The United States Court of Appeals for the Eleventh Circuit has become the first appellate court to rule that active state administrative proceedings under the Clean Water Act may not prevent the filing of a citizen suit against an alleged violator. The Eleventh Circuit recently ruled that a citizen suit may proceed against an entity for violation of its permits to discharge pollutants into creeks and streams despite an earlier-commenced state administrative action over the same conduct, if:
- notice of the citizen suit, as required by the provisions of the Clean Water Act, was given prior to the commencement of the state administrative action; and
- the citizen suit filing requirements of § 309 (g)(6)(B) of the Clean Water Act have been met.
The ruling means that an entity may face a state administrative action for violation of the Clean Water Act, and the fines associated with the action, while simultaneously facing a judicial action through a citizen suit based on the same alleged violations. The ruling also lessens the value in working with a state administrative agency or the EPA to negotiate administrative consent orders regarding those same violations.
In Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, Black Warrior Riverkeeper, a nonprofit Alabama organization that supports the preservation of the Black Warrior River in Alabama, sued Cherokee Mining, the owner and operator of two coal mines in Alabama. The suit alleged that Cherokee Mining violated the Clean Water Act and other federal and state law provisions by exceeding the conditions of its permits and discharging excessive pollutants into the Black Warrior River.
When Black Warrior Riverkeeper learned of Cherokee Mining's alleged violations, it notified the company of its intent to sue pursuant to the citizen suit provisions of the Clean Water Act. Shortly thereafter, the Alabama Department of Environmental Management (ADEM) began an administrative enforcement action against Cherokee Mining for the same alleged violations. Seven days later, Black Warrior Riverkeeper filed a citizen suit against Cherokee Mining within the time period dictated by the Clean Water Act. ADEM later fined Cherokee Mining, and ADEM and Cherokee Mining entered into an administrative consent order.
Cherokee Mining moved to dismiss the lawsuit brought by Black Warrior Riverkeeper, asserting that the suit was barred because the state administrative action preempted the suit, claiming that § 309(g)(6)(A) of the Clean Water Act prevents a citizen suit from being commenced if a state has begun an administrative action and is "diligently prosecuting the action." The Eleventh Circuit ruled, however, that § 309 (g)(6)(B)(ii) lifts this bar and allows a citizen suit to go forward if notice of the alleged violation has been given "prior to commencement of an action."
Cherokee Mining argued that "commencement of an action" under the citizen suit provisions referred only to federal agency administrative enforcement actions and not state enforcement actions. The Eleventh Circuit held this was "an extremely cramped and narrow reading of the . . . plain meaning" of the statute. Instead, the Eleventh Circuit found that a plain reading of § 309(g)(6)(B) allows a citizen suit to proceed whether a federal agency or a state agency has commenced an administrative action so long as the party filing the citizen suit has met the provisions for notice and filing of the suit under the Clean Water Act.
Accordingly, for companies operating within the jurisdiction of the Eleventh Circuit (Alabama, Georgia, and Florida), this holding means that regardless of whether the EPA or a state agency has begun an administrative action, a citizen suit may be brought if the person or organization bringing the suit:
- gives notice of filing the suit prior to the commencement of an action by the EPA or state agency; and
- meets the filing requirements of the citizen suit provisions of the Clean Water Act.
This ruling seriously limits a company's ability to argue that a citizen suit is subject to dismissal because an administrative action has already been undertaken by a state agency or the EPA. It also prevents companies from effectively ending the ramifications of alleged violations of the Clean Water Act by entering consent orders with state or federal administrators. Companies in this situation are better served by carefully weighing their options regarding alleged violations rather than immediately turning to the state enforcement agency or EPA to initiate administrative proceedings. Otherwise, companies may find themselves paying administrative fines while simultaneously facing citizen suit litigation.
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