Home » Case Summaries » 1996 » Knee Deep Cattle Co. v. Bindana Inv. Co.

 
 

Knee Deep Cattle Co. v. Bindana Inv. Co.

 

Knee Deep Cattle Company (“Knee Deep”) filed suit against Bindana after Bindana’s numerous National Pollution Discharge Elimination System (NPDES) permit violations. The district court granted Bindana’s motion to dismiss, having concluded that the previous on-going enforcement actions taken by the Oregon Department of Environmental Quality (DEQ) constituted diligent prosecution under comparable state laws, and thus, precluded Knee Deep’s citizen suit. The Ninth Circuit found that the citizen suit bar under section 309(g) of the Clean Water Act[1] did not apply and reversed the decision of the district court, thus allowing Knee Deep’s suit to proceed.

Bindana’s NPDES permit allowed it to discharge treated effluent into a nearby creek which ran between Bindana’s property, an RV park and sewage treatment plant, and Knee Deep’s property, a cattle and feeder operation. After Bindana failed to meet its permit requirements, DEQ issued a Notice of Noncompliance, followed by a Notice of Permit Violation and a Notice of Civil Penalty (NCP). DEQ required Bindana to submit a plan to bring the facility into compliance. The NCP required Bindana to pay a $1400 penalty for a specific violation resulting from the pumping of raw sewage into the creek. The following year, Bindana and DEQ reached a settlement agreement whereby DEQ issued a Stipulation and Final Order (SFO) that required a $175,000 to $200,000 upgrade of the sewage treatment plant and set interim discharge limits until completion of the upgrade. The SFO also set penalties for any violation of the interim limits, but did not assess any penalties for past violations. When Bindana failed to comply with the limits in the SFO, Knee Deep filed its complaint.

The issue the court decided was whether this on-going action by DEQ constituted diligent prosecution under a state law comparable to section 309(g) of the Clean Water Act. Citing Citizens for a Better Env’t-California v. Union Oil Co. of California (UNOCAL),[2] the court noted that in a previously decided similar case it required not only that the comparable state law contain penalty provisions but also that a penalty have been assessed. The court recognized that it had decided UNOCAL over a year after the district court’s decision, but still found UNOCAL controlling. The court noted that Oregon’s administrative penalty section[3] was arguably comparable to the federal provision, but the SFO, as in UNOCAL, was not issued under the section of Oregon law that was comparable.[4] In fact, the SFO specifically provided that it did not assess any penalty for the past violations. Therefore, the Ninth Circuit held that DEQ’s actions were not pursuant to state law comparable to section 309(g), and the citizen suit was therefore not precluded.


[1]33 U.S.C. § 1319(g)(6)(A)(iii) (1994).

[2] 83 F.3d 1111 (9th Cir. 1996), cert. denied, 117 S.Ct. 789 (1997).

[3]Or. Rev. Stat. §§ 468.135, 468.140 (1995).

[4]DEQ issued the SFO pursuant to Or. Rev Stat. § 183.415(5) (1995).

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