A federal court in Alabama has dismissed a Clean Water Act (CWA) citizen suit brought by an environmental group against a coal mine owner because the lawsuit was filed too soon after plaintiffs filed their notice letter. Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc., No. 11-3307 (N.D. Ala. 9/17/12).
Plaintiffs served defendant with notice of their intent to sue on September 2, 2011, and filed the lawsuit 11 days later. A plaintiff bringing a citizen suit under the CWA may not commence the action “prior to sixty days after plaintiff has given notice of the alleged violation . . . to any alleged violator” of the Act. 33 U.S.C. § 1365(a). The 60-day rule has an exception for suits against owners of “new sources”; they can be filed immediately after notification.
Dismissing the complaint with prejudice, the court ruled that the lawsuit did not fall under the 60-day rule exception. Although the mine was technically classified as a new source because it was built after proposed regulations governing mining, it had a National Pollutant Discharge Elimination System permit issued by the Alabama Department of Environmental Management to discharge into the Black Warrior River, and the agency has alleged that defendant violated the permit. The court could find no reported court decision in which a permit holder was found to fall under the exception. The court left the door open for plaintiffs to bring claims under federal and state mining laws.