the source of its information. On the other hand, a plaintiff is not
required to provide in the notice letter itself an exhaustive list of
each and every violation and the corresponding dates. Instead, a
plaintiff must do what the CWA regulation requires: provide enough
information for a defendant to identify the dates of claimed violations.
When the plaintiff has gathered the information supporting its suit from
the defendant's own submissions to the relevant state agencies and cites
those submissions in the notice letter, the plaintiff has satisfied the
notice requirement, and a district court possesses subject matter
jurisdiction over the case.
Here, although it is a close question, the Court has determined that
the Friends' notice was sufficient to comply with the CWA regulation. The
plaintiff indicated that the violations it identified were based on the
defendants' submissions to the Regional Board. The defendants therefore
had enough information to determine the precise dates of the alleged
violations; indeed, they possessed the very information they now claim to
lack. Under those circumstances, the plaintiff should not be forced to
list specific dates for all 326 violations identified in the notice.
While this Court agrees with the conclusion in California Sportfishing
that a plaintiff should not be permitted to simply allege a range of
dates, the plaintiff's notice here has done more than that by referring
to the defendants' self-monitoring data. To the extent the plaintiff's
notice does not refer to or rely on the defendants' submissions, the
notice is insufficient as to those unreported violations and shall not be
entertained by this Court. In other words, the plaintiff's suit will be
limited to the violations identified in the defendants' submissions to
the Regional Board.
The Court is mindful of the principles established in Hallstrom and
Washington Trout and recognizes that the citizen suit notice provision
must be interpreted and applied strictly. However, requiring a plaintiff
to specifically list all of the alleged violations and the precise dates
of each violation in a notice letter is inconsistent with the balance
Congress sought to strike between encouraging citizen enforcement of
environmental regulations and avoiding burdening the federal courts with
a flood of citizen suits. The enforcement, compliance, and settlement
functions promoted by the notice requirement are not advanced by such a
strict interpretation of the CWA notice regulation. Indeed, placing such
a burden on prospective plaintiffs would excessively undermine citizen
suits and discourage alleged violators from complying with the CWA or
entering into settlement discussions with plaintiffs. Moreover, limiting
the plaintiff's suit to reported violations listed in the defendants'
submissions to the Regional Board will preserve the enforcement function
of the notice provision, because the state will be able to determine from
those reports whether it has prosecuted the specific violations or not.
Accordingly, the defendants' Rule 12(b)(1) motion to dismiss for lack
of subject matter jurisdiction as to the citizen suit notice requirement
is DENIED IN PART as to the violations identified in the defendants'
submissions to the Regional Board because the plaintiff's notice provides
the defendants with sufficient information to identify the dates of those
reported violations. However, the defendants' motion is GRANTED IN PART
as to any other violations, because the plaintiff's notice does not
provide the defendants with enough information to identify the dates of
those unreported violations.
B. The Civil Penalty Bar
The defendants also assert that prior, continuing enforcement actions
bar the plaintiff's request for civil penalties and deprive this Court of
subject matter jurisdiction. Citizen suits brought under section 1365 of
the CWA may be barred by section 1319(g)(6)(A), which provides: "[A]ny
violation . . . (ii) with respect to
which a State has commenced and is diligently prosecuting an action under
a State law comparable to this subsection . . . shall not be the subject
of a civil penalty action" under section 1365. 33 U.S.C. § 1319
(g)(6)(A).*fn8 Thus, for civil penalties to be barred, the Regional
Board's enforcement actions against the defendants must be: (1) brought
under a state law comparable to the CWA; and (2) commenced and diligently
There is no question that the provision under which the Regional Board
fined the defendants is comparable to the CWA. In Citizens for a Better
Environment v. Union Oil Co., 83 F.3d 1111 (9th Cir. 1996) ("UNOCAL"),
the Ninth Circuit established that section 13385 of the California Water
Code is comparable to the CWA. See UNOCAL, 83 F.3d at 1116-17 ("It is
undisputed that the penalty provision in [section] 13385 of the
California Water Code is comparable to the federal [CWA] penalty
provision of 33 U.S.C. § 1319.").
It is also clear that the Regional Board has commenced an action
against the defendants for violations of the NPDES permit from May 1993
to July 1997 and is diligently prosecuting that action. Under Knee Deep,
a state is diligently prosecuting an action when a penalty has been
assessed under state law. See Knee Deep, 94 F.3d at 516 (noting that the
issuance of a cease and desist order by itself without a corresponding
penalty is insufficient to constitute diligent prosecution).
Here, the Regional Board has assessed and is continuing to assess
penalties under state law for violations from May 1993 to July 1997. CDO
No. 97-74 found that the defendants violated their NPDES permit. The TSO
established daily penalty provisions for failing to comply with a
remedial time line that runs through September 2002. The ACLO issued an
immediate $25,000 penalty and two contingent $50,000 penalties for the
defendants' anticipated failure to comply with that remedial schedule.
Through these three orders, then, the Regional Board has undoubtedly
engaged in diligent prosecution for violations from May 1993 to July
Indeed, the plaintiff does not seriously dispute that the ACLO bars
civil penalty actions for violations from May 1993 to July 1997. Friends
argues, however, that the ACLO was limited to violations during that
period and does not cover ongoing violations since July 1997. As a
result, the plaintiff claims, the Regional Board is not diligently
prosecuting violations of the NPDES permit since July 1997. In the
plaintiff's view, then, its suit is permissible to the extent that Friends
seeks civil penalties for violations after July 1997.
This presents a close question. On one hand, the ACLO does not
explicitly assess penalties for violations since July 1997. On the other
hand, the Regional Board's orders openly recognized that OCSD and SCWA
would have trouble complying with the orders. The Board's TSO anticipated
that the defendants would struggle to obtain funding for the improvements
and to receive permission from the property owner to perform the
necessary construction. The Board noted:
The SCWA and the OCSD have a lease agreement for their
current storage reservoir. The lease will expire in
March, 2003. The land owner has not expressed a
willingness to extend the lease. The SCWA and the OCSD
have investigated many alternatives. No viable
solution has become evident. To further compound this
situation, the OCSD and the SCWA do not have the
financial resources to develop an appropriate storage
RJN, Ex. 3, ¶ 8. Moreover, CDO No. 97-74 indicates that the
inadequacy of the treatment plant "threatens to cause future violations,"
see RNJ, Ex. 2, ¶ 9, and the TSO
observes, "It is anticipated that the [TSO] is likely to be violated."
See RJN, Ex. 3, ¶ 9.
In addition, the TSO establishes and the ACLO assesses penalties for
future violations of the Board's remedial orders. The TSO outlines due
dates for certain tasks designed to cure the plant's violations and sets
civil penalties for failure to meet those deadlines through September
2002. Delays beyond the dates specified in the TSO result in additional
daily penalties of $1,000. See id. at 3; id. ¶ 11 (noting that the
defendants' failure to comply with the TSO would subject them to
additional civil penalties). The ACLO actually assesses penalties for
future violations of the TSO; those fines are to be suspended if the
defendants satisfy the Board's remedial schedule. See RJN, Ex. 4, at 7.
Furthermore, both the TSO and the ACLO are also designed to address
future violations of the discharge provisions of the NPDES permit
itself, and not just the Board's remedial schedule. The TSO was imposed
to prevent future violations of the NPDES permit. See RJN, Ex. 3, ¶ 9
(noting that the TSO "establishes a time schedule of key actions for the
discharger to prevent discharging waste contrary to" the NPDES permit).
The ACLO indicates that the remedial schedule is imposed in order to
"solv[e] treatment and disposal issues" surrounding the defendants'
facility. RJN, Ex. 4, at 7. Thus, because the TSO and ACLO assess
penalties for future violations of the Board's remedial schedule and are
designed to address future violations of the NPDES permit itself, it is
arguable that the state is diligently prosecuting an action against OCSD
and SCWA for post-July 1997 violations.
The policy rationales behind the CWA civil penalty bar also support
such a reading of the Board's orders. SCWA and OCSD may be doing
everything in their power to remedy the problems at the plant despite a
dearth of resources, and defending against this litigation may only
undermine their ability to improve the plant. In addition, a state
environmental agency should not be forced to periodically assess
penalties for violations that have occurred since its last compliance
order. It is inconsistent with the CWA's deference to state enforcement
actions to impose such a requirement on state environmental agencies.
The leading Ninth Circuit opinion defining when a state is diligently
prosecuting an action does not provide much guidance. In Knee Deep, the
Oregon Department of Environmental Quality ("DEQ") entered into a
"Stipulation and Final Order" ("SFO") with a discharger. See Knee Deep,
94 F.3d at 515. The SFO required the discharger to upgrade the plant at a
significant cost. See id. Meanwhile, the agreement recognized that the
discharger was likely to continue to violate its NPDES permit in the
interim and established temporary limits and penalties for exceeding
those limits, but it did not assess any penalties for past or future
violations, and it explicitly reserved to the DEQ the right to proceed
against the discharger for violations not covered by the SFO. See id.
The Ninth Circuit determined that the Oregon statute under which the
DEQ entered into the SFO was not comparable to the CWA. See id. at
516-17. As for whether the state was diligently prosecuting an action,
the Knee Deep panel merely observed that "a penalty must actually have
been assessed under the state law." Id. at 516. Without analysis, the
court noted that the SFO was entered into before the plaintiff filed
suit, "and therefore . . . it cannot be said that the state was
diligently prosecuting an action at the time [the plaintiff] filed its
citizen suit." Id. (citing UNOCAL).
Neither Knee Deep nor UNOCAL explain how a district court should
determine whether a set of orders like the TSO and the ACLO at issue here
constitute diligent prosecution by the state. Those decisions do not
address the content of the state's orders; instead, they appear to look
only to the timing of the plaintiff's suit relative to the state's
decisions. As such, those
opinions seem to ignore the possibility that a state environmental agency
might issue orders designed to prevent future violations of an NPDES
permit as well as remedy past violations. Such a limited view of a state's
orders is inconsistent with the civil penalty bar in the CWA, which is
designed to show deference to a state's administrative enforcement
actions. It is noteworthy that both Knee Deep and UNOCAL involved state
laws that were not comparable to the CWA penalty provision. Accordingly,
those courts were not called upon to evaluate whether the state was
diligently prosecuting a violation under a state law that had been
determined to be comparable. Those cases leave open the question of
whether a series of orders issued by a state environmental agency under a
state law comparable to the CWA penalty provision and designed to remedy
past violations as well as prevent future violations could constitute
As a result, the Court will hold an evidentiary and legal hearing to
determine two issues: first, whether the Regional Board's orders in this
case were intended to (and in fact will) remedy post-July 1997 violations
of the NPDES permit as well as failures to comply with the TSO remedial
schedule (the factual issue); and second, whether such orders can
constitute diligent prosecution by the state (the legal issue).
The defendants' motion to dismiss for lack of subject matter
jurisdiction is therefore GRANTED IN PART to the extent the plaintiff's
suit seeks civil penalties for violations from January 1995 (the date
identified in the April 11 notice) to July 1997, but is taken under
submission pending the evidentiary and legal hearing to the extent the
Friends are seeking civil penalties for post-July 1997 violations.
III. WHETHER THE PLAINTIFF HAS FAILED TO STATE A CLAIM FOR INJUNCTIVE
The defendants have also moved pursuant to Rule 12(b)(6) to dismiss
the plaintiff's request for injunctive relief for failure to state a
claim. The defendants argue that the plaintiff's request should be
dismissed because the Regional Board's orders are designed to bring the
treatment plant into long-term compliance with the CWA. In the
defendants' view, this Court should defer to the Regional Board and give
the defendants a chance to satisfy the Board's "well-crafted" orders.
According to the defendants, "the capital improvement program imposed by
the State represents the only feasible and workable solution to remedy
the violations which currently occur at the [OCSD] facility." Motion at
The defendants present no authority that would permit the Court to
dismiss the plaintiff's request for injunctive relief at this stage.
While the Court may ultimately agree with the defendants that injunctive
relief is inappropriate, it is by no means evident that the Court can
reach such a determination on a motion to dismiss. Accordingly, the
defendants' motion to dismiss the plaintiff's request for injunctive
relief is DENIED as premature. The Court will consider the merits of
injunctive relief at the appropriate time.
IV. FUTURE PROCEEDINGS IN THIS LITIGATION
The Court also issues the following orders to move this litigation
along quickly. First, the Court will permit the plaintiff to engage in
limited discovery regarding whether the Regional Board's prior actions
will (or were intended to) remedy future violations of the NPDES permit.
Second, at an evidentiary hearing to be scheduled by the Court, the Court
will resolve the remaining jurisdictional issue of whether the Regional
Board's earlier orders were meant to assess penalties and provide a
remedy for violations of the NPDES permit after July 1997 or whether the
orders were intended to be limited to violations until July 1997. Third,
the parties should submit proposed forms of an injunction.
For the foregoing reasons, the defendants' motion to dismiss the
complaint pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction under the citizen suit notice requirement is DENIED IN PART
as to the violations identified in the defendants' submissions to the
Regional Board but GRANTED IN PART as to any other violations. The
defendants' Rule 12(b)(1) motion as to the civil penalty bar is GRANTED
IN PART to the extent the plaintiff's suit seeks civil penalties for
violations from January 1995 to July 1997, but is taken under submission
pending an evidentiary hearing to the extent the Friends are seeking civil
penalties for post-July 1997 violations. The defendants' motion to dismiss
the plaintiff's request for injunctive relief pursuant to Rule 12(b)(6)
for failure to state a claim is DENIED. Finally, the Court orders the
parties to proceed as indicated in Section IV supra.
IT IS SO ORDERED.