The Fourth Circuit Court of Appeals has ruled that a citizen’s notice of intent (NOI) to sue under the Clean Water Act must identify each pollutant being discharged in violation of the law to obtain relief. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., No. 06-1714 (4th Cir. 1/5/11).
Reversing the district court’s award of civil penalties to plaintiffs, the appeals court ruled that plaintiffs had failed to include in their NOI several discharge permit violations that were later included in their complaint and therefore could not seek penalties as to those discharges because defendants did not have an adequate opportunity to correct the violations before the lawsuit was filed. The court also held that plaintiffs could not seek relief for violations that had been resolved before they issued their NOI.
The court ordered that the alleged violations which were included in plaintiffs’ NOI be remanded to the district court and dismissed those alleged violations included in the complaint only. This decision conflicts with rulings in the Third and Ninth Circuits which have held that plaintiffs do not have to detail every violation in an NOI. Pub. Interest Research Group of N.J. Inc. v. Hercules, Inc., 50 F.3d 1239 (3d Cir. 1995); Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913 (9th Cir. 2004).