How far should the bar on citizen suits extend under section 309 of the Clean Water Act?

• Author: Clauson, Heather L.
• Position: 1996 Ninth Circuit Environmental Review

1. INTRODUCTION

   In an effort to increase enforcement actions, Congress amended the Clean Water Act (CWA)(1) in 1987 to include a new administrative penalty section that allows agencies to assess civil penalties.(2) This section also includes provisions that allow certain administrative enforcement actions to preclude a citizen suit.(3) An analysis of this provision gives some insight into the question that existed in the courts concerning whether an administrative enforcement action could be considered a "court" under [sections] 505(b)(1)(B) of the Act and could thus preclude a citizen suit.(4) The provision precludes a citizen suit if 1) the Administrator of the Environmental Protection Agency (EPA) or the Secretary of the Army has commenced and is diligently prosecuting an action for an administrative penalty, or 2) a state has commenced and is diligently prosecuting an action under state law comparable to [sections] 309(g), or 3) a violator pays a penalty assessed under [sections] 309(g) or comparable state law.(5)

   This new provision has resulted in many questions. The most significant question regards how far the bar on citizen suits extends. Because neither the language of [sections] 309(g) nor its legislative history clearly answer this question, conflict among the circuits has resulted which needs to be resolved.

   The Ninth Circuit has answered this question in two recent decisions by taking a narrow view as to when citizen suits are barred. It first dealt with [sections] 309(g) in Citizens for a Better Environment-California v. Union Oil Co. of California (UNOCAL),(6) and then again in Knee Deep Cattle Co. v. Bindana Investment Co.(7) These cases reveal the conflict among the circuits and the reasoning used by the venous courts when interpreting [sections] 309(g)(6)(A). Therefore, this chapter will outline the cases discussed in UNOCAL and in Knee Deep, in addition to discussing the two Ninth Circuit cases themselves.

   This chapter will discuss how the circuits have interpreted [sections] 309, ranging from a broad interpretation of preclusion, as in the First Circuit,(8) to a narrow interpretation, as in the Ninth Circuit.(9) Neither interpretation is without fault, but Congress failed to make clear which is correct under the provision. Then, more specifically, this chapter will consider 1) the various requirements for state comparability, 2) whether a penalty is required, and 3) the purpose of and the limitations on the citizen suit bar.

   This chapter recommends that the conflict be resolved and suggests that Congress amend [sections] 309(g). Congress needs to delineate exactly which administrative actions preclude a citizen suit. Furthermore, Congress needs to define the meaning of the phrase "comparable state law" by setting out the requirements that the state provisions must contain. Finally, Congress needs to set out the exact purpose of the citizen suit bar. A clear congressional purpose will enable courts to interpret these provisions in a more uniform manner.

2. THE DILEMMA OF "WHAT IS A COURT UNDER [sections] 505(b)(1)(B) AND A PARTIAL RESOLUTION OF THE ISSUE BY THE 1987 AMENDMENTS

   Section 505(b)(1)(B)(10) was the original bar to citizen suits under the Clean Water Act (CWA). It was patterned after a similar provision in the Clean Air Act (CAA).(11) The CWA clause provides that

   [n]o action may be commenced . . . under subsection (a)(1) of this section

   [the citizen suit provision] . . . 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.(12)

   Questions originally arose as to what could be considered a court The issue was whether administrative actions by a state or the United States could constitute a court and thus bar citizen suits. The courts answered this question in differing ways.

   The first court to interpret the provision in the context of the CAA held that "an administrative board may be a `court' if its powers and characteristics make such a classification necessary to achieve statutory goals."(13) The Third Circuit, however, ultimately found that the Environmental Hearing Board was not a "court"(14) Most federal courts have simply read the plain language of the section and determined that Congress only intended for judicial proceedings in an actual court of law to bar citizen suits, and did not intend administrative proceedings to bar citizen suits.(15)

   In 1987, Congress amended the CWA to include new administrative penalty procedures allowing agencies to assess civil penalties in an effort to increase enforcement actions.(16) Along with these penalty provisions, however, Congress also included a bar on citizen suits when the states or EPA initiated certain administrative enforcement actions.(17) Although [sections] 309(g)(6) did provide some assistance in answering the question discussed above, by avoiding this question for certain administrative actions, it has raised even more questions concerning the scope of the bar.

3. BACKGROUND OF THE 1997 AMENDMENTS AND THE PROCEDURES OF [sections] 309(G)

   The 1987 Amendments resulted from efforts by Congress to balance two opposing concerns: allowing citizen suits to continue as a proven enforcement tool while preventing violators from being subject to dual enforcement actions or penalties for the same violation.(18) The newly created [sections] 309(g) allowed Clean Water Act (CWA) prosecutors to assess administrative penalties.(19) This provision was not intended to decrease judicial enforcement, but instead was intended "as a complement to our enforcement tools so that we can most efficiently and effectively assure compliance with the Clean Water Act."(20) The legislative history indicates that the administrative penalties in [sections] 309(g) provide a stronger remedy than administrative orders, but that the penalty actions would not be utilized when injunctive relief or specific performance is necessary to cease ongoing violations.(21) The administrative procedures of [sections] 309(g) were "designed to address past, rather than continuing, violations of the Act"(22) and to increase enforcement actions, because these penalties "could provide greater deterrent value than an administrative order for a violation that does not warrant the more resource intensive aspects of judicial enforcement."(23)

   The provisions of [sections] 309(g) contain several safeguards to prevent abuse of administrative authority. This section sets out several procedures that the agency must follow before issuing an administrative penalty order. The Environmental Protection Agency (EPA) must first consult with the state in which the violation occurs.(24) It also must give notice of its proposed actions to the "person to be assessed" and allow such person thirty days to request a hearing on the proposed order.(25) In addition, the agency must "provide public notice of and reasonable opportunity to comment on" the proposed order.(26) Finally, any individual who comments on the proposal must also be given notice of any hearing to be held, in which they shall have an opportunity to be heard.(27)

   In addition, Congress provided "an added safeguard to assure that the Agency assesses appropriate penalties for violations of the Act" by allowing both administrative and judicial review of these orders.(28) If no hearing was held before the penalty assessment, any person who commented on the proposed penalty assessment has thirty days after issuance of the administrative penalty order to petition to set aside the order and to request a hearing on the penalty.(29) The Administrative must set aside the order and provide this hearing if the evidence presented by the petitioner is deemed material and was not considered during the issuance of the order.(30) If EPA denies the petition, it must provide notice and the reasons for the denial to the petitioner and must also publish both in the Federal Register.(31) Judicial review of the penalty assessment order is available up to thirty days after the order is issued.(32) Both the person who was assessed the penalty and any person who commented on the proposed penalty may seek this avenue of review.(33)

   Although the statute contains many provisions that allow for administrative and judicial review to challenge EPA's penalty assessment, the amendments do limit when citizens can independently file suit against alleged violators. The limitations are found under [sections] 309(g)(6) and are as follows:

   [A]ny 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 . . . section 1365

   of this title.(34)

   While subparagraph (A) of [sections] 309(g)(6) identifies three circumstances that preclude a citizen suit, subparagraph (B) creates two exceptions to the preclusion in paragraph (A): 1) if the citizen suit is filed before commencement of an action under [sections] 309(g),(35) or 2) if the citizen has given notice of an intent to sue before commencement of an action under [sections] 309(g) and actually files the suit within 120 days after such notice is given.(36) These limitations raise some interesting issues as this chapter will later discuss.(37)

   Section 309(g)(6) has raised many questions in the courts. Because the language is unclear, there now...