Paolino v. JF Realty, LLC
710 F.3d 31
| 1st Cir. | 2013Background
- Plaintiffs Paolino and Issa allege ongoing CWA violations at a Rhode Island salvage yard operated by defendants including JF Realty and Ferreira parties.
- Plaintiffs filed the citizen-suit in district court after sending a pre-suit notice more than sixty days before filing.
- Notice attaches a 15-page report and describes discharges from an Intermittent Stream draining pollutants to Curran Brook and ultimately the Robin Hollow Reservoir.
- Defendants challenged the sufficiency of the pre-suit notice, service on Yabroudy, and the need to mail copies of the complaint to EPA and the U.S. Attorney General.
- The district court dismissed the case with prejudice for lack of subject matter jurisdiction based on notice deficiencies.
- On appeal, the First Circuit reverses in part, holding the notice was sufficiently informative to permit remediation for discharge violations and invalid RIPDES permit issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the pre-suit notice sufficiently specific under 40 C.F.R. § 135.3(a)? | Paolino argues notice placed defendants in position to identify standards and violations. | Defendants argue notice failed to identify the specific standard violated. | Notice adequate to permit remediation; not required to name every standard. |
| Does the notice identify the activity and responsible parties adequately? | Notice explains mechanisms of discharge and assigns responsibility through DEM references. | Not sufficiently ties each violation to specific actors for each date. | Notice sufficiently identifies activities and responsible parties. |
| Was service of notice on Yabroudy defective under 40 C.F.R. § 135.2? | Notice was mailed to all defendants; Yabroudy’s address dispute is immaterial if reasonable. | Delivery to Yabroudy’s listed address failed; service defective. | Service as to Yabroudy deficient; claims against Yabroudy dismissed. |
| Must pre-suit notice include mailings of the complaint to EPA, Regional Administrator, and U.S. Attorney General under § 135.4? | § 135.4 requires copies of complaint; district court did not consider as independent basis. | Compliance with § 135.4 is required for jurisdictional purposes. | Court preserves remand for further proceedings; no definitive ruling on this independent ground here. |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (U.S. 1988) (pre-suit notice serves agency enforcement and compliance purposes)
- Valentin v. Hosp. Bella Vista, 254 F.3d 358 (1st Cir. 2001) (notice sufficiency standard; burden on plaintiffs to show notice in context)
- Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001) (notice must provide enough detail to inform violator of requested remediation)
- Waterkeepers N. Cal. v. A.G. Indus. Mfg., Inc., 375 F.3d 913 (9th Cir. 2004) (continuing discharges may be described with selective dates if enabling remediation)
- BayKeeper v. Atlantic States Legal Found., Inc., 309 F.3d 1158 (9th Cir. 2002) (notice must be sufficiently specific to inform accused party how to fix problem)
- Hercules, Inc. v. City of New York, 50 F.3d 123 (3d Cir. 1995) (notice need not describe every detail; reasonable specificity suffices)