Third Circuit Affirms Dismissal of Clean Water Act Citizen Suit On Inadequate Notice
In order to bring a citizen suit in federal district court under the Clean Water Act, 33 USC § 1365(a)(1), the plaintiff must first give “notice of the alleged violation” to the alleged violator, the EPA, and the State at least 60 days prior to commencing suit. In Shark River Cleanup Coalition v. Township of Wall; Estate of Fred McDowell Jr., (No. 21-2060, 3d Cir. August 24, 2022), the Third Circuit Court of Appeals found that the district court erred in its finding that the notice was inadequate because it had not adequately identified the location of the alleged violation as required by the EPA regulations implementing the statutory notice requirement, but upheld the dismissal of the lawsuit on an alternate ground not reached by the district court – that the notice that was given was inadequate because it did not provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated” also as required by EPA’s regulations. 40 C.F.R. §135.3(a).
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