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

ELR Citation: 26 ELR 21637
Nos. 95-35235, 94 F.3d 514/43 ERC 1161/(9th Cir., 09/03/1996) rev'd

The court holds that state action against an owner of a sewage treatment facility for violating its national pollutant discharge elimination system (NPDES) permit does not bar a neighboring landowner's Federal Water Pollution Control Act (FWPCA) citizen suit against the owner. Because the state and the owner entered into a stipulation and final order (SFO) to resolve the owner's NPDES violations before the neighboring landowner brought suit, the court holds that the state was not "diligently prosecuting" an action at the time the landowner filed suit. Furthermore, the SFO was not issued under state statutory sections that provide for administrative penalties and are arguably comparable to the FWPCA's penalty section. The SFO expressly provides that it was issued to settle past violations without penalty. Therefore, the state actions in relation to the owner's permit violations were not take under a state law comparable to FWPCA §309(g).

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

Counsel for Defendants
Jens Schmidt, Glenn Klein
Harrang, Long, Gary & Rudnick
400 S. Park Bldg.
101 E. Broadway, Eugene OR 97440
(541) 485-0220

Before: GOODWIN and BRUNETTI, Circuit Judges, and KING,* District Judge.