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Paper, Allied-Ind. v. Continental Carbon, 428 F.3d 1285, 10th Cir. (2005)
Paper, Allied-Ind. v. Continental Carbon, 428 F.3d 1285, 10th Cir. (2005)
November 8, 2005
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PAPER, ALLIED-INDUSTRIAL,
CHEMICAL AND ENERGY
WORKERS INTERNATIONAL
UNION and PONCA TRIBE,
v.
Plaintiffs-Appellees,
CONTINENTAL CARBON
COMPANY,
Defendant-Appellant,
and
No. 03-6243
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)
Clerk of Court
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, OBRIEN, 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
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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 states 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 provisionspenalty-assessment, public participation,
and judicial reviewmust be roughly comparable to the corresponding categories
of federal provisions. Applying this standard, we hold that Oklahomas state-law
provisions, and more particularly its public participation provisions, are
comparable to 1319(g) and therefore conclude that Oklahomas 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 ninetyfive of the employees at CCCs 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 plants 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 CCCs 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
The other plaintiff in this litigation is the Ponca Tribe, a sovereign Native
American Nation with close ties to the area surrounding CCCs Ponca City
facility.
1
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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 CCCs wastewater impoundments.
This investigation led ODEQ to issue a Notice of Violation (NOV) to
CCC. The NOV largely dealt with regulatory violations related to CCCs
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 CCCs 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 ODEQs 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-5-
Procedural history
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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.
2.
3.
B.
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).
CCCs 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 CCCs
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.
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)
(2)
(3)
II.
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 Envt-Calif. v. Union Oil Co., 83 F.3d 1111, 1118 (9th Cir. 1996); Ark.
Wildlife Fedn v. ICI Americas, Inc., 29 F.3d 376, 381 (8th Cir. 1994); N. & S.
Rivers Watershed Assn, Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir.
1991).
The district court below adopted the Eleventh Circuits rough
comparability standard. See, McAbee, 318 F.3d at 1256. Applying that standard
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to the facts of the case, it found that Oklahomas statutory scheme was
comparable to the Clean Water Act. In reviewing the district courts 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.
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 Fedn, 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 Websters Third New International
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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 states penalty-assessment and
public-participation provisions. Scituate, 949 F.2d at 555; Ark. Wildlife Fedn,
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 valuesfor 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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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
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.
4
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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). Oklahomas 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 Fedn v. ICI Americas, Inc., 842 F. Supp. 1140, 1146-47
(E.D. Ark. 1993), affd, 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
provisionspenalty assessment, public participation, and judicial revieware
roughly comparable to the corresponding class of federal provisions outlined in
33 U.S.C. 1319(g).
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IV.
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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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
But see Coalition for a Liveable W. Side, Inc. v. N.Y. City Dept 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).
5
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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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