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Knee Deep Cattle Co. v. Bindana Inv. Co.

ELR Citation: 26 ELR 20617
Nos. No. 94-6156-TC, 904 F. Supp. 1177/41 ERC 1117/(D. Or., 02/08/1995)

The court holds that cattle breeders may not bring a Federal Water Pollution Control Act (FWPCA) §505 citizen suit for permit violations against operators of a sewage facility. The Oregon Department of Environmental Quality (DEQ) assessed the operators civil penalties for past violations and entered into a stipulation and final order (SFO) requiring them to replace the treatment plant. The court first rejects the breeders' argument that citizen suits are not barred when a state commences a compliance action rather than an administrative penalty action. The case on which the breeders rely, Washington Public Interest Research Group v. Pendleton Woolen Mills, 24 ELR 20231 (9th Cir. 1993), interpreted FWPCA §309(g)(6)(A)(i), which relates to actions by the U.S. Environmental Protection Agency. Because this case, in contrast, involves a state agency, §309(g)(6)(A)(ii) applies. The court holds that "comparable state law" means a law with the same basic penalty provisions and notice requirements as the FWPCA. A state need not actually assess a penalty to bar a citizen suit, as long as the state-law penalty assessment provisions are comparable to the FWPCA's and the state is authorized to assess such penalties. The court next holds that the applicable Oregon laws and the FWPCA are comparable despite the lack of mandatory public notice and participation under Oregon law. The state laws and administrative rules under which the DEQ issued the SFO and the penalty assessments provide for procedures substantially similar to those in §309(g). Both seek the goal of eliminating pollution through penalty provisions including civil and criminal sanctions and administrative penalties. Although Oregon imposes no absolute requirement for public notice, the DEQ has the authority and discretion to provide for such notice or public involvement, and those who may be adversely affected or who represent the public interest are entitled to be involved in significant stages of the enforcement. Oregon law adequately protects the public interest. The court further holds that because the DEQ gave the breeders the opportunity to be heard and responded to them, they were provided with a meaningful opportunity to participate. Noting the policy in favor of deferring to agencies enforcing environmental laws, the court next holds that the DEQ's acts constituted diligent prosecution. As a result of the DEQ's settlement with the operators, they are building a new sewage treatment plant; additionally, the DEQ has imposed some penalties and may impose more for future violations. The state is not required to assess penalties for every violation in order to diligently prosecute. The court next holds that the bar to the citizen suit applies to all the alleged violations, not only those specifically addressed in the SFO. The court also holds that the bar applies to suits for injunctive and declaratory relief as well as to suits for civil penalties. The court grants the operators' motion to dismiss the case for lack of subject matter jurisdiction.

Counsel for Plaintiffs
Bill Kloos
Johnson & Kloos
67 Willamette Ave., Ste. 203, Eugene OR 97401
(541) 687-1004

Counsel for Defendants
Glen Klein
Harrang, Long, Gary & Rudnick
101 E. Broadway, Ste. 400, Eugene OR 97401
(541) 485-0220