Waste Action Project v. Fruhling Sand & Topsoil, Inc., 2:17-cv-00498

Background

Waste Action Project filed a citizen suit under Clean Water Act §505 alleging unauthorized pollutant discharges from Fruhling Sand & Topsoil’s asphalt/concrete facility in King County, WA.
Plaintiff sent a 60-day Notice of Intent to Sue on January 20, 2017; Defendant undertook corrective actions and delivered a Site Management Plan (SMP) during the notice period.
Plaintiff inspected the facility March 21, 2017 (shortly before filing the complaint) and alleged ongoing violations in an Amended Complaint (¶39).
Defendant submitted evidence that it achieved and has maintained compliance with its NPDES permit conditions after the Notice and at the time of filing.
The parties filed declarations and exhibits; Plaintiff’s declarations and counsel’s statements did not provide persuasive evidence of ongoing or likely-to-recur violations.
The Court concluded the action was moot for lack of an allegation or credible evidence of present or future violations and dismissed the complaint without prejudice for lack of subject-matter jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness — whether the suit alleges ongoing or reasonably likely future CWA violations	Plaintiff argues its on-site inspection and information support a good-faith belief of continuing or recurring violations	Defendant argues it became fully compliant during the 60-day notice period, remained compliant at filing, and that violations are not reasonably likely to recur	Court held the suit is moot: Plaintiff failed to present credible evidence of ongoing or reasonably likely future violations, so dismissal for lack of jurisdiction was required
Jurisdictional burden of proof on factual 12(b)(1) challenge	Plaintiff contends its pleadings and declarations suffice to establish jurisdictional facts	Defendant presented extrinsic evidence of compliance; when a factual attack is made, plaintiff must present counter-evidence	Court applied factual 12(b)(1) standards and found plaintiff did not meet its burden to show continuing violations
Sufficiency of Amended Complaint (12(b)(6))	Plaintiff contends amended allegations (¶39) plausibly allege continuing violations	Defendant contends ¶39 does not allege violations at the improved facility and fails to show ongoing noncompliance	Court did not reach 12(b)(6) merits because it dismissed for lack of jurisdiction as moot
Remedy and dismissal type	Plaintiff sought relief under §505 to remedy ongoing violations	Defendant sought dismissal as moot and for lack of standing/jurisdiction	Court dismissed without prejudice for lack of subject-matter jurisdiction due to mootness

Key Cases Cited

Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) (distinguishes facial vs. factual 12(b)(1) attacks)
Savage v. Glendale Union High Sch. Dist. No. 205, Maricopa Cty., 343 F.3d 1036 (9th Cir. 2003) (plaintiff must furnish evidence to establish jurisdiction when motion converted to factual attack)
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (party asserting federal jurisdiction bears the burden of proving it)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions need not be accepted as true on 12(b)(6))
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (citizen suits are limited to ongoing or reasonably likely future CWA violations; past violations alone are moot)
Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (purposes of the 60-day notice requirement)
Envtl. Def. Ctr., Inc. v. U.S. EPA, 344 F.3d 832 (9th Cir. 2003) (NPDES permits required for industrial stormwater discharges)
Ass’n to Protect Hammersley, Eld, and Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007 (9th Cir. 2002) (state administration of NPDES program)