The opinion of the court was delivered by: Breyer, U.S. District Judge.
ORDER REGARDING DEFENDANTS' MOTION TO DISMISS
The present dispute involves a wastewater treatment plant ("the
treatment plant" or simply "the plant") located in the unincorporated
community of Occidental in Sonoma County. The defendant Occidental County
Sanitation District ("OCSD") is the owner of the treatment plant; the
defendant Sonoma County Water Agency ("SCWA") operates the treatment
plant under a contract between the defendants. The plaintiff Friends of
Frederick Seig Grove #94 ("Friends")*fn1 is an unincorporated nonprofit
public interest group that contends that the defendants have violated the
Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., in their operation
of the treatment plant.
I. THE HISTORY OF THE TREATMENT PLANT
The treatment plant was originally constructed in the late 1950s and
serves approximately seventy customers, most of whom are individual
residents. The plant discharges treated wastewater pursuant to its
National Pollutant Discharge Elimination System permit (the "NPDES
permit"). The NPDES permit was issued by the California Regional Water
Quality Control Board, North Coast Region ("the Regional Board").
Since January 1997, the Regional Board has issued four enforcement
orders against OCSD and SCWA involving violations of the NPDES permit.
The Regional Board issued the first order on January 23, 1997 for
violations of the NPDES permit. That order, Cease and Desist Order
("CDO") No. 97-6, identified certain violations of the NPDES permit for
discharging treated effluent into local streams. CDO No. 97-6 also
directed the defendants to prepare a report detailing potential upgrades
to the treatment plant — such as improving the plant's storage
capacity — to prevent future violations. See Request for Judicial
Notice in Support of Motion ("RJN"), Sept. 27, 2000, Ex. 1, at 3.
The Regional Board issued the second and third orders on August 27,
1997, when the Regional Board replaced CDO No. 97-6 with CDO No. 97-74
and Time Schedule Order No. 97-75 (the "TSO"). CDO No. 97-74 requires
OCSD and SCWA to: (1) implement an interim solution to prevent the
discharge and other violations; (2) submit a report outlining long-term
solutions for the violations; (3) implement a "Capital Improvement Plan"
("CIP") to improve the treatment plant's facilities by: (a) developing
alternative plans, (b) presenting them to rate payers, (c) selecting a
plan, (d) obtaining the necessary California Environmental Quality Act
("CEQA") certification, (e) awarding a bid for the selected CIP, and (f)
completing construction on the treatment plant. See RJN, Ex. 2
(containing CDO No. 97-74), at 3-4. CDO No. 97-74 also provides that the
defendants must certify the CIP in accordance with the CEQA by January
1, 2000 and must complete the necessary construction by September 1,
2002. See id. The TSO establishes civil penalty assessment dates and
amounts in the event that OCSD and SCWA fail to satisfy the deadlines
outlined in the two orders. The TSO also notes, "It is anticipated that
the new [TSO] is likely to be violated." See RJN, Ex. 3 (containing the
TSO), ¶ 9.
Finally, on October 23, 1997, the Regional Board issued Administrative
Civil Liability Order No. 97-126 (the "ACLO"). Pursuant to section 13385
of the California Water Code, the ACLO imposed a $25,000 penalty on OCSD
and SCWA for violations of the NPDES permit from May 1993 to July 1997.
The order also assessed a $50,000 penalty to be suspended upon the
condition that the defendants certify a CIP that complies with the CEQA
by January 1, 2000. Similarly, the ACLO included another $50,000 penalty
to be suspended if the defendants complete construction of the CIP by
September 1, 2002. See RJN, Ex. 4 (containing the ACLO), at 7.
II. THE NCRW SUIT AGAINST THE DEFENDANTS
On August 12, 1997, the environmental group Northern California River
Watch ("NCRW") filed a complaint against OCSD and SCWA pursuant to the
citizen suit provisions of the CWA. See No. C 97-2962 CRB ("the NCRW
suit"). The complaint, filed in federal court, sought civil penalties and
injunctive and declaratory relief for violations of the NPDES permit from
May 1993 to July 1997.
On January 30, 1998, this Court dismissed the civil penalty claim in
the complaint as barred pursuant to 33 U.S.C. § 1319 (g)(6)(A)(ii),
which precludes civil penalties when a state diligently prosecutes
environmental violations. The Court declined, however, to dismiss NCRW's
request for injunctive and declaratory relief
NCRW then filed a first amended complaint against the defendants for
violations of the NPDES permit since July 1997. On October 6, 1998,
NCRW, OCSD, and SCWA entered into a settlement agreement resolving the
claims in the NCRW suit. The agreement acknowledges that the defendants
have begun an environmental review process to remedy future violations of
the NPDES permit. The settlement also prohibits NCRW from suing the
defendants for environmental violations that occurred either before the
execution of the agreement or for two years afterwards.*fn2
III. THE PROCEDURAL POSTURE OF THE PRESENT SUIT
On March 15, 2000, the defendants received a letter from an attorney
representing "Frederick Seig Grove #94 of the United Ancient Order of
Druids (`the Druids')." RJN, Ex. 9 ("March 15 notice"), at 1. The letter
provided notice that the Druids intended to file suit against OCSD and
SCWA under the CWA for the violations identified in the Regional Board's
orders. See id.
On April 11, 2000, the defendants received an amended notice of
violations and intent to file suit, this time from the plaintiff "Friends
of Frederick Seig Grove #94 (`Friends')." RJN, Ex. 10 ("April 11
notice"), at 1. Except for the change in the identity of the
plaintiff,*fn3 the amended notice was identical to the original notice
received by the defendants on March 15, 2000.*fn4 For the purposes of
this Order, the Court will regard the April 11 notice as the effective
In its April 11 notice, the plaintiff informed the defendants that it
believed that OCSD and SCWA had violated the NPDES permit "on numerous
separate occasions from January 1, 1995 to the date of this notice and
that those violations are continuing." Id. at 2. The April 11 notice
observed that the violations of the NPDES permit "are evidenced in
[OCSD's] self monitoring data" submitted to the Regional Board. Id.; see
id. at 4 ("The enumerated violations are based upon review of monitoring
data submitted by [OCSD] to the Regional Board."); id. (indicating that
the notice also covered "any and all violations which may have occurred
but for which data may not have been available or submitted or apparent
from the face of the report or data submitted by [OCSD] to the Regional
Board."). The April 11 notice listed 326 violations of the provisions of
the NPDES permit, but it failed to specifically identify the dates on
which any of the alleged violations occurred.
On June 26, 2000, Friends filed the instant action, a citizen suit
under the CWA, alleging violations of the defendants' NPDES permit. The
complaint incorporates by reference the violations outlined in the March
15 and April 11 letters and information contained in the NPDES permit.
The defendants have moved pursuant to Federal Rule of Civil Procedure
12(b) to dismiss Friends' complaint on three grounds: (1) the Court
lacks subject matter jurisdiction because the plaintiff's sixty-day
notice was deficient; (2) the Court lacks subject matter jurisdiction
because the plaintiff's action is barred due to prior, continuing
enforcement actions; and (3) the plaintiff has failed to state a claim
for injunctive relief.
The defendants have identified their entire motion as based on Rule 12
(b)(6). However, the notice provision and the civil penalty bar limit
this Court's subject matter jurisdiction, so those elements of the
defendants' motion are more properly considered as Rule 12(b)(1) motions
to dismiss for lack of subject matter jurisdiction. The defendants' third
argument — that the plaintiff's request for injunctive relief fails
to state a claim — is appropriately ...