Passivity Derails Citizen Suit

Citizens groups cannot bring suit under the Clean Water Act (CWA) against a facility operator for allegedly polluting groundwater and surface water without a permit if the groups' claims attack unchallenged provisions of a U.S. Environmental Protection Agency (EPA) discharge permit, under a federal appeals court ruling. [Amigos Bravos. et al. v. Molycorp Inc., No. 97-2327, 10th Circ., Nov. 13, 1998.]

Molycorp operates a mine in New Mexico that discharges pollutants into the Red River. The CWA prohibits such discharges without an EPA- or state-issued discharge permit. In 1977, EPA issued a permit to Molycorp covering discharges from three point sources. The permit was renewed from time to time thereafter with coverage for additional discharge points.

A facility operator that wants to renew an EPA permit must submit an application to the agency before the permit expires. If EPA is willing to grant a renewal, the agency prepares a draft permit and explanatory fact sheet, gives public notice of the proposed permit, and invites public comment.

During the comment period, interested persons may suggest changes, raise issues and arguments, and request a public hearing. After considering and responding to significant public comments, the agency usually reissues the permit, sometimes with modifications.

At this stage, interested parties may request an evidentiary hearing to contest the decision. A hearing will produce an administrative record on technical or factual issues for EPA to consider when setting permit requirements. With or without an evidentiary hearing, interested parties may seek review of the agency's final permit decision by a federal appeals court.

During the Molycorp permit comment period, EPA received and considered many comments regarding the facility's discharge of pollutants via groundwater and on the regulation of such discharges. EPA issued a final permit in September 1993 without holding a hearing and without limiting or regulating groundwater seepage.

Instead, EPA urged commenters to take their concerns to state environmental authorities who, as EPA saw it, had explicit authority to regulate groundwater. Significantly, no commenter sought further administrative or judicial review of EPA's final permit decision.

Two years later, the plaintiffs, who did not participate in the 1993 public comment process, filed suit alleging several irregularities in EPA's permit reissuance procedures. They faulted EPA for failing to regulate certain discharges and failing to respond to "substantial new questions" raised in public comments.

A three-judge appellate panel rejected these arguments, noting that the plaintiffs failed to take advantage of the opportunities within the 1993 permit renewal process to present their claims. Thus, they could not invoke the CWA's citizen suit provisions to challenge Molycorp's discharges without a permit.

The ruling applies to citizen suits against landfill operators for alleged violations of discharge permits, and it likely may affect citizen suits against any facility that holds a RCRA-based permit.