ELR Citation: 42 ELR 20204
No(s). 7:11-CV-3307-SLB (N.D. Ala. Sep 17, 2012) (Blackburn, J.)

A district court dismissed environmental groups' CWA suit against a coal mine for new source performance standard violations. Because the groups filed suit just 11 days after sending the mine its notice of violation, the mine claimed that the groups failed to comply with the 60-day notice requirement of CWA §505(b). The groups countered that their claim is based on violations of new source performance standards under CWA §306, which are excepted from the delay provisions of §505(b). But given U.S. Supreme Court precedent that a citizen suit against a permitted discharger must proceed under §305(f)(6), the court was bound to find that the notice and delay provisions of §305(b) apply. Accordingly, the groups cannot proceed under the exception to §505(b) for new source performance standard violations when, as here, the discharger has a NPDES permit. Because the groups failed to follow the CWA's notice requirements, their suit was dismissed.