This article was originally published in the Vancouver Business Journal.
When businesses open a letter from Northwest Riverwatcher (a fictional environmental group) with the subject line “Notice of Intent to Sue Under the Clean Water Act,” the tendency, particularly among smaller businesses, is to ignore it and hope Riverwatcher goes away. There may be a mistaken belief that the threat to sue is an empty one, and that Riverwatcher sends out scores of such letters, hoping that a small percentage of the recipients will pay some money to make it go away.
That is most certainly not the case. Environmental groups typically put considerable effort into creating these letters, which they must send at least 60 days before filing a “citizen suit.” You won’t receive one unless the group is fully prepared to sue because it thinks there is a significant environmental issue caused by your alleged noncompliance with environmental laws. Statewide, fewer than 50 notice letters were sent in 2017. They are most often associated with the Industrial Stormwater General Permit, but can be associated with other Clean Water Act permits or other environmental laws, such as the Clean Air Act and RCRA.
Ignoring the notice letter is not recommended because it inevitably increases the cost of resolving the matter and because it limits your ability to defend yourself. Costs increase when you fail to respond to the letter because the environmental group will often immediately file a lawsuit once the 60-day notice period has passed. The group will certainly seek to recover all its attorney fees if it files the lawsuit. And failing to respond limits your ability to defend yourself because it is easier to defend yourself during the notice period. If you can achieve compliance during the notice period, a lawsuit can sometimes be derailed because citizen suits cannot be initiated for wholly past violations. If you are still out of compliance after a lawsuit is filed, mooting the lawsuit by later achieving compliance is extraordinarily difficult.
The proper response to a notice letter varies, depending on numerous factors, but here are some general things to consider if you receive one:
Is the letter accurate? A letter’s allegations are compiled from discharge monitoring reports and other reports that you submitted to the Department of Ecology. Sometimes Ecology’s information is incomplete or inaccurate. It is usually less expensive for you or a technical consultant to do this review than your lawyer.
Does the information make sense? Businesses often collect samples incorrectly or make mistakes in reporting the data. We worked with a company that received a notice letter after it reported that the pH of its stormwater was below 3.0 for seven consecutive quarters. That didn’t make sense because the site had no sources of acid and the pH had been normal for the previous three years. It turns out that a new person started collecting samples at the beginning of the seven-quarter period, and the new person used one of the three laboratory-supplied bottles to fill the other two. The first bottle from the lab was preserved with acid for metals analysis, and the acid contaminated the other bottles. The pH readings returned to normal after addressing the sample-collection procedures.
Are you in compliance with the permit? No matter what happens with the threatened lawsuit, you must comply with the permit. Compliance is one component in resolving the matter. It is best to determine as early as possible whether you are in compliance and, if not, what you must do to get there. A stormwater consultant is very helpful for this.
Can you achieve full compliance within the notice period? A citizen suit cannot be initiated unless the plaintiff has a good-faith belief of ongoing violations. One potential strategy is to achieve full compliance and then send the environmental group a letter informing it of that fact.
Should you contact the sender? Notice letters usually include an invitation to discuss settlement. We usually recommend that clients accept the invitation because the allegations are usually accurate and because full compliance within the notice period is often difficult to achieve. Settlement usually has three components: permit compliance, paying the group’s attorney fees and paying a penalty. Payment of attorney fees and penalties is provided for in the Clean Water Act and other environmental statutes. Having early, good-faith negotiations with the group reduces the attorney fees on both sides and can positively impact negotiations over the penalties and compliance measures. If you do discuss settlement, the goal should be to do it early enough to forestall filing of the lawsuit, which only increases costs.
Of course, the best strategy is to avoid receiving a notice letter in the first place! Perhaps today is a good day to evaluate your company’s compliance with its stormwater permit and other environmental requirements. We can recommend a local stormwater consultant if necessary. And we are here to help if you receive a notice letter or other legal issues related to environmental laws arise.