United Anglers v. Kaiser Sand & Gravel Co.

No. C 95-2066 CW (N.D. Cal. September 27, 1995)

The court holds that a Federal Water Pollution Control Act (FWPCA) 60-day notice of intent to sue that a fishing group sent to a company provided the company with sufficient information to identify the locations and dates of the alleged violations. 40 C.F.R. § 135.3(a) requires only that the notice letter provide "sufficient information to permit the recipient to identify" the locations and dates is required. The company can easily identify the specific locations and general time frames of the alleged violations by reference to the self-monitoring reports that the company filed with the California Regional Water Quality Control Board, on which the group based the notice letter, and definitions contained in an order that the Regional Board sent the company. The company's self-monitoring report indicates the locations from which the samples that identified pH violations were taken. Although the notice did not provide the specific dates on which the samples were taken, this appears to be only because the company chose not to include those dates in its self-monitoring reports. Also, that the notice letter reports two more pH violations than the self-monitoring reports contain does not introduce sufficient ambiguity for the court to conclude reasonably that the company could not determine the locations and dates of the pH violations. Nor does this ambiguity limit the company's ability to resolve its conflict with the group within the notice period. The court denies the company's motion to dismiss.

Counsel for Plaintiff
Alan A. Beaven
Stamell, Tabacco & Schager
235 Montgomery St., Ste. 2510, San Francisco CA 94104
(415) 433-3200

Counsel for Defendant
David E. Moser
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Ctr., San Francisco CA 94111
(415) 393-2000

[26 ELR 20688]

Wilken, J.:

Order Denying Defendant's Motion to Dismiss

This action arises out of alleged violations of the Clean Water Act, 33 U.S.C. §§ 1365 et seq. occurring at Defendant Kaiser Sand and Gravel Company's East Pleasanton Quarry. Kaiser moves to dismiss this action for lack of subject matter jurisdiction on the ground that Plaintiff United Anglers' notice letter fails to meet the notice requirements for a citizen suit under section 505(b) of the Clean Water Act, 33 U.S.C. § 1365(b). Specifically, Kaiser asserts that the notice letter does not specify the dates or locations of the alleged violations. United Anglers opposes the motion. Having considered all of the papers filed by the parties and oral argument on the motion, and good cause appearing, the motion to dismiss is DENIED.

Under the Clean Water Act, a citizen suit may be filed against any person or government entity alleged to be in violation of "an effluent standard or limitation." 33 U.S.C. § 1365(a)(1)(A). The Act provides, however, that no citizen suit may be commenced unless the plaintiff first gives the alleged violator and the relevant state and federal agencies sixty days' advance notice of the alleged violation and plaintiff's intention to sue. 33 U.S.C. § 1365(b). The purposes of the sixty-day notice are to allow the regulatory agencies to take enforcement action (which would then preclude the citizen suit) and to allow the parties an opportunity to resolve the dispute prior to litigation. Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 [25 ELR 20539] (9th Cir. 1995).

In order to achieve these purposes, the Act requires that the notice "shall be given in such manner as the [EPA] Administrator shall prescribe by regulation." 33 U.S.C. § 1365(b). The implementing regulation provides:

Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

40 C.F.R. § 135.3(a) (1994).

The notice requirements set forth in the regulation must be satisfied before the case may be heard in federal district court. Hallstrom v. Tilamook County, 493 U.S. 20, 26 [20 ELR 20193] (1989); Washington Trout, 45 F.3d at 1354 (affirming district court dismissal of Clean Water Act citizen suit for lack of subject matter jurisdiction where sixty-day notice did not provide names, addresses, or phone numbers of eventual plaintiffs).

Kaiser argues that the notice letter sent by United Anglers is insufficient because it does not identify the specific locations and the specific dates of the purported violations. Kaiser also challenges the notice letter because it does not designate at which of the four discharge points associated with the East Pleasanton Quarry the violations occurred. Kaiser asserts that this lack of specificity prevents it from determining which sampling results United Anglers is relying on to substantiate its allegations.

Kaiser's argument is unconvincing. Under the federal language of the EPA regulation, the specific locations and dates of violations need not be included in the notice letter; what is required is "sufficient information to permit the recipient to identify" the locations and dates. 40 C.F.R. § 135.3(a). A reasonably specific indication of the area and the time frame will thus suffice. See Hudson Riverkeeper Fund, Inc. v. Putnam Hosp. Ctr., Inc., 891 F. Supp. 152, 1995 U.S. Dist. LEXIS 9488, *5-*6 [25 ELR 21583] (S.D.N.Y. 1995); California Public Interest Research Group v. Shell Oil Co., 1994 U.S. Dist. LEXIS 18999, *4 (N.D. Cal. 1994).

The notice letter sent by United Anglers provides such information. It states, among other things, that

The recent self-monitoring reports filed by Kaiser Sand & Gravel disclose ongoing pH effluent violations at your East Pleasanton Quarry.

We have examined your discharge monitoring reports filed with the Regional Board and they disclose 37 pH violations in 1993, 47 pH violations in 1994, and 12 pH violations in the first three months of 1995.

The specific locations and general time frames of alleged violations may be easily identified by reference to the self-monitoring reports that Kaiser prepared and filed with the California Regional Water Quality Control Board, and definitions contained in the Regional Board's Order No. 91-035 directed to Kaiser.¹ Compare Hudson Riverkeeper, 1995 U.S. Dist. LEXIS 9488, *7 (defendant could not easily identify dates by reference to discharge monitoring reports because notice letter provided no time frame for alleged violations and some violations were based on other reports issued by municipal agency). Kaiser's monthly reports contain a column marked "PH VIOLATION" which lists the number of samples that exceeded the pH effluent limitation established by the Regional Board during that month. The report also indicates the location from where the samples were taken. For instance, the report for March 1995 indicates that no [26 ELR 20689] violations occurred at sampling points E-2, E-4, C-1, C-2, C-3, and C-4. The report states that violations did occur, however, at points E-1 and E-3. Kaiser's Self-Monitoring Program, part of Order No. 91-035, provides that Station E-1 is "at any point in the outfall between the point of discharge to Arroyo del Valle (001) and the point at which all waste tributary to that outfall is present." Declaration of Lawrence W. Appleton, Exh. A (Kaiser Self-Monitoring Program, Part B at IB.). Station E-3 is "at any point in the outfall between the point of discharge to Arroyo Mocho (003) and the point at which all waste tributary to that outfall is present." Id.

Read together with the monthly self-monitoring reports and Order No. 91-035, the notice letter thus informs Kaiser of the specific location where the violation was observed and the month in which the violation occurred. The specific dates on which the samples were taken is not provided, but this appears to be only because Kaiser chose not to include such dates in its self-monitoring reports. Kaiser's present claim that it requires such information to identify the violations at issue appears somewhat disingenuous given that Kaiser does not appear to have provided such information to the Regional Board as part of the self-monitoring program. Further, the attachments to Kaiser's reply brief illustrate that the date on which Kaiser submitted any particular month's samples for analysis is readily available to it in its own records. Reply Br., Exh. D.

Kaiser correctly observes that the notice letter reports a greater number of pH violations than are reflected in the self-monitoring reports. For instance, the notice letter states that during the first three months of 1995, twelve pH violations occurred, whereas the self-monitoring reports indicate only ten pH violations during that time frame. This mistake may be attributable to the fact that the self-monitoring reports show twelve violations for that time frame in total, the additional two violations being turbidity violations. This error does not introduce sufficient ambiguity for this court to conclude reasonably that Kaiser could not determine the locations and dates of the pH violations. Moreover, this ambiguity in no way limited Kaiser's ability to resolve its conflict with United Anglers during the notice period. Compare Washington Trout, 45 F.3d at 1354 (because notice letter failed to reveal identity of eventual plaintiffs, resolution between parties during notice period was impossible).²

Accordingly, the court concludes that the notice letter sent by United Anglers provided Kaiser with sufficient information to identify the locations and dates of the alleged violations. Kaiser's motion to dismiss is therefore DENIED.

IT IS SO ORDERED.

1. The court takes judicial notice of the self-monitoring reports submitted by United Anglers in its request for judicial notice and the reports submitted by Kaiser as Exhibit B to its reply brief.

2. Kaiser also argues that United Anglers' count of the pH violations is inflated because it includes alleged violations that occurred at control sites set up to monitor the condition of the receiving waters ("C" stations) as well as those occurring at stations monitoring effluent from Kaiser's wastewater discharges ("E" stations). Two of the ten violations reported for the first three months of 1995 occurred at "C" stations. Whether or not increased pH levels measured at "C" stations are properly considered violations is a question to be raised when the merits of this action are reached. The notice letter unambiguously treats these incidents as violations following the precedent set by Kaiser's self-monitoring reports. There is no substantial question as to where or when these incidents occurred and thus no question as to whether United Anglers met the notice requirements as to these incidents.