ELR Citation: ELR 20227
No(s). 03-6243 (10th Cir. Nov 8, 2005)

The court holds that contrary to decisions of the First and Eighth Circuits, the jurisdictional bar of Clean Water Act (CWA) §309(g) only applies to claims for civil penalties, not for equitable relief, and, therefore, affirms the dismissal of union member's civil penalty claims against a tire and rubber products manufacturer for unlawful wastewater discharges. Oklahoma is already diligently prosecuting an action against the manufacturer under state law, and Oklahoma's state-law provisions—particularly its public participation provisions—are comparable to CWA §309(g). The Oklahoma proceedings, therefore, bar federal jurisdiction over the union's civil penalty claims. CWA §309(g), however, does not apply to equitable relief. A strict reading of the statute indicates that while CWA §505—the Act's citizens suit provision—grants jurisdiction over all types of civil remedies, the limitation in §309 only strips jurisdiction with regard to the court's ability to impose civil penalties. The lower court, therefore, properly left the union members' injunctive and declaratory claims intact. In addition, it was appropriate for the lower court to consider extra-pleading evidence in its resolution of the manufacturer's Rule 12(b) motion to dismiss without first converting the motion into one for summary judgment.