Enforcement two

Regarding an ongoing permit violation, citizens can file suit against the permittee but not against the state or federal agency that is issuing and failing to enforce the permit. State agencies are NOT required to prosecute every permit violator. In the same way that the police cannot be sued when they choose not to catch everyone who drives over the speed limit, the state agency is required to have an enforcement program that can lead to penalties and prosecution, but they are not expected to catch or enforce every violator.

When the EPA is not performing a mandatory duty, the citizen suit is filed against the EPA. That, for example, is why citizen suits challenging state failures to develop TMDL programs were all filed against the EPA for not exercising its mandatory duty to ‘review’ inadequate state lists and TMDLs. The lists and TMDLs were inadequate because they did not even exist in the early days.

When to call in a lawyer

Ideally, you will have access to legal representation as soon as you decide to take steps to enforce a permit or an agency (in)action. It is very likely that the permittee and the agency will each have legal counsel to defend them from the beginning, so keep that in mind.

Realistically, many citizens or citizen groups do not have the resources to hire a lawyer right away. It can be difficult to find an available, affordable attorney with Clean Water Act experience. Around the country, there are many environmental law centers and clinics that raise money to enable them to represent environmental organizations. There are also many private practice attorneys that offer pro bono (free of charge) legal assistance for environmental cases. Since the CWA citizen suit allows for the recovery of attorneys’ fees, someone may be willing to take on a case based on an expectation that they will win and recover their fees and expenses. Try to track someone down who has experience with your issue and the related process.

Start with a 60-day notice of intent to sue

You must send a formal 60-day notice of intent to sue to the alleged violator of the CWA whether it be an individual, a corporation, or a local, state or federal agency. The chief administrative officer of the state water pollution control agency, the EPA Administrator and the regional EPA Administrator must also be sent copies. If the alleged violator is a federal agency, the U.S. Attorney General must be notified as well (CWA, section 505(b)(1)(B), 40CFR135.2).

Sixty-day notices do not necessarily have to be filed by attorneys. It helps to have counsel, but the basic elements of a 60-day notice can be provided by any concerned citizen. If the permit violator or the EPA does not act, a lawyer can be brought onboard at that time.

Contents of a 60-day notice

The 60-day notice has specific requirements. When a permit is violated, the notice “shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice” (40CFR135.3(a)).

When a mandatory duty has not been performed by EPA, the notice “shall identify the provision of the Act which requires such act or creates such duty, shall describe with reasonable specificity the action taken or not taken by the Administrator which is alleged to constitute a failure to perform such act or duty, and shall state the full name, address and telephone number of the person giving the notice” (40CFR135.3(b)).

Under both situations above, the notice must include the name, address, and telephone number of the legal counsel, if any, representing the person giving the notice (40CFR135.3(c)).

These requirements change occasionally. They can be found in the CWA regulations online at http://www.gpoaccess.gov/cfr/index.html.

If all the requirements of the 60-day notice are not fulfilled, the notice will be invalid, and your case may be thrown out. Defendants work very hard to get cases thrown out on technicalities. Don’t give them that opportunity — protect your right to present and defend the merits of your complaint.

Preparing for a 60-day notice

It is important to compile the following information:

• why you or your organization has a right to enforce the Clean Water Act in a particular water body + establish “standing”;
• the permit requirements, exact statute and/or regulations that are being violated or not performed;
• what the polluter has done to violate the permit, and when it occurred (in detail, including dates);
• to whom you need to direct the 60-day notice;
• to whom copies of the notice and later, the complaint, must be sent; and
• adequate proof of a permit violation or a dereliction of a mandatory duty.

Before you actually file a lawsuit, you will want to collect documents that will build your case (photos, monitoring data) and line up expert witnesses who will testify. Most CWA citizen suits have been based on monitoring data and information provided by dischargers themselves in monthly Discharge Monitoring Reports (DMRs). The failure to file timely and accurate DMRs is itself a violation of most NPDES permits.

Do not file hastily conceived or frivolous notices. They waste everyone’s time: the EPA’s, your state’s and yours. They can also move water quality protection efforts backward, not forward. A good rule of thumb is never to file a 60-day notice on any issue unless you are fully prepared to back it up with a lawsuit.