## Facts

- Union Oil Company of California operated a refinery discharging treated wastewater into San Pablo Bay under an NPDES permit.
- In 1991, the California Regional Water Quality Control Board amended the permit to add a stringent “final” daily selenium discharge limit with a December 1993 compliance date.
- Union Oil unsuccessfully pursued administrative review before the State Water Resources Control Board and then joined other refiners in state-court litigation challenging the permit amendment.
- In November 1993, Union Oil and the State Board settled the state litigation; the refiners paid $2 million (Union Oil’s share was $780,000), and the Regional Board issued a cease-and-desist order extending the compliance deadline for the final selenium limit to July 1998.
- The cease-and-desist order did not, on its face, amend the permit’s numerical effluent limitations.
- In 1994, environmental organizations and two residents filed a federal Clean Water Act citizen suit seeking civil penalties and injunctive relief for ongoing discharges allegedly exceeding the permit’s final selenium limit.
- Union Oil moved to dismiss, arguing the suit was barred by Clean Water Act administrative-penalty preclusion, 33 U.S.C. § 1319(g)(6)(A); the district court denied the motion and certified an interlocutory appeal.

## Issues

1. Whether 33 U.S.C. § 1319(g)(6)(A) barred the citizen suit because state regulators had pursued enforcement culminating in a cease-and-desist order and a monetary settlement under state law allegedly comparable to the federal administrative-penalty scheme.
2. Whether the cease-and-desist order effectively modified the NPDES permit so that discharges above the final selenium limit were not actionable violations during the extended compliance period.

## Decision

- The Ninth Circuit affirmed the denial of Union Oil’s motion to dismiss and remanded.
- Section 1319(g)(6)(A) did not preclude the citizen suit because the state proceedings were not an administrative civil-penalty action under a state law comparable to § 1319(g).
- The cease-and-desist order extending the compliance date did not modify the permit’s effluent limits; exceedances of the final selenium limit remained permit violations enforceable in a citizen suit.

## Legal Principles

- Clean Water Act citizen-suit preclusion under 33 U.S.C. § 1319(g)(6)(A) applies only when the government has commenced and is diligently prosecuting an administrative action that actually assesses civil penalties under state law comparable to the federal administrative-penalty program.
- A compliance-focused enforcement order and negotiated lump-sum settlement, without a comparable penalty-assessment process (including notice and opportunity for public hearing and penalty criteria), does not trigger § 1319(g)(6)(A) preclusion.
- A state enforcement order that extends a date to achieve compliance does not, by itself, amend the numerical effluent limitations contained in an NPDES permit; permit limits remain enforceable unless modified through proper permit-modification procedures.
- Because § 1319(g)(6)(A) is a limited exception to citizen enforcement, courts construe preclusion narrowly and do not infer it from state actions that do not meet the statute’s stated conditions.

## Conclusion

The Ninth Circuit held that a state cease-and-desist order extending a compliance deadline and a related monetary settlement did not bar a federal Clean Water Act citizen suit and did not change the enforceable effluent limits in the discharger’s NPDES permit.


Citizens for a Better Env’t–Cal. v. Union Oil Co. of Cal., 83 F.3d 1111 (9th Cir. 1996)