Federal Environmental Statutory Citizen Suits: National Association of Clean Air Agencies Comments on U.S. EPA Proposed Rule Addressing Notice Requirements

The National Association of Clean Air Agencies (“NACAA”) submitted March 26th comments on a United States Environmental Protection Agency (“EPA”) proposed rule addressing notification requirements for federal environmental statutory citizen suits. See 91 Fed. Reg. 8810.

NACAA describes itself as the:

… national, non-partisan, non-profit association of 156 state and local air pollution control agencies in 40 states, including 117 local jurisdictions, the District of Columbia and five territories.

EPA has proposed to amend its regulations prescribing the manner in which prior notice of citizen suits is to be provided as required under various federal environmental statutes.

The federal environmental statutes which have citizen suit provisions that are addressed by the proposed rule include:

• Clean Air Act
• Clean Water Act
• Safe Drinking Water Act
• Noise Control Act
• Resource Conservation and Recovery Act
• Comprehensive Environmental Response, Compensation, and Liability Act
• Toxic Substances Control Act

EPA’s proposed rule would generally require electronic service to the agency of Notices of Intent (“NOIs”) to file a citizen suit under the referenced environmental statutes.

NACAA states its support of the EPA proposed rule to require electronic service of NOIs to the EPA Administrator. The organization further states:

… Mandatory electronic filing should facilitate EPA's timely processing of NOIs, allowing the agency more time to address concerns raised by potential plaintiffs before the 60-day notice period elapses.

In addition, the comments state that eliminating the certified mail requirement for service to the Administrator would also be moderately more convenient and less costly for would-be plaintiffs. This is stated to facilitate and make it faster and easier for EPA to monitor the NOIs received and quickly post them to EPA’s public-facing website. This is expected to improve public transparency.

NACAA also recommends that electronic NOIs for alleged violations of CAA emission standards or limitations be sent to the relevant state or local air pollution control agency where the alleged violations occurred. The hope is that this would be accomplished at the same time as the notice is sent to the Administrator and the relevant Regional Administrator via EPA’s OGC website portal. IN the alternative, NACAA recommends that EPA notify the relevant state or local agencies of receipt of an NOI via email within 24 hours of receiving it.

A copy of the NACAA comments can be found here.