On February 18, 2021, the Court in Lower Susquehanna Riverkeeper, et al., v. Keystone Protein Co., No. 1:19-CV-01307, 2021 WL 632734, at *1 (M.D. Pa. Feb. 18, 2021), denied a factory owner’s motion for summary judgment based on its holding that the Clean Water Act (“CWA”) and the Pennsylvania Clean Streams Law (“PCSL”) are not “roughly comparable” statutes. In so deciding, the plaintiffs’ citizen’s suit, alleging violations under the CWA, was allowed to proceed notwithstanding that the defendant factory had settled litigation with the Pennsylvania Department of Environmental Protection (“PADEP”) for the same violations under the PCSL.

In March 2012, defendant-factory owner Keystone Protein Company (“Keystone”) received a NPDES permit from the PADEP which “authorized Keystone’s ‘discharge of wastewater in accordance with certain effluent limitations and other requirements.’” Subsequently, Keystone violated both the daily maximum concentration limit and the monthly average concentration limit for its discharges of nitrogen.

In 2012, Keystone entered into a Consent Order and Agreement with PADEP, “to upgrade its existing …plant wastewater treatment plant in order to comply with the total nitrogen limits and other parameters in its [NPDES] permit by October 1, 2016.” The Consent Order imposed stipulated penalties for discharges that exceeded the NPDES permit limits. In 2017, Keystone entered into a new Consent Order and Agreement with PADEP, which superseded and replaced the previous Consent Order. The new consent order required Keystone to finish building a new wastewater treatment facility by June 1, 2021, in order for Keystone to comply with effluent limitation guidelines. The new Consent Order again subjected Keystone to stipulated penalties if it failed to comply. PADEP cited the PCSL as authority for the two consent orders with Keystone. The public, and the plaintiffs more specifically, did not receive notice, or have an opportunity to comment, prior to Keystone and PADEP signing the consent orders.

Notwithstanding Keystone’s consent orders with PADEP under the PCSL, plaintiffs Lower Susquehanna Riverkeeper and the Lower Susquehanna Riverkeeper Association brought a citizen’s suit under the CWA against Keystone. Plaintiffs alleged that Keystone violated the “Clean Water Act as well as ‘the conditions and limitations’ established by a related permit system.” Keystone then moved for summary judgment, arguing that “Plaintiffs’ lawsuit is precluded by PADEP’s own enforcement action, which has been manifested through the two consent orders.”

After first finding that the plaintiffs had standing to pursue their claims, the Court then turned to determining whether PADEP’s enforcement action precluded the citizen’s suit. This turned on whether the PCSL and the CWA are “comparable” statutes as Section 1319(g) of the CWA prohibits citizen’s suits under the CWA when a State has already “commenced and is diligently prosecuting an action under a [comparable] State law” for the alleged violations. There is currently a circuit split as to how a court should evaluate whether statutes are “comparable.” Some courts apply the “overall comparability” standard, which includes the following key factors: (1) whether the state law contains comparable penalty provisions which the state is authorized to enforce, (2) whether the state law has the same overall enforcement goals as the federal CWA, (3) whether the state law provides interested citizens a meaningful opportunity to participate at significant states of the decision-making process, and (4) whether the state law adequately safeguards citizens’ legitimate substantive interests.

The court in the instant case, however, rejected the “overall comparability” standard, and instead applied the “rough comparability” standard. Under this standard, “a federal court must ‘focus on the three categories of provisions contained in 33 U.S.C. § 1319(g): penalty assessment, public participation, and judicial review.’” “Each category of federal provisions must have a ‘roughly comparable’ provision under state law in order for the bar against citizen suits to apply.” After applying the “rough comparability” standard, the Court concluded that the CWA and the PCSL were not “comparable” statutes because “the Clean Streams Law does not provide the public with adequate notice and the opportunity to participate in PADEP’s initial assessment of a civil penalty, which [in this case] is expressed through the two consent orders in question.”

Because the Court held that the CWA and the PCSL were not comparable, the court held that the CWA did not bar plaintiffs’ citizen’s suit. This case should serve as a cautionary tale to defendants settling their potential liability under state law. Defendants should take heed of possible liability exposure under federal statutes, notwithstanding their settlement of violations under a state law.