Waterkeepers Northern California, a Non-Profit Corporation Dba Deltakeeper Bill Jennings v. Ag Industrial Manufacturing Inc. Claude E. Brown, Waterkeepers Northern California, a Non-Profit Corporation Dba Deltakeeper Bill Jennings v. Ag Industrial Manufacturing Inc. Claude E. BrownWaterkeepers Northern California, a Non-Profit Corporation Dba Deltakeeper Bill Jennings v. Ag Industrial Manufacturing Inc. Claude E. Brown, Waterkeepers Northern California, a Non-Profit Corporation Dba Deltakeeper Bill Jennings v. Ag Industrial Manufacturing Inc. Claude E. Brown
Dennis M. Hauser, Hauser & Mouzes, Woodbridge, CA, for the defendants-appellees.
Dennis M. Hauser, Hauser & Mouzes, Woodbridge, CA, for the defendants-appellants.
Robert S. Perlmutter and Erin Ryan, Shute, Mihaly & Weinberger LLP, Andrew L. Packard, and Leo O‘Brien and Shana Lazerow, WaterKeepers Northern California, San Francisco, CA, for the plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of California; Morrison C. England, District Judge, Presiding. D.C. No. CV-00-01967-MCE(PAN).
Before: B. FLETCHER, REINHARDT, Circuit Judges, and RESTANI, Chief IT Judge.*
BETTY B. FLETCHER, Circuit Judge.
I.
WaterKeepers Northern California is a non-profit corporation dedicated to protecting wildlife and preserving natural resources in the Sаn Francisco Bay and the Sacramento-San Joaquin Delta (“the Delta“). Bill Jennings is the director of DeltaKeeper, a WaterKeepers Northern California project focused specifically on the Delta. AG Industrial Manufacturing is a California company that produces farm machinery and equipment for the wine grape industry. The company was formed in 1980 and now employs approximately forty people at its Lodi facility. Claude E. Brown is the company‘s CEO and оne of its two shareholders.
On June 28, 2000, WaterKeepers sent AG Industrial notice of its intent to sue for violations of the Clean Water Act (“the Act“). More than sixty days later, WaterKeepers filed this suit, alleging numerous continuing or recurring violations of the Act at AG Industrial‘s Lodi facility. The parties briefed the merits of WaterKeepers’ claims in the district court, and each side submitted a motion for summary judgment. Without reaching the merits, however, the district court concluded that the suit had to be dismissed because WaterKeepers’ intent-to-sue letter provided insufficient notice of its claims. In a second order, the district court denied AG Industrial‘s motion for prevailing party attorney‘s fees. Although the district court found AG Industrial to be a prevailing party, it declined to award fees because it could not say that WaterKeepers’ claims were “frivolous, unreasonable, or without foundation.” See Razore v. Tulalip Tribes, 66 F.3d 236, 240 (9th Cir.1995) (adopting this standard for attorney‘s fees motions under the Clean Water Act).
We address the notice lettеr and attorney‘s fees issues in turn, but we begin with an explanation of the relevant statutory and regulatory background.
II.
Congress enacted the Clean Water Act in 1972 in order to “restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
The parties to this case agree that AG Industrial falls within an industrial classification under the Act and General Permit for which no specific pollutant effluent limitations have been set. Nonetheless, California‘s General Permit requires AG Industrial to identify and implement “best management practices” (“BMPs“),1 id. at 4 ¶ B.3, and generally prohibits all non-storm water discharges, with a few exceptions for activities such as fire hydrant flushing and landscape watering. Id. at 3 ¶ A.1, 5 ¶ D.1. The Permit also requires dischargers to develop and implement an effective Storm Water Pollution Prevention Plan (“SWPPP“), id. at 11-23 ¶ A.1-A.10, and to dеvelop and implement a comprehensive monitoring and reporting program. Id. at 24-35 ¶¶ B.1-B.15.
Private citizens may sue under the Clean Water Act to enforce the specific provisions of California‘s General Permit.
III.
The Clean Water Act requires citizen plaintiffs to notify alleged violators of their intent to sue at least sixty days before filing a complaint.
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, ... [and] the date or dates of such violation.
“The key language in the notice regulation is the phrase `sufficient information to permit the recipient to identify’ the alleged violations and bring itself into compliance.” Cmty. Ass‘n for Rеstoration of the Env‘t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir.2002) [hereinafter Bosma Dairy]. Notice is sufficient if it is reasonably specific and if it gives “the accused company the opportunity to correct the problem.” San Francisco BayKeeper, 309 F.3d at 1158 (quoting Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir.1997)). Although the Act‘s notice requirement is “strictly construed,” Southwest Marine, 236 F.3d at 998, plaintiffs are not required to “list every specific aspect or detail of every alleged violation.” Bosma Dairy, 305 F.3d at 951 (quoting Pub. Interest Research Group v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir.1995)). We review the adequacy of pre-suit notice de novo. San Francisco BayKeeper, 309 F.3d at 1157.
WaterKeepers sent AG Industrial a ten-page notice letter that is significantly longer and more detailed than the notice letter we held sufficient in Southwest Marine, 236 F.3d at 1003-08. WaterKeepers’ letter describes the problem of storm water pollution in the Mokelumne River, which is a tributary to the San Joaquin River and the Delta. It specifically identifies pollutants associated with AG Industrial‘s operations; describes in detail the sources and practices that lead to the discharge of contaminated storm water from AG Industrial‘s site; and explains that non-storm water, contaminated by washing or hosing down dirty machinery or equipment, is flushed from AG Industrial‘s site into the storm sewеr system. The letter faults AG Industrial for failing to seek coverage under California‘s General Permit, and accuses AG Industrial of violating the Act by discharging contaminated storm water “during at least every rain event over 0.1 inches.” Two tables attached to the letter list daily rain accumulation at area sites. The letter also charges AG Industrial with violating the Act “on each and every date on which the facility discharged contaminated wash water.” The letter suggests solutions for AG Industrial‘s storm and non-storm water discharge problems, including grading, berming, roofing, structural controls to prevent the discharge of contaminated water, and a filtration system to treat contaminated water.
With respect to prevention and monitoring requirements, WaterKeepers’ letter states that AG Industrial has violated the General Permit by failing to develop and implement BMPs; by failing to implement an SWPPP; and by failing to implement a monitoring and reporting program. The letter describes these Permit requirements in detail and directs the reader‘s attention to the specific Permit sections that explain what is required.
B.
The district court ruled WaterKeepers’ notice letter inadequate solely on the basis of WaterKeepers’ allegation regarding storm-water discharges. The district court held that WaterKeepers did not provide enough specific information about the dates of alleged storm-water discharges. Having carefully reviewed WaterKeepers’ notice lettеr, we conclude that the district court‘s ruling on this point cannot be squared with our recent decision in San Francisco BayKeeper.
San Francisco BayKeeper alleged in its notice letter that defendant Tosco Corp. illegally discharged petroleum coke “on each day when the wind [was] sufficiently strong to blow coke” from piles at Tosco‘s facility into a nearby waterway. San Francisco BayKeeper, 309 F.3d at 1159. We held this notice sufficient, even though San Francisco BayKeeper “did not provide any specific dates” for thе alleged violations. Id. Here, WaterKeepers’ notice letter states that AG Industrial discharges contaminated storm water during “every rain event over 0.1 inches.” Because this allegation is as specific as San Francisco BayKeeper‘s, we hold that it is similarly sufficient.2
The district court found it significant that WaterKeepers’ expert, Steven Bond, testified at deposition that storm water will not always be discharged from AG Industrial‘s facility after a 0.1 inch rainfall; Bond stated that a 0.19 inch standard would be more accurate. This testimony may be relevant to the merits of WaterKeepers’ claims, but we do not agree with the district court that it is relevant to the adequacy of WaterKeepers’ notice letter. Regardless of whether WaterKeepers is able to prove each claimed discharge, its intent-to-sue letter put AG Industrial on notice as to the violations that WaterKeepers would allege in its complaint. The statute and regulation require no more. See
C.
AG Industrial offers four alternate grounds for affirming the district court‘s dismissal in whole or in part. First it argues that WaterKeepers’ intent-to-sue letter provided insufficient notice of the storm water standards, limitations, or orders allegedly violated. See
We are not persuaded. WaterKeepers’ notice letter lists various contaminants believed to be at AG Industrial‘s site, explains how they are exposed to rainfall, and points to the specific provisions of the General Permit allegedly violated.4 WaterKeepers’ notice letter was thus “sufficiently specific to inform [AG Industrial] about what it is doing wrong.”5 San Francisco BayKeeper, 309 F.3d at 1159 (quoting Southwest Marine, 236 F.3d at 996).
AG Industrial next challenges the sufficiency of WaterKeepers’ notice regarding non-storm water discharges. WaterKeepers’ intent-to-sue letter accuses AG Industrial of discharging contaminatеd non-storm water whenever it periodically washes down dirty areas of the facility or dirty machinery and equipment. “At these times,” according to the letter, “contaminants present in the area are carried off by the wash water and flushed into the storm sewer system.” WaterKeepers’ letter alleges violations of the Act “on each and every date on which [AG Industrial‘s] facility has discharged contaminated wash water.”
AG Industrial argues that the district court‘s dismissal may be affirmed with respect to WaterKeepers’ prevention, monitoring and reporting claims because AG Industrial has now cured all alleged violations. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57-64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (holding that citizen plaintiffs may not sue for “wholly past” violations of the Clean Water Act but must instead allege “continuous or intermittent” violations). AG Industrial contends that it has now filed a notice of intent to comply with the General Permit and that it prepared an SWPPP and a monitoring plan in July 2000, after receiving WaterKeepers’ notice letter but before WaterKeepers filed its complaint. WaterKeepers responds that AG Industrial‘s new management practices and prevention, monitoring and reporting plans are inadequate, ineffective and fail to meet the requirements of the General Permit.
We considered a similar situation and rejected an argument nearly identical to AG Industrial‘s in Southwest Marine:
If а defendant receives a proper notice letter alleging that it has failed to prepare and implement an adequate plan and, in response, prepares a new plan and begins to implement it before the complaint is filed, is the otherwise proper notice letter defective for failing to identify and discuss the new plan and its implementation? In those circumstances, must a citizen-plaintiff send a new notice letter? We think not. Subject matter jurisdiction is established by providing a notice that is adequate on the date it is given to the defendant.
Id. at 997 (considering “what, if any, effect Defendant‘s post-notice alterations of its plans and facilities had on the adequacy of the [plaintiffs‘] notice letter“). Following Southwest Marine, we hold that WaterKeepers was not required to send a second notice letter in order to pursue specific claims regarding the inadequacies of AG Industrial‘s post-notice compliance efforts. Id. (“Although we rеquire strict compliance with the [Act]‘s notice requirement, we do not require citizen-plaintiffs to refer to provisions of plans that do not exist.“).
Gwaltney held that citizen plaintiffs may not sue to remedy “wholly past” violations of the Clean Water Act; the Act confers jurisdiction only over citizen suits that allege continuous or intermittent violations.7 Id. at 56-63. Gwaltney did not hold, contrary to AG Industrial‘s suggestion, that citizen plaintiffs must prove a violation of the Act before jurisdiction attaches or that dismissal for lack of jurisdiction is the proper remedy for allegations that turn out not to have been made in good faith. Instead, the Supreme Court explained that an allegation is sufficient to confer jurisdiction and that
D.
Because it is clear under Supreme Court and Ninth Circuit precedent that the district court has jurisdiction over nearly all of WaterKeepers’ claims, wе cannot say that AG Industrial is a prevailing party entitled to attorney‘s fees under the Act. See Razore, 66 F.3d at 240 (explaining that a defendant is entitled to attorney‘s fees only if the plaintiff‘s claims were “frivolous, unreasonable, or without foundation“).
IV.
The district court must ultimately decide whether WaterKeepers’ evidence of continuous and ongoing violations is sufficient to survive summary judgment. On this appeal we hold only that the district court has jurisdiction to reach the merits of all but WaterKeepers’ industrial process water claim. Accordingly, we reverse the district court‘s dismissal in part, affirm as to WaterKeepers’ process water claim, affirm the district court‘s denial of attorney‘s fees, and remand so that the district court may reach the merits. We decline WaterKeepers’ invitation to sanction AG Industrial under either
Appellants are entitled to their costs.
REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.
Notes
Although no single source may be blamed for all of AG Industrial‘s allegedly contaminated discharges, the company‘s pollution problem is as easy to understand as Tosco‘s: AG Industrial‘s site is allegedly littered with contaminants, and those сontaminants are carried off the site when it rains. WaterKeepers’ notice letter clearly identifies the sources of AG Industrial‘s problem-debris, manufacturing materials and activities exposed to rainfall, and oil, grease and chemical stains throughout the facility. The letter also describes remedial steps AG Industrial could take.
As was the case in San Francisco BayKeeper, WaterKeepers provided notice “sufficiently specific to inform [AG Industrial] about what it is doing wrong.” 309 F.3d at 1159 (citation omitted).