IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

Case No. 05-74297 IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT FRIENDS OF THE TURPID, INC. Appellant, -against- DEEP DRILLING MINING CO., Appellee. On Appeal from the United States District Court for the District of Blue Mountain BRIEF FOR THE APPELLANT Team No. 3 Attorneys for the Appellant

Appellant #3 QUESTIONS PRESENTED I. (a) Did the court below err in holding that FOT s action is subject to the diligent prosecution bars of Clean Water Act 309(g)(6)(A) and 505(b)(1)(B)? (b) If not, did the court below err in holding that the consent order barred injunctive relief as well as the assessment of civil penalties? II. Did the court below err in holding jurisdiction was inappropriate under 33 U.S.C 1365(a)(1) because the overburden placed in Turpid Creek did not constitute a continuing violation? III. Did the court below err in holding that res judicata barred FOT s suit because the FOT was in privity with the State of Blue Mountain? IV. Did the court below err in holding that the case is moot because DDMC ceased violating the CWA more than three years ago and does not threaten to do so again in the indefinite future?

Appellant #3 TABLE OF CONTENTS Page Number TABLE OF AUTHORITIES CASES......... iii STATUTES......... v STATEMENT OF FACTS........ 1 SUMMARY OF THE CASE........ 2 SUMMARY OF ARGUMENT....... 2 ARGUMENT.......... 7 I. Standard of Review....... 8 II. III. FOT s citizen suit is not barred by section 505(b)(1)(B) of the Clean Water Act because BMDENR s administrative order is not an action in a court of the United States or State.... 8 FOT s citizen suit is not barred by either section 309(g)(6)(A)(ii) or section 309(g)(6)(A)(iii) because the BMSWA is not comparable to the CWA.. 12 A. The BMSWA is not comparable to the CWA because the BMSWA does not authorize BMDENR to assess penalties, prohibits public intervention in administrative actions, and provides no notice of administrative actions. 12 B. Even if the BMSWA is comparable to the CWA, subsection (ii) of 309(g)(6)(A) does not bar the FOT s suit because BMDENR never commenced or diligently prosecuted the administrative action.... 14 C. Even if the CWA is comparable to the BMSWA, subsection (iii) of 309(g)(6)(A) does not bar the FOT s suit because the DDMC never paid a penalty... 17 IV. Section 309(g)(6)(A) does not bar actions for injunctive relief because the statute only specifies civil penalty actions.. 18 i

Appellant #3 V. Under CWA 505(a), the continuing presence of mining overburden in Turpid Creek constitutes an ongoing violation because DDMC discharged overburden without a permit and DDMC will likely discharge overburden in the future.. 19 VI. VII. Res judicata does not bar FOT s suit because FOT and the State of Blue Mountain are not in privity and have not sued for the identical thing..... 23 FOT s claims for injunctive relief and civil penalties are not moot as they allege reasonable expectations that DDMC will violate the law in the future...... 27 CONCLUSION......... 30 ii

Appellant #3 TABLE OF AUTHORITIES CASES Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.2d 376 (8th Cir. 1994)........ 12, 14 Atlantic States Legal Found., Inc., Eastman Kodak Co., 933 F.2d 124 (2nd Cir. 1991)....... 28 Atlantic States Legal Found., Inc., v. Hamelin, 182 F.Supp.2d 235 (N.D.N.Y. 2001)....... 16 Atlantic States Legal Found., Inc., v. Stroh Die Casting Co., 116 F.3d 814 (7th Cir.1997)........ 28 Atlantic States Legal Found. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir.1990)....... 28 Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir. 1979)........ 10, 11 Carr v. Alta Verde Industries, Inc., 931 F.2d 1055 (5th Cir. 1991)....... 20, 28 Citizens for a Better Environment, v. UNOCAL, 83 F.3d 1111 (9th Cir. 1996)........ 13, 17 Citizens Legal Envt l Action Network, Inc., v. Premium Standard Farms, Inc., 2000 WL 220464 (W.D.Mo. 2000).. 26, 27 Coalition for a Liveable Westside, Inc., v. New York City Department of Environmental Protection, 830 F.Supp. 194 (S.D.N.Y. 1993)........ 18 Comfort Lake Ass n v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir. 1998)........ 27, 28, 29 Community Ass n for Restoration of the Environment v. Henry Bosma Dairy, 305 F.3d 943 (9th Cir. 2002)..... 19 Connecticut Coastal Fishermen s Ass n v. Remington Arms Co., Inc. 989 F.2d 1305 (2nd Cir. 1993)..... 19, 22, 23 Dillallo v. City of Maryland Heights, 996 S.W.2d 675 (Mo. Ct. App. 1999). 25 iii

Appellant #3 Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435 (1984)... 28, 29 Friends of the Earth v. Consolidated Rail Co., 768 F.2d 57 (2d. Cir. 1985)........ 9 Friends of the Earth Inc., v. Laidlaw Environmental Services, 890 F.Supp. 470 (D.S.C. 1995)....... 16 Friends of Milwaukee s Rivers v. Milwaukee Metropolitan Sewerage Dist., 382 F.3d 743 (7th Cir. 2004)..... 12-15 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. Inc., 484 U.S. 49 (1987)......... 19, 28 Harmon Industries, Inc. v. Browner, 191 F.3d 894 (1999) (8th Cir. 1999).. 23, 25, 26 Howard v. Green, 555 F.2d 178 (8th Cir. 1977)..... 24 Jones v. City of Lakeland, Tenn., 224 F.3d 518 (6th Cir. 2000)... 9, 10, 14, 15 Idaho Rural Council v. Bosma, 143 F.Supp.2d 1169 (D. Idaho 2001).. 14 McAbee v. City of Fort Payne, 318 F.3d 1248 (11th Cir. 2003).. 8, 12, 13, 14, 17 Molokai Chamber of Commerce v. Kukui, Inc., 891 F.Supp. 1389 (D. Hawaii 1995)....... 20 Natural Resources Defense Council v. Texaco Ref. & Mktg., Inc., 2 F.3d 493 (3rd Cir.1993)........ 28, 29 New York Coastal Fisherman s Ass n. v. New York City Department of Sanitation, 772 F.Supp. 162 (S.D.N.Y. 1991).... 18 North and South Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552 (1st Cir.1991)........ 16 North Carolina Wildlife Federation v. Woodbury, 29 E.R.C. (B.N.A.) 1941, 19 Envt l Rep. 21, 308 at *2 (E.C.N.C. 1989)... 21 Ohio Public Interest Research Group v. Laidlaw Environmental Services, Inc., 963 F. Supp. 635 (S.D. Ohio 1996)..... 21 Old Timer, Inc., v. Blackhawk-Central City Sanitation Dist., 51 F.Supp.2d 1109 (D. Colorado 1999)...... 16 iv

Appellant #3 Orange Env t, Inc. v. County of Orange, 860 F.Supp. 1003 (S.D.N.Y. 1994)....... 18 Oregon State Public Interest Research group, 341 F.Supp.2d 1170 (D.Or. 2004)....... 16 Prentzler v. Schnieder, 411 S.W.2d 135 (Mo. 1966) (en banc)... 24, 25, 27 Sierra Club v. Chevron U.S.A. Inc., 834 F.2d 1517 (9th Cir. 1987)... 9, 10 Sierra Club v. Simikin Industries, Inc., 617 F.Supp. 1120 (D.C. Md. 1985)....... 10, 11 Sierra Club v. Union Oil Co., 853 F.2d 667 (9th Cir. 1988).... 19, 20, 21 State v. Venessa, 94 B.M. 412 (1975)...... 24 State v. Williams, 118 B.M. 36 (2003)...... 24 Student Public Interest Research Group of New Jersey Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131 (3d Cir. 1985)... 10, 11 Student Public Interest Research Group of New Jersey, Inc. v. Monsanto Co., 600 F.Supp. 1479 (D.C.N.J. 1985)..... 11 Texans United for a Safe Economy Educ. Fund v. Crown Central Petroleum Co., 207 F.3d 789 (5th Cir. 2000)... 10 Turner v. Ferguson, 149 F.3d 821 (8th Cir. 1998)..... 24 United States Envtl. Protection Agency v. City of Green Forest, Ark., 921 F.2d 1394 (8th Cir. 1990)...... 25 United States v. Smithfield, 191 F.3d 516 (4th Cir. 1999).... 13 Washington Public Interest Research Group Inc., v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993).... 15 STATUTES 15 U.S.C. 2619......... 8 16 U.S.C. 1540......... 8 28 U.S.C. 1738......... 23 v

Appellant #3 33 U.S.C. 1251-1387........ 7 33 U.S.C. 1319........ 7, 8, 12-14, 18 33 U.S.C. 1365 7......... 10, 26 33 U.S.C. 1415......... 8 42 U.S.C. 6926......... 26 42 U.S.C. 6972......... 8, 25 CWA 301.......... 2 CWA 309......... 2-4, 7, 8, 12-19 CWA 501.......... 5 CWA 505....... 2-4, 7-10, 19, 20, 22, 23, 26 vi

STATEMENT OF FACTS The Deep Drill Mining Company (DDMC) operates an opal mining operation on the slopes of Mystic Mountain. (R. at 4). Between January 1983 and January 2001, DDMC repeatedly placed overburden from the mining operation in Turpid Creek. (R. at 4). The overburden covered the bed of Turpid Creek for over half a mile. (R. at 4). The overburden forced the creek to flow underground for half a mile, resulting in a higher concentration of suspended solids below the landfill than above. (R. at 4). In the State of Blue Mountain, the Blue Mountain Solid Waste Act (BMSWA) governs the disposal of solid waste, such as mining overburden, by requiring dumping parties to obtain a permit to dispose of solid waste. (R. at 4). Under the BMSWA, the State of Blue Mountain Department of Environmental and Natural Resources (BMDENR) may issue administrative orders for violations of the BMSWA. (R. at 4-5). However, under the BMSWA, BMDENR does not have the authority to impose penalties, rather, BMDENR must seek civil penalties, not to exceed $2,500 per violation, or injunctive relief from a state court. (R. at 5). While interested parties may intervene in these state judicial actions, the BMSWA provides no public notice or third party intervention for administrative enforcement actions. (R. at 5). In 1999, BMDENR issued a notice of violation (NOV) to DDMC for dumping overburden in Turpid Creek without a permit, in violation of the BMSWA. (R. at 4). BMDENR did not give public notice of the NOV. (R. at 4). In August of 2000, BMDENR and DDMC agreed to an administrative consent order. (R. at 4). BMDENR did not give public notice of the issuance of the consent order or of its intent to issue the consent order. (R. at 4). While the consent order did not require removal of the overburden, it specified that DDMC immediately cease dumping into the Creek without a permit, plant native vegetation in the landfill, and 1

nurture the vegetation for three years until it was indistinguishable from the surrounding vegetation. (R. at 4). Despite the order, DDMC continued dumping overburden in Turpid Creek for an additional six months. (R. at 4). DDMC graded and planted the landfill with native vegetation, however, scant rains, in part, have prevented the landfill from resembling adjacent vegetation. (R. at 4). While the DDMC ceased dumping overburden into the Creek after January of 2001, DDMC has not decided where to place overburden from the fourth phase of its mining operation. (R. at 4). Placing the overburden in Turpid Creek is the easiest and cheapest way for DDMC to dispose of overburden. (R. at 4). SUMMARY OF THE CASE FOT gave notice of intent to sue to the EPA, the DDMC, and BMDENR sixty days prior to filing the complaint. (R. at 5). FOT filed their complaint in the United States District Court for the District of Blue Mountain. (R. at 3). FOT alleged that DDMC violated CWA 301(a) by discharging pollutants into Turpid Creek without a permit as required under the CWA. (R. at 3). FOT sought injunctive relief, attorney s fees, and civil penalties of $25,000 per day for every day that DDMC remained in violation of the CWA. (R. at 3). DDMC brought a motion for summary judgment to dismiss the FOT s complaint on four grounds. (R. at 3). The district court found for the defendant, DDMC, on all issues and dismissed the plaintiff s suit. (R. at 3). FOT filed a timely appeal, contesting the decision by the district court to dismiss FOT s complaint. (R. at 1). SUMMARY OF ARGUMENT The district court erred in concluding that FOT s citizen suit is barred by sections 505(b) and 309(g) of the CWA. FOT s citizen suit is not barred by section 505(b)(1)(B) of the CWA 2

because BMDENR s administrative order is not an action in a court of the United States or State. Congressional intent and a majority of the circuits interpret the plain language of section 505(b)(1)(B) to require a civil or criminal action in a judicial court. Consequently, this section does not bar the FOT suit, because BMDENR never filed an action in a court of law. Even under the minority approach, section 505(b)(1)(B) does not bar FOT s suit because BMDENR fails the Third Circuit s dual inquiry. The Third Circuit treats an administrative proceeding as in a court where the agency possesses the full remedial powers of a court and is procedurally similar to a federal court. However, BMDENR cannot assess penalties and no public notice or public participation provisions exist for administrative actions under the BMSWA. Neither section 309(g)(6)(A)(ii) or section 309(g)(6)(A)(iii) of the CWA preclude the FOT s citizen suit, because the BMSWA is not comparable to the CWA. The plain language of section 309(g)(6)(A) requires that the state scheme must be comparable to the federal scheme to bar a citizen suit. However, the BMSWA is not comparable to the CWA for two reasons. First, the BMSWA prohibits BMDENR from imposing penalties without bringing a judicial action in a state court. Second, the BMSWA does not provide public notice of administrative actions or allow the public to intervene and participate in administrative actions. The CWA, by contrast, allows for both the issuance of administrative penalties and provides public notice and intervention. Additionally, subsection (ii) of section 309(g)(6)(A) does not bar the citizen suit because BMDENR never commenced an administrative action or diligently prosecuted an administrative action. Subsection (ii) requires that an administrative action must be commenced. To commence an administrative action the public must be notified and afforded the opportunity to intervene and participate in the action. BMDENR never commenced the administrative action, because 3

BMDENR never gave public notice of the intent to issue a consent decree, the issuance of the consent decree, or of the notice of violation. As BMDENR never afforded the public the opportunity to participate in the administrative action, the agency never commenced the action. Further, BMDENR never diligently prosecuted the action because they never imposed penalties or brought an administrative penalty action. Section 309(g)(6)(A) subsection (iii) does not bar FOT s citizen suit because DDMC never paid a penalty. This subsection states that a suit may be barred if a penalty has already been paid under comparable state law. Assuming, arguendo, that the BMSWA is comparable to the CWA, DDMC still never paid a penalty. BMDENR and the DDMC mutually agreed on a consent order. The consent order is a settlement agreement, not a penalty. Additionally, the consent order cannot be classified as a penalty because BMDENR has no authority to assess penalties under the BMSWA. Even where section 309(g)(6)(A) applies, the section only bars civil penalty actions, not actions for injunctive relief. The plain language of the statute refers unequivocally to civil penalty actions. Courts interpreting this provision continually conclude that even where the section 309(g)(6)(A) bar applies, it only precludes civil penalty actions. FOT brought a suit for injunctive relief as well as civil penalties. Thus, assuming, arguendo, that 309(g)(6)(A) applies, the section does not bar FOT s claim for injunctive relief. The district court erred in concluding that the overburden in Turpid Creek did not constitute an ongoing violation. Section 505(a) of the CWA allows citizens to bring civil actions against any person alleged to be in violation of a standard or limitation set forth by the CWA. CWA 505(a) (emphasis added). The Supreme Court interpreted this provision as a bar for citizen actions where the violations occurred entirely in the past. However, the Court 4

determined that the provision does not bar citizen suits where the citizen-plaintiff makes a good faith allegation of continuous or intermittent violations. Subsequent circuit court decisions identified two ways that a plaintiff could prove an ongoing violation. A plaintiff can either show that the violation continued on or after the date of the complaint, or show a continuing likelihood of recurrence of the violation. Under either inquiry, DDMC s violation is an ongoing violation. DDMC s violation is ongoing because the violation continued even after the complaint was filed because the overburden still sits in Turpid Creek. As long as the overburden is present in Turpid Creek, DDMC is in violation of the effluent standards under CWA 501(a). Additionally, DDMC dumped the overburden in Turpid Creek without a permit. Despite reaching a consent order that prohibited dumping of overburden in Turpid Creek, the DDMC continued to dump overburden in the creek for six months after the consent order took effect. As the DDMC continued to operate without a permit they continued to violate the requirements of the BMSWA and their consent order. Consequently, DDMC s failure to obtain a permit or comply with the consent order constitutes an ongoing violation under CWA 501(a). DDMC s violation is ongoing because there is a continuing likelihood of a recurrence of the violation. DDMC has a history of noncompliance, making future compliance less likely. DDMC dumped overburden into the Creek without a permit as required by law. DDMC continued dumping for six months even after the consent order took effect. DDMC failed to nurture the vegetation in the landfill as required by the consent order. These past actions are indicative of noncompliance and suggest that compliance in the future is improbable. Additionally, dumping the overburden in the Creek is easy and cheap. As DDMC will soon need to dispose of overburden, following phase four of its mining operation, there is a continuing likelihood that DDMC will dump the overburden in Turpid Creek. 5

The district court erred in concluding that the FOT s suit was barred by principals of res judicata. Res judicata bars an action where the thing sued for, the cause of action, the persons and parties to an action, and the quality of the persons are identical to those of a prior action. Res judicata does not bar the FOT s suit because the State of Blue Mountain and FOT are not identical as they are not in privity and they have not sued for the identical thing. Courts analyzing the res judicata bar where two parties are seeking to enforce the same statute determined that the language of the statute in question should serve as the framework for deciding whether privity exists. If, under the statute, the parties represent the same legal interest, then the parties are in privity and are identical and potentially barred by res judicata. BMDENR and FOT, however, do not represent the same legal interest under the CWA. Where the state has not diligently prosecuted an action as required by the CWA, the legal interests of the citizens differ from those of the state. As previously discussed, BMDENR never diligently prosecuted the action against DDMC as BMDENR never pursued a penalty action. Consequently, FOT and BMDENR are not enforcing the same legal right and are not in privity, meaning they cannot be identical under the res judicata bar. Additionally, res judicata does not apply because the parties have not sued for the identical thing. BMDENR sought a consent order, requiring DDMC to cease dumping and plant vegetation in the landfill. By contrast, FOT seeks civil penalties of $25,000 per day for every day that DDMC continues in violation of the CWA. The district court erred in concluding that the issue was moot because there is a reasonable expectation that DDMC will violate the law in the future. If a defendant, voluntarily or involuntarily, permanently ceases the violation then the plaintiff s suit is moot. However, where there is a reasonable expectation that the violation will recur, the plaintiff s suit is not 6

moot. DDMC s history of noncompliance and the likelihood that they will dump overburden in Turpid Creek after phase four, create a reasonable expectation that the violation will recur. Additionally, where a plaintiff retains a concrete interest in the action, that action is not moot. Because FOT has a concrete interest in recovering civil penalties for DDMC s violations, FOT s civil penalty action is not moot. ARGUMENT In 1972, Congress enacted the Federal Water Pollution Control Amendments of 1972 (Clean Water Act, hereinafter CWA) to reduce the occurrence of water pollution. Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified at 33 U.S.C. 1251-1387). Section 505 of the CWA afforded citizens the right to bring suit in federal court against anyone in violation of an effluent standard or limitation. 33 U.S.C. 1365(a); CWA 505(a). Citizen suits are an invaluable check on administrative agencies where they fail to adequately respond to violations. Congress, however, placed a narrow restriction on the availability of citizen suits where a state has already diligently prosecuted a judicial action. 33 U.S.C. 1365(b)(1)(B); CWA 505(b)(1)(B). Section 505(b) of the Clean Water Act bars a citizen suit only "if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or State Id. (emphasis added). In 1987, Congress amended the CWA to preclude citizen suits in two limited circumstances. 33 U.S.C. 1319. First, section 309(g)(6)(A)(ii) of the CWA bars citizen suits where a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection 33 U.S.C. 1319(g)(6)(A)(ii); CWA 309(g)(6)(A)(ii) (emphasis added). Additionally, the CWA bars citizen suits where the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this 7

subsection, or such comparable State law 33 U.S.C. 1319(g)(6)(A)(iii); CWA 309(g)(6)(A)(iii) (emphasis added). I. Standard of Review The court reviews a district court s order granting summary judgment in a citizen suit under the Clean Water Act (CWA) de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the nonmoving party. (emphasis added). McAbee v. City of Fort Payne, 318 F.3d 1248, 1251 (11th Cir. 2003). Accordingly, [s]ummary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Id. II. FOT s citizen suit is not barred by section 505(b)(1)(B) of the Clean Water Act because BMDENR s administrative order is not an action in a court of the United States or State Section 505(b) of the Clean Water Act only bars a citizen suit "if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or State 33 U.S.C. 1365(b)(1)(B), CWA 505(b)(1)(B) (emphasis added). BMDENR s administrative order is not an action in a court. A majority of circuits, in accordance with congressional intent, conclude that administrative orders are not actions in a court. Even under the minority approach, BMDENR s administrative action is not an action in a court. Congress never intended BMDENR s administrative order to bar FOT s citizen suit under section 505(b)(1)(B). The language of the statute unambiguously requires a civil or criminal action in federal or state court. Id. When Congress determines that administrative proceedings should bar citizen suits, it does so specifically. Congress has frequently demonstrated its ability to explicitly provide that either an administrative proceeding or a court 8

action will preclude citizen suits. Jones v. City of Lakeland, Tenn., 224 F.3d 518, 521 (6th Cir. 2000). In a number of similar statutes, Congress unequivocally stated that administrative enforcement actions bar citizen suits. See e.g., Toxic Substances Control Act, 15 U.S.C. 2619(b)(1)(B) (barring citizen suits if the Administrator has commenced and is diligently prosecuting a proceeding for the issuance of an order ) (emphasis added); Endangered Species Act, 16 U.S.C. 1540(g)(2)(ii) (barring citizen suits where the Secretary has commenced action to impose a penalty ) (emphasis added); the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. 1415(g)(2)(C) (barring citizen suits if the Administrator has commenced action to impose a penalty or if the Administrator, or the Secretary, has initiated permit revocation or suspension proceedings ) (emphasis added); Resource Conservation and Recovery Act, 42 U.S.C. 6972(b)(2)(B)(iv) (barring citizen suits if the Administrator has obtained a court order (including a consent decree) or issued an administrative order ) (emphasis added). In contrast, section 505(b)(1)(B) does not contain any such language barring citizens suits where an agency or state has issued an administrative order. This contrast [between 505(b)(1)(B) and comparable statutes] dispels any lingering ambiguity in the term courts as used in section 1365. Sierra Club v. Chevron U.S.A. Inc., 834 F.2d 1517, 1525 (9th Cir. 1987). This lack of ambiguity indicates that Congress did not intend BMDENR s administrative order to bar FOT s citizen suit under section 505(b) of the CWA. Additionally, the majority of the circuits addressing this question, hold that an administrative order is not an action in court. See Friends of the Earth v. Consolidated Rail Co., 768 F.2d 57, 62 (2d. Cir. 1985) (holding [t]he Clean Water Act citizen suit provision unambiguously and without qualification refers to an action in a court of the United States, or a State. 505(b)(1)(B). It would be inappropriate to expand this language to include 9

administrative enforcement actions. ); Texans United for a Safe Economy Educ. Fund v. Crown Central Petroleum Co., 207 F.3d 789, 795 (5th Cir. 2000) (concluding [w]e agree with the Second and Ninth Circuits that the plain meaning of court of the United States or a State excludes administrative actions. ); Jones, 224 F.3d at 521 (holding that [t]o interpret section 505(b)(1)(B) [33 U.S.C. 1365(b)] to include administrative as well as judicial proceedings is in our view contrary to both the plain language of a statute and congressional intent. ); Sierra Club, 834 F.2d at 1525 (stating that [s]ection 1365 does refer specifically to courts, and it makes no direct or veiled reference to any type of administrative proceeding. ). BMDENR never brought a civil or criminal action in either federal or state court. Consequently, the 505(b)(1)(B) bar, requiring a civil or criminal action in a state or federal court, does not bar FOT s suit. Finally, the BMDENR administrative order is not an action in a court even under the minority test used by the Third Circuit. The Third Circuit in Fritzsche, relied on a dual inquiry to determine whether an administrative proceeding could be considered a court action under the CWA. Student Public Interest Research Group of New Jersey Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 1137 (3d Cir. 1985). The first inquiry examines the enforcement powers available to the administrative agency. Id. Later decisions interpreting this prong, determined that to be accorded court status, a state agency must possess the full remedial powers inherent to traditional judicial courts. Sierra Club v. Simikin Industries, Inc., 617 F. Supp. 1120, 1126 (D.C. Md. 1985) (emphasis added). In Baughman v. Bradford Coal Co., the Third Circuit concluded that the Pennsylvania Environmental Hearing Board did not have full remedial powers for two reasons. 592 F.2d 215, 217 (3d Cir. 1979). First, the board lacked the capacity to enjoin violations. Id. Second, the board could not assess a penalty in excess of $10,000. Id. 10

BMDENR does not have the full remedial powers inherent to traditional judicial courts for two reasons. First, the agency does not have authority to provide injunctive relief as BMDNER must file with a state court to receive injunctive relief. See Sierra Club, 617 F.Supp. at 1126 (holding that because the state agency may only seek injunctive relief from a court... The state agency does not possess the full remedial powers available to a court ) (emphasis added); See also Student Public Interest Research Group of New Jersey, Inc. v. Monsanto Co., 600 F.Supp. 1479, 1482 (D.Ct. N.J. 1985) (holding the ability of an administrative agency to pursue relief in a court of law was an inadequate enforcement action). Second, BMDENR s civil penalties are limited. BMDENR cannot assert civil penalties under the BMSWA. See Fritzsche, 759 F.2d. at 1138 (holding EPA not a court because enforcement actions had to be brought before a district court and EPA lacked the power to impose civil penalties). BMDENR s administrative order does not qualify as in a court because the agency does not possess the full remedial powers available to a court. The second inquiry examines the procedural similarities the agency proceeding might have to a suit in federal court (to determine, among other things, whether citizens have a right to intervene in the agency proceeding). Fritzsche, 759 F.2d. at 1138. The BMSWA is not procedurally similar to federal court proceeding because citizens may not intervene in agency enforcement actions. [T]he existence of such a right [to intervene] may be properly considered as one factor in determining whether a particular state tribunal is a court for purposes of preclusion of citizen actions. Baughman, 592 F.2d at 219. In Monsanto, the court concluded that where the plaintiffs have not been afforded an opportunity here to intervene before the agency...it would be inappropriate to denominate the EPA a court such that a citizen's suit could not be brought. Monsanto Co., 600 F.Supp. at 1482. Because the administrative scheme 11

of the BMSWA disallows citizen intervention, the agency is not procedurally similar to a federal court proceeding. III. FOT s citizen suit is not barred by either section 309(g)(6)(A)(ii) or section 309(g)(6)(A)(iii) because the BMSWA is not comparable to the CWA Sections 309(g)(6)(A)(ii) and (iii) require that the state law be comparable to the federal scheme in determining whether these sections bar a citizen suit. Id. The circuits addressing these sections continue to require that the state scheme be comparable to the federal scheme. The Eleventh Circuit recently reiterated the importance of this criterion in McAbee v. City of Fort Payne. 318 F.3d 1248, 1251 (11th Cir. 2004). [T]he state's statutory enforcement scheme must be comparable to the federal scheme promulgated in 33 U.S.C. 1319(g) [CWA 309(g)]. Id. at 1251 (citations omitted). See also Friends of Milwaukee s Rivers v. Milwaukee Metropolitan Sewerage Dist., 382 F.3d 743, 755 (7th Cir. 2004) (citing the Eleventh Circuit s inquiry with approval); Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.2d 376, 379-80 (8th Cir. 1994). A. The BMSWA is not comparable to the CWA because the BMSWA does not authorize BMDENR to assess penalties, prohibits public intervention in administrative actions, and provides no notice of administrative actions The BMSWA is not comparable to the CWA because the BMSWA does not allow BMDENR to impose penalties, and the BMSWA fails to provide notice or public participation in administrative actions. In 1987, Senator John Chaffee, the primary author of the CWA, defined comparability: in order to be comparable, a State law must provide for a right to a hearing and for public notice and participation procedures similar to those set forth in section 309(g); it must include analogous penalty assessment factors 133 Cong. Rec. S737 (daily ed., Jan. 14, 1987). (emphasis added). Consistent with this definition, courts have continued to require that state 12

schemes contain comparable public notice/intervention procedures and analogous penalty assessment factors. In Citizens for a Better Environment, v. UNOCAL, the Ninth Circuit determined that CWA 309(g) mandates various public notice and comment procedures as well as penalty assessment factors. 83 F.3d 1111, 1118 (9th Cir. 1996). Courts repeatedly refuse to find comparability where the state statutory scheme does not contain penalty provisions. In Friends of Milwaukee s Rivers, the Seventh Circuit held that [b]ecause Wisconsin law does not authorize administrative penalty proceedings or fines, there are no administrative enforcement provisions comparable to those of the Clean Water Act. 382 F.3d at 756. In United States v. Smithfield, the Fourth Circuit upheld the district court s conclusion that the state and federal schemes were not comparable because, Virginia's enforcement scheme did not give the Commonwealth authority to assess administrative penalties without the violator's consent and did not provide adequate procedures for notice and public participation 191 F.3d 516, 525 (4th Cir. 1999). Similarly, BMDENR has no authority under the BMSWA to assess penalties for violations of the BMSWA. As a result, the penalty provisions of the state scheme are not comparable to the federal scheme under the CWA. Additionally, courts have refused to find comparability where the state statutory scheme does not provide adequate notice and public participation procedures. In McAbee, the Alabama statutory scheme required only ex post facto notice of an enforcement action and allowed only limited public participation in the administrative enforcement process. 318 F.3d at 1256. By contrast, the CWA provides interested persons with the right to public notice and an opportunity to comment, the right to present evidence if a hearing is held, and the right to petition for a hearing if one is not held. Id. (citing to 33 U.S.C. 1319(g)(4)). In light of these discrepancies, the Eleventh Circuit held that Alabama's public-participation provisions do not 13

satisfy the standard for comparability. Id. See also Jones, 224 F.3d at 523-24 (holding that the Tennessee statutory scheme was not comparable to the CWA, as the state scheme did not provide public notice, allow public participation, or allow intervention in administrative actions); Idaho Rural Council v. Bosma, 143 F.Supp.2d 1169, 1182 (D. Idaho 2001) (holding that section 309(g)(6)(A)(iii) did not bar the citizen suit because the state statutory scheme was not comparable as it lacked provisions for public notice and hearings). In the present case, the BMSWA does not provide public notice of administrative enforcement actions, either before or after commencing the actions. Additionally, the BMSWA does not allow public participation in administrative actions. Because the BMSWA does not allow public notice or intervention, the state statute is not comparable to the CWA. Consequently, sections 309(g)(6)(A)(ii) and 309(g)(6)(iii) do not bar the FOT s citizen suit. B. Even if the BMSWA is comparable to the CWA, subsection (ii) of 309(g)(6)(A) does not bar the FOT s suit because BMDENR never commenced or diligently prosecuted the administrative action Section 309(g)(6)(A) subsection (ii) requires that the administrative agency must commence and diligently prosecute an administrative action. Id. Courts addressing this issue continue to require both commencement and diligent prosecution. See McAbee, 318 F.3d at 1251; Friends of Milwaukee s Rivers, 382 F.3d at 755. Commencement of an action only occurs when the state gives public notice of the action and allows public participation. The Seventh Circuit recently concluded in Friends of Milwaukee s Rivers, that for the purposes of 1319(g) [CWA 309(g)], an administrative action commences at the point when notice and public participation protections become available to the public and interested parties. 382 F.3d at 756. (emphasis added). See also Arkansas Wildlife Federation, 382 F.3d at 780 (holding the commencement criterion satisfied 14

because interested third parties had a right to intervene, and certain notice and hearing procedures became available to interested third parties. ) In Friends of Milwaukee s Rivers, the Wisconsin statute at issue did not contemplate permissive intervention in administrative orders until a judicial action was filed. 382 F.3d at 756-57. The court held that CWA 309(g) did not bar the plaintiff s suit for civil penalties because the state had not commenced an administrative action as the state scheme did not provide notice or allow public intervention. Id. at 757. Similarly, the BMSWA does not provide public notice or public intervention in administrative enforcement actions. Additionally, BMDENR never gave notice of the NOV, the intent to issue a consent decree, or the issuance of the consent decree. Because the BMSWA and BMDENR did not provide notice or allow intervention in administrative enforcement proceedings, BMDENR has not commenced the administrative order. Thus, CWA section 309(g)(6)(A)(ii) does not bar FOT s citizen suit. BMDENR never diligently prosecuted DDMC s violation, because BMDENR never instituted an administrative penalty action. The Ninth Circuit held that section 309(g)(6)(A) unambiguously bars suits only when the [state] has instituted an administrative penalty action. Washington Public Interest Research Group Inc., v. Pendleton Woolen Mills, 11 F.3d 883, 886 (9th Cir. 1993) (emphasis added). In Washington Public Interest Research Group, the EPA issued a compliance order rather than administrative penalties. Id. at 885. The court determined that Congress did not draft the Act [CWA] to bar citizen suits when [the state] is pursuing an administrative compliance order, and we may not disregard the clear language of the statute. Id. at 887-88. A number of courts follow the Ninth Circuit s lead, in requiring penalties to determine whether an agency is diligently prosecuting a violation. See Jones, 224 F.3d at 522-23 (holding 15

that token penalties imposed by the state, inter alia, did not amount to diligent prosecution.); Friends of the Earth Inc., v. Laidlaw Environmental Services, 890 F.Supp. 470, 490 (D.S.C. 1995) (stating that the lack of substantial relief in a settlement is properly considered by the court in determining whether the state action was diligently prosecuted. ); Oregon State Public Interest Research group, 341 F.Supp.2d 1170, 1190 (D.Or. 2004) ( state enforcement action that results in a compliance order with no penalty assessment may fall short of constituting a diligent prosecution that could foreclose a citizen suit. ); Atlantic States Legal Foundation, Inc. v. Hamelin, 182 F.Supp.2d 235, 247 (N.D.N.Y. 2001) ( when a consent order is at issue and a court is considering diligence of prosecution, courts also look at the substantive provisions of the order, including the amount of the penalty assessed... ). In the present case, BMDENR never instituted a penalty action. In fact, under the BMSWA, BMDENR lacks the authority to assess penalties absent a judicial action. In light of the absence of a penalty action against DDMC, BMDENR failed to diligently prosecute the violation. The district court s reliance on the First Circuit s reasoning in North and South Rivers Watershed Ass'n v. Town of Scituate is misplaced. 949 F.2d 552, 556 (1st Cir.1991); Rec. pg. 6. The First Circuit s interpretation of diligent prosecution contradicts congressional intent. The First Circuit incorrectly concluded that the state did not have to impose penalties for a citizen suit to be barred. North and South Rivers Watershed Ass'n., 949 F.2d at 556. This holding ignores the congressional intent behind section 309(g)(6)(A). In 1987, the primary drafter of section 309(g)(6)(A), Senator John Chaffee, explained, a citizen suit is not to be commenced if an administrative penalty proceeding is already underway. 133 Cong.Rec. 1264 (1987) (emphasis added). See also Old Timer, Inc., v. Blackhawk-Central City Sanitation Dist., 51 F.Supp.2d 1109, 1114 (concluding that Congress intended to preclude citizen suits only when the EPA or the 16

state has already commenced an administrative penalty action against a polluter. ) (emphasis added). Additionally, summary judgment is inappropriate in this matter as greater discovery is necessary to determine whether BMDENR is diligently prosecuting the violation. See e.g., McAbee, 318 at fn.6, (agreeing with the district court that additional discovery would be necessary before deciding whether Alabama was diligently prosecuting the action. ). C. Even if the CWA is comparable to the BMSWA, subsection (iii) of 309(g)(6)(A) does not bar the FOT s suit because the DDMC never paid a penalty Subsection (iii) does not preclude the FOT s citizen suit because the DDMC never paid a penalty. Section 309(g)(6)(A) subsection (iii) bars citizen suits where, the State has issued a final order not subject to further judicial review and the violator has paid a penalty CWA 309(g)(6)(A)(iii) (emphasis added). See also Citizens for a Better Environment California, 83 F.3d at 1115 (describing subsection (iii) as barring citizen suits only where a penalty is assessed under comparable state law). In Citizens for a Better Environment-California, the Union Oil Co. paid $780,000 to the Regional Board pursuant to a settlement agreement after UNOCAL failed to meet final concentration limits on selenium discharges. Id. at 1114. The Ninth Circuit determined that this payment was a settlement to avoid action by the Regional Board and did not amount to a penalty under Section 309(g)(6)(A)(iii). Id. at 1116. In the present case, the consent order reached between BMDENR and BMSWA is a settlement agreement, not a penalty. BMDENR and DDMC agreed upon the issuance of a consent administrative order. (emphasis added). Further, the consent order cannot be characterized as a penalty because BMDENR does not have the authority to assess penalties absent a judicial action. Because DDMC agreed to the consent order and the BMSWA does not 17

authorize BMDENR to assess penalties, the consent order cannot be classified as a penalty. Consequently, subsection (iii) cannot bar FOT s suit. IV. Section 309(g)(6)(A) does not bar actions for injunctive relief because the statute only specifies civil penalty actions Section 309(g)(6)(A) states unequivocally, that the violation shall not be the subject of a civil penalty action Id. The plain language of the statute does not bar injunctive relief. See Orange Env t, Inc. v. County of Orange, 860 F.Supp. 1003, 1017-18 (S.D.N.Y. 1994) (finding the statutory language unequivocal, the court allowed the plaintiff to pursue injunctive relief); Coalition for a Liveable Westside, Inc., v. New York City Department of Environmental Protection, 830 F.Supp. 194, 196 (stating [t]he bar of 1319(g)(6) [CWA 309(g)(6)] applies only to suits for civil penalties. Accordingly, this suit [for injunctive relief] is not barred by 1319(g)(6). ); New York Coastal Fisherman s Ass n. v. New York City Department of Sanitation, 772 F.Supp. 162, 169 (stating the limitation on citizen suits previously discussed relates only to actions for civil penalties, not injunctive or declaratory relief. ). The district court erred in concluding that section 309(g)(6)(A) precludes injunctive relief as well as penalties. Contrary to the district court s suggestion, allowing injunctive relief does not jeopardize the state s enforcement discretion. Allowing injunctive relief, even where civil penalties are barred, actually augments the state s enforcement abilities. [T]he statute permits a federal district court to entertain an action for injunctive relief for situations where, for example, a permit holder may have paid the relevant civil penalties but continues to violate its permit limitations or where the injunctive relief obtained in the state proceedings turns out to be inadequate to address the violations at issue. Orange Envt l Inc., 860 F.Supp. at 1018. Allowing 18

a suit for injunctive relief where section 309(g)(6)(A) bars civil penalties creates a wider array of tools available to enforce anti-pollution legislation. V. Under CWA 505(a), the continuing presence of mining overburden in Turpid Creek constitutes an ongoing violation because DDMC discharged overburden without a permit and DDMC will likely discharge overburden in the future Section 505(a) (1) of the CWA, allows citizens to bring civil actions against any person alleged to be in violation of a standard or limitation set forth by the CWA. CWA 505(a) (emphasis added). The Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. Inc., held that although [s]ection 505 does not permit citizen suits for wholly past violations, such suits are permissible when citizen-plaintiffs make good-faith allegations of continuous or intermittent violation[s]. 484 U.S. 49, 64 (1987). Subsequent decisions have interpreted Gwaltney as requiring citizen-plaintiffs to allege an ongoing violation in order to invoke federal jurisdiction under section 505(a)(1). See Community Association for Restoration of the Environment v. Henry Bosma Dairy, 305 F.3d 943 (9th Cir. 2002). In Sierra Club v. Union Oil Co., the Ninth Circuit held that a citizen plaintiff may prove ongoing violations either (1) by proving violations that continue on or after the date the complaint is filed or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations. 853 F.2d 667, 671 (9th Cir. 1988) (internal quotations omitted.) (emphasis added). See also Connecticut Coastal Fishermen s Association v. Remington Arms Co., Inc. 989 F.2d 1305, 1311 (2nd Cir. 1993) (holding that a plaintiff may survive a summary judgment motion by showing either that defendants violations continued subsequent to the date the complaint was filed, or by presenting proof from which a trier of fact could find a continuing likelihood that violations would recur.) 19

FOT alleges two ongoing violations by DDMC, both of which warrant the District Court s grant of jurisdiction under 505(a) (1). First, FOT alleges that DDMC s discharge of overburden without a permit constitutes a violation that continues on or after the date the complaint is filed, as long as the overburden remains in navigable water. Sierra Club v. Union Co., 853 F.2d at 671.. In Molokai Chamber of Commerce v. Kukui, Inc., the defendants argued that even though they began construction without a permit, they stopped construction and thus ended their violation. 891 F.Supp. 1389, 1400 (D. Hawaii 1995). The court rejected this argument by holding that, [w]ithout permit coverage, discharges violate the Act; with permit coverage and compliance they do not. Id. See also Carr v. Alta Verde Industries, Inc., 931 F.2d 1055, 1062 (5th Cir. 1991) (holding that a discharger operating without a permit remains in a continuing state of violation until it obtains a permit). Between January of 1983 and January 2001, DDMC intermittently discharged mining overburden into Turpid Creek without a permit. In August of 2000, BMDENR and DDMC agreed to an administrative order. The order required DDMC to immediately cease dumping waste overburden in the Creek landfill without a BMSWA permit. Despite the consent order, DDMC continued to discharge overburden without a permit through January of 2001. In addition, although scant rains hampered the growth of the vegetation, DDMC did not nurture the growth of vegetation as required by the consent order. DDMC s failure to obtain a permit or to follow through with the requirements of the consent order constitutes an ongoing violation. Although DDMC ceased dumping overburden prior to the FOT s complaint, the defendants remain in ongoing violation of Section 505(a)(1) until they obtain a permit. Second, FOT alleges ongoing violations by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic 20

violations. Union Oil Co., 853 F.2d at 671 (emphasis added). In Ohio Public Interest Research Group v. Laidlaw Environmental Services, Inc., the court held that allegations of ongoing violations may be premised, in part, on specific past violations. 963 F. Supp. 635, 641 (S.D. Ohio 1996). The court reasoned that citizen-plaintiffs should not be required to perceive and document a specific violation on the very day that its complaint is filed in order to satisfy the ongoing violation requirement. Id. Similarly, there is a continuing likelihood that DDMC will commit a future violation. DDMC has not yet determined where to place the overburden from phase four of their mining operation. As placement of overburden in the Creek bed is the easiest and cheapest means of disposing of the overburden, there is a continuing likelihood that during the fourth phase DDMC will dispose of overburden into the Creek. This conclusion is further supported by DDMC s past actions. As discussed above, between January of 1983 and August of 2000, DDMC discharged overburden into Turpid creek without obtaining a permit. After agreeing to a consent order in August 2000, DDMC continued to discharge overburden into the Creek until January of 2001 in violation of that order. Lastly, DDMC has failed to take remedial action. Although DDMC s failure to take remedial action is not the sole basis of FOT s ongoing violation allegations, such allegations on their own can satisfy the requirements of an ongoing violation. In Laidlaw, the defendant allegedly discharged various pollutants into the city sewers without taking remedial measures. 963 F.Supp. at 641. The court held that the plaintiff had sufficiently alleged ongoing violations where the continued presence of arsenic, chromium, copper, lead, nickel, oil, and grease was likely to continue to violate the law in the future. Id. See also North Carolina Wildlife Federation v. Woodbury, 29 E.R.C. (B.N.A.) 1941, 19 Envt l Rep. 21, 308 at *2 (E.C.N.C. 1989) (holding that treating the failure to take remedial measures as a continuing violation is 21

eminently reasonable. ). In the present case, DDMC never took remedial action as they never completed the landfill vegetation project required by the consent order nor have they removed the overburden from the Creek. DDMC s pattern of refusing to follow the law will likely continue in the future. Although FOT s allegations of ongoing violations satisfy the jurisdictional requirements of Section 505(a)(1), the district court granted the defendant s motion for summary judgment on this issue. In doing so, the court mistakenly relied on Connecticut Coastal. 989 F.2d at 1305. Reliance on Connecticut Coastal was erroneous for a number of reasons. First, the Second Circuit stated that present violation requirement of the Act [CWA] would be completely undermined if a violation included the mere decomposition of pollutants. Id. at 1313. FOT s allegations of ongoing violations are distinguishable as they are not limited to the mere decomposition of pollutants. As discussed above, FOT alleges ongoing violations based on DDMC s failure to obtain a permit for past discharges, their failure to comply with the current BMDENR consent order, and the continued likelihood of future noncompliance. Second, the Second Circuit indicated that its holding rested in part on the plaintiff s failure to seek injunctive relief in their complaint. Connecticut Coastal, 989 F.2d at 1312. The court held that because the plaintiffs sought only civil penalties, their complaint was predicated on wholly past violations because at the time the complaint was filed the defendant had ceased operation and was no longer discharging pollutants. Id. Therefore, civil penalties could only be awarded for defendants past actions. However, had the plaintiffs sought injunctive relief to enjoin defendant s future behavior, they might have successfully alleged ongoing violations. FOT seeks both civil penalties and injunctive relief. 22