Wastewater Dumping Supports Private Action

(CN) - A California scrap-metal dealer must face claims from conservationists that it dumped wastewater into the public waterways, the 9th Circuit ruled Monday.

Chico Scrap Metal caught the attention of the California Department of Toxic Substances Control after it dumped concrete and construction materials in the wetlands on its property.

Regulators ultimately found "high levels of hazardous contamination" at all three of Chico's scrap-metal recycling facilities in Butte County.

Facing both civil and criminal charges, the company agreed in 2008 to clean up the mess, pay fines and serve probation, during which it was allowed to stay open. In 2010, an Environmental Protection Agency (EPA) inspection found that Chico's storm-water-management system, which is supposed to keep pollutants out of waterways, was not up to standard.

The EPA report inspired the California Sportfishing Protection Alliance to file suit against the company under the Clean Water Act. The group claimed that Chico had failed to comply with its storm water permit, but neither the EPA nor California attempted to enforce the permit after receiving the plaintiffs' notice to sue in 2010.

It asked U.S. District Judge Garland Burrel in Sacramento to stop Chico from discharging polluted storm water and compel creation of a plan to prevent future discharges. Burrell dismissed the case, finding that the conservation group had no private right to sue under the Clean Water Act.

A unanimous appellate panel in San Francisco disagreed Monday.

Chico had argued that federal law barred the action because the state had already started its own enforcement. The federal appeals court concluded, however, that, while the state had indeed made a move against the company, it took aim at different violations than those claimed by the group.

"Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to one under the Act, neither 33 U.S.C. § 1365(b)(1)(B) nor § 1319(g)(6)(A)(ii) bars Plaintiff's citizen suit to enforce California's storm water general permit," Judge Susan Graber wrote for a three-member panel.

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