ELR Citation: ELR 21212
No(s). 92-1025-HO (D. Or. Feb 5, 1993)

The court holds that private citizens lack standing to bring a Federal Water Pollution Control Act (FWPCA) action, because Oregon's procedures for protecting its citizens' public interests in enforcement actions are comparable to the FWPCA. Private citizens sued the state of Oregon for permit violations under the FWPCA citizen suit provision. The court holds that comparable state law means that the state's regulatory authority or process is substantially similar, but not necessarily identical to the federal provisions. The only significant difference between the federal procedures and Oregon's procedures is that the FWPCA requires ublic notice and comment on proposed enforcement actions while Oregon is permissive. The court holds that the consequences of subjecting violators to more than one enforcement action for a single violation constitutes an important policy consideration favoring a finding of comparability, thus mandatory public notice is not the sine qua non of comparability. The court also holds that a citizen is not entitled to a "personalized" remedy by bringing an FWPCA citizen suit simply because they have more claims than were resolved by the prior government enforcement action, or because they seek higher civil fines than were levied by the government. Furthermore, the court holds that citizen suits under the FWPCA are proper only if the federal, state, and local agencies fail to exercise their enforcement responsibility.

Counsel for Plaintiffs
Michael E. Haglund, Michael K. Kelley
Haglund & Kirtley
One Main Pl., 101 SW Main St., Ste. 1800, Portland OR 97204
(503) 225-0777

Counsel for Defendants
William F. Cloran
Department of Justice
Trial Division
1162 Court NE, Salem OR 97310
(503) 378-4400