You are the owner of Acme Metal Coating, Inc., a metal coating plant. A river runs next to your plant into which you discharge your treated wastewater. You are very conscientious about your waste water discharge and have put a lot of money into wastewater treatment systems. The water that you discharge is actually cleaner than the water in the river that you use as make up water for your cooling towers.

You received permission to begin your wastewater discharges on January 10, 1987, from your state Environmental Protection Agency (the "state EPA"). Your state EPA issued your company a National Pollution Discharge Elimination System (NPDES) permit to discharge effluents into the River. The NPDES permit expired exactly five years later on January 10, 1992. For whatever reason, you neglected to apply for a new permit, even though the normal procedure for permit renewal is to reapply 180 days before expiration. Admittedly, you continued to discharge effluents into the river after January 10, 1992, but all of your wastewater monitoring data shows that your discharges were within the federal categorical pre-treatment standards for your industry

Yesterday, you received a letter from the Local River Defense Fund ("LRDF") notifying you, the Administrator of the U.S. EPA, the Regional Administrator of your U.S. EPA Region and your state EPA of your company's alleged violations of the Clean Water Act for discharging without an NPDES permit. The notice also explained LRDF's intent to file a lawsuit against your company. You are not sure what to make of the letter. You expect it is either a joke, or a baseless claim since your wastewater discharges have always been acceptable for your type of operation, regardless of whether you had a permit. Besides, you figure that if there was a real problem with your operations, your state EPA would have done something by now over the fact that you have operated over three years without a permit. Just to be safe, you decide to get your attorney's opinion of the letter.

After your attorney has accumulated all the necessary information, he meets with you to explain exactly what is happening. He explains that the LRDF is an organization consisting of about one hundred local activists who are bringing lawsuits against local businesses under the citizen suit provision for violations of the Clean Water Act. The statute provides that LRDF may request an injunction to shut down your wastewater discharges, a $25,000 per day civil penalty payable to the U.S. Treasury, and its costs and attorney fees. You immediately realize that operating without a permit for over three years could mean over $30,000,000 in penalties. Furthermore, if required to shutdown for any extended time, you are out of business. Your attorney assures you that $30,000,000.00 penalties, although possible, are not likely. However, an injunction requiring you to cease discharging wastewater into the river until the state EPA issues your permit is likely. Besides, your attorney reminds you that LRDF has not sued your company yet. You have only received a notice that LRDF intends to sue you under the citizen suit provision of the Clean Water Act. Your attorney has some ideas that may prevent LRDF from suing you at all since the Clean Water Act limits a citizen's right to sue.

The purpose of the Clean Water Act is to ensure that the nation's waters are not polluted through industrial effluents. Thus, Congress made unlawful the discharge of any pollutants into the navigable waters except as authorized by the Act. Under 33 U.S.C. § 1342, U.S. EPA may issue permits allowing waste water discharges into the nation's waters. A state can institute its permit program as part of the federal program, which your state did by enacting laws that U.S. EPA approved. The citizen's suit provision of the Clean Water Act allows citizens to bring suit against violators. Section 1365(b) provides that a citizen must give sixty days notice of the alleged violation before the initiation of any lawsuit. The notice must be given (i) to the Administrator of U.S. EPA, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order. It is likely that LRDF is aware of this requirement and will wait the requisite sixty days before filing a lawsuit.

A citizen is "a person or persons having an interest which is or may be adversely affected" by the discharge according to 33 U.S.C. § 1365(g). To be adversely affected, your attorney explains that a member of LRDF need only plead that he uses the river for recreational purposes into which your wastewater discharges. Thus, this will be easy for LRDF to prove. The Second Circuit has held that to have standing to sue as a citizen, a plaintiff must allege an injury, whether it be aesthetic, environmental well-being, or an economic injury. Since members of LRDF will undoubtedly assert that they use and enjoy the water resources into which Acme is discharging, this requirement is also likely to be satisfied.

If your state EPA or U.S. EPA initiates an enforcement action against you within the sixty days before LRDF sues you, the statute would bar LRDF's citizen suit. Section 1319(g)(6) "bars citizen suits where a state agency conducting enforcement proceedings against the defendant has authority to assess civil penalties, regardless of whether the agency has assessed such penalties." You ask your attorney whether immediately submitting a permit application to the state EPA would bar a citizen suit. To invoke section 1319(g)(6) to limit a citizen suit, it is imperative that a state commence actual enforcement proceedings. Review of a permit application is not an enforcement proceeding. Therefore, section 1319(g)(6) does not bar a citizen suit action pending the issuance of a permit. The only way to stop the citizen suit action under this provision would be for the state EPA or U.S. EPA to sue you. This admittedly is not a great option since you still end up being sued for civil penalties and possibly an injunction against wastewater discharges. However, unlike a citizen suit, at least you do not pay the other side's attorney fees, which admittedly, can be substantial.

The other possibility of avoiding being sued by LRDF is to cease violating the Clean Water Act. You explain to your attorney the situation with your permit, and that the state EPA will not expedite your permit application, even under these circumstances. Therefore, it is not likely that you will have your permit within the next sixty days. However, your attorney explains that a citizen suit may be brought in federal court only if the citizens make a good-faith allegation of continuous or intermittent violations of the Clean Water Act as required by 33 U.S.C. § 1365(a). The Supreme Court of the United States interpreted the phrase "alleged to be in violation" as imposing a jurisdictional requirement "that citizen-plaintiffs allege a state of either continuous or intermittent violation -- that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Consistent with this requirement, the Court held that jurisdiction will not lie where a plaintiff alleges claims for "wholly past" violations.

The Supreme Court explained that the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past. Thus, LRDF must be able to prove a continuing likelihood that you will continue to discharge without a permit to state a cause of action under the facts here. Thus, to avoid being sued by LRDF, you must be able to prove that you will not be discharging without a permit in the future. Since no one knows when your permit will show up from the state EPA after you apply, you must stop discharging, thus eliminating the need for an NPDES permit altogether. You could (a) permanently shut down your plant until you receive an NPDES permit, or (b) find a way to eliminate your waste water discharge.

After evaluating your options with a waste water consulting company, you discover that you can divert your waste water into your cooling tower as makeup water, thus eliminating the need for an NPDES permit. All the plumbing changes can occur within thirty days. Upon completion of these changes, your attorney puts the attorney for LRDF on notice that your company has eliminated all discharges requiring NPDES permits. Your attorney also puts the LRDF attorney on notice that if LRDF does sue, knowing that no regulated discharges are coming from the plant, your attorney will move for dismissal and sanctions against LRDF, including the reimbursement of your attorney fees. Without a regulated discharge, there is no basis for believing a "continuing" violation exists. Reluctantly and begrudgingly, LRDF agrees not to sue your company since it cannot prove a "continuing" violation of the Clean Water Act.

My recommendation to companies is to be careful about renewing your permits. Do not miss renewal deadlines. Operating without a permit can put you in serious legal trouble, even if you operate within acceptable discharge limits. Sometimes your enforcement agencies can be the least of your trouble. Collecting attorney fees interests some environmental groups more than protecting the environment. Furthermore, remember to get expert advice on legal issues. The company in this scenario implemented an affective alternative to a waste water discharge that prevented it from being sued, saved it money, and allowed it to continue operating legally. Also, review your operations periodically to see if you can combine water uses and eliminate a waste water discharge. With fewer discharges, there are fewer chances of problems from regulators and environmental action groups looking for a lawsuit.