ELR Citation: ELR 21573
No(s). 93-2181 (8th Cir. Jul 7, 1994)

The court holds that under Federal Water Pollution Control Act (FWPCA) §309(g)(6), a state's issuance of a consent administrative order (CAO) and its diligent prosecution of an administrative penalty action against an herbicide manufacturer bar an environmental organization from bringing an FWPCA citizen suit against the manufacturer for alleged violations of the manufacturer's national pollutant discharge elimination system (NPDES) permit. The state's environmental agency and the manufacturer entered into a CAO that set forth requirements the manufacturer must meet for having failed to comply with its NPDES permit. After the CAO was issued, the environmental organization notified the manufacturer of its intent to sue for failure to comply with the NPDES permit. Subsequently, the state modified and amended the original CAO to incorporate other violations and account for discharges from new outfalls. The court first holds that states are afforded some latitude in selecting the specific mechanisms of their enforcement program. Under its regulations, once the state issued the CAO it was not required to issue a notice of violation in order to commence an action. The court holds that the state's environmental agency "commenced" an action, within the meaning of §309(g)(6)(A)(ii), when it issued the original CAO. The court also holds that having issued the CAO, the state was "diligently prosecuting" its administrative penalty action, within the meaning of §309(g)(A)(ii). It is unreasonable and inappropriate to find a failure "to diligently prosecute" simply because the manufacturer prevailed in some fashion or because a compromise was reached. The court next holds that the state's statute and regulatory scheme governing these issues is "comparable" to §309(g), as required under §309(g)(6)(A)(ii). Although the state's public notice-and-comment provisions are not identical to §309(g)(4)(A)'s, the overall regulatory scheme affords significant citizen participation. The comparability requirement may be satisfied so long as the state law contains comparable penalty provisions that the state is authorized to enforce, has the same overall enforcement goals as the FWPCA, provides interested citizens a meaningful opportunity to participate at significant stages of the decisionmaking process, and adequately safeguards citizens' legitimate substantive interests.

The court holds that the original CAO and the corrected and amended CAOs were all part of a single ongoing enforcement action and, thus, §309(g)(6)(B)(ii) does not apply to allow the environmental organization to seek civil penalties. That section allows a citizen suit if notice was served before the commencement of state action and is filed within 120 days of the notice. Because the corrected and amended CAOs were not new and separate administrative enforcement actions, the notice was not served before commencement of state action. Finally, the court holds that the district court properly dismissed the environmental organization's claims for declaratory and injunctive relief. Allowing suits for such relief in federal court, despite a state's diligent efforts at administrative enforcement, could result in undue interference with, or unnecessary duplication of, the state agency's legitimate efforts.

Counsel for Appellant
James M. Hecker
Tarrish, Pavlick & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Appellee
James F. Goodhart
Banks, Dodson & Goodhart
425 W. Capitol Ave., Little Rock AR 72201
(501) 375-8700

Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.