Clean Water Act Citizen-Suit Alleging "New Source" Violations Must Comply with 60-Day Waiting Period

Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc.

(2013) 734 F.3d 1297

The Eleventh Circuit Court of Appeal recently decided whether a citizen can bypass the 60-day waiting period under the Clean Water Act ("CWA") by alleging violations of new source performance standards, without explicitly attacking the permittee's compliance with the CWA permit. The Court held that, even in cases involving violations of new source performance standards, the citizen-suit must comply with the 60-day waiting period.

The permittee, a mining company, was issued a permit allowing its coal mining operation to discharge into a nearby creek. The permit was issued through the Alabama Department of Environmental Management under the National Pollutant Discharge Elimination System. The permit included performance standards for "new source coal mines." Citizens from Alabama sued the permittee for violating the new source performance standards, but not for violating its permit. Although the citizens gave notice of the alleged violations, they did not wait 60 days before filing suit.

The citizens argued that suing for violations of the new source standards did not require compliance with the 60-day waiting before filing suit because the waiting period only applies to permit violations. The permittee argued that because the permit defined its obligations under the CWA, citizens may only sue for violations of the permit and must abide by the 60-day waiting period. The Court agreed with the permittee. New source performance standards must be incorporated into permits, and a permit holder is entitled to an absolute defense, including but not limited to alleged violations of new source performance standards, if it complies with its permit conditions. "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 would both undermine the overarching permitting scheme and nullify the statutory preference for governmental actions."

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