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Clean Water Act Citizen Lawsuits in California Being Challenged by U.S. DOJ

After years of abusive threats of Clean Water Act citizen (CWA) lawsuits against industrial facilities, especially scrap metal recyclers, the beginning of some relief may be at hand.

The U.S. Department of Justice (DOJ) recently filed a statement of concern and recommendation with a U.S. District Court in California to object to a number of troubling CWA practices and settlements and to seek the ability to intervene. The outcome could potentially begin to put constraints on the use of CWA citizen lawsuit provisions.

Before the DOJ filing, the California law firm of Castellón & Funderburk, LLP made the DOJ aware of the questionable CWA citizen lawsuit practices of the Pennsylvania-based law firm, Brodsky & Smith, LLC, in California. Brodsky & Smith used the online availability of stormwater-related information in California’s SMARTS (Stormwater Multiple Application and Report Tracking System) database and other necessary information to compose and to send numerous CWA intent-to-sue letters to industrial facilities, apparently mostly small businesses. The number of these letters increased markedly from 2015 to 2017. Some of the letter recipients reached settlements with Brodsky & Smith that included substantial attorneys’ fees and costs without justification (pp. 37-41). In the filling, DOJ “sets out 1) general concerns with Brodsky & Smith’s CWA practices; 2) specific concerns with the proposed [consent decrees] in this case; and, 3) an overview of concerns with some of Brodsky & Smith’s settlement agreements” (p.15).

While the above matters took place in California, these issues are national in scope. In late 2015, U.S. Environmental Protection Agency (EPA) finalized an electronic reporting rule for CWA permitting programs. This rule largely compelled states to enable electronic reporting of certain CWA permit information (e.g., discharge monitoring reports (DMRs) by 12/31/2016 and Notices of Intent by 12/31/2020). ISRI’s late 2013 comments on the proposed electronic reporting rule warned EPA that publishing data (e.g., DMRs) context-free would likely result in more CWA Section 505 third-party citizen lawsuits. ISRI strongly urged EPA not to publish data that could be misinterpreted and used to send inappropriate or abusive CWA intent-to-sue letters. It is not known whether the national electronic reporting rule has resulted in similar increases in CWA citizen lawsuits elsewhere in the United States.

ISRI is following the Court’s impending action on DOJ’s filing and will inform ISRI members of any important developments. For more information, please contact Chief Scientist and Director of Environmental Management David Wagger at (202) 662-8533. 

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