IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31465
BERYL LOCKETT, wife of/and; CARL F LOCKETT,
Plaintiffs - Appellants,
MARIA ASEVEDO, wife of/and; AARON ASEVEDO; EULA RUBERTS, wife
of/and; LEE ANNA RUBERTS, testamentary executrix of the succession
of Paul Ruberts, Jr.; MARY KING, wife of/and; LARRY E KING,
Intervenor Plaintiffs - Appellants,
versus
ENVIRONMENTAL PROTECTION AGENCY, Etc.; ET AL,
Defendants,
VILLAGE OF FOLSOM, LOUISIANA; MARSHELL BRUMFIELD, Mayor of Village
of Folsom; MERTY FITZMORRIS, Village Administrator of Folsom,
Defendants - Intervenor Defendants - Appellees.
Appeals from the United States District Court
for the Eastern District of Louisiana
January 24, 2003
Before KING, Chief Judge, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This is an appeal from dismissal of a citizen suit brought
under the Clean Water Act. We conclude that the suit cannot
proceed because Louisiana is diligently prosecuting an action under
a comparable state law.
I.
The appellants are landowners in and around the Village of
Folsom, Louisiana. Folsom owns and operates a sewage treatment
facility which discharges effluent into a ravine that abuts or
traverses the private properties of the landowners. They allege
that the effluent is improperly treated, and as a result violates
the plant’s National Pollutant Discharge Elimination permit.
On August 12, 1999, the Locketts sent a notice of violations
and sixty-day notice of intent to sue letter to defendants alleging
violations of the Federal Water Pollution Control Act, commonly
known as the Clean Water Act (CWA).1 None of the intervening
plaintiffs sent a notice letter. On November 4, 1999, the
Louisiana Department of Environmental Quality (DEQ) issued a
Compliance Order to the Village of Folsom for various violations in
the operation of its water treatment facility. The order resulted
in a $466,450 penalty assessment issued August 20, 2001.
On December 7, 1999, the Locketts sent a second notice letter
to the defendants, which iterated the claims of their first letter
and referenced ongoing violations. The Locketts filed suit on
March 31, 2000 under the CWA’s citizen suit provision.2 The
1
33 U.S.C. § 1251 et seq.(2001).
2
Id. § 1365(a)(1) (2001).
2
remaining appellants intervened in the suit at various times. In
addition, all of the appellants but Maria and Aaron Asevedo have
intervened in the DEQ adjudicatory hearing concerning the $446,450
penalty assessment.
The district court granted Folsom’s motion to dismiss for lack
of subject matter jurisdiction, pointing to 33 U.S.C. § 1319(g)(6),
which prohibits a citizen suit when a state is diligently
prosecuting an action under “comparable” state law. The district
court also held that the plaintiffs had failed to file suit within
120 days of sending their first notice, and therefore the
exceptions found in § 1319(g)(6)(B)(ii) to the bar of the citizen
suits did not apply.
II.
Appellees raise for the first time the Locketts’ standing to
challenge the district court’s holding on the comparability of the
Louisiana and federal statutes.3 The Locketts challenge the
district court’s holding that the statutes are comparable based on
their assertion that the Louisiana statute does not provide
adequate notice and opportunity for citizen participation in
enforcement actions brought by the DEQ. Because the Locketts
received notice of and were allowed to intervene in the enforcement
3
Appellees assert that the remaining appellants lack subject matter
jurisdiction, an issue we address below, and therefore the Locketts are the only
appellants to which this argument is addressed.
3
action brought by the DEQ, the appellees argue that there is no
Article III case or controversy.
This argument is without merit and misconstrues the Article
III standing inquiry. To satisfy the standing requirement of
Article III in a citizen suit under the CWA, a plaintiff must show
(1) an actual or threatened injury, (2) "fairly traceable" to the
defendant's action, and (3) likely redress if the plaintiff
prevails in the lawsuit.4 That there was standing to bring the
current suit is not challenged. The Locketts now appeal the
district court’s holding that their suit was barred when the DEQ
brought an enforcement action under a comparable state law. The
Locketts are challenging the district court’s legal determination
that the statute is comparable, not asserting that they were
injured by a lack of notice or opportunity to participate in the
DEQ action. The fact that the Locketts received notice and have
intervened in the DEQ action is irrelevant to the question of
whether they have standing to sue under the citizen suit provision
of the CWA and appeal an adverse ruling. Clearly, the Locketts can
satisfy the Article III standing requirements of injury, cause, and
redressability.
Appellees also raise a question of subject matter jurisdiction
for the first time on appeal. The argument is that although the
intervenor-appellants were proper intervenors in the district court
4
Texans United for a Safe Economy Educ. Fund v. Crown Cent. Petroleum
Corp., 207 F.3d 789, 792 (5th Cir. 2000).
4
because of their state law claims, they are not proper parties to
the appeal of the federal claims because they did not file notice
of the intent to sue as required by the citizen suit provision, and
therefore were never proper parties to the federal claims.5
Of course subject matter jurisdiction may be raised at
anytime.6 However, we have stated that a notice requirement in the
context of a citizen suit provision, “although mandatory, is not
jurisdictional ‘in the strict sense of the term,’ and hence may not
be availed of for the first time on appeal by an appellant seeking
reversal of an adverse trial court judgment on that basis.”7 In
Yeutter, we reasoned that the notice requirement was more
procedural than jurisdictional. The statute at issue in Yeutter
was the Endangered Species Act, which is nearly identical to the
sixty-day notice requirement at issue here.8 While in this case it
is the appellee raising the issue for the first time on appeal, our
reasoning in Yeutter applies here as well. Therefore, we do not
decide whether the intervening parties are required to give notice
of their intention to intervene under § 1365(b).
III.
5
33 U.S.C. § 1365(b) (2001).
6
See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996).
7
Sierra Club v. Yeutter, 926 F.2d 429, 437 (5th Cir. 1991) (quoting
Hallstrom v. Tillamook County, 493 U.S. 20, 30 (1989)).
8
16 U.S.C. § 1540(g)(2)(A)(I) (2000).
5
The CWA provides in § 1365(a)(1) that citizens may sue any
person who is alleged to be in violation of an effluent standard or
limitation.9 There are two restrictions. The first is that no
action may be commenced “if the Administrator [of the EPA] 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.”10 This
limitation is not applicable here, as neither the EPA nor the DEQ
has brought an action in either state or federal court.
The second limitation is found in § 1319(g)(6), and in
relevant part states 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 civil penalty action under ... section 1365 of this
title.”11 This restriction is in turn subject to two exceptions,
only one of which is relevant here. The limitation does not apply
to actions under § 1635 with respect to any violation for which:
notice of [the] alleged violation...has been given in
accordance 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.12
9
§ 1365(a)(1).
10
§ 1365(b)(1)(B).
11
33 U.S.C. § 1319(g)(6)(A)(ii) (2001) (emphasis added).
12
§ 1319(g)(6)(B)(ii).
6
The referenced notice requirement of § 1365(b)(1)(A) states that no
action under § 1365(a)(1) may be commenced “prior to sixty days
after the plaintiff has given notice of the alleged violation (i)
to the Administrator, (ii) to the State in which the alleged
violation occurs, and (iii) to any alleged violator of the
standard, limitation, or order.”13
In summary, § 1319(g)(6) states that any violation for which
a state has commenced and is diligently prosecuting an action under
a comparable state law shall not be the subject of a suit under §
1365(a)(1) unless proper notice was given prior to the action being
commenced and the citizen suit was filed within 120 days of the
notice.
IV.
We begin by determining whether the DEQ “has commenced and is
diligently prosecuting an action under a State law comparable to”
§ 1319(g).14 The district court found that the DEQ commenced an
administrative penalty action on November 4, 1999, when it issued
a Compliance Order to Folsom, and that the DEQ has diligently
prosecuted the action.15 Appellants do not challenge that holding
on appeal, and therefore the only issue before us is whether the
13
§ 1365(b)(1)(A).
14
§ 1319(g)(6).
15
Lockett v. EPA, 176 F. Supp. 2d 628, 631-32 (E.D. La. 2001).
7
action was brought under a “comparable” state law.16 We review de
novo a district court’s grant of summary judgment on the issue of
statutory preclusion.17
A.
We have never addressed this issue, but find ample guidance
from the Supreme Court and our sister circuits. At the outset, it
is important to recall that Congress expressly stated that “[i]t is
the policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce,
and eliminate pollution.”18 Thus, 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.”19 As the Supreme Court stated, “[t]he bar on
citizen suits when governmental enforcement action is under way
suggests that the citizen suit is meant to supplement rather than
to supplant governmental action.”20
16
To the extent that appellants attempt to raise the issue that the DEQ
is not diligently prosecuting the action in their reply brief, we view the issue
waived. See Peavy v. WFAA-TV, Inc., 221 F.3d 158, 179 (5th Cir. 2000) (stating,
“[w]e do not consider any of [the issues], because they were not raised in the
parties' opening briefs” (emphasis in original)).
17
Texans United for a Safe Economy Educ. Fund v. Crown Cent. Petroleum
Corp., 207 F.3d 789, 794 (5th Cir. 2000).
18
33 U.S.C. § 1251.
19
N. & S. Rivers Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d 552,
555 (1st Cir. 1992).
20
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.
49, 61 (1987).
8
In light of the primary role the state plays in enforcement,
the requirement that a state law be “comparable” to the federal
statute should be read broadly to permit the states flexibility in
deciding how to enforce anti-pollution laws. In examining this
issue, the Eighth Circuit stated:
The common thread running through these cases [finding
state laws comparable] 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.... [T]he comparability
requirement may be satisfied so long as the state law
contains comparable penalty provisions which the state is
authorized to enforce, has the same overall enforcement
goals as the federal CWA, provides interested citizens a
meaningful opportunity to participate at significant
stages of the decision-making process, and adequately
safeguards their legitimate substantive interests.21
Appellants have asserted that the Louisiana statute is not
comparable to the federal statute because it lacks adequate notice
and comment provisions. We must therefore determine if the
Louisiana statute “affords significant citizen participation” and
“provides interested citizens a meaningful opportunity to
participate at significant stages of the decision-making process.”22
B.
21
Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376, 381
(8th Cir. 1994) (citing Scituate, 949 F.2d at 556 & n.7)
22
Id.; see also, Jones v. City of Lakeland, Tennessee, 224 F.3d 518, 524
(6th Cir. 2000) (holding that the court must decide “if the overall State
regulatory scheme affords interested and/or adversely affected citizens the
safeguard of a meaningful opportunity to participate in the administrative
enforcement process”).
9
Section 1319(g)(4)(A), (B), and (C) of the CWA provides for
the rights of “interested persons” to notice of and comment on
proposed civil penalties.23 Under this subsection, before issuing
an order assessing a civil penalty, the EPA “shall provide public
notice of and reasonable opportunity to comment on” the proposed
order.24 Any person who commented “shall be given notice” of any
hearing on the proposed assessment and a “reasonable opportunity to
be heard and to present evidence.”25 If the assessed party does not
elect for a hearing, any person who commented on the proposed
assessment may petition for a hearing.26 If the evidence presented
in support of the petition is “material and was not considered in
the issuance of the order,” the order shall be set aside and a
hearing provided.27 If the petition for a hearing is refused, the
EPA “shall provide to the petitioner, and publish in the Federal
Register, notice of and the reasons for such denial.”28
This procedure ensures that the public has notice of any
proposed assessment, and that any “interested person” has an
opportunity to comment, an opportunity to participate in any
hearing, and the right to a hearing if the assessed party opts not
23
33 U.S.C. § 1319(g)(4).
24
§ 1319(g)(4)(A).
25
§ 1319(g)(4)(B).
26
§ 1319(g)(4)(C).
27
Id.
28
Id.
10
to have one when they have material evidence not considered by the
EPA.
The Louisiana statute provides comparable opportunity for
interested citizens to participate in the agency action, although
the approach differs from the approach of the CWA. Under the
Louisiana Revised Statute 30:50.1 et seq., the DEQ does not notify
the public of any compliance order or penalty assessment before it
is issued.29 However, the secretary of the DEQ is required to
maintain a list “of all notices of violations, compliance orders,
and penalty assessments issued in the preceding three months” which
shall be updated monthly.30 On a “periodic basis” a copy of this
list shall be mailed separately or as part of a department
publication, to persons who request to be on the mailing list.31
Thus, there is public notification of agency enforcement actions,
and an opportunity to participate before the action becomes final,
as we will explain.
Once the DEQ issues an order, one of three things happens:
(1) the respondent exercises his right to a hearing; (2) the
respondent and the DEQ enter into a settlement or compromise; or,
(3) the respondent agrees to comply without a hearing.
29
La. Rev. Stat. Ann. 30 § 2050.2 (West 2002) (notice is provided to the
respondent, including the respondent’s right to an adjudicatory hearing).
30
§ 2050.1.B.(1).
31
§ 2050.1.B.(2)(a).
11
In the first situation, when the respondent elects to have an
adjudicatory hearing, Louisiana Revised Statute 30 § 2025.E(5) and
2050.4.I require that the public be given an opportunity to submit
comments. Any “aggrieved party” has the “right to intervene as a
party” in the hearing when the intervention is “unlikely to unduly
broaden the issues or unduly impede the resolution of the matter.”32
In the second situation, when a settlement or compromise is
proposed, the DEQ is required to take public comment before
signing.33 In addition, notice must be given to “a person who has
requested notice” and the respondent is required to publish notice
of the proposed settlement in the official journal of the parish.34
The DEQ may hold a public hearing if either twenty-five people have
filed a written request for a public hearing, or there is “a
significant degree of public interest.”35 The public may present
evidence, oral statements, opinions, or the like at any public
hearing.36
In the final situation, when the respondent elects to comply
without an adjudicatory hearing, an “aggrieved person” may request
32
La. Rev. Stat. 30 § 2050.11.B. An aggrieved party is defined as “a
person who has a real and actual interest that is or might be adversely affected
by a final action of the department under the Louisiana Environmental Quality
Act, R.S. 30:200l et seq.” La. Admin. Code tit. 33, pt. I, § 303 (2001).
33
§ 2050.7.B.
34
§ 2050.7.C.
35
§ 2050.7.D.
36
§ 2050.12.C.
12
one.37 The secretary of DEQ “may grant the request when equity and
justice require it.”38 Any request must be filed within thirty days
of notice to the respondent of the order.39 The secretary may grant
an untimely petition for an adjudicatory hearing when the
untimeliness is the result of “excusable neglect.”40 If an
adjudicatory hearing is granted, public comments may be filed,41 and
an aggrieved party may intervene.42
In summary, under Louisiana law there is “periodic” notice to
persons who request to be on the mailing list of all violations,
compliance orders and penalty assessments issued in the preceding
three months, and public notice is required in the case of a
proposed settlement or compromise. An aggrieved party may
intervene in an adjudicatory hearing, or petition for an
adjudicatory hearing if none is held. The public may comment on
the matter prior to the adjudicatory hearing, but may not
participate in the hearing. If a public hearing is held, the
public may participate fully.
D.
37
§ 2050.4.B.
38
Id.
39
§ 2050.4.E.
40
§ 2050.4.F.
41
§ 2050.4.I.
42
§ 2050.11.B (stating that the right to intervene is subject to the
restriction that the “intervention is unlikely to unduly broaden the issues or
unduly impede the resolution of the matter”).
13
While the notice and comment provisions of the Louisiana
statute are not identical to the federal statute, the statute
“affords significant citizen participation” and “provides
interested citizens a meaningful opportunity to participate at
significant stages of the decision-making process” and is thus
comparable to the federal statute.
Appellants argue that the DEQ is given too much discretion by
the Louisiana statute, particularly in determining whether to allow
intervention of aggrieved persons in adjudicatory hearings and in
determining whether to grant an aggrieved person’s request for an
adjudicatory hearing when none is scheduled. Appellants argue that
this makes the Louisiana statute similar to the one in Jones, which
the Sixth Circuit determined was not comparable to the federal
statute because the Tennessee statute “permits [the state] to
declare citizen or public participation ‘duplicitous or frivolous,’
so that the plaintiffs and other similarly situated citizens can be
frozen out of commencing an original action, or intervening in an
ongoing State enforcement action.”43 We do not agree.
While the DEQ is given discretion in allowing intervention or
granting a petition for a hearing, the discretion is reasonably
constructed to prevent abuse of the process and is subject to
43
See Jones v. City of Lakeland, Tenn., 224 F.3d 518, 524 (6th Cir. 2000).
14
judicial review.44 This discretion is similar to the provision in
§ 1319(g)(4) of the CWA, which requires the EPA to grant a petition
for a hearing only if the evidence to be presented is “material and
was not considered in the issuance of the order.”45 As such, this
discretion does not deny citizens an opportunity to participate in
the process, and as mentioned above, adequate notice is provided as
well.
We therefore conclude that the DEQ was diligently prosecuting
an action under a comparable state law. As a result, appellants’
citizen suit brought pursuant to § 1365 is barred under §
1319(g)(6)(A) unless it falls under one of the exceptions found in
§ 1319(g)(6)(B).
V.
The limitation on citizen suits found in § 1319(g)(6)(A) is
subject to two exceptions. The first applies to civil suits filed
prior to the commencement of the action by the State or the EPA.46
This exception does not apply here, as the instant suit was filed
on March 31, 2000, several months after the DEQ initiated its
action by sending a Compliance Order to Folsom on November 4, 1999.
44
The Louisiana statute allows intervention in any scheduled adjudicatory
hearing if intervention is “unlikely to unduly broaden the issues or unduly
impede the resolution of the matter.” See § 2050.11.B. Likewise, if no hearing
is scheduled, an aggrieved person may petition for one, and the Secretary may
grant one “when equity and justice require it.” See § 2050.4.B. A decision to
prohibit intervention or deny a petition for a hearing is appealable to the
courts. See §§ 2050.21.A and 2050.4.G.
45
33 U.S.C. § 1319(g)(4)(C).
46
§ 1319(g)(6)(B)(i).
15
The second exception requires that notice of intent to sue be given
prior to the commencement of the state’s action, and that the
citizen suit be filed within 120 days of such notice.47 We find
that the appellants’ suit does not satisfy this exception.
A.
The Locketts sent their first notice of their intent to sue on
August 12, 1999. This letter was mailed to the required parties,
and in an attached Appendix A adequately listed the alleged
violations. Pursuant to 40 C.F.R. § 135.2, a copy of the notice
must be mailed to “the chief administrative officer of the water
pollution control agency for the State in which the violation is
alleged to have occurred.” While the Locketts mailed a copy of the
first notice to the Louisiana Department of Environmental Quality,
the letter was not addressed to J. Dale Givens, the Secretary of
the DEQ. The Locketts mailed a second notice of intent to sue on
December 7, 1999, and a copy of the notice was again sent to the
DEQ, although this time the Secretary’s name was included. In the
intervening months, the DEQ sent a Compliance Order to Folsom on
November 4, 1999. The Locketts filed their suit on March 31, 2000,
within 120 days of their second notice, but not within 120 days of
their first notice.
The district court held that the minor defect in the Locketts’
first notice, failing to include the Secretary’s name in the letter
47
§ 1319(g)(6)(B)(ii).
16
sent to the DEQ, did not make the first notice ineffective.
Therefore the Locketts’ suit was not filed within 120 days of their
notice, and as such was not saved from preemption by the exception
in § 1319(g)(6)(B)(ii). On appeal, appellants make two arguments
challenging the district court’s holding.
First, appellants argue that the second notice was necessary
because the first notice was not sufficient, and therefore the suit
was filed within 120 days of their notice as required. The second
argument is that regardless of whether the first notice was
sufficient, the second notice contains allegations of ongoing
violations by Folsom that were not in the first notice or the
Compliance Order, and therefore the second notice is actually the
first notice of these additional violations. As such, the suit was
timely filed with respect to these violations. We find neither
argument persuasive.
B.
Appellants’ first argument, that their initial notice was
deficient and therefore the second notice was required, is
irrelevant to deciding the issue. Regardless of whether the first
notice was sufficient, the suit is barred with respect to the
alleged violations contained in that notice.
Assuming that the first notice was not sufficient, appellants
must rely on their second notice to satisfy the notice requirement.
However, the second notice was filed on December 7, 1999, after the
DEQ commenced its action on November 4, 1999. The exception in §
17
1319(g)(6)(B)(ii) requires that notice be given “prior to
commencement of an action under this subsection” by the state.
Therefore, any alleged violations which were being diligently
pursued in the action commenced by the DEQ on November 4 were
barred. On the other hand, if the first notice was sufficient,
then the citizen suit was not filed within 120 days of when the
notice was given, since the first notice was sent on August 12,
1999, and the suit was not filed until March 31, 2000.
Appellants argue that nothing prohibits the filing of multiple
notices, and that since their suit was filed within 120 days of
their second notice, their suit is not barred. Although this
argument seems contrary to the purpose of the 120 day limitation,
we need not decide the issue here. Even allowing for repeated
notices, the only way appellants can benefit from the second notice
is if we allow them to combine the two notices: using the date of
the first to find that notice was given prior to the DEQ commencing
the action, and the date of the second to find that the citizen
suit was filed within 120 days of the notice. The clear language
of the statute prohibits such an interpretation.
The statute states that notice of an alleged violation must be
given “prior to commencement of an action” by the state, and that
a citizen suit must be filed “before the 120th day after the date
on which such notice is given.”48 Although filing subsequent
48
Id.
18
notices is not prohibited, the citizen suit must be filed within
120 days of such notice. In the present case, the only such notice
is the second notice which was not filed prior to the commencement
of the action by the state. Therefore, even if subsequent notices
are permitted, an issue we decline to decide, appellants’ suit is
barred because the second notice was filed after the DEQ commenced
its action.
C.
Appellants’ second argument fairs no better. Perhaps
recognizing that their first argument would fail, appellants
emphasized that their second notice includes ongoing violations
that are not in either their first notice or in the Compliance
Order sent by the DEQ on November 4, 1999. The appellants argue
that the notice of “new” violations was filed prior to the
commencement of any action by the state, and that their suit was
timely filed within 120 days of that notice. Thus, their suit
would fall under the exception of § 1319(g)(6)(B)(ii).
Appellees argue that the Compliance Order issued by the DEQ on
November 4, 1999, encompasses future as well as past violations
because it addresses “continued violation[s] or noncompliance.” As
such, the second notice does not address any “new” violations.
We find the appellees’ argument persuasive in light of the
purposes of the citizen suit provision and the statutory
limitations on citizen suits. In Gwaltney, the Court made it clear
that the citizen suit is meant to supplement, not supplant
19
government action.49 To allow appellants’ suit to proceed based on
continued violations for which the DEQ had already begun to take
action would eviscerate the bar on citizen suits where the state is
diligently prosecuting an action under comparable state law.
A state compliance order can only identify those violations
which have already occurred. As a result, the Compliance Order
sent by the DEQ did not list violations which occurred after it was
sent. If we were to adopt appellants’ position, a citizen could
file notice the day after the compliance order was sent, give
notice of any additional violations, and then sue within 120 days.
Under appellants’ view of what it means to “commence a state
action,” they would not be barred since the compliance letter did
not mention specific violations which had yet to occur. This
interpretation cannot stand under the weight of even a minimal
amount of scrutiny, given the purpose of the CWA’s citizen suit
provision.
In addition, it is apparent that the Compliance Order sent by
the DEQ on November 4, 1999, commenced an action which addressed
both past and future violations. The Compliance Order states that:
... Respondent shall take all steps necessary to
meet and maintain compliance with LPDES permit
LA0064378...
In the event the Respondent believes that complete
correction of the above cited deficiencies is not
physically possible within thirty (30) days, the
Respondent shall submit ... a comprehensive plan for the
49
See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 60 (1987).
20
expeditious elimination and prevention of such
noncomplying discharges. Such plan shall provide for
specific corrective actions taken and shall include a
critical path schedule for the achievement of compliance
within the shortest time possible.
...Respondent’s failure or refusal to comply...could
result in the assessment of a civil penalty in an amount
of not more than fifty thousand dollars ($50,000) for
each day of continued violation or noncompliance.50
The language of the Compliance Order clearly contemplates ongoing
enforcement to assure that past violations are not repeated in the
future.
We conclude that even if appellants’ second notice included
ongoing violations that were not noticed in their first letter, the
state had commenced an action with regard to those violations prior
to the second notice being sent. Therefore, appellants’ suit with
regard to any “new” violations is not covered by the exception in
§ 1319(g)(6)(B)(ii), and appellants’ entire suit under § 1365 is
barred because the DEQ was diligently prosecuting an action under
comparable state law.51
VI.
In conclusion, we find that the Louisiana statute contains
comparable notice and comment provisions to § 1319(g) of the CWA.
Because the DEQ was diligently prosecuting an action under a
50
Emphasis added.
51
In their reply brief, appellants raise two additional arguments. First,
appellants argue that the district court’s ruling on Folsom’s belated motion to
dismiss was improper and improvident. Second, they argue that only their request
for civil penalties is preempted and that the district court should not have
dismissed their claims for injunctive, declaratory, and other relief. As these
issues were raised for the first time in the reply brief, they are waived. See
Peavy v. WFAA-TV, Inc., 221 F.3d 158, 179 (5th Cir. 2000).
21
comparable state law, appellants’ § 1365 suit was preempted. As
appellants’ failed to file their suit within 120 days of their
first notice, and their second notice came after the DEQ had
commenced its action, their suit does not fall under the exception
to preemption found in § 1319(g)(6)(B)(ii). We therefore AFFIRM
the district court’s dismissal of appellants’ federal claims.
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