Categor(ies): Water

Citizen Suit Forestalled by EPA?s ?Diligent Prosecution?

Karr et al. v. Hefner et al.
No. 05-7105 (10th Cir. Feb. 2, 2007)


The plaintiffs in this action are landowners in Pushmataha and Latimer Counties in Oklahoma. They filed a citizen suit against an individual and eight companies, collectively called the GHK defendants, alleging numerous violations of the Clean Water Act (CWA). The plaintiffs first filed their lawsuit in June 2004, but that suit was dismissed because the court ruled that the plaintiffs? notice letters were insufficient.

The plaintiffs sent out a second round of notice letters in November 2004. In March 2005, U.S. EPA filed an action in the Eastern District of Oklahoma against two of the GHK defendants and, simultaneously, submitted a proposed consent decree. The plaintiffs chose not to intervene in EPA?s action. Later on the same day that EPA filed its lawsuit and proposed consent decree, the plaintiffs filed their second action against the defendants. The complaint raised three claims: violation of the requirement for a stormwater permit; discharge of pollutants from point sources without a permit; and dredging and filling wetlands without a permit.

The defendants moved to dismiss the complaint on the ground that EPA?s pursuit of the consent decree qualified as diligent prosecution under the CWA. The defendants alleged that some of the sites mentioned in the plaintiffs? claim were not related to their operations and also alleged that EPA had found no violations at many of the sites that were included in the plaintiffs? lawsuit.

In answer, the plaintiffs did not contest any of the defendants? specific points. Instead, they argued that EPA?s action did not constitute diligent prosecution. The court found that there was diligent prosecution and dismissed the claim. The plaintiffs appealed.


Section 1365(b)(1)(B) of the CWA states that no citizen suit may be commenced:

[I]f 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, but in any such action in a court of the United States any citizen may intervene as a matter of right.

The plaintiffs urged four reasons why EPA?s action should not foreclose their claims: (1) The agency did not file its action within sixty days of the plaintiffs? notice; (2) the consent decree did not address violations at all thirty-seven sites named in the complaint; (3) the consent decree did not address point source discharges; and (4) the consent decree named only two of the GHK defendants.

Section 1365(b)(1)(B) requires only diligence on the part of a federal or state prosecution; it does not require that the prosecutorial strategy coincide with that of the citizen-plaintiff. In Ellis v. Gallatin Steel Company, 390 F.3d 461 (6th Cir. 2004), the court stated that ?[S]econd ?guessing of the EPA?s assessment of an appropriate remedy . . . fails to respect the statute?s careful distribution of enforcement authority among the federal EPA, the States and private citizens, all of which permit citizens to act where the EPA has ?failed? to do so, not where the EPA has acted but has not acted aggressively enough in the citizens? views.? Id. at 477. According to the court, when EPA has chosen to enforce the CWA through a consent decree, a failure to defer to its judgment can undermine agency strategy. Therefore, a court?s review of EPA?s diligence is quite deferential.

Responding to the plaintiffs? first point ? that EPA delayed beyond sixty days in bringing its action ? the court noted that there is nothing in the CWA that requires EPA to act within sixty days. The sixty-day requirement prevents a plaintiff from bringing suit until sixty days have passed since providing the required notice; it does not require EPA to act within sixty days. As to the plaintiffs? second point, the court pointed out that EPA need not duplicate the remedies pursued by the plaintiffs in order for its prosecution to be deemed diligent. Furthermore, the plaintiffs have not established that EPA did in fact fail to pursue all the relevant sites named in the complaint.

The plaintiffs? argument that the consent decree did not address point source discharges was not made in the district court and, thus, was not preserved for appeal. Finally, the court addressed the plaintiffs? contention that the other GHK defendants, against which no consent decree has been lodged, could still be pursued through a citizen suit. The court disagreed. The discretion afforded EPA in handling prosecution under the CWA extends to its choice of defendants. The statute only mandates diligent prosecution ?to require compliance.? The focus, then, is not on who is to be a defendant, but only upon who is able to adequately ensure compliance. EPA has the authority to strategically determine who it should focus on in bringing a particular site into compliance with the statute.

The court, thus, affirmed the dismissal of the GHK defendants.

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Published by the National Association of Attorneys General with the cooperation and support of the Office of Enforcement and Compliance Assurance of the U.S. Environmental Protection Agency.

Paula Cotter
Chief Counsel for Environment