ELR Citation: ELR 20277
No(s). 08-10810 (11th Cir. Nov 13, 2008)

The Eleventh Circuit held that a district court did not err in denying a coal mine operator's motion to dismiss an environmental group's Clean Water Act (CWA) claim filed against it for discharging pollutants into U.S. waters in violation of its national pollutant discharge elimination system permit. The coal mine operator argued that because the state commenced an administrative enforcement action against it, the group's citizen suit was barred by CWA §309(g)(6)(A). But the group gave its notice of intent to sue the operator before the state commenced its action. It also filed suit in federal court within 120 days of that notice pursuant to CWA §309(g)(6)(B). Accordingly, the bar does not apply and the lower court has subject matter jurisdiction.