Presenting a live 90-minute webinar with interactive Q&A Clean Water Act Citizen Suits: Defense and Litigation Strategies Navigating Notice, Standing and Jurisdiction; Interpleading Third Parties Under the CWA TUESDAY, MARCH 14, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: David Chung, Partner, Crowell & Moring , Washington, D.C. Christopher (Smitty) Smith, Esq., Steptoe & Johnson , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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CLEAN WATER ACT CITIZEN SUITS: DEFENSE AND LITIGATION STRATEGIES David Y. Chung Christopher ‘Smitty’ Smith Crowell & Moring LLP Steptoe & Johnson LLP dchung@crowell.com csmith@steptoe.com 202.624.2587 213.439.9452
Overview of Today’s Webinar I. Defenses/Challenges A. Notice B. Standing C. No WOTUS D. Improper rulemaking challenge E. No Coverage F. Interpleader G. Permit shield H. Wholly past I. Mootness J. Voluntary Cessation K. Nonpoint & point source L. Classification of Operations II. Novel approaches in CWA citizen suits III. Permit shield circuit split 6
Defenses – Challenging Notice 33 U.S.C. § 1365(b) – no action may be commenced to enforce an effluent • standard or limitation or an order issued by EPA or a State with respect to such a standard or limitation ― prior to 60 days after the plaintiff has given notice; or ― if EPA or a State has commenced and is diligently prosecuting a civil or criminal action to require compliance with the standard, limitation, or order except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 (new source performance standards) and 1317(a) (toxic pollutant effluent standards) 7
Defenses – Challenging Notice Hallstrom v. Tillamook County , 493 U.S. 20 (1989): pre-suit notice is a • mandatory precondition and a plaintiff’s failure to comply requires dismissal The notice must be specific enough to give the recipient(s) an opportunity to • correct a mistake or give the government entities in charge a reasonable basis upon which to take action. ( See 40 C.F .R. § 135.3) Look for: ― Lack of geographic specificity in the NOI; ― Lack of specificity as to particular pollutants; ― Failure to mention dates or what particular requirement was violated; ― Failure to send NOIs to specific entities or failure to mention them in NOIs Plaintiffs cannot count on using discovery to fill in the gaps in a notice letter • 8
Defenses – Challenging Notice Diligent prosecution bar (33 U.S.C. § 1365(b)(1)(B)) • ― “The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action.” See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc ., 484 U.S. 49 (1987). • What qualifies as diligent prosecution? ― Active litigation ― Litigation that has resulted in a final judgment, consent decree, or consent order and agreement ― Cases subject to an ongoing consent decree that remains subject to modification 9
Defenses – Challenging Standing Plaintiff bears the burden of demonstrating Article III standing: injury-in-fact; • causation; and redressability ― Relevant showing of injury-in-fact is injury to the plaintiff, not injury to the environment. E.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) (effect on "recreational, aesthetic, and economic interests" is cognizable injury for purposes of standing); Friends of the Earth v. Gaston Copper Recycling , 204 F .3d 149, 160-61 (4th Cir. 2000). Generally, courts set a relatively low threshold for citizen plaintiffs – “injuries • need not be large, an ‘identifiable trifle’ will suffice.” E.g. , Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc. , 913 F .2d 64, 71 (3d Cir. 1990). 10
Defenses – Challenging Standing Plaintiffs do not need to show to a scientific certainty that a defendant’s • effluent, and that effluent alone, caused the precise injury alleged by plaintiffs “Contribution” test from Powell Duffryn : • ― Defendant discharged some pollutant in concentrations greater than allowed by its permit (or without a permit); ― Into a waterway in which the plaintiff has an interest that is or may be adversely affected by the pollutant; and ― The pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs • Courts will not assume an injury is caused by a defendant solely because water runs downstream. See Friends of the Earth, Inc. v. Crown Cent. Petroleum Corp. , 35 F .3d 358, (5th Cir. 1996). 11
Defenses – Challenging CWA Jurisdiction CWA only applies to “navigable waters,” which the Act defines as • “waters of the United States” (“WOTUS”). 33 U.S.C. § 1362(7) EPA/Corps regulations further interpret the term WOTUS by • regulation ― The regulatory definition is in flux, due to pending challenges to the 2015 WOTUS Rule and the recent E.O. and EPA-Corps Notice on the 2015 Rule ― Both the prior rule and the 2015 rule set forth exclusions to jurisdiction ( e.g. , for “waste treatment systems”) Claims in citizen suits sometimes have been rejected based on • plaintiffs’ inability to establish that the water bodies at issue are subject to CWA jurisdiction. 12
Defenses – Improper Rulemaking Challenge Citizen suit is an improper attempt to challenge (not enforce) a rule. See • Ecological Rights Found. v. Pac. Gas & Elec. Co. , 2013 WL 1124089 (N.D. Cal. Mar. 1, 2013) ― Suit alleging discharges without an NPDES permit violated the CWA (specifically, EPA’s Industrial Stormwater Rule) ― Citizen suits are intended to enforce the applicable regulations, not to alter them or change the way agencies apply them ― Neither EPA nor the CA Water Resources Board were parties to the sui 13
Defenses – No Coverage No stand-alone cause of action for failure to obtain a permit • Envtl. Prot. Info. Ctr. v. Pacific Lumber Co., 469 F . Supp. 2d 803, 827 (N.D. • Cal. 2007) ― “[I]n the absence of an actual addition of any pollutant to navigable waters from any point, there is no point source discharge, no statutory violation, no statutory obligation of point sources to comply with EPA regulations for point source discharges, and no statutory obligation of point sources to seek or obtain an NPDES permit in the first instance.” • Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC , 2011 WL 13069517 (D. Alaska Jan. 10, 2011) ― “The Court agrees with Defendants that any civil penalties must be based on actual discharges, and not the mere failure to obtain a permit. Plaintiffs may be able to establish that penalties are appropriate based on intermittent discharges. But lack of a permit is not, in and of itself, a violation absent a discharge of a pollutant.” 14
Defenses – Interpleader Addresses problem with permittees liability for unpermitted contributors • ― A litigation approach to a regulatory problem. • CWA imposed joint and several liability; contribution can mitigate that liability ― No express right to contribution under CWA • Interpleader expressly recognized as implied right for CWA citizen suits ― Mid-Valley Pipeline Co. v. S.J. Const., Inc. , 847 F .Supp.2d 982 (E.D. Ky. 2012) ― U.S. v. Savory Senior Housing Corp. , 2008 WL 631161 (W.D. Va. March 6, 2008) • Use as a tool to engage unpermitted contributions when faced with CWA suit 15
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