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McAbee v. City of Fort Payne

318 F.3d 1248 (2003)

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McAbee v. City of Fort Payne

United States Court of Appeals for the Eleventh Circuit
318 F.3d 1248 (2003)

Facts

McAbee (plaintiff) was a riparian landowner with property near a waste-treatment plant. The City of Fort Payne (city) (defendant) had a permit to discharge pollutants from the waste-treatment plant. The city violated the permit’s effluent limitations several times. When McAbee filed her citizen suit under the Clean Water Act (CWA), the city operated under an administrative enforcement order issued by the Alabama Department of Environmental Management (ADEM). The enforcement order required the city to give notice of the consent order in a newspaper of general circulation in the county where the violation occurred. The notice did not indicate that persons wishing to contest the penalty assessment had only 15 days from the date of the notice to file an administrative appeal and gave only a mailing address for those wishing for more information about the enforcement action. The city argued that two subsections of the CWA’s diligent-prosecution bar, Sections 1319(g)(6)(A)(1)(ii) and 1319(g)(6)(A)(1)(iii), barred some or all of McAbee’s claims. The district court found that the Alabama statutory scheme and the CWA are not comparable. Accordingly, the district court allowed McAbee to bring her citizen suit under the CWA.

Rule of Law

Issue

Holding and Reasoning (Kravitch, J.)

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