By: Ellen Gregory
You’ve received a letter in the mail. The letterhead indicates it comes from an environmental organization you’ve never heard of. It says you have 60 days to respond or you will be sued for violations of state or federal environmental laws, or both. You are pretty sure your company isn’t violating any laws. After all, you have a full-time environmental compliance director on-site. Either that, or you’ve spent thousands of dollars paying an independent environmental consulting firm to get your company into compliance. How could you possibly be out of compliance? You figure it’s a scam, and you throw the letter away.
Sixty-one days later, you get served with a complaint, alleging violations of the federal Clean Water Act. You are now a defendant in what’s known as a citizen suit. And no, it’s not a scam. And most likely, you will be spending thousands of dollars defending yourself and, in the end, paying for not only your own lawyers, but the plaintiff’s lawyers, as well. The statutes allow both monetary penalties (up to $37,500 per violation per day) as well as injunctive relief to force compliance for on-going violations, and an award of the plaintiff’s reasonable attorneys’ fees. Not surprisingly, violations that result in actual pollution or a degradation of water quality will garner the highest penalties, but even seemingly “technical” violations, such as failing to properly certify your periodic reports, or failing to sample every stormwater outfall identified in your stormwater pollution prevention plan, can result in substantial penalties.
A good number of federal environmental laws include citizen suit provisions that allow “private attorneys general” to enforce the laws in situations where the government agency does not have the manpower to pursue every company that is out of compliance or simply does not deem the violations to be egregious enough to enforce against. Enter the private attorney general. These statutory provisions were put in place to supplement the governmental enforcement authorities and, especially in a time when the U.S. Environmental Protection Agency has pulled back on enforcement for political reasons, ensures that enforcement by private entities and individuals will fill the void.
These private attorneys general comb through vast amounts of data that is disclosed by the regulated entities and is required to be maintained on publicly-available databases. Their ideal target is a company that is large enough to have resources to pay penalties and attorneys’ fees, but small enough not to have an army of lawyers at the ready to defend the lawsuit. The Clean Water Act is an ideal mechanism for these suits because regulated companies must submit periodic reports disclosing sampling results, must submit pollution prevention and monitoring plans, and must certify all of this information. Any small, seemingly insignificant, instance of non-compliance is just sitting there in the public database, waiting to be found by a resourceful plaintiff’s attorney.
So, what is to be done? The best course of action is to take these 60-day notices (also known as notices of intent to sue) very seriously. Hire a good lawyer with substantial environmental experience. Begin a dialogue early on with the plaintiff’s counsel. Take a very careful look at each and every alleged violation in the letter. Determine which ones have merit. And as quickly as possible, come into compliance. If you are able to come into full compliance before the 60 days are up, you may be able to render at least the request for injunctive relief moot. In other words, if there are no more violations at the expiration of the 60-day period, there is nothing to redress.
However, be advised that the courts have interpreted the term “ongoing violation” broadly and in some cases found non-compliance where continuous violations and intermittent violations have a continuing “likelihood of recurrence.” This determination will, of course, be highly fact sensitive and certain violations are more likely to fall into this category than others.
In the end, the best defense to a citizen suit is full compliance. Barring that, do what you can to settle the matter quickly because long drawn-out litigation only increases the plaintiff’s attorneys’ fees that you will most likely end up paying anyway. The last thing you want to do is put your head in the sand and hope it goes away.