Court Expands Right to File Private Water Pollution Suits

A federal appeals court expanded the ability of private citizens to sue for violation of permits to discharge pollution into state or federal waterways.

California Sportfishing Monday won reinstatement of its claims that the owner of three Chico Scrap Metal recycling plants in ButteCounty violated federal water pollution and discharge laws.

The 9th U.S. Circuit Court of Appeals said citizens are permitted to sue unless federal regulators have commenced “diligently prosecuting” violations.  Citizen suits would be barred if diligent prosecution is underway.

Monday’s ruling expands that inquiry.  “We now extend that construction to the identical statutory phrase, as it appears in [the law]” allowing actions filed prior to government action.

The company argued that if the state had begun “comparable” actions under state law, citizen suits claiming federal law violations should be barred.  The 9th Circuit disagreed.

This might bar suits to enforce the federal Clean Water Act “merely because the enforcement action was somehow ‘comparable’ to the citizen suit,” said Judge Susan Graber.

“Nothing in the statute suggests that Congress intended that incongruous result,” she said.

In 2008, California fined Chico Scrap Metal as part of civil and criminal plea agreements. Nothing in the deal required the firm to comply with a storm water permit.

The scrap metal recycling facilities receive metal, salvaged vehicles and process other waste for disposal or recycling.

Two years later, federal authorities found violations as well and imposed a monitoring program on the firm.

The environmental group sued alleging federal standards were not being enforced.

“Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to the one under the Act, [ none of the laws in question]  bars plaintiff’s citizen suit to enforce California’s storm water general permit,” Graber said.

The lawsuit was dismissed by Judge Garland Burrell in Sacramento. The appeals court reinstated the lawsuit and sent it back to Burrell.

Case:  Calif. Sportfishing v. Chico Scrap Metal, No. 11-16959