Washington Public Interest Research Group ("Washpirg") v. Pendleton Woolen Mills

On this appeal we decide whether citizens may bring a suit seeking penalties against a violator of the Clean Water Act, 38 U.S.C. § 1251 et seq. (Act), when the Environmental Protection Agency (EPA) has already instituted an administrative compliance action in the same matter. The district court had jurisdiction over the Washington Public Interest Research Group’s (WashPIRG) citizen suit against Pendleton Woolen Mills, Inc. (Pendleton) pursuant to 33 U.S.C. § 1365 (a)(1) and granted summary judgment to Pendleton. We have jurisdiction over WashPIRG’s timely appeal pursuant to 28 U.S.C. § 1291 , and we reverse.

I

Pendleton operates a textile mill in Wash-ougal, Washington, at which it cleans, spins, weaves and dyes wool. These operations create wastewater containing oil, grease, chromium, zinc, and other pollutants within the meaning of the Act, 33 U.S.C. § 1362 (6). Acceptable levels for Pendleton’s wastewater discharge into the Columbia River and an unnamed tributary of Gibbons Creek, are established by its National Pollutant Discharge Elimination System (NPDES) permit. Discharge of a pollutant in violation of its NPDES permit would put Pendleton in violation of the Act, 33…