Plaintiff, a conservationist organization, filed suit under the Clean Water Act (the “Act”), 33 U.S.C. 1365(a)(1), alleging that defendants violated a National Pollutant Discharge Elimination System (NPDES) permit that governed industrial storm water discharges at three scrap metal recycling facilities that defendants operated. Defendants claimed that two statutory bars, 33 U.S.C. 1319(g)(6)(A)(i)-(iii) and 1365(b)(1)(B), prohibited plaintiff’s citizen suit. The court concluded that section 1365(b)(1)(B) did not bar this action because the 2007 and 2008 proceedings aimed to enforce only laws other than the Act. The court also concluded that the statutory bar under section 1319(g)(6)(A)(ii) did not apply to plaintiff’s claims because California has commenced no administrative penalty proceeding that was comparable to a proceeding by the EPA under section 1319(g). Accordingly, the court reversed and remanded for further proceedings.
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