Fourth Circuit Rules On Clean Water Act Citizen Suit Recovery

Under the Clean Water Act, citizens can sue dischargers who are not complying with their permit limits.  Before doing so, they must give 60 days notice to the discharger to allow it to come into compliance or to allow the State environmental agency to start its own lawsuit.  In the notice, the citizens have to identify the violations that they are alleging have occurred. If they file suit after the 60 day waiting period, citizens can recover their attorney fees for bringing the suit.

The  Fourth Circuit has recently ruled in the case of Friends of the Earth Inc. et al. v. Gaston Copper Recycling Corp., No. 06-1714, 2011 WL 18368 (4th Cir. Jan. 5, 2011) that the citizens must give notice of the violations for which they are bringing their citizen suit. If they fail to do so, the citizen suit cannot seek penalties for those violations. The following passage  is taken from Westlaw's News and Insights blog, which reports that the Court  

found the plaintiffs had failed to include in their notice letter alleged violations involving the release of cadmium, zinc, iron, and oil and grease.  The letter also gave insufficient notice of alleged monitoring and reporting violations, the appeals court found.

The panel also agreed with Gaston that the lower court erred in finding a violation based upon the late submission of the final improvement plans in December 1991.

By the time the plaintiffs filed their complaint in September 1992, the plans had been submitted, thereby depriving the District Court of jurisdiction over a “wholly past” violation, the appeals court said.