Paper, Allied-Industrial, Chemical & Energy Workers International Union v. Continental Carbon Co.

F I L E D
United States Court of Appeals
Tenth Circuit

November 8, 2005
PUBLISH

UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

PAPER, ALLIED-INDUSTRIAL,
CHEMICAL AND ENERGY
WORKERS INTERNATIONAL
UNION and PONCA TRIBE,

Plaintiffs-Appellees,
v.

CONTINENTAL CARBON
COMPANY,

Defendant-Appellant,
No. 03-6243
and

OKLAHOMA DEPARTMENT OF
ENVIRONMENTAL QUALITY;
ENVIRONMENTAL FEDERATION
OF OKLAHOMA; ENVIRONMENT
COLORADO; NEW MEXICO
PUBLIC INTEREST RESEARCH
GROUP; UNITED STATES PUBLIC
INTEREST RESEARCH GROUP;
THE SIERRA CLUB,

Amici Curiae.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 02-CV-1677-R)
Malcolm E. Wheeler, Wheeler Trigg & Kennedy, LLP, Denver, Colorado, (Darcy
M. Goddard, Wheeler Trigg & Kennedy, LLP, Denver Colorado, and Mark D.
Coldiron, Ryan, Whaley, Coldiron & Shandy, Oklahoma City, Oklahoma, and Jim
T. Priest , McKinney & Stringer, P.C., Oklahoma City, Oklahoma, with him on
the briefs) for Defendant-Appellant.

David Frederick, Frederick-Law, Austin, Texas, (Richard W. Lowerre, Lowerre &
Kelly, Austin, Texas, and Rick W. Bisher, Ryan, Bisher & Ryan, Oklahoma City,
Oklahoma, with him on the briefs) for Plaintiffs-Appellees.

Donald D. Maisch and Robert D. Singletary, Oklahoma City, Oklahoma, filed an
Amicus Curiae brief for Oklahoma Department of Environmental Quality in
support of Defendant-Appellant.

James R. Barnett, Kerr, Irvine, Rhodes & Ables, Oklahoma City, Oklahoma, filed
an Amicus Curiae brief for Environmental Federation of Oklahoma, Inc., in
support of Defendant-Appellant.

Charles C. Caldart, National Environmental Law Center, Seattle, Washington,
filed an Amici Curiae brief for Environment Colorado, New Mexico Public
Interest Research Group, United States Public Interest Research Group, and The
Sierra Club in support of Plaintiffs-Appellees.

Before EBEL, O’BRIEN, Circuit Judges, and STEWART, District Judge. *

EBEL, Circuit Judge.

This case involves a citizen suit under the Clean Water Act (“CWA”)

brought pursuant to 33 U.S.C. § 1365(a) (2000). The district court dismissed the

suit under 33 U.S.C. § 1319(g)(6)(A)(ii), which deprives federal courts of

*
Honorable Ted Stewart, District Court Judge, District of Utah, sitting by
designation.

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jurisdiction over CWA citizen enforcement actions when a state has commenced

and is diligently prosecuting the same violations under a state law “comparable”

to subsection 1319(g).

This court has not previously enunciated the proper standard for judging

whether a particular state’s laws are comparable to § 1319(g), and we take this

occasion to do so. We hold that in order to satisfy 33 U.S.C. 1319(g)(6)(A)(ii),

three categories of state-law provisions—penalty-assessment, public participation,

and judicial review—must be roughly comparable to the corresponding categories

of federal provisions. Applying this standard, we hold that Oklahoma’s state-law

provisions, and more particularly its public participation provisions, are

comparable to § 1319(g) and therefore conclude that Oklahoma’s proceedings bar

federal jurisdiction under 33 U.S.C. § 1319(g)(6)(A)(ii) for claims pertaining to

civil penalties.

Next, we turn to another question of first impression in this circuit:

Whether the jurisdictional bar contained in 33 U.S.C. § 1319(g)(6)(A)(ii) applies

to equitable relief in addition to civil penalty claims. Affirming the district court,

we hold that the bar applies only to civil penalty claims and that Plaintiffs’

equitable claims should not be dismissed for lack of jurisdiction.

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 BACKGROUND

I. Factual Background

Defendant-Appellant Continental Carbon Company (“CCC”) manufactures

carbon black, a compound used in the manufacture of tires and other rubber and

plastic products. Since 1954, CCC has maintained and operated a plant in close

proximity to the Arkansas River in Ponca City, Oklahoma. Approximately ninety-

five of the employees at CCC’s Ponca City plant are members of the Paper,

Allied-Industrial Chemical and Energy Workers International Union (“PACE”), a

plaintiff in the instant case. 1

CCC plant operations produce wastewater which is then discharged into

retention lagoons along the plant’s eastern side near the Arkansas River. Such

activities require a permit from the Oklahoma Department of Environmental

Quality (“ODEQ”), which CCC applied for and received in 1998.

In January 2002, PACE began voicing concerns with the wastewater

disposal practices at CCC’s Ponca City plant to ODEQ. Specifically, PACE

representatives alleged in a citizen complaint that industrial wastewater was being

discharged into the marsh area east of the lagoons and near the Arkansas River.

This information prompted ODEQ to conduct an on-site evaluation at the Ponca

1
The other plaintiff in this litigation is the Ponca Tribe, a sovereign Native
American Nation with close ties to the area surrounding CCC’s Ponca City
facility.

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City plant on January 9, 2002. The investigator noticed that the color of the water

in the marshland was black, and oily substances were evident on the surface of

the water. Samples taken from the marshland area had identical chemical

components to samples taken from CCC’s wastewater impoundments.

This investigation led ODEQ to issue a Notice of Violation (“NOV”) to

CCC. The NOV largely dealt with regulatory violations related to CCC’s

unauthorized discharges of polluted wastewater. CCC and ODEQ entered into a

consent decree whereby CCC agreed to take a number of remedial measures,

including an agreement to conduct a permeability study, submitting a water

balance report, completing an approved Supplemental Environmental Project, and

monitoring emissions from the facility.

Several months later, ODEQ also discovered a discrepancy in CCC’s 1998

permit application related to the depth between the wastewater impoundments and

the groundwater beneath the impoundments (“depth-to-groundwater”). In that

permit application, CCC reported the depth-to-groundwater level for the

impoundments as eighty feet. However, upon looking at data from other water

wells in the vicinity, ODEQ believed the true depth-to-ground water level was

less than fifteen feet. According to ODEQ’s letter, placing a wastewater

impoundment in an area with such a shallow depth-to-groundwater level violated

Oklahoma law. CCC and ODEQ agreed to resolve the issues dealing with depth-

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to-groundwater in an upcoming permit renewal process. On June 1, 2005, ODEQ

issued CCC a new wastewater disposal/treatment permit, effective through May

31, 2010. 2

Plaintiffs did not consider the matter closed. In a series of letters to

ODEQ, they stated numerous objections to CCC’s performance under the decree

and ODEQ’s enforcement thereof. Specifically, Plaintiffs objected to the fact that

the consent decree called for an investigation that ignored the portion of CCC

land where the violations took place. Plaintiffs also sought a meeting with ODEQ

representatives and were turned away. The relationship between Plaintiffs and

ODEQ continued to grow increasingly acrimonious, with ODEQ representatives

restricting access to CCC records and refusing to divulge the substance of

conversations with CCC officials on legal privilege and work product grounds.

Finally, on June 19, 2002, Plaintiffs served notice of intent to sue upon the U.S.

Attorney General, the EPA, the State of Oklahoma, and CCC.

II. Procedural history

2
Appellant submitted this permit to the court as an attachment to a Fed. R.
App. P. 28(j) letter, which we construe as a motion to supplement the record.
Because this document is relevant to our inquiry into whether any of Plaintiffs’
claims are moot on appeal, we grant the motion. At oral argument, we raised sua
sponte the issue of whether CCC’s successful completion of the repermitting
process could moot any portion of this lawsuit. Counsel submitted supplemental
briefing at our request, and having reviewed those briefs, we are convinced that
the case is not moot. Instead, we will proceed directly to the issues raised by the
parties.

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 A. The complaint

On November 26, 2002, Plaintiffs filed suit against CCC under section 505

of the Clean Water Act (“CWA”), 33 U.S.C. § 1365. Their first amended

complaint outlines three claims: (1) unauthorized discharges of wastewater; (2)

misrepresentation of facts in the 1998 permit application; and (3) failure to report

unauthorized discharge in its lagoons, including but not limited to the discharges

identified in Claim 1. In their prayer for relief, Plaintiffs requested the following:

1. A declaratory judgment that CCC violated the CWA and Oklahoma
statutes through unsafe operation of its plant.
2. Civil Penalties authorized by the CWA up to a maximum of $25,000
per day per violation.
3. An injunction that would prohibit all unpermitted discharges and
impose a compliance schedule on CCC.

B. CCC’s motion to dismiss

Before submitting its answer, CCC moved to dismiss for failure to state a

claim and for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

CCC’s argument was predicated on 33 U.S.C. § 1319(g)(6)(A)(ii), which states, in

relevant part:

[A]ny violation [of the Clean Water Act] . . . 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.

In evaluating the motion to dismiss, the district court focused on whether

Oklahoma law was “comparable” to the Clean Water Act. After reviewing the

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factual materials provided by CCC and the relevant statutes, the court concluded

that Oklahoma law was comparable and therefore that § 1319(g)(6)(A)(ii) applied

to Plaintiffs’ claims.

Next the court turned to the question of whether § 1319 barred only the

civil penalty remedies or whether it also barred Plaintiffs’ claims for injunctive

and declaratory relief. Noting that “the plain language of Section 1319(g)(6)

indicates that only civil penalty actions are precluded when the conditions set

forth in § 1319(g)(6)(A)(ii) are satisfied[,]” the district court granted CCC’s

motion to dismiss with respect to the civil penalty claims only, stating that § 1319

deprived it of jurisdiction only of the civil penalties claims. The injunctive and

declaratory claims were left intact. Recognizing that it had, to some extent,

waded into uncharted waters, the district court stayed its order to permit an

interlocutory appeal under 28 U.S.C. § 1292(b). CCC subsequently filed a

petition with this court for permission to appeal under 28 U.S.C. § 1292(b), which

we granted.

DISCUSSION

I. Scope of issues on appeal

CCC’s petition for interlocutory appeal raised the limited question of

whether 33 U.S.C. § 1319(g)(6)(A)(ii) operated to bar civil penalty suits only, or

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whether the bar extended to declaratory and injunctive relief. Plaintiffs

subsequently briefed and argued several other issues, including (1) whether

Oklahoma law was actually “comparable” to federal law; (2) whether the state

was “diligently prosecuting” any of Plaintiffs’ claims; and (3) whether the district

court correctly considered evidence outside the pleadings. Defendant contends

that this appeal involves only the scope of § 1319(g)(6)(A)(ii)’s jurisdictional bar,

while Plaintiffs argue that we should also consider whether the district court

correctly applied the statute in the first place.

Interlocutory appeals originate from the district court’s order itself, not the

specific question certified by the district court or the specific question framed by

the appellant. See United States v. Stanley, 483 U.S. 669, 677 (1987). An

appellate court can and should address a different legal question if it controls the

disposition of the certified order. Homeland Stores, Inc. v. Resolution Trust

Corp., 17 F.3d 1269, 1272 (10th Cir. 1994).

Thus, it appears that the correct test for determining if an issue is

appropriate for interlocutory review is (1) whether that issue was raised in the

certified order; and (2) whether the issue can control the disposition of the order.

The issue of whether Oklahoma law is comparable to the Clean Water Act meets

this test. The district court order extensively considered this issue and concluded,

based on a standard set forth in McAbee v. City of Fort Payne, 318 F.3d 1248,

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1256 (11th Cir. 2003), that comparability existed. Any contrary conclusion this

court might reach would undoubtedly control the disposition of the order because

if we were to find that comparability did not exist, there would be no need to

address the issue Defendant raises: whether § 1319(g)(6)(A)(ii)’s jurisdictional

bar extended to claims for equitable relief.

Similarly, the issue of whether the district court properly considered

evidence outside the record during a motion under Fed. R. Civ. P. 12(b) is

properly before the court. This issue was raised in the order below because the

court looked to extrinsic evidence such as the notice of violation and consent

order. Also, this issue can control the disposition of the order because if the

district judge erred, then the order must be reversed and the case should be

considered under the summary judgment standard. See Hall v. Bellmon, 935 F.2d

1106, 1112 (10th Cir. 1991).

In contrast, the issue of whether ODEQ was “diligently prosecuting” CCC

for its alleged environmental abuses is not properly before us. While the issue

was mentioned in the interlocutory order, it was not directly adjudicated. Instead,

the district court states that “Plaintiffs do not dispute that the Oklahoma

Department of Environmental Quality has commenced and is diligently

prosecuting an administrative action under state law against defendant.”

To summarize, then, there are three issues properly before us on appeal:

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 (1) Whether the district court correctly considered outside
evidence when deciding Defendant’s motion to dismiss under
Rule 12(b).
(2) Whether Oklahoma law is comparable to the Clean Water Act.
(3) Whether the jurisdictional bar contained in 33 U.S.C.
1319(g)(6)(A)(ii) applies to claims for declaratory and
injunctive relief.

II. Consideration of outside evidence

Plaintiffs argue that the district court erred when it considered evidence

outside the pleadings in the context of a Rule 12(b)(6) motion to dismiss without

first converting the motion to one for summary judgment. This argument is a

non-starter, however, because it appears that the order granting the dismissal was

based on Rule 12(b)(1) (lack of jurisdiction) and not Rule 12(b)(6) (failure to

state a claim).

As a general rule, Rule 12(b)(1) motions to dismiss for lack of jurisdiction

take one of two forms: (1) facial attacks; and (2) factual attacks. Holt v. United

States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Under a facial attack, the movant

merely challenges the sufficiency of the complaint, requiring the district court to

accept the allegations in the complaint as true. Id. at 1002. In a factual attack

such as we have here, however, the movant goes beyond the allegations in the

complaint and challenges the facts upon which subject matter jurisdiction

depends. Id. In such a situation, the court must look beyond the complaint and

has wide discretion to allow documentary and even testimonial evidence under

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Rule 12(b)(1). Id.; Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987).

However, “a court is required to convert a Rule 12(b)(1) motion to dismiss into a

Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of

the jurisdictional question is intertwined with the merits of the case.” Holt, 46

F.3d at 1003. “[T]he underlying issue [in determining whether the jurisdictional

question is intertwined with the merits] is whether resolution of the jurisdictional

question requires resolution of an aspect of the substantive claim.” Pringle v.

United States, 208 F.3d 1220, 1223 (10th Cir. 2000).

The jurisdictional issue here is raised by 33 U.S.C. § 1319(g). To resolve

that issue, a court must answer three questions: (1) whether the state commenced

an action; (2) whether that action is being diligently prosecuted; and (3) whether

that action is being prosecuted under a comparable state law. See 33 U.S.C.

§ 1319(g)(6)(A)(ii).

Turning to the substantive cause of action under 33 U.S.C. § 1365(a)(1),

there is only one issue: whether the defendant is in violation of an effluent

standard or limitation under the chapter. Id. There is no overlap between the

cause of action and the jurisdictional section. We conclude, therefore, that it was

appropriate for the district court to consider extra-pleading evidence in its

resolution of the Rule 12(b)(1) motion without first converting the motion into

one for summary judgment.

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III. Comparability

Under 33 U.S.C. § 1319(g)(6)(A)(ii),

any violation . . . with respect to which a State has commenced and is
diligently prosecuting an action under a State law comparable to this
subsection [3] . . . shall not be the subject of a civil penalty action
under subsection (d) of this section or section 1321(b) of this title or
section 1365 of this title.

Id. (emphasis, footnote added). The Tenth Circuit has never set forth the

appropriate factors to consider in determining comparability, but a number of

other circuit courts have weighed in. See, e.g., McAbee, 318 F.3d at 1256;

Lockett v. Envtl. Prot. Agency, 319 F.3d 678, 683-84 (5th Cir. 2003); Jones v.

City of Lakeland, 224 F.3d 518, 523 (6th Cir. 2000) (en banc); Citizens for a

Better Env’t-Calif. v. Union Oil Co., 83 F.3d 1111, 1118 (9th Cir. 1996); Ark.

Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 381 (8th Cir. 1994); N. & S.

Rivers Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir.

1991).

The district court below adopted the Eleventh Circuit’s “rough

comparability” standard. See, McAbee, 318 F.3d at 1256. Applying that standard

Subsection 1319(g) deals largely with procedural mechanisms for imposing
3

administrative penalties. These mechanisms may be subdivided into three general
categories: (1) penalty-assessment provisions, see § 1319(g)(2); (2) public-
participation provisions, see § 1319(g)(4); and (3) judicial-review provisions, see
§ 1319(g)(8). See also McAbee, 318 F.3d at 1254 (categorizing provisions of
§ 1319(g) in this manner).

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to the facts of the case, it found that Oklahoma’s statutory scheme was

comparable to the Clean Water Act. In reviewing the district court’s decision,

then, we have two questions before us: (1) whether the court selected the correct

standard of comparability; and (2) whether, under that standard, the court

correctly concluded that comparability existed. As both issues involve questions

of statutory interpretation by the lower court, our standard of review is de novo.

Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004).

A. The correct standard of comparability

Most courts that have addressed this issue have been fairly deferential to

the state law and tend to find comparability. See, e.g., Lockett, 319 F.3d at 684;

Ark. Wildlife Fed’n, 29 F.3d at 381; Scituate, 949 F.2d at 555. One key

consideration, often cited by these courts, is the policy of the federal government

to “recognize, preserve, and protect the primary responsibility and rights of States

to prevent, reduce, and eliminate pollution . . . .” 33 U.S.C. § 1251(b).

Furthermore, the Supreme Court has noted in dicta that “[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.” Gwaltney

of Smithfield Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987)

(emphasis added). Finally, the plain meaning of the word “comparable” in the

statute does not suggest a rigid standard. See Webster’s Third New International

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Dictionary 461 (1986) (defining “comparable” as “capable of being

compared; . . . having enough like characteristics or qualities to make comparison

appropriate”).

Taken together, these principles suggest that the Clean Water Act calls for

something less than a rigorous comparability standard. We agree with the district

court that the Eleventh Circuit’s “rough comparability” approach is the most

appropriate to the case at bar. Under that approach, we focus on the three

categories of provisions contained in 33 U.S.C. § 1319 (g): penalty assessment,

public participation, and judicial review. McAbee, 318 F.3d at 1254. Each

category of federal provisions must have a “roughly comparable” provision under

state law in order for the bar against citizen suits to apply. Id. at 1256. A court

operating under the “rough comparability” standard engages in an independent

analysis for each category of state-law provisions; if one is found to be lacking,

then the citizen suit cannot be precluded. See id.

The “rough comparability” approach stands in contrast to the more

forgiving “overall comparability” standard used by the First and Eighth Circuits.

See Scituate, 949 F.2d at 556 (noting that correct legal standard for comparability

is “whether corrective action already taken and diligently pursued by the [state]

government seeks to remedy the same violations as duplicative civilian action.”);

Ark. Wildlife Fed’n, 29 F.3d at 381 (“[T]he comparability requirement may be

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satisfied so long as the state law . . . has the same overall enforcement goals as

the federal CWA . . . .”). The “overall comparability” approach also places

special emphasis on the comparability of the state’s penalty-assessment and

public-participation provisions. Scituate, 949 F.2d at 555; Ark. Wildlife Fed’n,

29 F.3d at 381. We believe that “rough comparability” is most consistent with the

statutory text of § 1319(g). Title 33, U.S.C. § 1319(g)(6)(A)(ii) requires that a

state must take action under a statute comparable to “this subsection” in order to

preclude a citizen suit.

Unlike many other paragraphs in § 1319(g), paragraph (6) makes no
references to particular paragraphs within the subsection. Instead,
paragraph (6) refers to the subsection as a whole, which includes not
only penalty-assessment provisions but also public-participation and
judicial-review provisions. This is strong textual evidence that
Congress intended courts to consider all three classes of provisions
when deciding whether state law is “comparable” to § 1319(g) of the
CWA.

McAbee, 318 F.3d at 1254 (internal citations omitted). Furthermore, an “overall”

balancing test forces judges to “weigh incommensurable values—for example, the

positive value of penalty-assessment provisions against the negative value of

starkly dissimilar public-participation provisions.” Id. at 1255 (footnote omitted).

“Rough comparability,” which requires an independent analysis of each class of

provisions, reduces uncertainty not only for courts but also for potential litigants,

administrative agencies, and state legislatures. See id.

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 Therefore, we hold that for state law to be “comparable,” under 33 U.S.C.

1319(g)(6)(A)(ii), each category of state-law provisions—penalty assessment,

public participation, and judicial review—must be roughly comparable to the

corresponding class of federal provisions.

B. Applying rough comparability to the case at bar

As an initial matter, we conclude that Oklahoma’s penalty-assessment and

judicial-review provisions are roughly comparable to federal law. Under 33

U.S.C. § 1319(g)(2), Class I penalties may not exceed $10,000 per violation up to

an aggregate penalty of $25,000. Class II penalties may not exceed $10,000 per

day up to an aggregate penalty of $125,000. Under Oklahoma law, the civil

penalties are identical to the federal law’s Class II penalties. Okla. Stat. tit. 27A,

§ 2-6-206(E). While Oklahoma does not provide for Class I penalties

specifically, there is enough commonality between the state and federal provisions

to provide a basis for rough comparability.

Similarly, the judicial-review provisions of Oklahoma law are comparable

to those of 33 U.S.C. § 1319(g). Both statutes allow an aggrieved party to

petition for review in the district court. See 33 U.S.C. § 1319(g)(8); Okla. Stat.

tit. 27A, §§ 2-6-206(I)(1), 2-3-502(I). The only apparent difference is the fact

that under the federal system, a commenter can seek judicial review, while

Oklahoma limits the right of review to those who have been harmed. Such a

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difference does not preclude a determination of comparability between Oklahoma

law and 33 U.S.C. § 1319 with respect to judicial review.

Thus, the only remaining question is whether Oklahoma’s public-

participation provisions are comparable to federal law. The public-participation

provisions regarding federal administrative penalty actions are covered in 33

U.S.C. § 1319(g)(4). Essentially, the Clean Water Act provides for public

participation in three ways: (1) a reasonable notice and opportunity to comment

before the issuance of the proposed order assessing a civil penalty; (2) the right to

present evidence if a hearing is held; and (3) the right to petition for a hearing if

one is not held. Id.

Under Okla. Stat. tit. 27A § 2-6-206(B), any person having an interest has

the right to intervene as a party in any administrative proceeding before the

ODEQ or in any civil proceedings involving the same environmental violations.

This is roughly comparable to 33 U.S.C. §1319(g)(4)(B), which allows for

commenters to participate and present evidence at evidentiary hearings. Although

the Oklahoma statute is limited to persons having an interest, the basic right of

interested parties to present evidence and be heard is preserved. Furthermore,

under Okla. Stat. tit. 27A § 2-3-502(I), “[a]ny party aggrieved by a final order

may petition the [ODEQ] for rehearing, reopening, or reconsideration.” This

provision is roughly comparable to 33 U.S.C. § 1319(g)(4)(C), allowing an

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interested person to petition for a hearing after issuance of an order if none was

held previously.

We also conclude that the Oklahoma law is roughly comparable to the

public-notice provisions of 33 U.S.C. § 1319(g)(4)(B). Title 33, U.S.C.

§ 1319(g)(4)(A) requires notice and a reasonable opportunity to comment on the

proposed assessment. While the statute does not define what counts as a

reasonable opportunity to comment, EPA regulations implementing § 1319

mandate that public notice must be provided within thirty days after a complaint

is issued (but forty days before a penalty is assessed). 40 C.F.R. § 22.45(b)(1).

In addition, the notice must provide detailed information about the name and

location of the facility, the nature of the violation, and the specific remedy the

EPA seeks. Id. § 22.45(b)(2). In contrast, neither Okla. Stat. tit. 27A § 2-3-502

nor § 2-6-206 require notice of an assessment to anyone other than the violator.

However, provisions of the Oklahoma Open Meetings Act provide

additional mechanisms of public notice that are roughly comparable to the notice

provisions under § 1319(g) (and the regulations implementing it). 4 “Public

bodies” under the Open Meetings Act must give the public notice of regularly

4
Plaintiff has not argued before this court that the Oklahoma Open
Meetings Act would not apply to ODEQ proceedings. Therefore, for the purposes
of this opinion, we assume without deciding that the Open Meetings Act applies
to actions of the ODEQ.

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scheduled meetings by December 15th of the preceding calendar year, and

“special” meetings require forty-eight-hour notice. Okla. Stat. tit. 25 § 311(A)(1),

(11). Agendas for such meetings must be posted no later than twenty-four hours

before the meeting. Id. § 311(A)(9), (11). In addition, Oklahoma law requires

direct notice to interested parties forty-eight hours in advance of any “special

meetings.” Id. § 311(A)(11). This is similar to 40 C.F.R. § 22.45(b)(2), which

requires that notice of a complaint or consent decree be directly provided to

parties who request such notice in advance.

Although the Oklahoma notice provisions are not as detailed as those found

in 40 C.F.R. § 22.45, we are still compelled to conclude that they provide

reasonable notice. Notably, § 1319(g)(6)(A)(ii) only requires state law to be

“comparable” with the federal statute. Regulations implementing the statute may

offer us some guidance as to what constitutes reasonable notice, but they are not

controlling.

Furthermore, we note that the EPA’s delegation of enforcement authority to

Oklahoma under the Clean Water Act through the National Pollutant Discharge

Elimination System (“NPDES”) significantly mitigates any concerns that

Oklahoma law is not comparable to subsection 1319(g). In order for the EPA to

delegate enforcement authority under the CWA to a state, the state must meet

certain public participation requirements, pursuant to 40 C.F.R. 123.27(d):

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 Any State administering [an NPDES] program shall provide for
public participation in the State enforcement process by
providing either:
(1) Authority which allows intervention as of right in any
civil or administrative action to obtain remedies
specified in paragraphs (a)(1), (2) or (3) of this section
by any citizen having an interest which is or may be
adversely affected; or
(2) assurance that the State agency or enforcement authority
will:
(i) Investigate and provide written responses to
all citizen complaints submitted pursuant to
the procedures specified in § 123.26(b)(4);
(ii) Not oppose intervention by any citizen
when permissive intervention may be
authorized by statute, rule, or regulation;
and
(iii) Publish notice of and provide at least 30
days for public comment on any proposed
settlement of a State enforcement action.

Id. (emphasis added). As the regulation makes clear, before the EPA can delegate

to a state the authority to enforce the CWA, the state must provide public

participation in one of two ways: (1) it may provide for intervention as of right

for aggrieved persons; or (2) it may provide assurances of public participation,

including a thirty-day notice and comment period. That the federal regulation is

phrased in the disjunctive is critical to our analysis. Despite the fact that

Oklahoma does not provide for the sort of notice and comment period found in 40

C.F.R. §§ 22.45(b)(2) or 123.27(d)(2)(iii), its public participation provisions are

still deemed sufficient to permit enforcement of the CWA by virtue of a statute

providing intervention for aggrieved persons:

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 Any person having any interest connected with the geographic area or
waters or water system affected, including but not limited to any
aesthetic, recreational, health, environmental, pecuniary or property
interest, which interest is or may be adversely affected, shall have the
right to intervene as a party in any administrative proceeding before
the Department, or in any civil proceeding, relating to violations of
the Oklahoma Pollutant Discharge Elimination System Act or rules,
permits or orders issued hereunder.

Okla. Stat. Ann. tit. 27A § 2-6-206(B). Oklahoma’s public-participation

provisions are comparable enough to permit a delegation of CWA enforcement

authority, and we conclude they should also be deemed comparable for the

purposes of imposing the jurisdictional bar under 33 U.S.C. § 1319(g)(6)(A)(ii).

Accord Ark. Wildlife Fed’n v. ICI Americas, Inc., 842 F. Supp. 1140, 1146-47

(E.D. Ark. 1993), aff’d, 29 F.3d 376 (8th Cir. 1994) (holding that Arkansas law

that provided intervention as of right to anyone with an interest in state

enforcement proceedings provided for “public participation” comparable to that

afforded under 33 U.S.C. § 1319(g)(4), “especially in view of 40 C.F.R.

§ 123.27(d)”).

Accordingly, we conclude that all three categories of state

provisions—penalty assessment, public participation, and judicial review—are

roughly comparable to the corresponding class of federal provisions outlined in

33 U.S.C. 1319(g).

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IV. Scope of 33 U.S.C. § 1319(g)(6)(A)(ii)

Having determined that Oklahoma law is comparable to the CWA for

purposes of imposing the jurisdictional bar contained in 33 U.S.C.

§ 1319(g)(6)(A)(ii), we now decide which claims for relief are barred by the

statute. Specifically, we must determine if the jurisdictional bar applies only to

the civil penalties Plaintiffs seek, or whether the bar also extends to the equitable

relief sought.

In its order below, the district court determined that the provisions of 33

U.S.C. § 1319 operated only to bar civil-penalty relief. Plaintiffs’ claims for

injunctive and declaratory relief, it held, were not barred by the statute. Despite

the fact that two other circuit courts have considered and rejected the district

court’s view, our reading of the statutory language and relevant precedent

persuades us that the district court’s conclusion is correct.

A. Statutory language

The citizen suit provision of the Clean Water Act is found at 33 U.S.C. §

1365 and states in relevant part:

(a) Authorization; jurisdiction
Except as provided in . . . section 1319(g)(6) of this title, any citizen
may commence a civil action on his own behalf—
(1) against any person . . . who is alleged to be in violation of (A)
an effluent standard or limitation under this chapter . . . .
....

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 The district courts shall have jurisdiction . . . to enforce such an effluent
standard or limitation, or such an order, . . . and to apply any appropriate
civil penalties under section 1319(d) of this title.

Id. (emphasis added).

The exception to this jurisdictional provision, 33 U.S.C. § 1319(g), states in

the relevant part:

(g) Administrative penalties
....
(6) Effect of order
(A) Limitation on actions under other sections
[A]ny violation—
....
(ii) with respect to which a State has commenced and
is diligently prosecuting an action under State law
comparable to this subsection . . .
....
shall not be the subject of a civil penalty action
under . . . section 1365 of this title. (emphasis added)

As an initial matter, we note that Congress chose to use the words “civil

action” in § 1365 authorizing citizen suits but chose the narrower term “civil

penalty action” in the § 1319 exclusion from the §1365 grant. Cheng Fan Kwok

v. Immigration and Naturalization Serv., 392 U.S. 206, 212 (1968) (jurisdictional

statutes should be construed “with precision and with fidelity.”). Thus, Congress’

choice of allowing all “civil actions” in § 1365 must be limited by its concurrent

choice to eliminate “civil penalty actions” when a diligent state prosecution

occurs under a comparable state law. Furthermore, the terms of the statute make

clear that civil penalties are distinct from other remedies. In § 1365(a), Congress

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explicitly grants jurisdiction to “enforce” an effluent standard or limitation (by

presumably issuing a declaratory judgment or an injunction) and to “apply any

appropriate civil penalties” (by assessing the appropriate fine). A strict reading

of the statute, then, indicates that while § 1365 grants jurisdiction over all types

of civil remedies, the limitation in § 1319 only strips jurisdiction with regard to

the district court’s ability to impose civil penalties.

In fact, there is a separate jurisdiction-stripping provision for injunctive

remedies. Under 33 U.S.C. § 1365(b)(1)(B), no private action may be filed if a

“State has commenced and is diligently prosecuting a civil or criminal action in a

court of . . . a State to require compliance with the standard.” Again, there is a

difference in language between § 1365(b)(1)(B) and § 1319(g)(6). Section

1365(b)(1)(B) precludes any civil action when a state initiates judicial

proceedings against a polluter. However, if a state only opts for administrative

enforcement, then § 1365(b)(1)(B) will not apply. At that point, we look to

§ 1319, and that section says that the violation may not be the subject of a civil

penalty action.

What results from these statutes is a two-tiered claim preclusion scheme.

The broadest preclusion exists when a state commences and diligently prosecutes

a court action to enforce the standard. If this happens, § 1365 indicates that “no

action” may be commenced by a private person. A narrower preclusion exists

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when the state does something less than judicial enforcement, such as enter into a

consent order. All that is available to a defendant in those cases is §

1319(g)(6)(A)(ii), which specifically excludes civil penalties from the scope of

permissible private enforcement remedies, but does not preclude other equitable

relief.

B. Relevant precedent

CCC’s argument that 33 U.S.C. § 1319(g)(6)(A)(ii) bars equitable relief is

largely grounded in the Supreme Court’s decision in Gwaltney. In that case, the

specific question on appeal was whether civil penalties could be sought for

wholly past violations of the Clean Water Act. Gwaltney, 484 U.S. at 52. The

plaintiffs argued that since the EPA administrator is permitted to pursue civil

penalties for past violations under the authority granted her by 33 U.S.C. § 1319,

the provision for citizen suits, which has similar statutory language, should be

construed in the same manner. Id. at 58. The Court ultimately rejected this

argument after a close examination of the statutory language. Id. at 58-59. It

first noted that § 1319 (the agency enforcement provision) provides for civil

penalties and equitable relief in wholly different sections. Id. at 58.

In contrast, [§ 1365(a)] does not authorize civil penalties separately
from injunctive relief; rather, the two forms of relief are referred to
in the same subsection, even in the same sentence. The citizen suit
provision suggests a connection between injunctive relief and civil
penalties that is noticeably absent from the provision authorizing
agency enforcement.

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Id. (internal citations omitted).

Contrary to the position taken by CCC in its brief, the Court in Gwaltney

did not hold that civil penalties and injunctive remedies are “inextricably

intertwined.” The Supreme Court held that a civil penalty may only be sought

when the citizen is also seeking injunctive relief. Gwaltney, 484 U.S. at 59. Put

another way, the Court held that a civil penalty suit cannot be maintained when

the citizen cannot seek an injunction. The issue before us is instead the mirror

image of the Supreme Court’s holding: whether a suit seeking injunctive relief

can be maintained when the plaintiff cannot seek civil penalties.

Both the First and Eighth Circuits have addressed this issue and held that

the bar contained in 33 U.S.C. § 1319(g)(6)(A)(ii) applies not only to civil

penalty relief, but also to injunctive and declaratory relief as well. 5 Scituate, 949

F.2d at 558; Ark. Wildlife Fed’n, 29 F.3d at 383. Both cases relied heavily on the

above-cited language from Gwaltney. In Scituate, the First Circuit went so far as

to say that

it is inconceivable to us that the section [1319(g)] ban is only meant
to extend to civil penalty actions. Surely if the limitation of civilian
suits is to have any beneficial effect on the enforcement of clean

5
But see Coalition for a Liveable W. Side, Inc. v. N.Y. City Dep’t of Envtl.
Prot., 830 F. Supp. 194, 197 (S.D.N.Y. 1993) (holding that 33 U.S.C.
§ 1319(g)(6)(A)(ii) does not foreclose citizen suits for injunctions or declaratory
relief).

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 water legislation, the section [1319(g)] ban must cover all civil
actions.

942 F.2d at 558. Two years later, the Eighth Circuit reached essentially the same

conclusion in Arkansas Wildlife Federation, 29 F.3d at 383.

C. Analysis

We are compelled to disagree with the First and Eighth Circuits for several

reasons. First, as noted above, the language of the statute is strong evidence that

Congress did not intend to exclude equitable remedies when it enacted 33 U.S.C.

§ 1319(g)(6)(A)(ii). It is difficult to read the provisions of § 1365 and § 1319

without conceding that the terms do not support the conclusion that Appellant

asks us to make. The Scituate court justified its decision because it feared that

the result reached by a literal interpretation of the statute “would lead to deferring

to the primary enforcement responsibility of the government only where a penalty

is sought in a civilian action, as if the policy considerations limiting civilian suits

were only applicable within that context.” 949 F.2d at 558.

But this statement ignores the effect of 33 U.S.C. § 1365(b)(1)(B), which

prohibits any citizen suit (not just civil penalty suits) if the state has commenced

judicial proceedings in any court. The only situation in which the state could not

control all aspects of the enforcement of the Clean Water Act is when (1) it is

pursuing something less than judicial enforcement and (2) a citizen is pursuing an

injunction in federal court.

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 Second, there is evidence in the legislative history that Congress

contemplated the position adopted by the district court and evidenced by the

statutory language. Specifically, the House Conference Committee Report states

that “[n]o one may bring an action to recover civil penalties under section . . .

[1365] for any violation with respect to which the Administrator has commenced

and is diligently prosecuting an administrative civil penalty action . . . . [T]his

limitation would not apply to: 1) an action seeking relief other than civil penalties

(e.g., an injunction or declaratory judgment).” H.R. Conf. Rep. No. 1004, 99th

Cong., 2d Sess. at 133 (1986).

Finally, we are not persuaded that allowing a citizen suit for an injunction

to proceed while there is an ongoing state enforcement action would lead to an

“inconceivable” result. Scituate, 949 F.2d at 558. The governing principle

behind § 1319(g) is to avoid duplicative monetary penalties for the same

violation. See Coalition for a Liveable W. Side, 830 F. Supp. at 197. That

purpose is served by the district court’s order below. However, the fact that a

state judicial proceeding can foreclose all private relief insures that conflicting or

duplicative equitable remedies are not likely to be imposed. Also, as the district

court in Coalition for a Liveable West Side points out,

the 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

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 proceedings turns out to be inadequate to address the violations at
issue.

Id. Furthermore, even if there were simultaneous injunctive actions brought by

both the state and a citizen, the court can manage the actions to ensure that the

state action will predominate. Id. “It may even be appropriate to stay the citizen

action while the city can demonstrate that the State is indeed diligently

prosecuting its action and seeking adequate relief.” Id.

Because the result reached by the court below (1) is grounded in the

statutory language, (2) reflects the legislative history, and (3) leads to a rational

result, we are not inclined to interpret 33 U.S.C. § 1319(g)(6)(A)(ii) in the same

broad manner as the First and Eighth Circuits. As a result, we hold that 33 U.S.C.

§ 1319(g)(6)(A)(ii), where it applies, bars only civil penalty claims and not claims

requesting declaratory or injunctive relief.

CONCLUSION

Having concluded that (1) the district court did not err in considering

evidence outside the pleadings; (2) Oklahoma law is comparable to the Clean

Water Act for the purposes of 33 U.S.C. § 1319(g)(6)(A)(ii); and (3) the

jurisdictional bar in 33 U.S.C. § 1319(g)(6)(A)(ii) does not apply to equitable

relief, we AFFIRM the judgment of the district court and REMAND for further

proceedings consistent with this opinion.

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