GRABER, Circuit Judge:
The Federal Water Pollution Control Act, or Clean Water Act ("the Act"), 33 U.S.C. § 1365(a)(1), allows a citizen to sue to enforce the Act's prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System ("NPDES") permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; George Scott, Sr.; George Scott, Jr.; and George W. Scott, Sr., Revocable Inter Vivos Trust, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.
The district court dismissed this action after ruling that 33 U.S.C. § 1365(b)(1)(B) bars Plaintiff's claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319(g)(6)(A)(ii), also applies. We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court "to require compliance"
Defendants own and operate three scrap metal recycling facilities in Butte County, California. The facilities receive scrap metal, salvage vehicles, and process other waste for recycling and disposal.
Defendants' facilities are subject to the requirements and conditions contained in California's Industrial Activities Storm Water General Permit ("the Permit"), an NPDES general permit issued by the California State Water Resources Control Board ("the Board") pursuant to its authority under the Porter-Cologne Water Quality Control Act, Cal. Water Code §§ 13370-13389.
In 2007, the California Department of Toxic Substances Control ("the Department") initiated an investigation of Defendants' facilities after discovering that concrete and construction debris had been dumped in wetlands on some of Defendants' land. The Department extended the investigation to Defendants' three recycling facilities and found high levels of hazardous contamination. The Department ordered Defendants to "characterize" the extent of contamination, but Defendants did not comply.
In 2007 and 2008, the Butte County district attorney filed civil and criminal actions against Defendants, alleging numerous violations of state environmental and occupational safety laws. The civil complaint alleged that Defendants were liable under various state laws for "unlawfully stor[ing], transport[ing,] and dispos[ing] of hazardous waste." Specifically, the state asserted claims under California's Health and Safety Code, sections 25189.5 and 25189.6 (improper handling and disposal of hazardous waste); Business and Professions Code, sections 17203, 17204, 17206(b) (engaging in unfair business practices); and Fish and Game Code, section 5650(f) (depositing substances that are deleterious to fish, plant, or bird life into state waters). In two criminal actions, the state charged Defendants with violations of the Health and Safety Code, 25189.5(a) (disposing of hazardous waste without a permit), 25189.6(a) (reckless handling of hazardous waste), 25503.5(a) (failing to submit a hazardous material release response plan after notice), 25507 (failing to report immediately a release of hazardous substances), 25509(a) (failing to inventory hazardous substances), sections 42400(a) (violating air quality rules), 42400.1(a) (negligently emitting air contaminants), 42400.2(a) (knowingly emitting air contaminants); Vehicle Code, section
In October 2008, Defendants entered into a plea agreement that resolved both the civil and the criminal proceedings. The agreement provided that Defendants would pay fines and serve a term of probation. Among other things, the agreement required Defendants to abide by three remedial action consent orders that the Department had issued during the previous month. Among other requirements, the consent orders required Defendants to clean up hazardous substances detected at the three facilities and to reduce potential human exposure to those substances. The plea agreement allowed Defendant Chico Scrap Metal to continue operating the facilities during the probation term so as to generate revenue to pay for the cleanups.
In January 2010, the Federal Environmental Protection Agency ("EPA") inspected Defendants' three facilities and found that the sites' storm water management systems failed to comply with the Permit. In March, Plaintiff sent Defendants, as well as state and federal agencies, notice of its intent to sue Defendants under the Act for violations of the Permit. The notices alleged ongoing violations of the storm water permit at Defendants' three facilities. Neither state nor federal officials commenced any enforcement proceedings under the Act after receiving the notices.
In May 2010, Plaintiff filed this action. The complaint alleges violations of provisions of the Permit that (1) prohibit discharges of polluted storm water, (2) require preparation of a "Storm Water Pollution Prevention Plan," (3) require the use of certain pollution control technologies for storm water discharges, and (4) require implementation of a storm water monitoring and reporting program.
In June 2010, the California Water Quality Control Board issued notices to Defendants that they were in violation of the Permit, citing the January 2010 inspections. The notices requested that Defendants submit a report describing how the violations were being addressed.
Defendants then moved to dismiss this action, arguing that Plaintiff's claims were barred by one of the Act's "diligent prosecution" bars, 33 U.S.C. § 1319(g)(6)(A)(ii). The district court ordered supplemental briefing on whether a different "diligent prosecution" bar, § 1365(b)(1)(B), also applied. The court ultimately ruled that § 1365(b)(1)(B) barred Plaintiff's citizen suit, without reaching the potential application of § 1319(g)(6)(A)(ii), and dismissed the action.
Plaintiff timely appeals.
The Act allows citizens to enforce its standards. 33 U.S.C. § 1365(a)(1). But any of four statutory bars may prohibit a citizen suit if the state or federal government is pursuing enforcement actions
The first "diligent prosecution" bar at issue is contained within the same statutory section that authorizes citizen suits to enforce the Act, § 1365, which provides, in relevant part:
Our prior decisions clarify two points with respect to the interpretation of § 1365(b)(1)(B). First, we have held that only an action that is "in a court" triggers the statutory bar; administrative proceedings do not. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 (9th Cir. 1987). Second, we have construed the phrase "has commenced and is diligently prosecuting," as it appears in § 1319(g)(6)(A)(ii), though not as it appears in § 1365(b)(1)(B). In the former context, we have held that the phrase requires an inquiry as to whether the government was diligently prosecuting its action at the time when the citizen filed his or her complaint. Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514, 516 (9th Cir.1996); Citizens for a Better Env't-Cal. v. Union Oil Co. of Cal., 83 F.3d 1111, 1118 (9th Cir.1996). We now extend that construction to the identical statutory phrase, as it appears in § 1365(b)(1)(B).
But we have not previously considered what kinds of enforcement actions constitute ones "to require compliance" for purposes of the § 1365(b)(1)(B) bar. Our analysis begins with the text of § 1365. BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338
Defendants argue that, to trigger the § 1365(b)(1)(B) bar, it is sufficient that the government action be comparable to the one brought under the Act. That view is at odds with the statute. Although the § 1319(g)(6)(A)(ii) bar applies when a state is diligently prosecuting "an action under a State law comparable to [certain actions under the Act]," § 1365(b)(1)(B) contains no reference to comparable state laws. "`[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.'" United States v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir.2008) (alteration in original) (quoting 2A Sutherland, Statutory Construction § 46.6 (6th ed.2006)). Because Congress omitted any reference to "comparable" state standards in § 1365, and because § 1365(b)(1)(B) specifically refers to an action "to require compliance with the standard, limitation, or order" that is the subject of the citizen suit, we hold that its bar applies only if the government's action seeks to do exactly that.
Our conclusion follows not only from the statute's text, but also from consideration of the odd consequences that would result from reading § 1365(b)(1)(B) to bar citizen enforcement of an NPDES permit when a state enforces its other environmental laws. The Act's "diligent prosecution" bars do not apply when a government seeks enforcement in court of other federal environmental laws, such as the Clean Air Act, 42 U.S.C. §§ 7401-7671q, or the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k. See 33 U.S.C. § 1365(a)(1), (b)(1)(B) (limiting statutory bar to enforcement to require compliance with a "standard, limitation, or order" of the Clean Water Act). According to Defendants' interpretation, though, a state's enforcement of state environmental laws that mirror those federal ones (for example, California's Air Resources Act or Hazardous Waste Control Law) might preclude citizen enforcement of the Clean Water Act, merely because the enforcement action was somehow "comparable" to the citizen suit. Nothing in the statute suggests that Congress intended that incongruous result, which would give state enforcement greater preclusive effect than parallel federal enforcement of analogous laws.
In this action, Plaintiff alleges that Defendants have violated four conditions of the Permit. We therefore must determine whether the government's enforcement action sought compliance with the same Clean Water Act standard: that is,
The pleadings and briefs in the 2007 and 2008 actions show that the state sought relief for alleged violations of California's air quality laws, Cal. Health & Safety Code §§ 39000-44474; its hazardous waste handling, treatment, and disposal laws, id. §§ 25100-25258.2, 25500-25546.5; its occupational licensing requirements for vehicle dismantlers, Cal. Veh.Code §§ 11500-11541; its occupational safety and health laws, Cal. Lab.Code §§ 6300-6719; provisions of its penal code prohibiting contempt of court, general nuisance, and improper waste disposal, Cal.Penal Code §§ 166, 373a, 374.8; its unfair business practices laws, Cal. Bus. & Prof.Code §§ 17000-17101; and its wildlife conservation laws, Cal. Fish & Game Code §§ 5650-5656. None of those criminal offenses or civil causes of action relates to the Clean Water Act, and none of the government's allegations asserted that Defendants discharged or managed storm water in violation of the Permit.
The plea agreement and probation order that concluded the proceedings in state court confirm that compliance with the Clean Water Act was not a subject of those actions. The plea agreement purported to settle only the state's claims that were asserted in the complaints, as amended, which it described as allegations of "dumping of hazardous industrial waste," "endangering the health of employees," and "various hazardous material, waste, and air quality violations." The agreement provided that the state would dismiss some counts and that Defendants would plead no contest to the counts that were not dismissed. The agreement contains no reference to storm water discharges, and none of the counts alleged violations of the Clean Water Act, either as originally stated or as amended.
The scope of the probation order is likewise limited to the government's allegations, as amended. The order lists the fines and fees that correspond to each state-law violation to which Defendants pleaded no contest; none of those penalties is listed as arising from violations of the Clean Water Act. Although the probation order contains a general requirement that Defendants "[o]bey all laws," that boilerplate provision merely requires that Defendants abide by the law as a condition of probation. It did not transform the action into one to enforce the Clean Water Act.
Defendants argue that the 2007 and 2008 actions nonetheless trigger the § 1365(b)(1)(B) bar to citizen enforcement because their probation conditions include the requirement that they comply with the 2008 consent orders issued by the Department of Toxic Substances Control. Under the consent orders, Defendants agreed to "maintain drainage control" at their facilities that meets, at a minimum, "the Waste Discharge Requirements for Discharges of
The 2008 consent orders themselves do not trigger § 1365(b)(1)(B)'s bar because they are not the result of any action in a court. The orders were issued by the Department, pursuant to its authority to issue remedial action orders in response to releases of hazardous substances that present an "imminent or substantial endangerment" to public health, Cal. Health & Safety Code §§ 25358.3(a), 25355.5(a). Because the orders resulted from administrative action, not a judicial proceeding, they do not trigger § 1365(b)(1)(B), which applies only if the government has undertaken an action "in a court" to enforce the Clean Water Act. Sierra Club, 834 F.2d at 1525.
Moreover, the state court considered the Permit requirements mentioned in the 2008 consent orders only to the extent that it made compliance with them a condition of Defendants' probation. Like the "obey all laws" provision, that condition merely requires Defendants to abide by legal obligations other than those that the parties litigated before the court. It does not transform the 2007 and 2008 actions into ones to require compliance with the Clean Water Act.
We need not, and do not, decide whether a different result would obtain had the court conditioned Defendants' probation on compliance with orders that did seek to enforce the Clean Water Act — such as one issued by the Board under its NPDES enforcement authority. Here, the 2008 consent orders expressly intend to mitigate human risks of on-site exposure through skin contact, inhalation of fumes, and ingestion of dust. They do not refer to effluent limitations or to the discharge of pollution into navigable waters, which is the concern of the Clean Water Act, see 33 U.S.C. §§ 1311, 1362(12) (prohibiting discharges of pollutants into navigable waters). Indeed, the record shows affirmatively that the 2008 orders did not enforce, or seek to enforce, the Act. According to the declaration of Leona Winner, a scientist from the Department, other state regulatory agencies have primary authority to enforce the Act and the Department did not study surface water quality or issue the 2008 consent orders to address discharges into surface waters. In context, the orders' isolated reference to the Permit does not constitute "diligent prosecution" of the Clean Water Act. See Friends of Milwaukee's Rivers, 382 F.3d at 759 (holding that the term "diligent prosecution" requires that the government action is both "capable of requiring compliance" with the Act and "calculated to do so" (internal quotation marks omitted)). Thus, even if a plea agreement or probation condition that requires compliance with an administrative order may, in some cases, constitute action in court to enforce the Act, that plainly is not true here.
In sum, because the 2007 and 2008 proceedings aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action.
The second statutory bar at issue, § 1319(g)(6)(A)(ii), provides that "any violation... with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a [citizen suit] civil penalty action." As previously noted, whether a state's enforcement action meets the statute's requirements is assessed as of the time the citizen-suit complaint is filed. Knee Deep, 94 F.3d at 516.
Defendants argue that § 1319(g)(6)(A)(ii) bars this action because they have been prosecuted under California statutes that provide for penalties, see, e.g., Cal. Health & Safety Code § 25189, and because violation of the 2008 consent orders will render them liable for administrative penalties, see, e.g., id. §§ 25359.2, 25359.3. We hold that neither the state's actions in court nor the Department's consent orders trigger § 1319(g)(6)(A)(ii).
Section 1319(g)(6)(A)(ii) does not apply on account of the state's actions in court, which resulted in criminal penalties and probation, because those civil and criminal actions were not administrative proceedings. The statutory bar applies only when a state has pursued an action that is "comparable to this subsection." Subsection 1319(g) sets forth the standards and procedures by which the EPA may assess administrative penalties only; the Act's criminal and civil penalties and enforcement procedures are set forth in subsections 1319(a)-(d). Thus, the state's successful prosecution of the 2007 and 2008 actions in court, and the court's assessment of criminal fines in those actions, do not trigger the statutory bar even if the state laws under which the penalties were assessed were "comparable" to the Clean Water Act in a general sense.
Nor do the 2008 consent orders trigger § 1319(g)(6)(A)'s bar to citizen enforcement. We have held that a state administrative action must seek and assess administrative penalties to trigger the § 1319(g)(6)(A) bar. Knee Deep, 94 F.3d at 516 ("[F]or § 1319(g)(6)(A) to apply, the comparable state law must contain penalty provisions and a penalty must actually have been assessed under the state law." (citing Citizens for a Better Env't-California v. UNOCAL, 83 F.3d 1111, 1115 (9th Cir.1996))); cf. Wash. Pub. Interest Research Grp. v. Pendleton Woolen Mills, 11 F.3d 883, 885-87 (9th Cir.1993) (holding that an administrative compliance order issued by the EPA did not trigger the § 1319(g)(6)(A)(i) bar, which applies if the EPA has commenced federal administrative penalty proceedings under § 1319(g)). In other words, "the comparable state law must contain penalty provisions and a penalty must actually have been assessed under the state law." Knee Deep, 94 F.3d at 516. Although the 2008 consent orders notify Defendants that they "may be liable for penalties" in the future if they fail to comply with the terms of those orders, see Cal. Health & Safety Code § 25359.2 (providing that the failure to comply with a remedial action order may result in administrative penalties), the state did not actually assess any penalties in the orders themselves. Thus, even if the cited provision of the Health and Safety Code might be "comparable" to § 1319(g) for these purposes, Defendants' potential liability under the consent orders does not trigger the bar of § 1319(g)(6)(A)(ii).
Because California has commenced no administrative penalty proceeding that is
Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to one under the Act, neither 33 U.S.C. § 1365(b)(1)(B) nor § 1319(g)(6)(A)(ii) bars Plaintiff's citizen suit to enforce California's storm water general permit.
