When Are Clean Water Act Citizen Suits Precluded by Government Enforcement Actions?

Barry S. Neuman and Jeffrey A. Knight

Barry S. Neuman is a partner and Jeffrey A. Knight an associate in the Environmental Practice Group of the Washington, D.C., office of Shaw, Pittman.

[30 ELR 10111]

Since the enactment of the Clean Water Act (CWA or Act)¹ 28 years ago, the federal courts have been called upon to sort out the respective roles of the federal and state governments in connection with numerous aspects of the statute's implementation and enforcement.² Congress has superimposed an additional layer of complexity on the CWA experiment in creative federalism—the citizen suit provision.³ Through this provision, Congress authorized affected citizens to sue alleged violators, but circumscribed their right to do so when the federal or a state government is taking or has taken enforcement action of its own.

Not surprisingly, courts have had to grapple with numerous issues concerning when citizen suits are precluded by government enforcement. In general, the courts have resolved these issues based upon their underlying views as to the relative importance of citizen suits in the statutory enforcement scheme. Courts emphasizing the primacy of government enforcement discretion and the secondary role of citizen suits construe the preclusion provisions more aggressively. Courts placing a higher value on the role of citizen suits as a check on potentially lax government enforcement construe the preclusion provisions more narrowly. This Article examines the more important and frequently litigated issues concerning the scope of the Act's citizen suit preclusion provision. These are the major issues practitioners should keep in mind when advising clients about the risks of a citizen suit and when evaluating how to manage the defense of a citizen suit to optimize the outcome for the client.

The Statute

The 1972 Statute: Section 505(a) and (b)

Enacted as § 505(a) of the CWA, the citizen suit provision authorizes "any citizen" to "commence a civil action on his own behalf—(1) against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . ."⁴ However, § 505(b) of the statute says:

No action may be commenced . . . if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.⁵

Early cases construing § 505(b) are interesting not so much for their value as legal precedent, but for planting the seed of a fundamental philosophical difference among the judiciary as to the relative significance of citizen suits in the CWA enforcement scheme. In one of the early cases (construing an identical citizen suit provision contained in the Clean Air Act),⁶ Baughman v. Bradford Coal Co.,⁷ the Third Circuit held that the term "court" did not necessarily mean a judicial forum, but includes any forum that is the "functional equivalent" of a court. However, the Baughman court concluded that the Pennsylvania Environmental Hearing Board was not a "court" because it (1) had limited penalty power, (2) lacked the power to enjoin violations, and (3) did not provide a right of intervention.⁸ In 1985, the Third Circuit employed the same criteria to hold that U.S. Environmental Protection Agency (EPA) administrative proceedings brought under the CWA likewise did not qualify as a [30 ELR 10112] "court."⁹ Some courts adopted the Third Circuit's functional equivalence test,¹⁰ but others have held that "court" is limited to a traditional judicial forum.¹¹ In any event, the dispute has proven largely academic. Onlyone reported decision has found an administrative tribunal to meet the "functional equivalence" test articulated by the Third Circuit,¹² and that decision is no longer good law.¹³ Moreover, the issue was rendered substantially moot in 1987, when Congress amended the Act by (1) granting EPA the authority to assess civil penalties through the use of administrative enforcement proceedings, (2) setting forth procedural requirements for such proceedings, and (3) articulating when federal and state administrative penalty proceedings would serve to preclude citizen suits.¹⁴

Although the precise legal issue raised by Baughman may be largely academic, the split among the circuit courts concerning the issue is reflective of the differing views which courts have adopted concerning the relative importance of citizen suits in the statutory enforcement scheme.

The 1987 CWA Amendments: Section 309(g)

Under the 1972 statute, EPA could issue administrative compliance orders, but lacked the authority to levy civil penalties through any administrative process. The agency could assess civil penalties against violators only by initiating a judicial enforcement action.¹⁵ In 1987, Congress added § 309(g) which granted EPA authority to assess administrative civil penalties; established minimum procedural requirements for administrative penalty proceedings; and attempted to define the circumstances under which administrative penalty actions would preclude the initiation of citizen suits.

Overview of the Federal Administrative Penalty Process and Citizen Participation

Under § 309(g)(1) and (2), EPA may issue "Class I" civil penalties of up to $ 10,000 per violation (with a maximum aggregate penalty of $ 25,000) and "Class II" penalties of up to $ 10,000 per day per violation (with a maximum aggregate penalty of $ 125,000). Class I penalties may be assessed after a "reasonable opportunity to be heard and to present evidence," whereas Class II penalties may be assessed only after a formal adjudicatory hearing in accordance with the Administrative Procedure Act.¹⁶

Section 309(g)(3) specifies factors EPA must consider in assessing administrative penalties, including "the nature, circumstances, extent and gravity of the violation, or violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation, and such other matters as justice may require."¹⁷

Section 309(g)(4) specifies the rights of "interested persons" to participate in administrative penalty proceedings. Before issuing any civil penalty order, EPA must provide public notice and a reasonable opportunity to comment on the proposed order.¹⁸ Any person who submits written comments must be provided with notice of any hearing to be held on the proposed order and must be given a "reasonable opportunity to be heard and to present evidence."¹⁹ In addition, if no evidentiary hearing is held on the order, any person who submitted comments may petition EPA within 30 days after the penalty order is issued to set it aside and provide an evidentiary hearing.²⁰ Any order issued under § 309(g) is subject to judicial review upon the request of any person who submitted comments on the proposed order.²¹

Citizen Suit Preclusion

In § 309(g)(6) Congress attempted to define the circumstances in which the newly created federal administrative civil penalty process would preclude § 505 citizen suits. This subsection also addresses the circumstances under which certain state administrative penalty actions would preclude citizen suits. Section 309(g)(6) provides (emphasis added):

(A) Limitation on actions under other sections

Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator's or Secretary's authority to enforce any provision of this chapter; except that any violation—

(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,

(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or

(iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be,

shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title.

(B) Applicability of limitation with respect to citizen suits

The limitations contained in subparagraph (A) on civil penalty actions under section 1365 of this title shall not apply with respect to any violation for which—

(i) a civil action under section 1365(a)(1) of this title has been filed prior to commencement of an action under this subsection, or

(ii) notice of an alleged violation of section 1365(a)(1) of this title has been given in accordance [30 ELR 10113] with section 1365(b)(1)(A) of this title prior to commencement of an action under this subsection and an action under section 1365(a)(1) of this title with respect to such alleged violation is filed before the 120th day after the date on which such notice is given.²²

Each of the italicized phrases has spawned conflicting judicial decisions which typically reflect the ongoing debate concerning the basic role of citizen suits in the CWA enforcement scheme. The result is a confusing patchwork of federal common law which makes the forum a critical factor in the outcome of citizen suit litigation.

Specific Issues of Statutory Construction Concerning Citizen Suit Preclusion

What Is "Comparable State Law"?

Broad Citizen Suit Preclusion: The First Circuit and Eighth Circuit View

Under § 309(g)(6)(A)(ii) and (iii) a citizen suit will be precluded if a state enforcement action is being taken or has been taken (respectively) under a state law which is "comparable" to "this subsection." The issue of when this comparability requirement is met has spawned two distinct lines of decisions, that reflect the judicial divide concerning the proper role of citizen suits.

The First Circuit was the first circuit court to review this issue. In North & South Rivers Watershed Ass'n v. Town of Scituate,²³ the Massachusetts Department of Environmental Protection (DEP) issued an administrative order to the town directing upgrading and corrective actions concerning its sewer system. Over the course of several years the town submitted various studies and implementation plans to the DEP, but did not come into compliance with its discharge permit. In 1989, plaintiffs initiated a § 505 citizen suit against the town seeking civil penalties and injunctive relief based on the same alleged violations as the DEP had cited in its administrative order.

On appeal from a grant of summary judgment in favor of the defendant, the First Circuit affirmed the district court's decision. The court of appeals rejected plaintiff's contention that under § 309(g)(6)(A)(ii) the "comparability" test can be met only ifthe state is actually seeking a civil penalty. The court began its opinion by emphasizing the secondary role of citizen suits in the statutory scheme. In the court's view, "the primary function of the provision for citizen suits is to enable private parties to assist in enforcement efforts where Federal and State authorities appear unwilling to act."²⁴ The court noted that the statute expressly states Congress' intent to "recognize, preserve, and protect the primary responsibility and rights of States to prevent, reduce, and eliminate pollution . . . ."²⁵ The court further relied on the Supreme Court's oft-quoted statement in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation²⁶ that "the citizen suit . . . is meant to supplement rather than to supplant governmental [enforcement] action."²⁷ Therefore, the First Circuit concluded, "when it appears that governmental action under either the Federal or comparable State Clean Water Acts begins and is diligently prosecuted, the need for citizen's suits vanishes."²⁸

In light of these basic principles, the First Circuit concluded that § 309(g)(6)(A)(ii) precludes citizen suits even if the state is not seeking a financial penalty—plaintiff's contrary interpretation "would enable citizen's suits to undermine the supplemental role envisioned for section 505 citizen's suits, 'changing the nature of the citizen's role from interstitial to potentially intrusive.'"²⁹ Moreover, in the court's view:

While the specific statutory section under which the State issued its Order does not, itself, contain a penalty provision . . . another section of the same statute does contain penalty provisions. . . . These two coordinate parts are cogs in the same statutory scheme implemented by the State for the protection of its waterways.³⁰

In other words, it is not necessary that the state have proceeded "under the precise statutory section" which contains the authority to levy civil penalties. In the court's view:

Such a narrow reading of section 309(g)(6)(A), which turns on the logistical happenstance of statutory drafting, ignores two important considerations. First, the interdependent scheme of the State Act effectuates its goals of ensuring compliance with and enforcement of protective regulations. The focus of the statutory bar to citizen's suits is not on state statutory construction, but on whether corrective action already taken and diligently pursued by the government seeks to remedy the same violations as duplicative civilian action. . . . Duplicative enforcement actions add little or nothing to compliance actions already underway, but do divert State resources away from remedying violations in order to focus on the duplicative effort.

Second, the goal of all actions brought under the Clean Water Acts is "to restore and maintain the chemical, physical, and biological integrity of the nation's waters." 33 U.S.C. § 1251(a). Duplicative actions aimed at exacting financial penalties in the name of environmental protection at a time when remedial measures are well underway do not further this goal. They are, in fact, impediments to environmental remedy efforts.³¹

The court concluded:

It is enough that the Massachusetts statutory scheme, under which the State is diligently proceeding, contains penalty assessment provisions comparable to the Federal Act, that the State is authorized to assess those penalties, and that the overall scheme of the two acts is aimed at correcting the same violations, thereby achieving the same goals.³²

The court likewise rejected plaintiff's contention that comparability required the state penalty provisions to create [30 ELR 10114] the same rights of notice and comment, public participation, and rights of appeal as are contained in § 306(g). It was enough that under state law the DEP's order was a public document and interested persons were given a right to intervene and seek a hearing concerning any civil penalty proceeding.³³

The Scituate decision was followed three years later by the Eighth Circuit in Arkansas Wildlife Federation v. ICI Americas, Inc.³⁴ Over the course of six years, the Arkansas Department of Pollution Control and Ecology sent ICI Americas a series of notices of violation, followed by a consent order and a series of civil penalties ranging from $ 500 to $ 1,000 per assessment. During this period, plaintiff commenced a § 505 citizen suit alleging ongoing permit violations and seeking civil penalties and declaratory and injunctive relief. The court of appeals affirmed the district court's dismissal of the action based on § 309(g)(6)(A)(ii). Relying largely on the First Circuit's reasoning in Scituate, and reiterating that citizen suits were intended to play an "interstitial" rather than "potentially intrusive" role, the court held that the "comparability" requirement had been satisfied.³⁵

The Eighth Circuit focused primarily on the public participation provisions of the state statute. Reviewing Scituate and two subsequently decided district court cases,³⁶ the court observed, "the common thread running through these cases is a finding that the overall regulatory scheme affords significant citizen participation, even if the state law does not contain precisely the same public notice and comment provisions as those found in the federal CWA."³⁷ As long as the basic criteria laid down in Scituate are satisfied then "the state statute should be presumed comparable unless the facts of the specific case demonstrate that the state denied an interested party a meaningful opportunity to participate in the administrative enforcement process."³⁸ In the case before it, the plaintiff had had actual notice of the issuance of the consent order and could have intervened in the state administrative process but instead "chose to collaterally attack the enforcement action through this federal lawsuit."³⁹ Therefore, the court could not conclude that the plaintiff was or would have been denied meaningful participation in the state process had it chosen to pursue that process.⁴⁰

Narrow Citizen Suit Preclusion: The Ninth Circuit View

A radically different view of the comparability requirement has been articulated by the Ninth Circuit in Citizens for a Better Environment-California v. Union Oil Co. of California (UNOCAL).⁴¹ There, Union Oil of California (UNOCAL) and the state of California reached a settlement of various disputes concerning the company's discharges of selenium into San Francisco Bay. The settlement entailed the issuance of a cease and desist order (CDO) issued to UNOCAL in January 1994, following a public hearing and the payment by the company of about $ 780,000 to the state. The CDO required UNOCAL to study and implement appropriate control technologies and to come into compliance with its permit by July 31, 1998. In March 1994, the plaintiff initiated a § 505 citizen suit alleging violations of UNOCAL's permit. The Ninth Circuit affirmed the district court's denial of UNOCAL's motion to dismiss the complaint in light of the state's enforcement actions.

The court of appeals held, inter alia, that the state's action had not been taken under a state law comparable to § 309(g). Although the state law contained civil penalty provisions indisputably comparable to § 309(g), the court said that the payment made by UNOCAL was not levied pursuant to those provisions. In direct contrast to Scituate, the court of appeals agreed with the lower court that "the comparability assessment is conducted by examining the state statutory enforcement provision [under which the state acted], not the state statutory enforcement scheme as a whole."⁴² The penalty must actually have been assessed "under that provision of state law that is comparable to § 1319(g)."⁴³

The court cited three reasons for its holding. First, it believed this was the "plainest reading" of the statutory language. Second, in light of the specific public notice and comment procedures and penalty assessment factors set forth in § 309(g), only its interpretation of the comparability requirement would "guarantee that the public will be given the requisite opportunity to participate or that the penalty assessed is of the proper magnitude."⁴⁴ Third, the Ninth Circuit agreed with the United States (participating as amicus curiae) that the Scituate holding "leads to the anomalous conclusion that state administrative enforcement actions would more broadly preclude citizen suits than the administrative enforcement actions of the EPA."⁴⁵ According to the Ninth Circuit, "nothing in the language and structure of the § 1319(g)(6)(A) in any way suggests that Congress intended such a dichotomy."⁴⁶

The Ninth Circuit's interpretation may be the "plainest reading" of § 309(g)(6)(A), but two other appellate decisions suggest the "plainest reading" may lie in the eye of the beholder. Moreover, as all three circuit court decisions demonstrate, a court's view of the "plainest" reading is influenced by its underlying view concerning various interrelated provisions of the CWA. Consider, for example, the second and third reasons offered by the Ninth Circuit to support its "plain" reading of § 309(g)(6)(A). The court's second reason—that only its reading will guarantee the "requisite" level of public participation and "proper magnitude" of [30 ELR 10115] a civil penalty—assumes away the central issue.⁴⁷ By requiring that the state law be "comparable" rather than "identical," Congress plainly signaled its intention that states not be required to follow the requirements for public participation and penalty assessment which EPA is required to follow under § 309(g). Between "comparable" and "identical" lies a vast and fertile area for reasonable disagreement, particularly in light of Congress' desire that states be given primacy in enforcing the statute.

Contrary to the logic underlying the Ninth Circuit's third reason, there is nothing "anomalous" about giving broader preclusive effect to state administrative enforcement actions than to federal enforcement. As the First Circuit noted in Scituate, a central goal of the statute is to "recognize, preserve, and protect the primary responsibilities and rights of States"⁴⁸ concerning enforcement and implementation of the statute. This goal is reflected, first, in the use of "comparability" rather than absolute equivalence as the benchmark. It must be presumed that Congress chose this language intentionally with the specific purpose of according states greater flexibility than the federal government. Moreover, as is discussed later in this Article, the "safe harbor" provision of § 309(g)(6)(B)(ii) clearly suggests state enforcement actions were intended to be given broader preclusive effect than federal actions.⁴⁹

The Requisite Level of Public Participation

Not surprisingly, some district courts have followed Scituate, while others have adopted the Ninth Circuit's approach in UNOCAL. Most of these cases focus on the adequacy of the opportunity for public participation as the linchpin of the comparability test.

For example, in United States v. Smithfield Foods, Inc.,⁵⁰ the district court adopted the Scitutate test in which comparability depends upon the statutory scheme as a whole rather than the specific provision under which the state took action. Nonetheless, the court found the state law not to be comparable because it did not contain similar rights of public notice and comment. Specifically, unlike § 309(g) the state law did not guarantee an interested citizen the right to request and obtain a hearing on a proposed administrative order if the permittee waived its right to a hearing.⁵¹ Additionally, there was no right of judicial review.⁵²

Other courts have reached the same conclusion as Smithfield Foods. In Public Interest Research Group of New Jersey, Inc. v. GAF Corp.,⁵³ the district court held that a state statute was not comparable because public notice did not occur until after assessment of the civil penalty, and then only if the permittee requested a hearing. In Natural Resources Defense Council, Inc. v. Vygen Corp.,⁵⁴ the district court held Ohio law was not comparable to § 309(g) where it lacked (1) public notice of a proposed order and opportunity for public comment before issuance of an order, (2) provisions for individual notice of a hearing to persons who submitted public comments, (3) a right of interested persons to petition for a hearing, and (4) a right of judicial review, Likewise, in L.E.A.D. Group of Berks v. Exide Corp.,⁵⁵ a Pennsylvania law was held not to be comparable to § 309(g) because public comment was available only during the NPDES permitting process, not during any subsequent enforcement proceedings.

On the other hand, in Saboe v. Oregon,⁵⁶ the district court, noting that a state law need only be "substantially similar" to § 309(g), found that mandatory public notice is not necessarily the sine qua non of comparability.

Does the "Safe Harbor" Provision in § 309(g) Apply to State Administrative Enforcement Actions?

One clear indication Congress intended state administrative enforcement actions to have broader preclusive effect than federal administrative actions is found in the "safe harbor" provision of § 309(g)(6)(B), which allows citizen suits to proceed in certain situations notwithstanding administrative enforcement. Section 309(g)(6)(B) states that the citizen suit preclusion provisions of subsection (g)(6)(A) will not apply if either (i) the citizen suit has been commenced "prior to commencement of an [administrative enforcement] action under this subsection, or" (ii) the citizen has served the requisite 60-day notice⁵⁷ "prior to the commencement of an [administrative enforcement] action under this subsection" and the citizen suit is then commenced "before the 120th day after the date on which such notice is given."⁵⁸ Thus, under clause (i), a citizen suit will not be precluded by a subsequently initiated administrative enforcement action. Under clause (ii), a citizen suit will be allowed to proceed even if the administrative action is filed first, so long as the citizen suit is commenced between 60 and 119 days after the requisite notice is served.

Many courts and pro-citizen suit commentators have simply assumed the § 306(g)(6)(B)(ii) safe harbor provision applies equally to state and federal administrative enforcement actions. For example, in Public Interest Research Group of New Jersey, Inc. v. Yates Industries,⁵⁹ the district court, declaring § 309(g)(6)(B) to be "rather clear on its face," held that it provides a safe harbor for citizen suits despite the filing of a state administrative action. In dictum, the Second Circuit also found the safe harbor provision to apply [30 ELR 10116] to state actions.⁶⁰ A particularly impassioned (and inaccurate) law review article criticized another Second Circuit decision for dismissing a citizen suit in light of a subsequently filed government enforcement action despite the statutory language of the safe harbor provision.⁶¹

In fact, the plain language of the safe harbor provision clearly does not apply to state administrative enforcement actions. Both § 309(g)(6)(B)(i) and (ii) state that the safe harbor provision allows citizen suits to proceed notwithstanding "an action under this subsection"—i.e., an administrative penalty action commenced under § 309(g). Only the federal government can bring an action under § 309(g); a state cannot do so, but must act under its own statutory authorities. Thus, the safe harbor provision clearly applies to protect citizen suits only vis-a-vis federal administrative enforcement actions, and not state actions.

Other closely related provisions of § 309(g) provide strong evidence that Congress' references in subsection (g)(6)(B) to "an action under this subsection"—and the omission of any reference to actions under state statutory authorities—was deliberate. In specifying the circumstances under which administrative actions will preclude citizen suits, subsection (g)(6)(A) clearly and repeatedly differentiates between an action commenced by the federal government "under this subsection," as opposed to a state enforcement action brought "under a State law comparable to this subsection . . . ."⁶² Thus, Congress made abundantly clear it intended both to draw distinctions between state and federal administrative enforcement actions and to spell out when § 309(g)(6) applies to each type of action. Under these circumstances, the omission of any reference in subsection (g)(6)(B) to state administrative actions brought under "State law comparable to this subsection" is striking and must be presumed to have been deliberate.

This plain reading of the safe harbor provision also furthers underlying policy choices which are reflected in the statute. To construe the safe harbor provision as "saving" citizen suits, which otherwise are precluded under § 309(g)(6)(A), only from federal administrative actions is consistent with Congress' stated goal of giving the states the primary authority for implementing and enforcing the CWA. Each state, after all, remains free to authorize citizen suits under state law, in state courts, in circumstances where § 309(g) would not provide citizens with a federal cause of action.

In the only reported case in which the defendant actually put the meaning of § 309(g)(6)(A) in issue—and the only case in which a court actually examined the language of the provision—the court held that the safe harbor provision does not apply to state administrative enforcement actions. In California Sportfishing Protection Alliance v. City of West Sacramento,⁶³ the court "declined the invitation to re-write the statute" and, instead, gave effect to the "plain meaning" of the phrase "under this subsection" as used in the safe harbor provision. The court rejected plaintiff's contention that this would "lead to the bizarre result that a state's power to preempt a federal court citizen suit would be greater than EPA's ability to preempt such a suit," and noted, "in a federal system, distinctions by Congress between state and federal administrative processes are not at all bizarre but should be expected." Noting Congress' general intention to "recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution," the court concluded that:

By limiting the citizen suit provision in instances when the state is diligently prosecuting, Congress may purposely have given greater autonomy to state prosecutions than to federal prosecutions in order to preserve and protect the states' administrative processes from undue interference from the federal scheme. Similarly, Congress may not have wished to usurp the states' ability to define the scope of citizen participation once the state has begun an enforcement action.⁶⁴

When Has an Administrative Enforcement Action "Commenced" and When Has It Ended?

Under § 309(g)(6)(A)(ii) a citizen suit will be precluded if the state "has commenced and is diligently prosecuting an action under a State law comparable to"⁶⁵ § 309(g). On the other hand, under § 309(g)(6)(A)(iii) a citizen suit will be precluded if the state "has issued a final order . . . ."⁶⁶ Thus, subparagraph (ii) addresses ongoing, and subparagraph (iii) addresses completed, administrative enforcement actions. The district court in GAF Corp.,⁶⁷ did not apply [30 ELR 10117] § 309(g)(6)(A)(ii) because the state had already issued a compliance order and assessed civil penalties. The court found that the state's action was not ongoing even though the compliance order called for future remedial measures subject to state oversight and potential future penalties. Similarly, in UNOCAL, the Ninth Circuit affirmed the district court's conclusion that the state had already entered a CDO and, therefore, the state action was "no longer still being 'prosecuted' within the meaning of § 1319(g)(6)(A)(ii)."⁶⁸

Although the distinction between subsections (ii) and (iii) often will make no practical difference in terms of citizen suit preclusion, there are situations in which the issue of whether an administrative action is ongoing or completed will matter. Under the "safe harbor" provision of § 309(g)(6)(B)(ii), a citizen suit may be maintained despite an administrative enforcement action if notice of intent to sue was served before the "commencement" of an action, and the citizen suit was filed within 120 days of the notice.⁶⁹ A typical administrative enforcement action will often entail the initial issuance of an order (perhaps including civil penalties), with continuing agency oversight through which the initial order may be modified and follow-up penalties may be assessed for failure to comply with the order over the course of many years. In these situations it may be difficult to determine when a particular agency enforcement action has been "commenced," when it is "ongoing," and when it has "concluded."

In Arkansas Wildlife Federation, the state issued a compliance order in 1991 without addressing certain violations.⁷⁰ Plaintiffs then initiated a citizen suit for the violations not addressed in the order. Thereafter, the state revised its order to include the previously omitted violations. The plaintiffs argued they should be allowed to seek civil penalties for violations not specifically addressed in the original state order in light of § 309(g)(6)(B)(ii). The plaintiffs assumed that if the original 1991 state order had "commenced" an administrative enforcement action, then the subsequent amendments to that order each constituted a new and separate enforcement action. The court of appeals rejected this argument and—contrary to the reasoning of GAF and UNOCAL—held the original state order and the subsequent revised orders "were all part of single ongoing enforcement action."⁷¹

Courts occasionally have had to determine the threshold of agency activity constituting commencement of an enforcement action. For example, the district court in Public Interest Research Group of New Jersey, Inc. v. Elf Atochem North America, Inc.,⁷² concluded that issuance of a Notice of Significant Noncompliance did not commence an action. The court said, "one in a series of periodic reports . . . which served to warn defendant that an enforcement action might be initiated in the future"⁷³ did not commence an action within the meaning of § 309(g)(6)(A)(ii). In Sierra Club v. Colorado Refining Co.,⁷⁴ the court distinguished Elf Atochem because the state's notice "was not one of a periodic series. Further, rather than warn [defendant] that an enforcement action might be taken in the future, [the state] demanded submission of a specific correction plan 'before we pursue further action.'"⁷⁵

What Is "Diligent Prosecution"?

Under § 505(b), a citizen suit will only be barred if the state or federal government is "diligently prosecuting" an enforcement action. Courts have been called upon to determine, in a variety of circumstances, what constitutes "diligent" prosecution. This puts courts in a rather uncharacteristic role—forcing them to examine the substantive adequacy of an administrative agency's exercise of enforcement discretion. Here again, the scrutiny with which a court reviews the agency's enforcement efforts depends in large measure on the court's view of the relative roles of government and citizen enforcement under the CWA.

Some courts have adopted a general presumption that governmental enforcement action is diligent, absent strong evidence the regulator has been dilatory, collusive, or acted in bad faith. The Eighth Circuit in Arkansas Wildlife Federation noted that states are to be afforded latitude in selecting the specific enforcement tools to be used in a given case. Because citizen suits are to play an "interstitial" rather than an "intrusive" role, they "should not considerably curtail the government agency's discretion."⁷⁶ Thus, simply because the state did not obtain everything it wanted from the defendant, or compromises were reached, diligent prosecution was not defeated.

Similarly, in Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co.,⁷⁷ the court voiced reluctance at second-guessing the adequacy of the state's enforcement because it did not want to discourage settlements, clog the federal court dockets, or limit the discretion of the administrative agency. A particularly stark example of judicial deference to a state's enforcement efforts is found in Orange Environment, Inc. v. County of Orange.⁷⁸ There, despite the "recalcitrant and cavalier attitude" of the defendant who had "consistently failed to comply with the terms of the Consent Orders," the court dismissed the citizen suit because "the standard for evaluating the diligence of the state in enforcing its action is a low one which requires due deference to the state's plan of attack . . . ."⁷⁹ Therefore, absent the clearest indicia of collusion, bad faith, or inexcusable laxness on the part of an administrative agency, courts have found that [30 ELR 10118] an administrative enforcement action is being prosecuted diligently for purposes of citizen suit preclusion.⁸⁰

A fundamentally different perspective was reflected in a case decided in the Southern District of New York under the Clean Air Act's citizen suit provision, where the court observed that "complete [judicial] deference to agency enforcement strategy, adopted and implemented internally and beyond public control, requires a degree of faith in bureaucratic energy and effectiveness that would be alien to common experience."⁸¹ Again, the outcome was influenced by the court's underlying conviction that Congress intended citizen suits to be an indispensable feature of the statutory enforcement scheme.⁸² In a later CWA case in the same district, New York Coastal Fishermen's Ass'n v. New York City Department of Sanitation,⁸³ the state had been engaged in enforcement efforts for approximately eight years prior to the filing of the citizen suit and the city was not projected to come into compliance for at least another four years. The court concluded that the diligent prosecution defense "could not be taken seriously" in light of what it described as the "sordid details of this bureaucratic and political night mare."⁸⁴ In the court's view, the state had been acting "as a pen pal, not a prosecutor."⁸⁵

Similarly, in Friends of the Earth, Inc. v. Laidlaw Environmental Services,⁸⁶ the district court rejected the diligent prosecution defense in light of several factors. First, contrary to the state's general policy, the fine it imposed did not include any amount reflecting the economic advantage gained through noncompliance.⁸⁷ Second, the defendant was allowed to draft and file the state's complaint against itself and to pay the filing fee for the complaint. Third, the district court believed the consent order was drafted with unusual haste, which had the effect of depriving citizens from participating in the process.⁸⁸

Must the State Be Seeking or Have Collected a Civil Penalty to Bar a Citizen Suit?

Section 309(g)(6)(a)(iii) precludes a citizen suit if the state (or federal government) "has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law . . . ."⁸⁹ Under subsection (g)(6)(a)(ii), on the other hand, an ongoing state enforcement action will bar a citizen suit if the state is "diligently prosecuting" that action. Although this provision does not specifically say the state must be seeking civil penalties in its pending enforcement action, the reference to a "State law comparable to" § 309(g) provides some support for the notion that the state must be seeking civil penalties if its pending enforcement action is to bar citizen suits.

The case law, however, is divided on this issue. With respect to ongoing enforcement actions, the issue largely depends on how the court decides the comparability issue. Thus, for example, in Scituate the court said the state need not be seeking civil penalties because under subsection (g)(6)(a)(ii) the state need not be acting under the specific provision of state law which is comparable to § 309(g).⁹⁰ It is "enough" that the state statutory scheme as a whole contains authority similar to § 309(g) even if the state has chosen to act under a different authority.⁹¹ On the other hand, courts which construe the comparability test to require state enforcement action under provisions of state law which are similar to § 309(g) necessarily hold, as a corollary, that the state must actually be seeking to assess an administrative civil penalty in order to bar citizen suits.⁹²

With respect to subsection (g)(6)(a)(iii) the issue might appear to be clearer because that section specifically refers to a state action which has assessed a civil penalty. Thus, in UNOCAL, the Ninth Circuit held that a citizen suit was not barred because UNOCAL's payment of $ 780,000 to the state did not constitute a "penalty" within the meaning of either § 309(g)(6)(a)(iii) or state law.⁹³ On the other hand, there is no reason to assume Congress would have intended to establish different tests under subsections (g)(6)(a)(iii) and (a)(ii). In other words, it arguably would make little sense to say that a completed state enforcement action only bars a citizen suit if a penalty was actually assessed, but a pending state enforcement action bars a citizen suit even if no penalty is being sought.⁹⁴

[30 ELR 10119]

Will a State Enforcement Action Bar Citizen Suits for Injunctive Relief as Well as for Civil Penalties?

Section 309(g)(6) provides that state (and federal) administrative enforcement actions meeting the specified criteria will bar "a civil penalty action under subsection (d) of this section or . . . section 1365 of this title."⁹⁵ Thus, the issue has arisen whether a qualifying state enforcement action will prohibit only a citizen suit which seeks the imposition of civil penalties, or whether it will also bar a citizen suit which seeks injunctive relief.⁹⁶

Scituate⁹⁷ and Arkansas Wildlife Federation⁹⁸ held that the bar applies to citizen suits seeking injunctive relief as well as civil penalties. The Eighth Circuit in Arkansas Wildlife Federation said it would be "unreasonable" to allow citizen suits for the former relief but not the latter; such a result would undermine Congress' intent by allowing undue interference with the state's legitimate enforcement efforts.⁹⁹

However, other courts—including those which accepted Scituate's definition of comparability—have held that § 309(g)(6) only bars citizen suits which seek civil penalties.¹⁰⁰ The courts in both Orange Environment¹⁰¹ and Coalition for a Livable West Side v. New York City Department of Environmental Protection¹⁰² thoroughly reviewed the legislative history to § 309(g)(6) and rejected the reasoning of the court in Scituate.

Must a Properly Commenced Citizen Suit Be Dismissed in Light of a Subsequent Government Judicial Enforcement Action?

Section 505(b) provides, "no [citizen suit] may be commenced . . . if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court . . . ."¹⁰³ Several cases have held that a properly commenced citizen suit may continue and should not be dismissed merely because the state or federal government commences a judicial enforcement action thereafter.¹⁰⁴ However, a different situation may be presented if the subsequently filed government enforcement action has been commenced and successfully concluded while the citizen suit is pending.

In Atlantic States Legal Foundation v. Eastman Kodak Co.,¹⁰⁵ the Second Circuit held that under § 505, even if a citizen suit may be properly "commenced," it must be dismissed if the state initiates a judicial enforcement action and resolves the matter after commencement of the citizen suit, so long as the state enforcement action has caused the violations to cease without the likelihood of recurrence and, thus, has "eliminated the basis for the citizen suit."¹⁰⁶ The court rejected plaintiff's argument that, in failing to bring an enforcement proceeding during the 60-day statutory notice period,¹⁰⁷ New York had forfeited its right to preclude citizen enforcement. The court relied on the Supreme Court's holding in Gwaltney that a citizen suit may not address wholly past violations or seek to recover fines and penalties that the government "has elected to forego."¹⁰⁸ In short, a "citizen suit thus must be prospective in nature and must supplement, not supplant, state enforcement of the Act."¹⁰⁹ Consequently, plaintiff "may not challenge the terms of the settlement between Kodak and New York State unless there is a realistic prospect that the violations alleged in [plaintiff's] complaint will continue notwithstanding the settlement."¹¹⁰ This result should apply to plaintiff's claim for injunctive relief and for civil penalties.

According to the Kodak court, the "purpose of the citizen suit is to stop violations of the [CWA] that are not challenged by appropriate state and federal authorities."¹¹¹ This does not mean the statute

can or should be read to discourage a governmental enforcement action once a citizen suit has been commenced nor to prevent state or local authorities from achieving a settlement as to conduct that is the subject of a citizen complaint. To hold otherwise would likely lead to underenforcement of the [CWA].¹¹²

In short, a plaintiff in a § 505 citizen suit "may not revisit the terms of a settlement reached by competent state authorities without regard to the probability of a continuation of the violations alleged in its complaint."¹¹³

Subsequently, the Second Circuit reached a different result and, in the process, distinguished and limited the reach of Kodak. In Atlantic States Legal Foundation v. Rainbow Alliance for a Clean Environment, Inc.,¹¹⁴ the court of appeals permitted a citizen suit for civil penalties (but not for injunctive relief) to go forward where the citizen suit was properly commenced, even though a subsequently initiated [30 ELR 10120] government enforcement action led to asettlement. The court of appeals first noted that, in Kodak, the court had not been squarely presented with the issue of whether the claim for penalties should be treated differently from the claim for injunctive relief for mootness purposes. In addition, the court of appeals sought to distinguish Kodak by recognizing that in Rainbow Alliance (1) the government enforcement action did not "cover all the violations" alleged by plaintiffs, and (2) "small fines of only $ 6,600" were assessed by the state, whereas in Kodak the defendant had paid $ 2 million in penalties.¹¹⁵ Thus, the court of appeals seemed implicitly to be saying that, unlike in Kodak, the settlement reached with the government agency did not ensure defendant's future compliance with the CWA.¹¹⁶

What Is the Extent of EPA Oversight of Citizen Suit Consent Decrees?

Even if a citizen suit may proceed, the EPA retains the ability to play a direct role in its outcome because of the agency's statutory authority to exercise oversight of judicially approved settlements. Parties to a private citizen suit should recognize that, even if they can agree on the terms of a settlement, EPA may attempt to persuade a court that the settlement should not be approved unless a greater price is exacted from the defendant.

Section 505(c)(3) requires that EPA be given notice 45 days before a consent judgment is entered in any citizen suit.¹¹⁷ EPA has argued successfully that this provision implies the government's authority to submit "comments" to the court on the proposed consent decree and that courts should consider these when deciding whether to approve the consent decree.¹¹⁸ EPA has frequently used this avenue to challenge citizen suit settlements on the ground that the settlement does not require the payment of a civil penalty to the government. EPA's challenges have met with some success.

Whether civil penalties payable to the U.S. Treasury are mandatory turns on the interpretation of § 309(d), which provides "any person who violates [one of several CWA provisions] shall be subject to a civil penalty . . . ."¹¹⁹ Because the legislative history on this point is bare, courts have wrestled with whether "shall be subject to" equals "shall pay," thus rendering a penalty mandatory. Not surprisingly, courts have come down on both sides of the issue.

At least one district court, in Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton,¹²⁰ has suggested that civil penalties are never mandatory either in citizen suits or in state or federal enforcement actions. By contrast, three other courts have required the imposition of civil penalties where the liability of the defendant has been judicially established (either through admission, summary judgment, or a liability phase of trial).¹²¹ Finally, a few courts have concluded that civil penalties are not required when the defendant's liability has not been judicially established.¹²²

Whether or not the government ultimately prevails in persuading a court that a proposed consent judgment is too lenient, every defendant must recognize that the potential for the government to delay or thwart a settlement reached with a private-party plaintiff is real and substantial. This is true even if the government elected to sit on the sidelines throughout the course of the litigation. More often than not, after receiving the required advance notice of a citizen suit,¹²³ the government will do nothing. It will not intervene in the case, and the private parties may then litigate the case for years without hearing a word from EPA or the U.S. Department of Justice. When they ultimately reach a settlement, the parties might believe their work is effectively done and look forward to the court's prompt and grateful approval of the settlement. The parties understandably might assume the government will remain as disinterested in the proposed settlement as it was in the litigation itself.

These would be dangerous and misguided assumptions. In the authors' experience, the government has not hesitated to respond to notices of proposed consent judgments more actively than it responds to notices of initiation of citizen suits. On occasion, the government, after sitting on its hands for the duration of the citizen suit, will seek to scuttle the settlement reached by the private parties, or threaten to do so. While this may not seem fair from the perspective of the litigants, it is a possibility for which they must be prepared.

The government contends its oversight authority is necessary to ensure "sweetheart" settlements are not reached [30 ELR 10121] between the plaintiff and defendant. This is a reasonable policy position in the abstract. Frequently, however, the government's objections to proposed settlements essentially represent an effort by the government to extract its "pound of flesh," in addition to whatever benefits the plaintiff may have obtained. Such efforts strike some as unseemly in those numerous cases where the government has elected to sit on the sidelines for the duration of the litigation and then seek to benefit from the sweat equity of private-party plaintiffs and their counsel.

In any event, there is little that can be done by the parties to eliminate this possibility. One potential avenue for protection arises from the fact that the government is only allowed to comment on a proposed "consent judgment." In one case of which the authors are aware, a defendant reached a settlement with the citizen plaintiffs which the parties agreed would be held confidential. They then presented to the court a proposed consent judgment dismissing the complaint with prejudice. Notice of the proposed judgment was given to the federal government, which had shown no interest in the case since its inception. On the 44th day following notice, the United States threatened to seek to intervene in the litigation and file comments opposing the proposed judgment unless the terms of the settlement agreement were revealed. The government ultimately chose not to intervene, presumably because the proposed consent judgment of dismissal was nonsubstantive and because the government realized that it was not in the strongest position to object to any settlement terms having ignored the litigation for years.

This strategy obviously has risks, and parties to a citizen suit will not necessarily want to pursue such a course. Ultimately, the only way for a potential defendant (and plaintiff) in a citizen suit to avoid the possibility of the government objecting to a proposed settlement is to settle before the citizen suit is filed. That way, a settlement will not involve the need for any judgment to be entered by a court or notice of a proposed settlement to be given to the government. Although the risk of government involvement would not be eliminated (because the government may bring its own enforcement action), it will be substantially reduced, because the resources the United States must devote to its own enforcement actions are much greater than those it would need to file comments in objection to a proposed settlement of a citizen suit.

Conclusion

Twenty-eight years after passage of the CWA significant issues remain unresolved concerning the scope of the citizen suit preclusion provisions and the ability of the United States to thwart a settlement reached by private parties in a citizen suit. These uncertainties arise largely because of widely divergent views among members of Congress and within the judiciary as to the relative importance and role of citizen suits in the overall statutory enforcement scheme. In any forthcoming CWA reauthorization efforts, Congress should resolve these uncertainties so the fortunes of parties to citizen suit litigation do not depend so fundamentally on the law of the forum in which venue resides.

1. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

2. For example, courts have had to decide (1) whether the CWA preempts claims for damages brought under state law, see Jones Fall Sewage Sys. v. Train, 539 F.2d 1006 (4th Cir. 1976); (2) the ability of states to impose more stringent requirements than those mandated by federal regulations, see, e.g., Student Pub. Interest Research Group of N.J. v. P.D. Oil & Chem. Storage, Inc., 627 F. Supp. 1074, 16 ELR 20517 (D.N.J. 1986); (3) to what extent states must incorporate the U.S. Environmental Protection Agency's (EPA's) public participation requirements into state programs, see Natural Resources Defense Council v. EPA, 859 F.2d 156 (D.C. Cir. 1988); (4) the respective roles of the states and EPA in controlling discharges which have interstate impacts, see Arkansas v. Oklahoma, 503 U.S. 91, 22 ELR 20552 (1992); and (5) the extent to which federally imposed water quality standards may affect a state's rights to allocate quantities of water within its boundaries, see PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 24 ELR 20945 (1994).

3. 33 U.S.C. § 1365, ELR STAT. FWPCA § 505.

4. Id. § 1365(a), ELR STAT. FWPCA § 505(a).

5. Id. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B). Section 1365(b) also requires that, with limited exceptions, no citizen suit may be commenced prior to 60 days after the plaintiff has given notice of the intended suit to the alleged violator, the EPA, and the state in which the alleged violation has occurred. The notice requirement is jurisdictional. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11, 11 ELR 20684, 20687 (1981).

6. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618. The CWA citizen suit provision was based on the Clean Air Act provision. See Proffitt v. Rohm & Haas, 850 F.2d 1007, 1011, 18 ELR 21165, 21167 (3d Cir. 1988).

7. 592 F.2d 215, 9 ELR 20147 (3d Cir. 1979), cert denied, 441 U.S. 961 (1979).

8. See id. at 219, 9 ELR at 20149.

9. See Student Pub. Interest Research Group of N.J. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1985).

10. See, e.g., Atlantic States Legal Found. v. Universal Tool & Stamping Co., 735 F. Supp. 1404, 1414-15, 20 ELR 21152, 21156-57 (N.D. Ind. 1990); Illinois Pub. Interest Research Group v. PMC, Inc., 835 F. Supp. 1070, 24 ELR 20654 (N.D. Ill. 1993).

11. See, e.g., Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 63, 15 ELR 20674, 20677 (2d Cir. 1985); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 18 ELR 20237 (9th Cir. 1987).

12. See Hudson River Sloop Clearwater v. Consolidated Rail Corp., 591 F. Supp. 345, 14 ELR 20627 (N.D.N.Y. 1984).

13. See Friends of the Earth, 768 F.2d at 57, 15 ELR at 20674.

14. See "Safe Harbor" Provision in § 309(g) section, infra.

15. See 33 U.S.C. § 1319(a), ELR STAT. FWPCA § 309(a).

16. 5 U.S.C. § 554, available in ELR STAT. ADMIN. PROC.

17. 33 U.S.C. § 1319(g)(3), ELR STAT. FWPCA § 309(g)(3).

18. See id. § 1319(g)(4)(A), ELR STAT. FWPCA § 309(g)(4)(A).

19. Id. § 1319(g)(4)(B), ELR STAT. FWPCA § 309(g)(4)(B).

20. See id. § 1319(g)(4)(C), ELR STAT. FWPCA § 309(g)(4)(C).

21. See id. § 1319(g)(8), ELR STAT. FWPCA § 309(g)(8).

22. Id. § 1319 (g)(6)(A)-(B), ELR STAT. FWPCA § 309(g)(6)(A)-(B) (emphasis added).

23. 949 F.2d 552, 22 ELR 20437 (1st Cir. 1991).

24. Id. at 555, 22 ELR at 20439.

25. Id. (quoting 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b) (emphasis added)).

26. 484 U.S. 49, 18 ELR 20142 (1987).

27. 949 F.2d at 555, 22 ELR at 20439 (quoting Gwaltney, 484 U.S. at 60, 18 ELR at 20145).

28. Id.

29. Id. at 556, 22 ELR at 20439 (quoting Gwaltney, 484 U.S. at 61, 18 ELR at 20145).

30. Id.

31. Id.

32. Id. (internal footnote omitted).

33. See id. at n.7. Apparently, the First Circuit considered it irrelevant that (1) the state penalty provision statute did not ensure the public notice and comment would be provided in advance of the issuance or a proposed administrative penalty, in contrast to § 309(g); and (2) the rights to comment on and request a hearing referred to by the court were available in state civil penalty actions, but not for the issuance of administrative compliance orders of the type issued by the DEP in Scituate.

34. 29 F.3d 376, 24 ELR 21573 (8th Cir. 1994).

35. See id. at 381, 24 ELR at 21576.

36. See Saboe v. Oregon, 819 F. Supp. 914, 23 ELR 21212 (D. Or. 1993); Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 777 F. Supp. 173, 22 ELR 20483 (D. Conn. 1991), aff'd in part, rev'd in part, 989 F.2d 1305, 23 ELR 20699 (2d Cir. 1993).

37. 29 F.3d at 381, 22 ELR at 21576.

38. Id. at 382, 22 ELR at 21576.

39. Id.

40. Id.

41. 83 F.3d 1111, 26 ELR 21152 (9th Cir. 1996), cert. denied, 519 U.S. 1101 (1997).

42. Id. at 1117, 26 ELR at 21154-56.

43. Id. at 1118, 26 ELR at 21155.

44. Id.

45. Id.

46. Id.

47. It also runs the danger of conflicting with the traditional deference, based on separation-of-powers considerations, that courts generally accord the exercise of Executive Branch enforcement discretion and those cases holding that courts should not second-guess the exercise of an agency's enforcement discretion under the CWA. See What Is "Diligent Prosecution"? section, infra.

48. 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b).

49. See "Safe Harbor" Provision in § 309(g) section, infra.

50. 965 F. Supp. 769, 791-92 (E.D. Va. 1997).

51. See id.

52. See id. at 794-95. The court also found the state law was not comparable because it did not authorize the imposition of civil penalties, but only "civil charges" which could only be assessed with the consent of the discharger. See id. at 792.

53. 770 F. Supp. 943, 21 ELR 20678 (D.N.J. 1990).

54. 803 F. Supp. 97, 23 ELR 21209 (N.D. Ohio 1992).

55. 1999 U.S. Dist. LEXIS 2672 (E.D. Pa. Feb. 19, 1999); see also Friends of Santa Fe County v. Lac Minerals, Inc., 892 F. Supp. 1333, 26 ELR 20135 (D.N.M. 1995).

56. 819 F. Supp. 914, 23 ELR 21212 (D. Or. 1993).

57. As is required by the citizen suit provision, 33 U.S.C. § 1365(b), ELR STAT. FWPCA § 505(b).

58. Id. § 1319(g)(6)(B)(i) and (ii), ELR STAT. FWPCA § 309(g)(6)(B)(i) and (ii).

59. 757 F. Supp. 438, 21 ELR 20966 (D.N.J. 1991), reconsideration denied in part & granted in part on other grounds, 790 F. Supp. 511, 22 ELR 20343 (D.N.J. 1991).

60. Atlantic States Legal Found. v. Rainbow Alliance for a Clean Env't, 993 F.2d 1017 (2d Cir. 1993); accord, Sierra Club v. Colorado Ref. Co., 852 F. Supp. 1476, 24 ELR 21464 (D. Colo. 1994); Proffitt v. Municipal Auth. of the Borough of Morrisville, 716 F. Supp. 837, 842, 20 ELR 20090, 20093 (E.D. Pa. 1989), aff'd, 897 F.2d 523 (3d Cir. 1990); Public Interest Research Group of N.J. v. Elf Atochem N. Am., Inc., 817 F. Supp. 1164, 1172, 23 ELR 21225, 21227 (D.N.J. 1993); Massachusetts Pub. Interest Research Group v. ICI Ams., Inc., 777 F. Supp. 1032, 1036 (D. Mass. 1991); Public Interest Research Group of N.J. v. GAF Corp., 770 F. Supp. 943, 949-50, 21 ELR 20678, 20681 (D.N.J. 1990).

61. See David R. Hodas, Enforcement of Environmental Law in a Triangular Federal System: Can Three Not be a Crowd When Enforcement Authority Is Shared by the United States, the States, and Their Citizens?, 54 MD. L. REV. 1552, 1642-43 (1995). Professor Hodas took issue with the Second Circuit's decision in Atlantic States Legal Found v. Eastman Kodak Co., 933 F.2d 124, 21 ELR 21047 (2d Cir. 1991), which, as discussed in Must a Properly Commenced Citizen Suit Be Dismissed? section, infra, held a properly commenced citizen suit must be dismissed where the state subsequently undertook administrative enforcement action which cured the defendant's illegal conduct. The Second Circuit's subsequent opinion in Rainbow Alliance sought to distinguish Kodak in allowing the citizen suit to proceed despite a subsequently filed government enforcement action, and then cited in dictum the safe harbor provision, without specifically analyzing its language. Indeed, even the Eighth Circuit, in dictum in Arkansas Wildlife Fed'n v. ICI Ams., Inc., seemed to assume without question that the safe harbor provision applies to state enforcement actions, 29 F.3d 376, 382, 24 ELR 21573, 21576 (8th Cir. 1994).

62. 33 U.S.C. § 1319(g)(6)(A), ELR STAT. FWPCA § 309(g)(6)(A). Subsection (g)(6)(A)(i) specifies when a citizen suit will be precluded by a pending federal administrative "action under this section"; (A)(ii) refers to a pending state action brought "under aState law comparable to this subsection"; and (A)(iii) refers to completed federal and state actions "under this section, or such comparable State law, as the case may be . . . ." Id. § 1319(g)(6)(A)(i)-(iii), ELR STAT. FWPCA § 309(g)(6)(A)(i)-(iii).

63. 905 F. Supp. 792, 802-03 (E.D. Cal. 1995), reconsideration granted in part & denied in part, 1995 U.S. Dist. LEXIS 20324 (E.D. Cal. Oct. 24, 1995).

64. Id. at 802. The court also found the legislative history on this issue to be "inadequate" and "inconclusive." Id. at 803.

65. 33 U.S.C. § 1319(g)(6)(A)(ii), ELR STAT. FWPCA § 309(g)(6)(A)(ii). Similarly, the citizen suit provision states that a citizen suit will be precluded if EPA or the state has commenced an action in court. Id. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B).

66. Id. § 1319(g)(6)(A)(iii), ELR STAT. FWPCA § 309(g)(6)(A)(iii).

67. 770 F. Supp. at 943, 21 ELR at 20678.

68. 83 F.3d at 1118, 26 ELR at 21155.

69. 33 U.S.C. § 1319(g)(6)(B)(ii), ELR STAT. FWPCA § 309(g)(6)(B)(ii).

70. 29 F.3d at 376, 24 ELR at 21573.

71. Id. at 382, 29 ELR at 21576.

72. 817 F. Supp. 1164, 1172, 23 ELR 21225, 21228 (D.N.J. 1993).

73. See id: see also Atlantic States Legal Found, v. Koch Ref. Co., 681 F. Supp. 609, 611 n.2, 18 ELR 20804, 20804 n.2 (D. Minn. 1988) (issuance of notice of violation did not constitute the commencement of a civil penalty assessment).

74. 852 F. Supp. 1476, 24 ELR 21464 (D. Colo. 1994).

75. Id. at 1485, 24 ELR at 21469.

76. 29 F.3d at 380, 29 ELR at 21576; see also Connecticut Fund for the Env't v. Contract Plating Co., 631 F. Supp. 1291, 1293, 16 ELR 20667, 20668 (D. Conn. 1986) (rejecting plaintiff's argument that the state consent order providing for a civil penalty of $ 3,500 was not as comprehensive as the relief sought by plaintiffs and finding that plaintiff's argument was insufficient to overcome the presumption of diligent prosecution).

77. 777 F. Supp. 173, 185-86, 22 ELR 20483, 20486 (D. Conn. 1991), aff'd in part, rev'd in part, 989 F.2d 1305, 23 ELR 20699 (2d Cir. 1993).

78. 860 F. Supp. 1003, 25 ELR 20247 (S.D.N.Y. 1994).

79. Id. at 1017, 25 ELR at 20254.

80. See, e.g., North & South Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552, 22 ELR 20437 (1st Cir. 1991); Connecticut Fund for the Env't, 631 F. Supp. at 1293, 16 ELR at 20668 (announcing general presumption that an administrative enforcement action has been diligently prosecuted absent persuasive evidence that the state is engaged in a pattern of conduct considered dilatory, collusive, or in bad faith; the presumption is not rebutted by showing the settlement was less burdensome than the remedy sought in the citizen suit); Carrow v. Javit, 1993 U.S. Dist. LEXIS 16410 (D. Conn. 1993).

81. Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. 1159 (S.D.N.Y. 1980).

82. See id. at 1167.

83. 772 F. Supp. 162, 22 ELR 20183 (S.D.N.Y. 1991).

84. Id. at162-63, 22 ELR at 20817.

85. Id.

86. 890 F. Supp. 470, 26 ELR 20457 (D.S.C. 1995), rev'd on other grounds, 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998), cert. granted, 143 L. Ed. 2d 107 (1999). Although the district court decision was reversed on standing grounds, the decision is cited here as an example of the treatment of the diligent prosecution issue.

87. See also American Canoe Ass'n v. City of Wilson Waste Water Treatment Plant, 1998 U.S. Dist. LEXIS 7766, *20-22 (E.D. Pa. 1998) (refusing to defer to state's enforcement strategy because the penalty did not account for economic benefit and because of significant delay).

88. Other courts have also conflated the issue of diligent prosecution with the issue of citizen participation, holding that a state action could not constitute diligent prosecution if there is no right of citizen intervention. See, e.g., Frilling v. Village of Anna, 924 F. Supp. 821, 838, 26 ELR 21356, 21366 (S.D. Ohio 1996); Sierra Club v. SCM Corp., 572 F. Supp. 828, 830, 14 ELR 20183, 20183 (W.D.N.Y 1983), aff'd, 747 F.2d 99, 14 ELR 20890 (2d Cir. 1984).

89. 33 U.S.C. § 1319(g)(6)(A)(iii), ELR STAT. FWPCA § 309(g)(6)(A)(iii).

90. See 949 F.2d at 556, 22 ELR at 20439.

91. See id.; accord, Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 777 F. Supp. 173, 181, 22 ELR 20483, 20488 (D. Conn. 1991), aff'd in part, rev'd in part, 989 F.2d 1305, 23 ELR 20699 (2d Cir. 1993); Sierra Club v. Colorado Ref. Co., 852 F. Supp. 1476, 1485, 24 ELR 21464, 21468-69 (D. Colo. 1994).

92. See, e.g., Friends of Santa Fe County v. Lac Minerals, Inc., 892 F. Supp. 1333, 26 ELR 20135 (D.N.M. 1995).

93. 83 F.3d at 1115-16, 26 ELR at 21154.

94. Oddly, in opposing UNOCAL's petition for certiorari, Coalition for a Better Environment and other environmental groups contended that the Ninth Circuit's decision did not conflict with Scituate because the latter case involved subsection (g)(6)(a)(ii) whereas UNOCAL involved subsection (g)(6)(a)(iii). They offered no reason why the "comparability" test should be considered different under the two subsections.

95. 33 U.S.C. § 1319(g)(6)(A)-(B), ELR STAT. FWPCA § 309(g)(6)(A)-(B) (emphasis added). Subsection (d) authorizes the federal government to initiate civil penalty actions in federal court. Section 1365 refers to the citizen suit provision of the statute.

96. Under § 505(a), the district courts are authorized to impose civil penalties and issue injunctive relief in citizen suits. See Must a Properly Commenced Citizen Suit Be Dismissed? section, infra.

97. 949 F.2d at 552, 22 ELR at 20437.

98. 29 F.3d at 376, 24 ELR at 21573.

99. See id. at 382-83, 24 ELR at 21576.

100. See, e.g., United States v. Smithfield Foods, Inc., 965 F. Supp. 769 (E.D. Va. 1997) (accepting Scituate's comparability analysis); Coalition for a Livable West Side v. New York City Dep't of Envtl. Protection, 830 F. Supp. 194 (S.D.N.Y. 1993) (citing legislative history and rejecting Scituate); Orange Env't, Inc. v. County of Orange, 860 F. Supp. 1003, 25 ELR 20247 (S.D.N.Y. 1994) (same).

101. 860 F. Supp. at 1017-18, 25 ELR at 20254.

102. 830 F. Supp. 194 (S.D.N.Y. 1993).

103. 33 U.S.C. § 1365(b), ELR STAT. FWPCA § 505(b).

104. See, e.g., Chesapeake Bay Found v. American Recovery Co., 769 F.2d 207, 16 ELR 20056 (4th Cir. 1985) (per curiam) (dictum); Connecticut Fund for the Env't v. Job Plating Co., 623 F. Supp. 207, 16 ELR 20596 (D. Conn. 1985); Atlantic States Legal Found v. Koch Ref. Co., 681 F. Supp. 609, 612-13, 18 ELR 20804, 20805 (D. Minn. 1988); Connecticut Fund for the Env't v. Upjohn Co., 660 F. Supp. 1397, 1404, 17 ELR 21137, 21138-39 (D. Conn. 1987).

105. 933 F.2d 124, 21 ELR 21047 (2d Cir. 1991).

106. Id. at 127, 21 ELR at 21048.

107. Section 505(b) provides that no citizen suit may be commenced "prior to sixty days after the plaintiff has given notice of the alleged violation . . . ." 33 U.S.C. § 1365(b)(1)(A), ELR STAT. FWPCA § 505(b)(1)(A).

108. 933 F.2d at 127, 21 ELR at 21048.

109. See id. at 127, 21 ELR at 21048 (citing Gwaltney, 484 U.S. 49, 59-60, 18 ELR 20142, 20145).

110. Id.

111. Id.

112. Id.

113. Id. The court did, however, authorize an award of attorney fees since the plaintiff's suit did help to achieve Kodak's compliance with the statute.

114. 993 F.2d 1017 (2d Cir. 1993).

115. See id. at 1021-22. The court also noted that the agency enforcer was a local agency, which is entitled to less deference under the CWA than state and federal agencies. Id. at 1022.

116. The validity of the Second Circuit's approach could be undermined depending upon how the Supreme Court disposes of Friends of the Earth v. Laidlaw Envtl. Servs., 890 F. Supp. 470, 26 ELR 20457 (D.S.C. 1995), rev'd on other grounds, 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998), cert. granted, 143 L. Ed. 2d 107 (1999). If the court holds that civil penalties alone cannot provide a constitutional base for standing, then the Second Circuit's rationale in Rainbow Alliance, which relies heavily on the distinction between civil penalty claims and claims for injunctive relief, would be highly suspect at best.

117. 33 U.S.C. § 1365(c)(3), ELR STAT. FWPCA § 505(c)(3) provides:

Whenever any action is brought under this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General and the [EPA] Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator.

Id.

118. See, e.g., Pennsylvania Env't Defense Found v. Bellefonte Borough, 718 F. Supp. 431, 20 ELR 20286 (M.D. Pa. 1989) (EPA comments are of nature of amicus brief).

119. 33 U.S.C. § 1319(d), ELR STAT. FWPCA § 309(d).

120. 506 F. Supp. 902, 11 ELR 20498 (W.D. Pa. 1980) (entering consent decree without penalty after liability established), aff'd, 644 F.2d 995, 11 ELR 20790 (3d Cir. 1981).

121. See Leslie Salt Co. v. United States, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995), effectively overruling Hawaii's Thousand Friends v. Honolulu, 821 F. Supp. 1368, 23 ELR 21380 (D. Haw. 1993); Friends of the Earth v. Archer Daniels Midland Co., 780 F. Supp. 95, 22 ELR 21024 (N.D.N.Y. 1992) (rejecting proposed citizen suit consent decree); Natural Resources Defense Council v. Texaco Ref. & Mktg., 800 F. Supp. 1, 23 ELR 20157 (D. Del. 1992), rev'd in part on other grounds, 2 F.3d 493, 23 ELR 21328 (3d Cir. 1993).

122. See Sierra Club v. Electronic Controls Design, Inc., 909 F.2d 1350, 20 ELR 21081 (9th Cir. 1990); United States v. Smithfield Foods, Inc., 982 F. Supp. 373, 28 ELR 20445 (E.D. Va. 1997) (dicta); Friends of the Earth v. Eastman Kodak Co., 656 F. Supp. 513, 17 ELR 20828 (W.D.N.Y. 1987) (entering consent decree without civil penalty), aff'd, 834 F.2d 295, 18 ELR 20229 (2d Cir. 1987); United States v. Bradshaw, 541 F. Supp. 880, 12 ELR 20629 (D. Md. 1981).

123. Section 505(b)(1)(A) and (B) require that the United States be given at least 60 days' advance notice of intent to file a citizen suit and authorizes the government to intervene as a matter of right in any such action.