Energy and Environment Monitor

Sierra Club Targets Multiple Companies Under Clean Water Act

June 4, 2019

The Sierra Club and four other non-governmental organizations (NGOs) announced on June 4, 2019 that they are sending Notices of Intent to Sue (NOIs) nine companies in West Virginia and Pennsylvania in federal court for alleged violations of the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA).  The notices allege that a total of fifteen facilities owned by the companies are violating their water discharge permits by discharging pollutants in excess of permit limits. If the facilities do not come into compliance with their permits within sixty days, the NGOs will file suit. The fifteen facilities include several surface coal mines, a coal preparation plant, a power plant, and a chemical plant.

Under the CWA and SMCRA, a citizen or group of citizens can sue a permit holder in federal court if they first provide notice to the potential defendant at least sixty days prior to filing the complaint. If within the sixty-day period, the alleged violator comes into compliance with the law or if enforcement action is filed by state or federal authorities, a citizen suit is barred. If not, a citizen suit may be filed and, if successful, the court can award civil penalties, injunctive relief, and attorneys’ fees and costs for pursuing the suit.

NOIs should be thoroughly reviewed with legal counsel early in the sixty-day period. There are many strategies potentially available to a permit holder that has received an NOI. In some cases, the notice is simply wrong about the alleged violations. In others, the alleged violations can be remedied within the sixty-day period. In other cases, a resolution may be reached with state or federal authorities, who also receive the NOIs.

The announcement, which includes a list of the companies and facilities identified in the notices of intent to sue, is available online.