Public Interest v. Hercules

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-31-1995
Public Interest v Hercules
Precedential or Non-Precedential:
Docket 93-5720
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Recommended Citation
"Public Interest v Hercules" (1995). 1995 Decisions. Paper 90.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-5720 and 93-5721
PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC.,
FRIENDS OF THE EARTH
Appellants in No. 93-5721
v.
HERCULES, INC.
Appellant in No. 93-5720
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 89-cv-02291)
Argued: July 11, 1994
Before: SLOVITER, Chief Judge, ROTH, Circuit Judge,
and POLLAK, District Judge1
(Opinion Filed March 31, 1995)
Carolyn S. Pravlik, Esquire
Bruce J. Terris, Esquire (Argued)
Terris, Pravlik & Wagner
1121 12th Street, N.W.
Washington, D.C. 20005-4632
Attorneys for Appellants in No. 93-5721
1Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Joel Schneider, Esquire (Argued)
Manta & Welge
2005 Market Street
One Commerce Square, 37th Floor
Philadelphia, PA 19103
Attorney for Appellant in No. 93-5720
David A. Nicholas, Esquire
Charles C. Caldart, Esquire
National Environmental Law Center
29 Temple Place
Boston, MA
Attorneys for California Public Interest Research Group,
Massachusetts Public Interest Research Group, Public
Interest Research Group of Michigan, Illinois Public
Interest Research Group, Ohio Public Interest Research
Group and Washington Public Interest Research Group,
Amicus Curiae in No. 93-5721
Marianne Dugan, Esquire
Michael Axline, Esquire
Western Environmental Law Center, Inc.
44 West Broadway, Suite 200
Eugene, OR 97402
Mark Van Putten, Esquire
National Wildlife Federation
Great Lakes Natural Resource Center
506 E. Liberty, Second Floor
Ann Arbor, MI 48104-2210
Charles M. Tebbutt, Esquire
Allen, Lippes & Shonn
1260 Delaware Avenue
Buffalo, NY 14209-2498
Daniel Cooper, Esquire
San Francisco Baykeeper
468 Duboce
San Francisco, CA 94117
Attorneys for Atlantic States Legal Foundation,
San Francisco Baykeeper, and National Wildlife Federation,
Amicus Curiae in No. 93-5721
Lois J. Schiffer
Acting Assistant Attorney General
Ellen J.Durkee, Esquire
Evelyn S. Ying, Esquire
Department of Justice Environment
& Natural Resources Division
Washington, D.C. 20530
Attorneys for the United States as Amicus Curiae
OPINION OF THE COURT
ROTH, Circuit Judge:
Plaintiffs, Public Interest Research Group of New
Jersey, Inc., (NJPIRG) and Friends of the Earth, Inc., (FOE)
brought a citizen suit pursuant to the Federal Water Pollution
Control Act (Clean Water Act or Act), 86 Stat. 816, 33 U.S.C. §
1251 et seq., against defendant Hercules, Inc. Pursuant to the
Act, plaintiffs notified Hercules, the United States
Environmental Protection Agency (EPA), and the New Jersey
Department of Environmental Protection and Energy (NJDEPE) that
they intended to sue Hercules for alleged violations of its
federal and state permits, limiting effluent discharge from its
Gibbstown, New Jersey, facility.
Plaintiffs' notice letter claimed that Hercules
committed sixty-eight discharge violations from April 1985
through February 1989. A discharge violation involves the
release of a pollutant into receiving waters, which release
exceeds the quantity, discharge rate, or concentration of the
pollutant allowed by the permit. In accord with the citizen suit
provision of the Act, plaintiffs waited 60 days and then filed a
complaint in federal district court, alleging that Hercules had
violated its permit. Plaintiffs attached to the complaint a list
of eighty-seven discharge violations. This list omitted several
of the originally cited violations and included more than thirty
new ones. A majority of the new violations pre-dated the 60-day
notice letter; the remainder post-dated it.
Between the time plaintiffs filed their complaint and
moved for summary judgment, they supplemented the list of alleged
permit violations, committed by Hercules, to include a total of
114 discharge violations, 328 monitoring violations, 58 reporting
violations, and 228 recordkeeping violations. At no time prior
to plaintiffs' motion for summary judgment did plaintiffs supply
Hercules, EPA, or the State of New Jersey (State) with a new
notice letter pursuant to the Act. Hercules filed a cross-motion
for summary judgment, seeking to dismiss all violations not
listed in plaintiffs' notice letter. The violations Hercules
sought to dismiss included a majority of the discharge violations
and all of the monitoring, reporting and recordkeeping
violations.
The district court granted summary judgment for
Hercules as to all pre-complaint discharge violations not listed
in the notice letter and as to all monitoring, reporting and
recordkeeping violations. The court granted summary judgment for
plaintiffs as to forty-three discharge violations listed in the
notice letter and included in the complaint and as to seventeen
post-complaint discharge violations of the same type as those
included in the notice letter.
Both parties sought interlocutory review of the
district court's decision to grant summary judgment on certain
claims and to dismiss others; review was granted. For the
reasons stated below, we will affirm the decision of the district
court in part, we will reverse it in part, and we will remand
this case for further proceedings consistent with this opinion.
I.
The Clean Water Act makes it unlawful to discharge any
pollutant into the nation's waters except those discharges made
in compliance with the Act. 33 U.S.C. § 1311. In 1975, the
federal government issued a National Pollutant Discharge
Elimination System (NPDES) permit to Hercules. 33 U.S.C. § 1342.
This permit authorized Hercules to discharge certain pollutants
from its Gibbstown facility into the Delaware River (outfall 001)
and into Clonmell Creek (outfall 002) in strict compliance with
conditions specified in the permit. In addition to establishing
limits on effluent discharges, the permit required Hercules to
monitor its effluent and to submit reports of the results. 33
U.S.C. § 1342(a)(2). The Act requires that such reports, known
as Discharge Monitoring Reports (DMRs), be made available to the
public. 33 U.S.C. § 1318(b); 40 C.F.R. § 122.41 (j), (l).
The Clean Water Act allows each state to establish and
administer its own permit program, provided that the program
meets the requirements established under the Act and is approved
by the EPA. 33 U.S.C. § 1342(b). In 1982, the EPA authorized
New Jersey to administer a state permit program. After assuming
this responsibility, NJDEPE issued a modified Pollutant Discharge
Elimination System permit to Hercules for the Gibbstown facility
(NJPDES Permit No. NJ 0005134). This permit established
monitoring and reporting requirements similar to those of
Hercules' NPDES permit. 40 C.F.R. § 123.25. Under both federal
and state law, Hercules was required to make its DMRs available
to the public.
The NJPDES permit established the same two outfalls:
outfall 001 into the Delaware River and outfall 002 into Clonmell
Creek. The permit established discharge limits and monitoring
requirements for designated parameters at each outfall, with each
parameter defined as a particular attribute of a discharge.
Parameters under the Hercules permit included specific pollutants
(such as fecal coliform) and discharge characteristics or water
quality indicators (such as the color or pH value of the sample
or the biochemical oxygen content). The permit established
strict limits on these parameters, both as to the overall amount
of the pollutant and as to the concentration of the pollutant or
water quality.
The Clean Water Act provides that federal or state
authorities may take enforcement action against a permit holder
who fails to comply with specified permit conditions. 33 U.S.C.
§§ 1319 and 1342(b)(7). In addition, the Act provides that
private citizens may commence civil actions in certain situations
against a permit holder who fails to comply with the Act. 33
U.S.C. § 1365. If the citizen prevails, the court may order
injunctive relief and/or impose civil penalties which are payable
to the United States.
Following a review of Hercules' DMRs on file with the
federal government, NJPIRG notified Hercules, EPA, and the State
of its intent to file suit under the citizen suit provision of
the Act for Hercules' alleged violation of its permits.2
Plaintiffs' March 21, 1989, notice letter listed sixty-eight
discharges which plaintiffs claimed had occurred from April 1985
through February 1989 in violation of Hercules' permits.3
2
Plaintiff FOE joined in NJPIRG's March 21, 1989, notice
letter on March 29, 1989.
3
Plaintiffs' letter, which was addressed to Hercules' plant
manager, EPA and the State, stated as follows:
Section 505(b) of the Federal Water Pollution Control Act, 33
U.S.C. § 1365(b), requires that 60 days prior to the filing of a
citizen suit in federal district court under section 505(a) of
the Act, the alleged violator, the U.S. Environmental Protection
Agency, and the State in which the alleged violations occur must
be given notice of the alleged violations.
The Public Interest Research Group of New Jersey, Inc., 84
Paterson Street, New Brunswick, NJ 08901 [phone number] hereby
places you on notice, pursuant to Section 505(b) of the Act, 33
U.S.C. §1365(b), that it believes that your facility in
Gibbstown, New Jersey, has violated and continues to violate "an
effluent standard or limitation" under Section 505(a)(1)(A) of
the Act, 33 U.S.C. §1365(a)(1)(A), by failing to comply with
NPDES/NJPDES permit number NJ 0005134 in at least the instances
Plaintiffs' notice letter alleged that Hercules
violated its permit for the parameters of biological oxygen
demand, total residual chlorine, chemical oxygen demand, total
suspended solids, phenol, fecal coliform, and bioassay at outfall
001 and the parameters of pH, phenol, chemical oxygen demand, and
total suspended solids at outfall 002. The notice letter listed
permit violations only in the discharge of a particular
pollutant; it did not list any violations for the monitoring
required to track that pollutant or for the reporting or
recordkeeping which documented the monitoring. It is the
discharge violations, however, which are most easily
enumerated in the attached chronological list of permit
violations.
The attached list is based on available permit records on file
at the offices of EPA Region 2 in New York City. In some
instances, information was missing from the public files. We
therefore expect to request information from your records to
bridge these data gaps and to supplement the list of violations
based on that information. However, we do not believe that it is
necessary to provide you with additional notice concerning any
supplemental violations before filing a judicial enforcement
action.
We intend, at the close of the 60-day notice period or shortly
thereafter, to file a citizen suit under Section 505(a) of the
Act against your company for the violations at the Gibbstown
facility.
During the 60-day notice period, we would be willing to
discuss a settlement of the claims in this letter. However, if
you wish to pursue such negotiations in the absence of
litigation, we suggest that you initiate those discussions within
the next 10 days so that they may be completed before the end of
the 60-day notice period. We do not intend to delay the filing of
a complaint in federal court if discussions are continuing when
that period ends.
ascertainable from the information available to the public, i.e.,
the DMRs which Hercules must file.
Plaintiffs filed a citizen suit in federal district
court on May 24, 1989, shortly after the 60-day notice period had
expired. The complaint alleged eighty-seven discharge violations
which had occurred from April 1985 through March 1989. Among
these were more than thirty new violations which had not been
included in the notice letter; a majority of the new violations
pre-dated the notice letter, the remainder post-dated it.
Between the time of the 60-day notice letter on March
21, 1989, and the plaintiffs' final submission for purposes of
summary judgment on September 14, 1992, plaintiffs made numerous
modifications of their list of alleged violations through
"informal" amendments to their complaint. Plaintiffs added
discharge violations and for the first time alleged monitoring,
reporting and recordkeeping violations.4 The majority of
4
According to the record before us, plaintiffs provided the
district court with the following documentation of violations:
(1) 60-day notice letter, March 21, 1989 (listing 68 discharge
violations); (2) Complaint filed with district court, May 24,
1989 (listing 87 discharge violations and referencing three
apparent monitoring violations); (3) Plaintiffs' second set of
interrogatories, July 3, 1990 (listing 104 discharge violations);
(4) Plaintiffs' response to second set of documents requests,
January 15, 1991 (listing 110 discharge violations, 31 monitoring
violations, 17 reporting violations); (5) Plaintiffs' brief in
support of motion for summary judgment, February 15, 1991
(listing 130 discharge violations, 406 monitoring violations, 12
reporting violations); (6) Plaintiffs' reply brief in support of
motion for summary judgment, May 30, 1991 (listing 120 discharge
violations, 352 monitoring violations, 58 reporting violations);
(7) Plaintiffs' letter to district court clarifying for court
monitoring violations were instances when Hercules did not
analyze samples before the time limit specified in the permit for
holding samples had expired. Reporting violations consisted of
instances when Hercules erroneously reported the kind of sample
that was taken or when Hercules failed to report a discharge
violation. Recordkeeping violations involved paperwork and
clerical errors. Plaintiffs' final submission to the district
court alleged that Hercules had committed 114 discharge
violations, 328 monitoring violations, 58 reporting violations,
and 228 recordkeeping violations.5 Plaintiffs did not send a new
60-day letter, giving notice of these additional violations, nor
did plaintiffs formally amend their complaint to include them.6
alleged violations for purposes of summary judgment, September
14, 1992 (listing 114 discharge violations, 328 monitoring
violations, 58 reporting violations, 228 recordkeeping
violations).
5
Of the 114 discharge violations included in plaintiffs'
final list, 61 were not included in the original notice. A
substantial majority of the newly listed violations, 57 of the
61, involved the same parameter at the same outfall as the
violations included in the notice letter but occurred on
different dates. Of the other four, one involved the same
parameter (pH) but a different outfall, and the remaining three
involved new parameters (color and total dissolved solids) (items
48, 60, 79, and 112 on the plaintiffs' final list).
6
On April 7, 1993, subsequent to the district court's March
31, 1993, ruling, plaintiffs filed a new 60-day notice letter
citing the alleged monitoring, reporting and recordkeeping
violations dismissed by the court. On June 11, 1993, plaintiffs
filed a new complaint in district court which included the
violations listed in the new notice letter. On July 2, 1993,
plaintiffs filed another 60-day notice letter citing many of the
discharge violations dismissed by the court. This letter stated
that at the end of 60 days, plaintiffs intended to file a motion
Following receipt of the plaintiffs' original 60-day
notice letter, but prior to the district court's decision in this
matter, Hercules received a Notice of Civil Penalty Assessment
from the State for violations of its permit. In March 1991,
Hercules and the State executed an Administrative Consent Order
(ACO) under which Hercules agreed to pay the State $600,000 as a
penalty for 115 discharge violations of its permit which had
occurred between March 1985 and August 1990. All but two of the
discharge violations addressed in the ACO were included among the
discharge violations alleged by the plaintiffs in their final
submission to the district court. In other words, of the 115
discharge violations which served as the basis for the imposition
of the $600,000 penalty by the State, 113 were included in the
plaintiffs' final submission to the district court.7
A. District Court Opinion
Plaintiffs moved for partial summary judgment as to
liability and for permanent injunctive relief, enjoining Hercules
from future violations of the Clean Water Act. Hercules filed a
with the district court to amend their original complaint to
include these alleged discharge violations.
7
In addition to asserting in district court that plaintiffs'
notice letter failed to comply with the law, Hercules argued that
as a matter of equity the district court should not impose fines
for those discharge violations which were the subject of the
State penalty and, in the alternative, that as a matter of law
the fine already paid by Hercules was an adequate remedy. The
district court rejected these arguments. These questions are not
included as a part of the interlocutory appeal and we will not
address them.
cross-motion for summary judgment, asserting that plaintiffs had
failed to comply with the 60-day notice provision of the Act.
The district court examined the plaintiffs' 60-day
notice letter and compared it to the final list of alleged
violations submitted by plaintiffs. Finding that the notice
letter did not notify Hercules, the EPA, or the State of
plaintiffs' intent to sue for monitoring, reporting and
recordkeeping violations, the district court granted summary
judgment for Hercules on all of these violations. 830 F. Supp.
1525, 1534 (D.N.J. 1993) ("In sum, there has never been a
statutory notice letter in this case that alleged a specific
monitoring, reporting, or recordkeeping violation, so all of the
alleged monitoring, reporting, and recordkeeping violations must
be dismissed.").
The district court then placed the discharge violations
into three categories: (1) discharge violations included in both
the notice letter and the final list; (2) pre-complaint discharge
violations not included in the notice letter but included in the
final list; and (3) post-complaint discharge violations included
in the final list.8 Finding that plaintiffs had complied with
the Act's notice requirement for the violations in category one,
the district court denied Hercules' summary judgment motion
8
Of the 114 alleged discharge violations, 53 were in
category one, 44 were in category two, and 17 were in category
three.
regarding them. As for the violations in category two, the court
granted Hercules' summary judgment motion, holding that
plaintiffs had failed to comply with the Act's notice
requirement. Id. at 1534 ("those violations which in fact
occurred before the complaint was filed on May 24, 1989 cannot be
sued upon unless first noticed in compliance with 33 U.S.C. §
1365 and the accompanying regulations codified at 40 C.F.R. §
135.3"). With regard to category three, the court found no
statutory requirement that defendants first be notified by
plaintiffs of their intent to sue. It, therefore, granted
summary judgment for plaintiffs on these violations.
In support of its decision to distinguish between
category two violations and category three violations, the
district court, citing Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Foundation, Inc., 484 U.S. 49 (1987), wrote that:
"[S]ubsequently occurring violations not noticed in a citizen's
60-day notice letter were specifically contemplated -- indeed
required -- by the Supreme Court as a prerequisite to a district
court's jurisdiction over a citizen suit under the Clean Water
Act." 830 F. Supp. at 1534. The court held that such post-
complaint violations, being "the 'type of activity' (e.g.,
discharging pollutants in excess of permit limitations) as have
been alleged in the notice letter[,]" survived defendant's
summary judgment motion. Id. After reviewing the evidence on
violations in categories one and three, a total of 70 violations,
the court granted summary judgment (with respect to liability
only) in favor of plaintiffs on 60 of these.9
In sum, the district court held that, under the Act's
notice requirement, the plaintiffs could sue only for those
discharge violations that were included in their notice letter or
that occurred after the complaint was filed and were a
continuation of the same type of violation as contained in the
notice letter. The only issue remaining for trial would then be
a determination of the size of the penalty for the established
discharge violations.
B. District Court Order on Interlocutory Appeal
Following the district court's order granting in part
and denying in part the parties' motions for summary judgment,
plaintiffs sought entry of final judgment under Fed. R. Civ. Pro.
54(b) as to those claims dismissed by the court. 830 F. Supp.
1549, 1553 (D.N.J. 1993). In the alternative, plaintiffs sought
9
Of the total 114 discharge violations: Summary judgment
was granted in favor of plaintiffs on 60; 44 were dismissed on
the basis that no notice was provided by plaintiff; four were
dismissed on the basis that Hercules had established an "upset"
defense; and six were left for later judgment. Subsequent to the
district court's ruling, the parties entered into a stipulation
which permanently disposed of the latter 10 discharge violations.
830 F. Supp. 1549, 1552 n.4.
Of the 60 violations on which summary judgment was
granted for plaintiffs, 43 were included in the 60-day notice
letter, and 17 occurred after the complaint was filed. Of the 44
violations that were dismissed due to lack of notice, 23 occurred
before the 60-day notice letter was filed, and 21 occurred after
the notice was filed.
certification, for purposes of an interlocutory appeal, of the
court's interpretation of the Act's 60-day notice requirement.
28 U.S.C. § 1292(b) (establishing a district court's authority to
certify a controlling question of law for interlocutory appeal).
Defendants filed a cross-motion, seeking certification
under § 1292(b) on the question of whether the district court
erred in failing to dismiss the post-complaint discharge
violations. After considering and rejecting plaintiffs' motion
for final judgment as to the dismissed violations, the court
granted plaintiffs' motion and defendant's cross-motion for
certification of a question of law for interlocutory appeal. The
court certified the question of law as:
Whether this court correctly decided,
pursuant to section 505(b)(1) of the Clean
Water Act, as amended, 33 U.S.C. § 1365(b)(1)
and the accompanying regulations at 40 C.F.R.
§ 135.3, that where plaintiffs have given
notice of intent to sue for various discharge
violations but no other type of violation
(i.e., monitoring, reporting or
recordkeeping) this court's subject matter
jurisdiction includes the noticed violations
and any post-complaint continuing violations
of the same type as those for which notice
was given, but not unnoticed pre-complaint
violations, nor post-complaint violations of
a different type from those for which notice
was given.
Id. at 1560.
II.
The district court had jurisdiction over this citizen
suit pursuant to 33 U.S.C. § 1365. Following the district
court's order certifying a question of law for interlocutory
appeal, we granted both parties permission to appeal pursuant to
28 U.S.C. § 1292(b). Our review is limited to the question of
law raised in the district court's order, Dailey v. National
Hockey League, 987 F.2d 172, 175 (3d Cir.), cert. denied, 114 S.
Ct. 67 (1993), and our review is plenary. Louis W. Epstein
Family Partnership v. KMart Corp., 13 F.3d 762, 766 (3d Cir.
1994).
III.
The Clean Water Act authorizes a citizen (defined as a
person or persons having an interest which is or may be adversely
affected) to bring suit in federal court against any person who
is alleged to be in violation of "an effluent standard or
limitation" as defined in the Act or "an order issued by the
[EPA] Administrator or a State with respect to such a standard or
limitation." 33 U.S.C. § 1365(a)(1). In order to commence a
suit, a citizen must comply with § 1365(b), which states in part:
No action may be commenced -
(1) under subsection (a)(1) of this
section -
(A) prior to sixty days after
the plaintiff has given notice of
the alleged violation (i) to the
Administrator, (ii) to the State in
which the alleged violation occurs,
and (iii) to any alleged violator
of the standard, limitation, or
order.
33 U.S.C. § 1365(b).
In crafting the citizen suit provision, Congress sought
to "strike a balance between encouraging citizen enforcement of
environmental regulations and avoiding burdening the federal
courts with excessive numbers of citizen suits." Hallstrom v.
Tillamook County, 493 U.S. 20, 29 (1989) (analyzing the
legislative history of the citizen suit provision of the Clean
Air Amendments of 1970, which served as the precursor to
analogous citizen suit provisions in the Clean Water Act and the
Resource Conservation and Recovery Act of 1976). The Supreme
Court stated in Hallstrom:
Requiring citizens to comply with the notice
and delay requirements serves this
congressional goal in two ways. First,
notice allows Government agencies to take
responsibility for enforcing environmental
regulations, thus obviating the need for
citizen suits. See Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Foundation, Inc., 484
U.S. 49, 60 (1987) ("The bar on citizen suits
when governmental enforcement action is under
way suggests that the citizen suit is meant
to supplement rather than to supplant
governmental action"). In many cases, an
agency may be able to compel compliance
through administrative action, thus
eliminating the need for any access to the
courts. Second, notice gives the alleged
violator "an opportunity to bring itself into
complete compliance with the Act and thus
likewise render unnecessary a citizen suit."
Gwaltney, supra, at 60.
Id. (citation omitted). Either of these resolutions, as cited in
Hallstrom, whether by agency action compelling compliance or by
self-compliance on the part of the violator, will halt the
discharge of the pollutant -- the ultimate purpose of the Act.
If the violation continues, however, the citizen suit will be the
vehicle to achieve compliance.
With that purpose in mind for citizen suits, Congress
then delegated to the EPA the task of determining the form of the
notice letter. Subsection 1365(b) provides that "[n]otice under
this subsection shall be given in such manner as the [EPA]
Administrator shall prescribe by regulation." The legislative
history indicates that Congress sought here to strike a balance
between providing notice recipients with sufficient information
to identify the basis of the citizen's claim and not placing an
undue burden on the citizen.
[S]uch regulations should reflect simplicity,
clarity, and standardized form. The
regulations should not require notice that
places impossible or unnecessary burdens on
citizens but rather should be confined to
requiring information necessary to give a
clear indication of the citizens' intent.
These regulations might require information
regarding the identity and location of the
alleged polluter, a brief description of the
activity alleged to be in violation, and the
provision of law alleged to be violated.
S. Rep. No. 92-414 at 80 (1971), 92d Cong. 1st Sess., reprinted
in 2 Legislative History of the Water Pollution Control Act
Amendments of 1972 at 1498 (1973) (hereinafter Leg. Hist.).10
Pursuant to the statutory directions, EPA drafted a
regulation, 40 C.F.R. § 135.3(a), which prescribed the contents
of a notice letter:
Violation of standard, limitation or order.
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.
10
The House Report accompanying the Clean Water Act
amendments noted that the regulations promulgated by the EPA
Administrator:
should be issued as soon as possible after
enactment of this legislation and, although
not placing unnecessary or impossible burdens
on complainants, should require information
regarding the identity and location of the
alleged polluter, a brief description of the
activity alleged to be in violation, [and]
the provision of law alleged to be violated.
H. R. Rep. No. 92-911 at 133 (1972), 92d Cong. 2d Sess.,
reprinted in 1 Leg. Hist. at 820.
In the present dispute, Hercules does not contend that
plaintiffs failed to send a 60-day notice letter. Rather,
Hercules asserts that plaintiffs' 60-day notice letter lacked the
specificity, required by the Act and its regulation, to put the
recipients of the letter on notice of the violations upon which
plaintiffs intended to sue. The district court agreed, holding
that plaintiffs' 60-day notice letter failed to satisfy the "more
specific, detailed requirements" of the regulation. 830 F. Supp.
at 1532. In making this assessment, the court stated, in the
words of the regulation, that except for the sixty-eight
discharge violations, plaintiffs'
notice letter fails to "identify the specific
standard, limitation or order alleged to have
been violated" -- which means the permit
requirement which has been violated. The
notice letter fails to identify "the activity
alleged to constitute a violation" -- such as
failure to test or report or keep adequate
records, for example. The notice letter was
also deficient as to unlisted violations by
not giving the "date or dates of such
violation," all as required in 40 C.F.R. §
135.3(a). Each of these provisions is a
component of statutory "notice of the alleged
violation" as a prerequisite to suit under §
[1365](b)(1) of the Act.
Id. The district court went on to find that the notice letter
was also deficient under the language of the statute:
That each of the violations alleged in
the Complaint must have been stated in the
sixty-day notice letter likewise is compelled
by the statute's plain language, because §
[1365(b)(1)] requires not just notice of an
alleged violation, but "notice of the
violation." (Emphasis added.) Congress could
not have chosen clearer language to express
the requirement that the Complaint will be
limited to the violations listed in the
sixty-day notice letter.
Id.
We disagree with the district court's reading of both
the statute and the regulation. Under the district court's
construction, the burden is placed on the citizen to identify not
only the specific standard, limitation, or order alleged to have
been violated but also the "activity," i.e., any aspect of
tracking and recording a pollutant discharge that may constitute
a violation. The district court also placed the burden on the
citizen to identify every pre-complaint date on which there was
an excess discharge of a designated pollutant.
While there is no doubt that such detailed information
is helpful to the recipient of a notice letter in identifying the
basis for the citizen suit, such specificity is not mandated by
the regulation. The regulation does not require that the citizen
identify every detail of a violation. Rather, it states that
"[n]otice regarding an alleged violation . . . shall include
sufficient information to permit the recipient to identify" the
components of an alleged violation. 40 C.F.R. § 135.3(a)
(emphasis added).
We read the regulation to require just what it says:
that the citizen provide enough information to enable the
recipient, i.e., Hercules, EPA and/or the State, to identify the
specific effluent discharge limitation which has been violated,
including the parameter violated, the date of the violation, the
outfall at which it occurred, and the person or persons involved.
In this regard, because a permit violation occurs
through an excess discharge of a pollutant into the water and
because compliance with a permit limitation is tracked through
monitoring, reporting and recordkeeping, we conclude that a
monitoring, reporting and recordkeeping violation, which is an
aspect of the permit requirement involved in a noticed discharge
violation, should be an element of that same overall episode.
Once the discharge violation is noticed, any subsequently
discovered monitoring, reporting or recordkeeping violation that
is directly related to the discharge violation may be included in
the citizen suit.
A general notice letter that fails sufficiently to
inform its recipients of the violations upon which a citizen
intends to bring suit will not conform to the Act's requirement.
However, the citizen is not required to list every specific
aspect or detail of every alleged violation. Nor is the citizen
required to describe every ramification of a violation. If an
excessive discharge is noticed and it is later discovered that
monitoring for that parameter at that outfall on that day was
also faulty, we conclude, pursuant to the language of the
regulation, that sufficient notice has been given of the
monitoring violation to include it in the suit. Similarly, if a
violation of monitoring for a specific parameter is noticed and
it is later discovered that a discharge violation of that
parameter also occurred at that outfall on that day, we find that
sufficient notice has been given of the discharge violation to
include it in the suit. We come to this determination because,
in investigating one aspect of a parameter violation, such as a
discharge, the other aspects of that violation, for instance
monitoring, reporting, and recordkeeping requirements for that
parameter, will of necessity come under scrutiny. We find that
notice of one facet of an effluent infraction is sufficient to
permit the recipient of the notice to identify other violations
arising from the same episode.
Moreover, unlike the district court, we do not read §
1365 to compel a finding that a citizen must give notice to
recipients of each individual violation of a specific discharge
limitation. For example, if a permit holder has discharged
pollutant "x" in excess of the permitted effluent limit five
times in a month but the citizen has learned only of four
violations, the citizen will give notice of the four violations
of which the citizen then has knowledge but should be able to
include the fifth violation in the suit when it is discovered.
Whether the agency or the permit holder is informed of four or
five excess discharges of pollutant "x" will probably make no
difference in a decision to bring about compliance. If the
agency or the permit holder decides, however, not to comply,
there seems to be nothing gained by requiring the citizen to file
a new notice letter in order to include a fifth violation in the
suit. A literal reading of the statute requires that the citizen
identify discharges in excess of the effluent limit, but not
necessarily each individual excess.
Hercules contends, however, that notice of each
individual violation is necessary in order for the recipients of
the notice to evaluate the extent of the citizen's claim.
Hercules suggests, for example, that whereas the EPA or the State
might not pursue an enforcement action against an alleged
violator with a small number of individual violations, the
government would be more likely to act if each individual
violation were included in the notice. Similarly, the larger the
number of cited violations, the greater incentive for the permit
holder to try to comply.
Hercules' argument ignores the fact that both the
federal and state government enforcement agencies have access to
the DMRs. Both the Clean Water Act and the New Jersey permit
program require that a permittee file DMRs with the EPA and the
NJDEPE. The DMRs filed by Hercules list the discharge
violations. Once a notice letter from a citizen has been
received, the EPA and the State can, with relative ease, check
for other discharge violations of the same type. Moreover, as
the author of the DMRs, Hercules is surely on notice of the
contents of the reports and of the frequency of similar
violations.
The district court and Hercules also place great
reliance on Hallstrom for their interpretation of the statute and
regulation. The Supreme Court held in Hallstrom that "the notice
and 60-day delay requirements are mandatory conditions precedent
to commencing suit under the RCRA [Resource Conservation and
Recovery Act of 1976] citizen suit provision; a district court
may not disregard these requirements at its discretion." 493
U.S. at 31. Hercules and the district court would have us read
Hallstrom broadly, extending the Supreme Court's interpretation
of the notice and 60-day delay requirements to a ruling on the
contents of a notice.
We decline to apply Hallstrom so broadly. The Supreme
Court's focus in Hallstrom was on the timing of the notice, not
on its contents. First, while the literal reading of the statute
clearly compels the Court's interpretation of the 60-day delay
requirement, there is no express requirement in the statute
pertaining to the content of a notice letter. In fact, as we
have noted, Congress delegated to the EPA the authority to
determine the necessary contents of a notice letter.
Second, the Court in Hallstrom saw no need even to
refer to the regulation. The dispute there involved whether
notice and delay were preconditions to suit, not whether the
extent of the notice was adequate. See also Dague v. City of
Burlington, 935 F.2d 1343, 1352 (2d Cir. 1991) ("the city argues
that the plaintiffs' notice did not comply with the content
requirements of the statutory and regulatory notice provisions,
thus mandating dismissal under Hallstrom. In the first place,
Hallstrom did not address such technical criteria"), rev'd, in
part, on other grounds, 112 S. Ct. 2638 (1992).
This conclusion does not mean, however, that Hallstrom
is not helpful in our analysis of the notice requirement. In
deciding whether the plaintiffs here complied with the content
requirements established under the regulation, we must consider
whether their notice letter served the purpose that Congress
intended: To provide the recipient with effective, as well as
timely, notice. Hallstrom's analysis of Congress' intent in
crafting the citizen suit provision, see supra page
[typescript 17-18], makes clear that not only is the 60-day
notice before filing suit "a mandatory, not optional, condition
precedent for suit," 493 U.S. at 26, but also that the content of
the notice must be adequate for the recipients of the notice to
identify the basis for the citizen's complaint.
The ultimate goal of a citizen suit is to bring the
alleged violator into compliance with the nation's environmental
laws. This can be achieved through citizen enforcement efforts,
government enforcement efforts, or self-enforcement efforts. In
this regard, the Senate Report noted: "[t]he Committee intends
the great volume of enforcement actions be brought by the State
[rather than the federal government]. . . . It should be noted
that if the Federal, State, and local agencies fail to exercise
their enforcement responsibility, the public is provided the
right to seek vigorous enforcement action under the citizen suit
provisions." S. Rep. No. 92-414 at 64, 2 Leg. Hist. at 1482.
Moreover, we note the Supreme Court's statement in
Gwaltney that "[t]he bar on citizen suits when governmental
enforcement action is under way suggests that the citizen suit is
meant to supplement rather than to supplant governmental action."
484 U.S. at 60. In deciding whether to initiate an enforcement
action, the EPA and the state must be provided with enough
information to enable them intelligently to decide whether to do
so. At the same time, the alleged violator must be provided with
enough information to be able to bring itself into compliance.
We will judge the sufficiency of the plaintiffs' 60-day notice
letter in terms of whether it accomplishes these purposes.
IV.
Applying these legal precepts to the present dispute,
we will analyze the violations in following order: (A) pre-
complaint discharge violations, (B) post-complaint discharge
violations, and (C) monitoring, reporting and recordkeeping
violations.11
11
The district court's certification for this interlocutory
appeal did not request review of its decision to grant summary
judgment for plaintiffs as to those discharge violations included
in the both the notice letter and plaintiffs' final list. We
A. Pre-Complaint Discharge Violations
The district court held that pre-complaint discharge
violations not included in plaintiffs' notice letter cannot be
included in the suit unless listed in a subsequent notice. For
this reason, the district court granted defendant's summary
judgment motion as to forty-four pre-complaint discharge
violations.12 We do not agree.
For the reasons stated in Part III, supra, we hold that
a notice letter which includes a list of discharge violations, by
parameter, provides sufficient information for the recipients of
the notice to identify violations of the same type (same
parameter, same outfall) occurring during and after the period
covered by the notice letter.
The facts of this dispute support this holding. Less
than two months after receiving the plaintiffs' 60-day notice
letter, the State filed a Notice of Civil Penalty Assessment
against Hercules for discharge violations of the permit.
Although many of the sixty individual violations included in the
State's initial list were exactly the same violation as included
in the plaintiff's 60-day notice letter, there were several that
were not on the plaintiffs' list. Some of these additional
do not therefore address this aspect of the district court's
opinion.
12
This includes 23 pre-notice discharge violations and 21
post-notice discharge violations.
violations occurred in months during which plaintiffs did not
identify any discharge violation. We infer from this comparison
that the State examined Hercules' DMRs on file to achieve a more
comprehensive list of discharge violations. Almost two years
later, in March 1991, Hercules and the State executed an ACO
under which Hercules agreed to pay the State $600,000 as a
penalty for 115 discharge violations of its permit. The fact
that the State's list of Hercules' discharge violations grew from
60 to 115 in the final ACO demonstrates that once the State
received the citizen letter noting that Hercules was violating
its permit, the State committed resources to monitoring Hercules'
compliance and, in particular, to monitoring Hercules' compliance
with the noticed parameters.
We hold, therefore, that the district court erred in
granting Hercules' summary judgment motion as to the forty-four
pre-complaint discharge violations not included in plaintiffs'
notice letter. We will remand this case to the district court to
reinstate those alleged violations which are of the same type
(same parameter, same outfall) as the alleged violations included
in the plaintiffs' 60-day notice letter.13
B. Post-Complaint Discharge Violations
13
The district court did not indicate why it grouped post-
notice/pre-complaint violations with the pre-notice violations
rather than with the post-complaint violations. Under the rule
we establish here, however, that distinction is not significant.
Finding that the post-complaint discharge violations
included in the plaintiffs' list were a continuation of the type
of activity alleged in the notice letter and finding no legal
requirement that Hercules first be notified by plaintiffs of
their intention to sue upon these violations, the district court
held that these violations survived defendant's summary judgment
motion.
For the most part, we agree with the district court.
We hold that as long as a post-complaint discharge violation is
of the same type as a violation included in the notice letter
(same parameter, same outfall), no new 60-day notice letter is
necessary to include these violations in the suit. In so
holding, we do not in effect distinguish between pre-complaint
violations and post-complaint violations.
Hercules disagrees, arguing that recipients of the
notice letter may be more likely to act (i.e., the government may
initiate enforcement action; the permit holder may attempt to
remedy the violation) if a citizen is required to file a new
notice for post-complaint violations. While it is true that the
recipients may be more likely to take action as the number of
violations increases, we do not find that this justifies a
requirement that a new notice must be given for post-complaint
violations before commencing a suit which will include these
violations.
Rather, we find that the recipients of the notice are
already on notice of violations of the same type, whether past or
continuing. As recipients of the permittee's DMRs, the federal
and state enforcement agencies have the ability to review the
permittee's compliance. The federal and state enforcement
agencies are on notice of continuing or intermittent violations
of the same type because they are reported to them in the DMRs.
Likewise, the permit holder is on notice of continuing or
intermittent violations, given the fact that the permit holder is
responsible for filing the DMRs.
The district court denied Hercules' summary judgment
motion as to all seventeen post-complaint discharge violations.
A review of these seventeen discharge violations reveals that all
but one involved the same type of violations as those noticed in
plaintiffs' 60-day notice letter. In other words, sixteen of the
seventeen post-complaint discharge violations involved the same
parameter and the same outfall as discharge violations included
in the notice letter. We will affirm the district court's
decision as to these sixteen post-complaint discharge violations.
As for the seventeenth violation, item 112 on plaintiffs' final
list, involving the parameter of total dissolved solids, we will
remand this violation to the district court for a determination
whether, under the standard outlined above, this violation was
sufficiently related to the noticed violations for Hercules to be
able to identify it from the notice letter.
We have found implicit support for this conclusion
regarding post-complaint violations in the Supreme Court's
decision in Gwaltney. There, the Court held that federal courts
do not have jurisdiction over a citizen suit for "wholly past
violations." 484 U.S. at 64. Rather, jurisdiction exists "when
the citizen-plaintiffs make a good-faith allegation of continuous
or intermittent violation." Id. In reaching this decision, the
Supreme Court noted that "the harm sought to be addressed by the
citizen suit lies in the present or the future, not in the past."
Id. at 59.
Gwaltney requires that for jurisdiction to attach, a
citizen must make a good-faith allegation of a continuous or
intermittent violation by the defendant at the time the complaint
is filed. Because a citizen must delay filing suit for at least
60 days after notice has been sent, it is foreseeable that a
complaint will include allegations of more recent violations in
an effort to establish "continuous or intermittent violations."
We recognize that the 60-day notice provision in the
Act and the holding in Gwaltney represent "two separate
jurisdictional requirements for bringing a citizen suit." United
States' Br. as Amicus Curiae at 17. The Act requires that
citizens provide a 60-day notice of intent to file suit.
Gwaltney requires that a citizen's complaint contain a good-faith
allegation of continuous or intermittent violation. The dispute
here involves the first jurisdictional prerequisite -- the
adequacy of the notice letter. Nevertheless, the basis for the
Supreme Court's decision in Gwaltney is helpful to our analysis.
Continuing or intermittent violations of the same type are
necessary to create jurisdiction of the citizen suit. They are
perforce related to the noticed violations. For this reason,
they should be easily identifiable by the notice recipient and,
therefore, do not need to be noticed in a new 60-day letter.
C. Monitoring, Reporting and Recordkeeping Violations
Finding that the plaintiffs' 60-day notice letter did
not notify Hercules, EPA, or the State of plaintiffs' intent to
sue for alleged monitoring, reporting or recordkeeping
violations, the district court granted Hercules' motion for
summary judgment as to all of these alleged violations. We will
reverse this holding. As we set out in Part III, supra, we
conclude that, when a parameter violation has been noticed,
subsequently discovered, directly related violations of discharge
limitations or of monitoring, reporting, and recordkeeping
requirements for that same parameter at that outfall for that
same period may be included in the citizen suit.
Monitoring, reporting and recordkeeping requirements
are conditions of a permit. When plaintiffs noticed the
discharge violations, an investigation by Hercules, EPA, or the
State of those excess discharges should uncover related
violations of monitoring, reporting or recordkeeping involved in
tracking those pollutant parameters.14
Support for our conclusion can be found in the
legislative history of the citizen suit provision which makes
clear that notice serves the important functions of allowing
government agencies to take responsibility for enforcing
environmental regulations and giving the alleged violator an
opportunity to bring itself into complete compliance. The
concept of "complete compliance" should consist of the cessation
14
The close interrelationship of monitoring, reporting, and
recordkeeping with discharge limitations has been also been noted
by the Court of Appeals for the Fourth Circuit in Sierra Club v.
Simkins Industry, Inc., 847 F.2d 1109, 1115 (4th Cir. 1988),
cert. denied, 491 U.S. 904 (1992):
[Defendant] was bound by the reporting and
records retention requirements of the NPDES
permit that are central to adequate
administration and enforcement of limits on
substantive discharges under the Clean Water
Act. Unless a permit holder monitors as
required by the permit, it will be difficult
if not impossible for state and federal
officials charged with enforcement of the
Clean Water Act to know whether or not the
permit holder is discharging effluents in
excess of the permit's maximum levels.
of the offending discharge, with on-going discharges being
monitored and recorded in accordance with the permit provisions.
All these functions interact to ensure the permit holder's
compliance with the permit conditions. The proper performance of
each function is required under the permit provisions and a
violation of any one may subject the permit holder to a penalty.
The burden on the citizen, however, is to provide
sufficient information of a violation, such as an excessive
discharge, so that the permit holder and the agency can identify
it. If investigation of that discharge by the agency or the
permit holder uncovers directly related monitoring, reporting, or
recordkeeping violations, "complete compliance" should
incorporate the correction of all such interconnected violations.
If the agency or the permit holder fails to achieve "complete
compliance," the citizen should be able in the citizen suit to
seek "complete compliance," eliminating all directly related
violations, without the burden of further notice. Correction of
an excessive discharge without correction of faulty monitoring of
that parameter is not complete compliance. Correction of faulty
monitoring without correction of incomplete reporting of that
parameter is not complete compliance.
If, however, we were to interpret the Act in the manner
proposed by Hercules, with each of these functions, monitoring,
reporting, and recordkeeping, being subject to separate notice
prior to that violation being included in a suit, we might find
the permit holder claiming "complete compliance" when only one
aspect of these interrelated violations had been corrected. We
conclude that this latter result is not what Congress intended by
"complete compliance."
We will reverse the district court's grant of summary
judgment to Hercules on the monitoring, reporting, and
recordkeeping violations, and we will remand that portion of the
case to the district court to determine which of these violations
are directly related to the discharge violations in suit and
which are not. Those that are not directly related should be
dismissed unless, in the interim, plaintiffs move to amend their
complaint to include them in this action or move to consolidate
this action with the subsequent action plaintiffs filed on June
11, 1993.15
V.
In sum, we will reverse the district court's decision
to dismiss for lack of jurisdiction the forty-four pre-complaint
discharge violations. On remand, the district court should
reinstate those discharge violations which are of the same type
15
As we note in footnote 6, on April 7, 1993, plaintiffs
filed a new 60-day letter, citing the monitoring, reporting, and
recordkeeping violations and filed a new complaint including
them. Thus, no further notice need be given by plaintiffs before
amending their original complaint to incorporate any of these
violations -- or, if they prefer, moving to consolidate the two
complaints.
(same parameter, same outfall, same time period) as the discharge
violations included in the plaintiffs' 60-day notice letter. We
will affirm the district court's decision to deny defendant's
summary judgment motion as to those post-complaint discharge
violations involving the same parameter and same outfall as the
discharge violations included in the notice letter. Lastly, we
will reverse the district court's decision to dismiss the
monitoring, reporting and recordkeeping violations and remand
consideration of these violations to the district court for
further proceedings consistent with this opinion.