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Natural Resources Defense Council v. Southwest Marine, Inc.

ELR Citation: 27 ELR 20564
Nos. 96-1492 B, 945 F. Supp. 1330/(S.D. Cal., 11/05/1996) FWPCA citizen suit notice letter

The court holds that environmental groups' letter to the owner of a San Diego bayside facility alleging that the facility violated the Federal Water Pollution Control Act (FWPCA) and notifying it of the groups' intent to sue satisfied FWPCA §505(b) and 40 C.F.R. §135.3(a). The groups alleged that the facility failed to develop and implement a legally adequate Best Management Practices Program (BMP), a Storm Water Pollution Prevention Plan (SWPPP), and a monitoring and reporting plan. The court holds that the letter meets the requirements of 40 C.F.R. §135.3(a) because it specifically identifies 3 standards that the SWPPP violates, 6 standards that the monitoring and reporting plan violates, and 2 standards that the BMP violates. Further, the letter's assertion that the plans violate these standards is an adequate statement of the activity that constitutes the FWPCA violation. When describing a failure to act, it is impossible to describe the time, date, activities, and persons responsible with the same specificity used when describing an affirmative act. It is enough that the groups alleged who was supposed to act, what they were supposed to do, and that they have failed to do it. Also, the letter adequately alleges that the facility owner is responsible for the failure to prepare and implement the plans, and it adequately describes the location and date of the alleged violations. Because the suit is about failure to prepare environmental compliance and monitoring plans for an entire facility, it is legitimate to allege that the violations are occurring at the facility in general. And because the deficiencies in these plans are ongoing, there is no specific date that can be alleged as the date of the violation. Last, the notice letter provides sufficient information to identify the parties and their counsel. Failure to put "Inc." after the names of the environmental groups does not constitute improper notice.

Counsel for Plaintiffs
Charles S. Crandall
Milberg, Weiss, Bershad, Hynes & Lerach
1800 One America Plaza
600 W. Broadway, San Diego CA 92101
(619) 231-1058

Counsel for Defendant
Steven P. McDonald
Luce, Forward, Hamilton & Scripps
600 W. Broadway, Ste. 2600, San Diego CA 92101
(619) 236-1414