc., and Donald Blender d/b/a Blender & Associates, Defendants.
• Court: U.S. District Court — District of Colorado

51 F.Supp.2d 1109

The OLD TIMER, INC. and Robert L. Grisenti, Plaintiffs, v. BLACKHAWK-CENTRAL CITY SANITATION DISTRICT, En-Tech Inc. a/k/a Environmental Technicians, Inc., Water Quality Management Corp., Inc., and Donald Blender d/b/a Blender & Associates, Defendants.

No. Civ. 93-WM-249.

United States District Court, D. Colorado.

June 17, 1999.

COPYRIGHT MATERIAL OMITTED

James C. Underhill, Jr., Greenwood Village, CO, for plaintiffs.

Kim J. Seter, Greenwood Village, CO, for defendants.

MEMORANDUM OPINION AND ORDER

LUCERO, Circuit Judge.

This matter comes before the court on the following motions: (1) defendant Blackhawk-Central City Sanitation District's Motion to Dismiss Pursuant to Fed. R.Civ.P. 12(b), converted to a Motion for Summary Judgment on June 2, 1993; (2) defendant En-tech, Inc.'s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b), converted to a Motion for Summary Judgment on June 2, 1993; (3) defendant Water Quality Management Corporation's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b), converted to a Motion for Summary Judgment on June 2, 1993; (4) defendant Donald Blender's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b), converted to a Motion for Summary Judgment on June 2, 1993; and (5) plaintiffs The Old Timer and Robert L. Grisenti's Motion for Partial Summary Judgment, filed April 25, 1994. After careful consideration of the record, briefs, and arguments, I make the following determinations:

I. Undisputed Facts

1. Plaintiff The Old Timer, Inc., is owned and operated by plaintiff Robert L. Grisenti. The Old Timer is a tourist attraction offering the opportunity to pan for gold in North Clear Creek. It is a seasonal operation, obtaining much of its business through word-of-mouth advertising. When panning for gold, tourists have physical contact with the river.

2. Defendant Blackhawk-Central City Sanitation District ("District") is a Colorado Special District responsible for collecting and treating wastewater and sewage from the towns of Blackhawk and Central City, Colorado. The District operates a sewage treatment plant that discharges wastewater into North Clear Creek under a state-issued National Pollutant Discharge Elimination System permit.

3. The District contracts out at least a portion of its treatment plant operating duties. From 1989 through June 1991, defendant Donald Blender, doing business as Blender & Associates, operated the treatment plant. From June 1991 through August 1992, defendant En-tech, Inc., also known as Environmental Technicians, Inc., operated the sewage treatment plant. From August 1992 to the present, the plant has been operated by defendant Water Quality Management Corp., Inc.

4. Upon the advent of legalized gambling, the towns of Blackhawk and Central City expanded quickly. In July and August 1992, the District violated the effluent discharge allowances of its permit on numerous occasions. On September 8, 1992, the state Water Quality Control Division (WQCD) of the Colorado Department of Health (CDH) issued the District a Notice of Violation and Cease and Desist Order (NOV/CDO) covering the July and August violations.

5. The Old Timer is located seven miles downstream from the District's sewage treatment plant. On September 22, 1992, it gave the District notice of its intent to sue, as required by both the Clean Water Act, 33 U.S.C. § 1365(b), and the Colorado Governmental Immunity Act, Colo.Rev. Stat. § 24-10-109 (1999). The notice incorporated by reference the state's NOV/CDO of September 8, 1992. The Old Timer filed this lawsuit on January 29, 1993.

6. To bring itself into compliance with its permit, the District devised a three-part plan that included immediate actions, interim improvements, and a large-scale treatment plant expansion. Discharge violations continued throughout the interim period, causing the federal Environmental Protection Agency (EPA) to issue a Notice of Violation on August 26, 1993. On October 20, 1993, the state WQCD issued a second NOV/CDO, covering all significant violations occurring between August 1, 1992 and September 30, 1993.

7. On March 31, 1995, the WQCD issued a "Public Notice of Intended Civil Penalty," giving notice of its proposed negotiated civil penalty of $85,000 against the District. The public was invited to submit comments. On May 8, 1995, The Old Timer submitted its comments and the affidavit testimony of an expert witness. The Old Timer requested a hearing before the state Water Quality Control Commission, which was denied. The CDH approved the agreement on September 19, 1995, and issued an order imposing the $85,000 civil penalty. The Old Timer's request for reconsideration was denied, and its appeal to the Water Quality Control Commission was dismissed for lack of jurisdiction.

8. On August 19, 1996, The Old Timer filed a petition in state district court, seeking judicial review of the state penalty order. The Old Timer did not serve the petition or prosecute the case.

II. Legal Analysis

In 1972, Congress enacted the Federal Water Pollution Control Act, codified at 33 U.S.C. §§ 1251-1376, to ameliorate the pollution of the nation's navigable waters. This comprehensive statutory scheme, also known as the Clean Water Act (CWA), has been amended on numerous occasions. This case requires me to construe several of the CWA's provisions, as amended.

Defendants argue this court lacks subject matter jurisdiction over The Old Timer's citizen suit based on two provisions of the CWA, 33 U.S.C. § 1319(g)(6)(A)(ii) and (iii). They argue further that the District's subsequent improvements to the treatment plant mooted the citizen suit. In addition, the operator-defendants argue they were not given the statutorily required notice, and defendants Blender and En-tech argue they are not proper defendants because their involvement with the treatment plant ended before this suit was commenced. Finally, The Old Timer seeks partial summary judgment as to defendants' liability for violations.

A. Jurisdiction to Bring Suit Under the CWA

The CWA prohibits any person from discharging pollutants into navigable waters unless the discharge is authorized by a National Pollutant Discharge Elimination System permit. These permits may be issued by the EPA or by a federally approved state program. See 33 U.S.C. § 1342(a) & (b). Discharge limitations imposed in a state-issued permit may be enforced by the state, by the EPA, or by a private citizen. See §§ 1319, 1365.

When the EPA chooses to enforce the discharge limitations, it has several options to choose from, contained in § 1319. The agency may issue a compliance order under § 1319(a), notifying the polluter of the violation and requiring it to comply with the permit conditions by a specific deadline. The agency may commence a civil or criminal action against the polluter, seeking an injunction, penalties, or imprisonment. See § 1319(b), (c), and (d). Finally, the agency may assess an administrative penalty against the polluter under § 1319(g).

A private citizen may also bring a civil action "against any person ... alleged to be in violation of ... an effluent standard or limitation under [the CWA] or ... an order issued by ... a State with respect to such standard or limitation." § 1365(a)(1). In such cases, the district court has jurisdiction to enforce the effluent standard or limitation and to assess any appropriate civil penalties. See id. at § 1365(a).

When enacting the CWA, Congress expected that most enforcement actions would be brought by governmental agencies viewing citizen suits as appropriate only when the government failed to fulfill its enforcement role. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (noting the citizen's role was intended to supplement, not supplant, governmental enforcement). To ensure the primacy of governmental enforcement, Congress enacted several restrictions on a citizen's commencement of an action. Before bringing suit, a citizen must give at least sixty days' notice of his or her intent to file to the alleged polluter, to the EPA, and to the state. Thereafter, the citizen may not commence a suit if the EPA or the state "has commenced and is diligently prosecuting a civil or criminal action in a court ... to require compliance." § 1365(b)(1).¹

A citizen is also precluded from filing a civil action if § 1319(g)(6) applies. See § 1365(a). Section 1319(g)(6), in relevant part, precludes citizen suits for violations for which "the State has commenced and is diligently prosecuting an action under a State law comparable to [the CWA's administrative penalty subsection]," § 1319(g)(6)(A)(ii), or "for which the ... State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under ... such comparable State law," § 1319(g)(6)(A)(iii). I conclude that neither of these statutory restrictions precludes The Old Timer's action.

Before The Old Timer commenced its suit, the only action initiated by the WQCD was the issuance of a compliance order to the District. Case law is split on whether this is sufficient to preclude a citizen suit under § 1319(g)(6)(A)(ii). Compare Citizens for a Better Env't-Cal. v. Union Oil Co. of Cal., 83 F.3d 1111, 1118 (9th Cir.1996) (holding citizen suit was not precluded because state's action was brought under a cease and desist provision, not a penalty provision); Washington Pub. Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir.1993) (holding that citizen suits are not barred by the clear language of § 1319(g)(6)(A) if the EPA has only commenced an administrative compliance action); Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1347 (D.N.M.1995) (holding "section 1319(g)(6)(A)(ii) is narrowly drawn; its preclusionary effect applies only when the EPA ... or a state is in the process of collecting or has already collected administrative...