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Water Log 28.4, February, 2009

Citizen Suit May Proceed Against Alabama Coal Mines Under the Clean Water Act

Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986A0(11th Cir. 2008).

Timothy M. Mulvaney, J.D.

In a case of statutory construction, the United States Court of Appeals for the Eleventh Circuit held that an environmental non-profit organization is entitled to proceed with a lawsuit against an Alabama coal mine operator under the Clean Water Act where the organization met the Act’s notice and filing requirements.

Background
The Federal Water Pollution Control Act (also known the “Clean Water Act”)1 seeks to assure the cleanliness of the watercourses of the United States. The National Pollutant Discharge Elimination System (“NPDES”) under the Act provides that an entity wishing to discharge pollutants into a U.S. watercourse must obtain an NPDES permit from the federal government’s Environmental Protection Agency (“EPA”) to do so.
 
The Clean Water Act also authorizes states to maintain their owner NPDES permitting systems, providing they meet the strictures of the Act and are approved by the EPA. The State of Alabama administers its own EPA-approved NPDES permit system.

Enforcement authority under the Clean Water Act is shared among the EPA, the states, and private citizens. The citizen suit provisions of the act are aimed at assisting governmental agencies in pollution control, and thus the Act generally precludes citizen suits where the government already has commenced and is diligently prosecuting a civil, criminal or administrative enforcement action against an alleged polluter.2 Therefore, violation of an EPA-issued or state-issued NPDES permit can be subject to a civil action brought by a citizen only absent federal or state enforcement.

Procedural History
Cherokee Mining, LLC (“Cherokee”), owns and operates two surface coal mines in Alabama. On May 16, 2007, Black Warrior Riverkeeper, Inc. (“Black Warrior”), a non-profit organization supporting the enforcement of environmental regulations to protect the Black Warrior River, notified Cherokee of its intent to file a citizen suit, alleging that Cherokee had violated the Clean Water Act and Alabama state law by discharging pollutants in violation of the limitations set forth in a NPDES permit issued by the State of Alabama.3

The State of Alabama instituted administrative enforcement proceedings on July 20, 2007.4 Black Warrior ultimately filed its suit in the United States District Court for the Northern District of Alabama on July 27, 2007.5
 
Cherokee settled the matter with the State of Alabama by agreeing to pay a $15,000 fine for discharge activities at its mines.6 Cherokee then filed a motion to dismiss Black Warrior’s citizen suit, alleging that the court lacked subject matter jurisdiction. Subject matter jurisdiction refers to the authority of a particular court to hear a certain dispute.

Cherokee asserted that A7 1319(g)(6)(A)(ii) of the Act precludes citizen civil penalty suits where a state already is engaged in an enforcement suit for an alleged violation of a NPDES permit. Cherokee argued that A7 1319(g)(6)(B)(ii), which lifts the preclusion of citizen suit where notice of intent to sue is provided prior to the institution of governmental enforcement, applies only to federal-initiated, not state-initiated, administrative actions.

Black Warrior opposed that motion, contending that A7 1319(g)(6)(B)(ii) lifts the preclusion of citizen suit where notice of intent to sue is provided prior to the institution of any governmental enforcement action and the timing requirements for filing suit are met.

The District Court sided with Black Warrior in denying Cherokee’s motion to dismiss, and Cherokee filed this interlocutory appeal of that ruling. The appeal required the court to analyze Congress’s desires to recognize citizen suits as an important enforcement tool in light of finite government resources but also to avoid duplicate prosecutions of alleged polluters.

Appellate Court Affirms District Court’s Denial of Motion to Dismiss
The Court of Appeals for the Eleventh Circuit affirmed the denial of Cherokee’s motion to dismiss. The court described Cherokee’s narrow reading of the limitation on citizen suits as “an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language.”7

The appellate panel upheld the District Court’s interpretation of the Clean Water Act, finding that the limitations against a citizen suit set forth in A7 1319(g)(6)(A) are inapplicable so long as Black Warrior met the notice and filing requirements of A7 1319(g)(6)(B)(ii).

The court concluded that the bar against citizen suits does not apply where either the federal government or a state initiated its enforcement action prior to plaintiff’s filing so long as the plaintiff provided notice of its intent to sue prior to the state’s action and ultimately did file the suit within the 120 day time period following that notice as mandated by the Act.

Endnotes:
1.  33 U.S.C.S. A7 1251 et seq. (West 2008).
2.  Federal Water Pollution Control Act Amendments A7 505(b)(1)(B), 86 Stat. at 888-89; 33 U.S.C. A7 1365(b)(1)(B); Water Quality Act A7 314, 101 Stat. at 46-49; 33 U.S.C. A7 1319(g).
3.  Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986, 989 (11th Cir.  2008).
4.  Id. at 989.
5.  Id.
6.  Id.
7.  Id. at 991.

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