Editor’s Note: Catherine Johnson of Environmental General Counsel, LLP, provides some strategies for responding to a NOI to sue for alleged violations of the CA IGP and answers some questions you might have about why you have received the NOI in the first place.
What Is an NOI?
An NOI is a letter from a person or group threatening to sue under the citizens suit provisions of the Clean Water Act (CWA or Act) for alleged violations of the Act. In a citizen suit, private parties may sue to enforce the CWA – and state-approved programs such as the Industrial General Permit – by seeking a court order to compel compliance. In addition, the court has discretion to award fines and penalties for non-compliance and to award the plaintiffs their litigation fees and costs.
By law, before individual citizens (or more frequently, a citizen suit group) can file a lawsuit, they must first provide alleged violators with 60 days advance notice of the alleged violations. One purpose of the NOI is to provide companies with an opportunity to cure the violations and avoid a citizen suit.
What If My Company Does Not Dispute the Allegations in the NOI?
If your company is out of compliance, you should take immediate measures to comply with the CWA and try to settle the case as expeditiously as possible to minimize your own attorneys’ fees and your potential liability for the plaintiff’s suit charges.
Your attorney and environmental consultant can provide advice on what you need to do to comply. In general, however, you should make sure that your facility has an adequate and up-to-date Storm Water Pollution Prevention Program (SWPPP) and that you implement the best management practices (BMPs) identified in your SWPPP to control and minimize stormwater discharges.
To facilitate settlement, you should maintain a dialogue with the citizen suit group to ensure they are comfortable with the BMPs you propose to implement. To minimize litigation fees, you should also keep the citizen suit group informed about steps you have taken to resolve the alleged violations in the NOI; suit charges incurred by plaintiff after violations have been cured may be unrecoverable. In fact, if all violations have been cured before the 60 day notice has elapsed, you may be able to avoid a lawsuit altogether.
Why Did My Company Receive an NOI When My Company Is in Compliance with Permit Requirements?
NOIs are routinely served on companies that may not be in violation of the CWA – at least not as state agencies and federal courts currently interpret the CWA. In California, citizen suit groups typically file lawsuits alleging violations of the CWA to address what they contend are inadequacies in the state’s storm water program.
For example, earlier IGPs did not require companies to meet specific numeric limitations for stormwater discharges; however, citizen suit groups served NOIs and litigated claims alleging that the failure to meet specific numeric standards referred to as “benchmarks” violated the CWA.
California’s new Industrial General Permit, effective July 1, 2015, does require companies to meet numeric standards unless they can demonstrate it is not feasible to do so, or the pollutants are naturally occurring, or not associated with industrial activities. The new IGP will no doubt spawn a new generation of citizen suit claims, which may continue to focus on the failure to meet numeric standards, but may also assert new theories of non-compliance.
Should My Company Settle the Case Without Litigation Even If It Is in Compliance?
The answer to this question depends on the facts of your case. In most cases, working cooperatively with the citizen suit group to resolve the claim is more cost-effective than litigating the claim. Thus, you should carefully review the NOI and assess whether your company is willing to implement measures necessary to settle the case. If so, you should focus your energy and resources on implementing the required measures and negotiating a settlement agreement on the most favorable terms possible.
When, however, a citizen suit seeks to compel your company to take measures that it cannot necessarily achieve or which may be prohibitively expensive and not required by the CWA, legal counsel should be directed to evaluate and preserve legal defenses.
Depending on the agenda of the specific citizen suit group, your attorney may be able to settle the case on reasonable terms without extensive litigation, by exploiting the weaknesses of the plaintiff’s case, and exploring creative settlement options.
What Should My Company Expect If It Settles the Case?
In general, settlement agreements (usually in the form of court-approved settlements known as consent decrees) include provisions requiring the company to take measures to control stormwater discharges and to pay the plaintiff’s litigation fees and costs. Often, an additional payment must be made to subsidize unrelated projects that will benefit the environment. In addition, citizen suit groups often require periodic inspections of the facility by the group, periodic reports to the group, and stipulated damages upon breach.
Many of these settlement terms can present hardships and risk to a company and should be carefully negotiated. In addition, your attorney should advise you about measures you can take to minimize your liability for the plaintiff’s litigation fees and costs.
How Expensive Will It Be to Settle the Case?
In most cases, the major expenses associated with the lawsuit will be establishing new BMPs to control storm water – and possibly the preparation of reports now required under the new Industrial General Permit. Experienced attorneys who have handled similar cases have access to standard settlement terms and should be able to expedite settlement discussions (subject to new terms and considerations raised by the new IGP) and advise you about the typical fees for handling the matter – or even propose to handle your case on a fixed fee basis.
Have questions about the Industrial General Permit? Need stormwater litigation support? Talk to our experts