ELR Citation: ELR 20237
No(s). s. 86-6287, -6288 (9th Cir. Dec 29, 1987)

The court rules that the five-year statute of limitations in 28 U.S.C. §2462 applies to citizen suits under the Federal Water Pollution Control Act (FWPCA) and is tolled 60 days before the filing of the complaint, and that a state agency's nonjudicial enforcement action does not bar a citizen enforcement suit. The court first rules that the federal five-year statute of limitations set out in 28 U.S.C. §2462 applies to FWPCA citizen suits. A state statute of limitations should not be applied unless there is no relevant federal statute of limitations. The five-year statute of limitations is relevant because a citizen enforcement suit is an action for the enforcement of a civil fine. Application of the federal statute of limitations is in keeping with the logic of pre-FWPCA case law that applied the statute of limitations to government enforcement and qui tam actions. Moreover, use of the federal statute of limitations in this context rather than the shorter California period promotes the federal policy of uniformly and adequately enforcing the FWPCA. The court rules that the statute of limitations is tolled 60 days before the filing of the complaint, because FWPCA §505 requires that the plaintiff in a citizen suit give the defendant 60 days' notice prior to filing the complaint. If only the filing of the complaint tolled the statute of limitations, citizen plaintiffs would face a statute of limitations effectively two months shorter than that imposed on EPA and state agencies. The court rejects the argument that the filing of the citizen plaintiff's notice of intent to sue tolls the statute of limitations, because under such a rule, citizen plaintiffs would be able to file notice of intent to sue and then delay pursuing their rights.

The court next rules that under FWPCA §505, a citizen enforcement suit is not precluded by a state agency's nonjudicial enforcement action. In so doing, the court explicitly follows the Second Circuit's decision in Friends of the Earth v. Consolidated Rail Corp., 15 ELR 20674, and rejects the Third Circuit's interpretation of the identical Clean Air Act provision in Baughman v. Bradford Coal Co., 9 ELR 20147. The statute unambiguously states that "court" actions bar citizen enforcement suits, while other environmental statutes refer to both court action and administrative action. There is no indication in the legislative history that Congress intended for nonjudicial action to bar citizen suits under the FWPCA; in fact, the legislative history indicates only that citizen suits should be handled liberally by the courts.

Counsel for Plaintiff/Appellant/Cross-Appellees
Deborah S. Reames
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendant/Appellee/Cross-Appellant
Sarah G. Flanagan
Chevron USA, Inc.
575 Market St., San Francisco CA 94105
(415) 894-7700