The Nickel Report

On May 31, 2023, the Eleventh Circuit in South River Watershed Alliance, Inc. et al. v. DeKalb County, Georgia affirmed dismissal of an environmental group’s citizen suit challenging a Clean Water Act (CWA) consent decree between DeKalb County and government regulators on “diligent prosecution” grounds. The CWA precludes citizen suits if the government is “diligently prosecuting” an action to require compliance with the same standard, limitation, or order for which the citizen suit alleges a violation. The Eleventh Circuit’s opinion may provide guidance to defendants seeking to resolve government enforcement actions and obtain protection from future citizen suits.   

A Tennessee federal district court recently awarded a defendant summary judgment on multiple Clean Water Act claims because they were time-barred under the “concurrent-remedies” doctrine.  Relying on case law from the Fifth Circuit holding that the concurrent-remedies doctrine is “alive, well, and strong” as applied to private plaintiffs, the court held that the plaintiff’s claims were barred in their entirety with respect to all legal and equitable relief based on the expiration of the limitations period applicable to claims for civil penalties. Starlink Logistics Inc. v. ACC, LLC, No. 1:18-CV-00029, 2023 WL 1456179 (M.D. Tenn. Jan. 31, 2023).

On July 20, 2022, in Naturaland Trust v. Dakota Finance, LLC, No. 21-1517, a split Fourth Circuit panel held that a state agency’s notice of violation did not “commence an action” within the meaning of 33 U.S.C. § 1319(g)(6)(A)(ii). That provision states that a Clean Water Act violation “shall not be the subject of” a citizen suit for civil penalties if a state “has commenced and is diligently prosecuting” an action with respect to the violation “under a State law comparable to” the Clean Water Act. The court also held that this provision is not jurisdictional.

How can sitting still in the Northeast potentially land you in a world of trouble under the Federal Clean Air Act (CAA) and corresponding state laws? Quite easily, if you happen to be in or leave a vehicle with its engine on and the vehicle itself is not in motion for more than a few minutes. That is the definition of “unnecessary vehicle idling” in many jurisdictions.

Across the Northeast and elsewhere, unnecessary vehicle idling is, subject to certain nuances and exceptions, generally prohibited. Recently, violators have come under attack by non-governmental organizations. State penalties vary, but the potential exposure can be severe, especially when the statutory maximum available penalties are calculated pursuant to the Federal CAA and compounded on a per-violation/per-day basis. Accordingly, owners and operators of all forms of trucking and transit companies should not sit still and should take proactive measures to educate or reeducate vehicle schedulers and operators alike on these anti-idling requirements.

In a lawsuit recently filed in the Southern District of New York, a group of environmental plaintiffs allege that, for nearly 30 years, the federal Environmental Protection Agency (EPA) has failed to develop worst-case hazardous substance discharge, or spill, regulations under Section 311(j)(5) of the Clean Water Act (CWA). This suit comes on the heels of EPA’s June 2018 proposal not to develop a general hazardous substance spill program under CWA § 311(j)(1) (a provision related to the Spill Prevention, Control and Countermeasure (SPCC) Rule well known to industrial facilities storing oil) because of the many other programs EPA believes already regulate the prevention and containment of hazardous substance spills. That proposal is expected to be finalized in August 2019 under a 2016 consent decree in which EPA agreed to evaluate the need for general rules governing the prevention and containment of hazardous substance spills. The new lawsuit narrowly focuses on worst-case hazardous substance spills and the need for corresponding facility response plans.

Continuing its vanguard approach to environmental regulation, California is poised to incorporate Total Maximum Daily Load (TMDL)-specific requirements into its industrial storm water general permit (IGP). TMDLs are pollutant- and water body-specific and establish the maximum amount of a pollutant a water body can receive while meeting water quality standards. Once effective, these new requirements will provide additional avenues of attack for the already active Clean Water Act citizen suit docket.

California is considering the first-in-the-nation general industrial stormwater permit incorporating Total Maximum Daily Load (TMDL)-related numeric action levels (TNALs) and numeric effluent limitations (NELs). These new standards have the potential to further ramp up federal Clean Water Act (CWA) citizen suit litigation. Under the State Water Resources Control Board’s (State Board) proposed amendment to its stormwater general industrial permit (IGP), a “Responsible Discharger” whose stormwater discharge exceeds an applicable NEL automatically will be in violation of the IGP. Unless it complies with the permit’s existing exceedance response action process, it also will be in non‑compliance if its discharge exceeds an applicable TNAL.

Recognizing these consequences, and the difficulties some dischargers have complying with existing IGP requirements, the State Board is proposing two alternative compliance options. Touted as an effort to promote green infrastructure and water reuse, these options could revamp how industry manages stormwater. Both alternatives involve capture and reuse of the runoff from the 85th percentile 24-hour storm event, with the difference being the stormwater retention location. Under the “on-site” option, retention occurs at the facility. Under the “off-site” option, retention occurs at the local publicly owned treatment works (POTW).