Beware of Citizen Suits for Storm Water Violations

In recent months several private organizations have sent letters to California businesses informing them that they are in violation of their storm water permits and threatening to sue them under the citizen suit provision of the Clean Water Act, which authorizes private parties to enforce provisions of that act. In at least one case, the organization has filed suit against the alleged violator. Businesses that are required to have storm water discharge permits are at risk for these citizen suits, but there are concrete steps they can take to avoid being sued.

Many businesses, including certain industrial facilities and those involved in construction, are required to obtain National Pollution Discharge Elimination System Permits (NPDES Permits) for their operations, including permits to cover storm water discharges. In most cases, businesses may elect to be covered by general permits issued by the State Water Resources Control Board, including the NPDES Permit for Storm Water Discharges Associated with Construction and Land Disturbance and the Industrial Storm Water General Permit. While the permit requirements are too detailed and complex to address fully here, as a general matter businesses that are subject to the permits are required, among other actions, to (1) develop and implement a Storm Water Pollution Prevention Plan (SWPPP), (2) conduct visual and chemical monitoring, (3) report exceedances, (4) submit annual reports, (5) certify compliance and (6) file a notice of termination when the permit is no longer required. Much of this information must be reported to the state through the Storm Water Multi-Application, Reporting, and Tracking System (SMARTS) and therefore is available to the general public, along with other information submitted through the California Integrated Water Quality System (CIWQS). Businesses that fail to obtain the proper permits and violators of permit requirements are at risk for substantial penalties.

Section 505 of the Clean Water Act (33 U.S.C. §1365) authorizes private parties to commence civil actions against alleged violators of the Clean Water Act and permit requirements. It also authorizes courts to award costs of litigation, including reasonable attorney and expert witness fees, to any prevailing or substantially prevailing party. Because information regarding exceedances and violations of permit requirements is both publicly available and submitted and certified by the businesses, it may be relatively easy for so-called "bounty hunters" to find information to support claims.

Before filing suit, the potential plaintiff must provide advance (usually 60-day) notice of the alleged violation to the Environmental Protection Agency, the state where the violation allegedly occurred and the alleged violator. Various organizations have been sending notice letters to businesses and regulatory agencies alleging failures to obtain required permits, unpermitted discharges and violations of the state storm water permits. These notices have alleged, among other violations, (a) the unlawful discharge of contaminated storm water, (b) the failure to adequately sample and analyze storm water events, (c) the failure to develop, implement and revise Storm Water Pollution Prevention Plans, (d) the failure to analyze for likely pollutants in storm water, and (e) the failure to file true, timely and accurate annual reports. Significantly, as evidence of the violations, some of the notice letters relied on information submitted by the permitees in their publicly available reports to the state, including their Annual Storm Water Discharge Reports.

In addition, effective July 1, 2015, a new NPDES General Permit for Storm Water Discharges Associated With Industrial Activities will go into effect. This new permit covers additional facilities, imposes additional requirements and requires covered facilities to take action to comply with the new permit requirements. These new requirements put businesses at greater risk of noncompliance.

Businesses should be aware of the new permit and this recent trend, and should take appropriate steps to avoid a notice letter or suit, including:

1. Determining whether they need a permit and, if so, obtaining the appropriate permit or filing a Notice of Intent to be covered by a general permit;
2. Reviewing their storm water pollution prevention plans and making sure they are current and adequate;
3. Determining whether they are in compliance with their permits and, if not, taking appropriate steps to come into compliance and to prevent future violations; and
4. Confirming that they have submitted all required monitoring reports and annual reports and, if not, submitting those reports.

Even if a business receives a notice of intent to file suit, the 60-day notice provision gives it an opportunity to avoid being sued. In its 1987 decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, the United States Supreme Court held that a citizen suit could not be brought based on wholly past violations and can only proceed if the plaintiff can allege "either a continuous or intermittent violation - that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Therefore, if the business cures the violations during the 60-day notice period and takes steps to prevent future violations, the private "bounty hunter" should be barred from bringing suit and recovering penalties and attorneys' fees.

The bottom line is that while there appears to be a new trend of "bounty hunters" attempting to use the citizen suit provisions of the Clean Water Act to bring suit and recover penalties and attorneys' fees, there are concrete steps that businesses can take to avoid or defeat such claims.

This report is a publication of Loeb & Loeb LLP and is intended to provide information on recent legal developments. This report does not create or continue an attorney client relationship nor should it be construed as legal advice or an opinion on specific situations.