Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc.
734 F.3d 1297
11th Cir.2013Background
- Citizens sued Black Warrior Minerals for violations of new source performance standards; Fleetwood mine permit No. AL0071358 incorporates those standards.
- Discharger holds a state-issued permit that incorporates new source standards; permit conditions govern liability.
- Citizens provided notice on Sept 2, 2011, listing NSPS and permit violations, then filed a suit 11 days later alleging NSPS violations only.
- Alabama Department of Environmental Management subsequently sued Black Warrior Minerals for permit violations.
- District court granted summary judgment holding that a permit holder’s liability must be judged by the permit, thereby barring the citizen suit for NSPS violations under the 60‑day rule.
- Court reviews de novo and interprets the Clean Water Act in holistic statutory context to resolve whether the NSPS exception can bypass the permit-based framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can citizens bypass the 60-day rule by suing a permit holder for NSPS violations incorporated into the permit? | Plaintiffs rely on §1365(f)(3) to sue NSPS violations. | Defendant argues permit governs liability; §1365(f)(6) applies. | No; suit must proceed under §1365(f)(6) for permit violations. |
| Does the NSPS exception apply when a permit incorporates NSPS and the citizen alleges NSPS violations but not permit violations? | NSPS language allows NSPS claims independent of permit. | Permits transform standards into obligations; strict permit‑based enforcement. | No; the permit framework controls; cannot evade 60‑day waiting by avoiding permit‑violation theory. |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (expounds that citizen suits supplement rather than supplant governmental action)
- State Water Resources Control Board v. State of California, 426 U.S. 200 (1976) (permits and permit conditions define enforceable requirements; Supreme Court discussed interpretation of §1365(f))
- ABC/ Nat’l Env’l Found. v. ABC Rail Corp., 926 F.2d 1096 (11th Cir. 1991) (60‑day waiting period mandatory; citizen suits supplementary to government action)
- Inland Steel Co. v. EPA, 574 F.2d 367 (7th Cir. 1978) (permits provide absolute defense to many citizen suits)
- EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976) (permit-based violations and scope of citizen suits under §1365)