Environmental
to the facility of the alleged violator and may include an informal request for documents such as the facility’s Storm Water Pollution Prevention Plan and best management practices logs. In the event that circumstances warrant prelawsuit settlement negotiations with the citizen plaintiff, there are four typical components of any citizen suit settlement demand: (1) “compliance” by the defendant; (2) the defendant funding a supplemental environmental project (“SEP”) or “mitigation payment”; (3) the defendant “reimbursing” the citizen group for its attorneys’ fees and expenses of litigation; and (4) the defendant allowing periodic, future access to the defendant’s site for the citizen group to monitor compliance with the law and/or for the citizen group to review any on-site SEP performed by the defendant. Such request for future access and monitoring also typically involves a demand by the citizen group for the defendant to pay for the cost of the citizen group’s consultant to monitor compliance and to conduct the future site visit(s). Once the 60-day notice period ends, citizen groups will typically file suit even during ongoing settlement negotiations. The reasons for citizen groups’ eagerness to file the lawsuit include: (i) falling within the 120-day safe harbor of § 309(g)(6)(B)(ii) to avoid a diligent prosecution defense; (ii) the 5-year statute of limitations applicable to citizen suits; and (iii) the citizen group’s desire for a court-enforced consent judgment. Once a lawsuit is filed, any proposed settlement is subject to review and approval by the EPA and the Department of Justice for a 45-day period. 33 U.S.C. § 1365(c)(3).
Conclusion It is easy for a company receiving a citizen suit demand letter under the CWA or other federal environmental statue to panic or ignore the letter. However, neither of those extremes is productive. The 60-day period between receipt of the letter and when the citizen is permitted to file a lawsuit is a very important time period for the company to retain experienced environmental counsel to assist the company in fully evaluating the allegations in the letter, reviewing the company’s records, preparing for a defense of the potential lawsuit and considering options for potentially resolving the matter. If the company begins that process sooner rather than later, the company is better able to avoid unwelcome surprises in a lawsuit and hopefully to return its focus to running its business in a profitable and environmentally compliant manner. Section 505(a) of the CWA also allows citizen groups to bring citizen suits against the EPA administrator and/or other federal or state agencies. 2 The 60-day notice period is not applicable to citizen suits alleging discharges of toxic pollutants in violation of § 317 of the CWA. 3 The other federal environmental statutes with citizen suit provisions also have regulations setting forth the requirements for notice letters. See 40 C.F.R. § 54 (Clean Air Act); 40 C.F.R. § 254 (RCRA); 40 C.F.R. § 374 (CERCLA). 1
If you have any questions about these issues, please contact your Environmental counsel at Smith, Gambrell & Russell, LLP or contact the following:
Andy Thompson athompson@sgrlaw.com
TRUST THE LEADERS 2.0 | Volume 4 | SGRLAW.com
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