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Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc.

ELR Citation: 43 ELR 20256
Nos. 12-15409, (11th Cir., 11/13/2013)

The Eleventh Circuit upheld the dismissal of environmental groups' citizen suit against a coal mine for new source performance standard (NSPS) violations under the CWA. A citizen suit that alleges that a discharger violated its permit is subject to the general rule of notice and a 60-day waiting period, but the CWA provides an exception to this general rule when a citizen complains about at least some NSPS violations. Here, 11 days after serving the mine with notice of alleged NSPS and permit violations, the groups filed suit against the mine for the NSPS violations only. They refrained from alleging that the mine had violated its permit. But a citizen may not evade the 60-day waiting period and sue a permit holder for violations of the NSPS when those standards are incorporated in the permit. Because the Act requires a citizen who sues a permit holder to sue for a violation of that permit and wait 60 days after giving notice of that violation before filing suit, the lower court properly dismissed the case.