Plaintiffs filed this citizen suit under the Clean Water Act (CWA) against a poultry rendering facility for discharging pollutants in excess of its NPDES permit. The defendant, admitting that it had been in continuance noncompliance since the permit took effect, filed for summary judgment claiming that the citizen suit was precluded by an ongoing state enforcement action.
A citizen suit is barred when a state has begun enforcement under a state law “comparable” to the CWA. 33 U.S.C. § 1319(g)(6)(A). The defendant claimed that the Pennsylvania Department of Environmental Protection (PADEP), through two Consent Order and Agreements, had commenced prosecution against the defendant under the Clean Streams Law and that law was comparable to the CWA.
The court acknowledged that there is a circuit split on what findings a court must make to determine comparability. The “overall comparability” standard takes a holistic approach while the “rough comparability” standard requires the state law to be comparable to each of the three provisions found in 33 U.S.C. § 1319(g)(6) regarding penalty assessment, public participation, and judicial review. The court found the “rough comparability” standard more appropriate because it provides uniformity, reduces uncertainty for litigants, and is the most logical interpretation of § 1319(g)(6) requiring that the state law be comparable to that subsection.
After analyzing the two laws, the court ruled that because the Clean Streams Law does not allow adequate public participation, the law is not comparable to the Clean Water Act. Therefore, the court denied the defendant’s motion for summary judgment, and the citizen suit was allowed to continue.
Lower Susquehanna_Riverkeeper v. Keystone Protein Co., 2021 WL 632734 (M.D. Penn. February 18, 2021).