The waiting is the hardest part: Eleventh Circuit rejects novel attempt to circumvent citizen suit notice provision

Frustrated at having their Clean Water Act (CWA) citizen suits blocked time and again by a state regulator, a couple of environmental organizations tried to avail themselves of a seldom invoked exception to the CWA citizen suit notice provision.  Without even awarding points for creativity, the Eleventh Circuit concluded earlier this week that the exception for violations of new source performance standards was not available when the alleged violator holds a National Pollutant Discharge Elimination System (NPDES) permit incorporating those standards.  Following the decision in Black Warrior Riverkeeper, Inc., et al. v. Black Warrior Minerals, Inc., No. 12-15409 (11th Cir. Op. filed Nov. 13, 2013), NPDES permit holders who receive CWA citizen suit notices of alleged violations, regardless of whether they are expressed as violations of standards of performance or as violations of permit conditions, can be reasonably certain that they will have the full sixty days afforded by the CWA to invite governmental enforcement by the devil they know in an effort to block a citizen suit by the devil they don’t.

Like a number of other environmental statutes, the CWA contains a citizen suit provision.  That provision enables any citizen to commence a civil action against, among others, “any person . . . who is alleged to be in violation of . . . an effluent standard or limitation . . . .”  The CWA citizen suit provision defines the term “effluent standard or limitation” to include, among other items, a “standard of performance under [CWA Section 306]” and “a [NPDES] permit or condition thereof issued under [CWA Section 402].”

Like the citizen suit provisions in a number of other environmental statutes, the CWA citizen suit provision contains a notice provision.  That provision prohibits a citizen from commencing an action against an alleged violator of an effluent standard or limitation prior to sixty days after the citizen has given notice of the alleged violation to various entities, including the alleged violator and federal and state authorities.  The CWA citizen suit notice provision also prohibits a citizen from commencing suit “if the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States[] or a State to require compliance with” the standard or limitation.  In short, a citizen must provide notice and wait sixty days before filing a citizen suit, which may only be filed if EPA or the state is not already diligently prosecuting an action against the alleged violator in federal or state court to address the violation.

The CWA citizen suit notice provision contains a couple of exceptions.  In one of those exceptions, the CWA provides that an “action may be brought immediately after such notification in the case of [a citizen suit] respecting a violation of [CWA Section 306].”  CWA Section 306 pertains to national standards of performance.  As mentioned above, a “standard of performance under [CWA Section 306]” is among the items that the CWA citizen suit provision defines the term “effluent standard or limitation” to include.

In 2008, the Alabama Department of Environmental Management (Department) issued a NPDES permit to the operator of a coal mine authorizing the discharge of pollutants from the mine into Hurricane Creek and an unnamed tributary to that creek.  The permit incorporated the new source performance standards that EPA had established under CWA Section 306 for the coal mining point source category.

In September 2011, a couple of environmental organizations along with a couple of individuals (collectively, citizens) served the operator and federal and state authorities with notice of alleged violations of the CWA and other statutes.  With respect to the CWA, the notice alleged both violations of the NPDES permit and violations of the new source performance standards, which were in large part exactly the same.  Eleven days later, the citizens filed a citizen suit against the operator alleging violations of only the new source performance standards.  The Department subsequently sued the operator in state court alleging violations of the permit.

The citizens argued that the plain language of the citizen suit provision, which defines “effluent standard or limitation” to include both a new source performance standard and a NPDES permit or condition thereof, allowed them to sue a NPDES permit holder for violations of the new source performance standards, violations of the NPDES permit conditions, or both.  The citizens argued further that the exception to the citizen suit notice provision for violations of new source performance standards allowed them to commence a citizen suit for those particular violations without having to wait sixty days.  In contrast, the coal mine operator argued that its NPDES permit defines its obligations under the CWA, that a citizen may only commence an action against it for violations of its NPDES permit or conditions thereof, and that those particular violations require a citizen to wait sixty days after serving notice to commence the action.  The district court sided with the coal mine operator and awarded it summary judgment, which the Eleventh Circuit affirmed.

Although acknowledging that “[t]he citizen suit provision does not delineate whether a citizen may file a suit for violations of the new source performance standards when the discharger holds a permit that incorporates those standards,” the court found that “the correct reading of the [CWA] becomes clear” when the citizen suit provision and its preference for governmental enforcement of permit conditions is read together with the permitting scheme that affords an absolute defense to a permit holder that complies with the conditions of its permit (a concept discussed in an earlier post).  “To allow a citizen to evade the 60-day waiting period by suing a permit holder for alleged violations of the new source performance standards without regard to the conditions of the discharger’s permit,” the court found, “would both undermine the overarching permitting scheme and nullify the statutory preference for governmental enforcement.”

The court found support for its interpretation that citizens suits against permit holders must be for violations of the permit instead of for violations of performance standards in a decision of the United States Supreme Court.  In EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976), the Supreme Court stated, in relevant part, that “while [the inclusion of a standard of performance under CWA Section 306 within the definition of “effluent standard or limitation”] permit[s] suits for violation of effluent standards or limitations promulgated under [CWA Section 306], a suit against a permit holder will necessarily be brought [for violation of “a [NPDES] permit or condition thereof issued under [CWA Section 402].”

In the end, the Eleventh Circuit found “[t]he novel complaint” filed by the citizens to be a “thinly veiled attempt to beat the State of Alabama to the courthouse.”  Concluding that a citizen suit against a NPDES permit holder “will necessarily” be for violations of the permit, the court found that the citizens were subject to the sixty-day waiting period.  Because the citizens failed to wait the required sixty days before filing suit, and because the Department subsequently filed suit in state court alleging violations of the permit, the court determined that the citizens are now barred from bringing suit based upon those violations, essentially declaring the State of Alabama to be the winner of the race to the courthouse.  Unfortunately for the citizens, in this particular race, there are no consolation prizes for first runner-up.