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Affholter v. Franklin County Water District


November 12, 2008


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge


(Docs. 135, 141, 142, 143, 147, 150, 196)


This case concerns the alleged discharge of pollutants from various public and private wastewater treatment, refuse, and disposal facilities, irrigation canals, and other facilities in Merced County. Before the court for decision is Defendant City of Merced's ("City") Motion to Dismiss a number of Plaintiffs from the Fourth Amended Complaint for failing to comply with the notice requirements of the Clean Water Act ("CWA") and the Resource Recovery and Conservation Act ("RCRA").

Most, but not all, of the other Defendants filed similar motions to dismiss, incorporating by reference the City's legal arguments. (See Doc. 142 (Merced Irrigation District ("MID"); Merced Irrigation District/Merced Drainage District No. 1 ("MDD 1")); Doc. 150 (the County of Merced ("County")); Doc. 147 (Franklin County Water District ("FCWD")); Doc. 141 (Merck & Co. Inc., Amsted Industries, Inc., and Baltimore Aircoil Company Inc.); Doc. 143 (Meadowbrook Water Company of Merced, Inc.); and Doc. 196 (Track Four, Inc).) These Defendants assert the same ground for dismissal as the City, but identify different lists of Plaintiffs who purportedly failed to timely file the required notices with each Defendant.*fn1


It is not practical or necessary to review the timing and content of the various notices and claims received by each defendant, as the parties appear not to dispute when various groups of Plaintiffs provided notice of their claims in this case. By way of example, Plaintiffs' counsel sent the City its initial notice of intent to file suit under the CWA on January 4, 2004, attaching a list of individuals on whose behalf the notice was sent. Plaintiffs filed their initial complaint on March 8, 2007. Subsequently, on March 22, 2007, Plaintiffs filed a supplemental notice of intent to file suit under the CWA and RCRA. Plaintiffs filed a series of amended complaints, culminating in the filling of the Fourth Amended Complaint ("FAC") on July 7, 2008. However, certain of the individual Plaintiffs named in the FAC were not included in the original CWA/RCRA notices. Amended notices identifying the new Plaintiffs were served over the period from August 29 through September 22, 2008.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. See Fed. R. Civ. Pr. 12(b)(1). Federal courts are limited in jurisdiction; it is presumed that a case lies outside the jurisdiction of the federal courts unless Plaintiff proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221 (9th Cir. 1993); Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). The party asserting jurisdiction has the burden of proof when a 12(b)(1) motion is filed. See Sopack v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995); Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). "When considering a motion to dismiss pursuant to 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989). Defendant may "rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.) (citations omitted), cert. denied, 493 U.S. 993 (1989).

Lack of subject matter jurisdiction can be raised at any time by any party. Fed. R. Civ. Pro. 12(h); Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951).


A. CWA/RCRA Notice Requirement

Defendants argue that certain Plaintiffs failed to comply with the notice requirements of the CWA and/or RCRA.

The CWA provides a private right of action for claims "against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation...." 33 U.S.C. § 1365(a)(1).

The CWA's notice provision provides that "[n]o 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 [of the Environmental Protection Agency ("EPA")], (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). The implementing regulations explain that a notice regarding an alleged violation of an effluent standard, limitation, or order "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." 40 C.F.R. § 135.3.

RCRA provides a similar private right of action for violations of that statute:

(a) In general

Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf--

(1)(A) against any person ... who is alleged to be condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or in violation of any permit, standard, regulation,

(B) against any person ... to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal contributing to the past or present handling, facility, who has contributed or who is storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment; or Actions brought under subsection (a)(1)(A) are subject to a 60-day waiting period, § 6972 (b)(1)(A) ("No action may be commenced under subsection (a)(1)(A) of this section--(A) prior to 60 days after the plaintiff has given notice of the violation to--(i) the Administrator; (ii) the State in which the alleged violation occurs; and (iii) to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order...."), while actions brought under subsection (a)(1)(B) are subject to a 90-day waiting period, § 6972 (b)(2)(A) ("No action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to--(i) the Administrator; (ii) the State in which the alleged endangerment may occur; (iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B) of this section...."). Both of the RCRA notice provisions contain an exception, whereby an "action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III of this chapter," which concerns standards applicable to identified generators and transporters of hazardous wastes, as well as to owners and operators of hazardous waste treatment, storage, and disposal facilities. § 6972 (b)(2)(A), (B).

These motions implicate the scope of the Ninth Circuit's holding in Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1352 (1995), interpreting the CWA's notice provision. There, a union plaintiff filed notice with the corporate defendant, alleging that the company was discharging pollutants in violation of the CWA. After receiving the notice, the company communicated with the union about the allegations. Id. The union, along with two previously unmentioned environmental organizations, filed suit more than sixty days later. Id. The union was later dismissed from the suit when it went into trusteeship. Id. McCain moved for summary judgment, arguing, among other things, that the notice did not identify the two environmental organizations as potential plaintiffs. Id.

The Ninth Circuit found that the purpose of the sixty-day notice is to "allow the parties time to resolve their conflicts in a non-adversarial time period. Once the suit is filed, positions harden and compromise is less likely." Id. at 1354. In addition, notice "alerts the appropriate state or federal agency, so administrative action may initially provide the relief the parties seek before a court must become involved." Id. The union's notice failed to satisfy either purpose, because the notice failed to identify the two environmental plaintiffs, defendants did not know other plaintiffs were involved and were "not in a position to negotiate with the plaintiffs or seek an administrative remedy," rendering any pre-suit resolution between the remaining parties impossible. Id.

Washington Trout relies heavily on the Supreme Court's decision in Hallstrom v. Tillamook County, 493 U.S. 20 (1989), a citizen suit brought under RCRA:

The issue presented for review [in Hallstrom provision was a mandatory precondition to suit or if it whether the compliance with [RCRA's] sixty-day notice ] was could be disregarded by the district court at its discretion. Hallstrom, 493 U.S. at 23.

Hallstrom was modeled after § 304 of the Clean Air Act FN3. The sixty-day notice provision in Amendments, 84 Stat. 1706, as amended, 42 U.S.C. § after § 304. The notice provision involved in this have incorporated notice provisions patterned 7604. Since 1970, a number of federal statutes case, 33 U.S.C. § 1365(b), is also modeled after § 304. See Hallstrom [], 493 U.S. at 23 n. 1. Hallstrom, the petitioners owned a dairy farm believing that the landfill violated RCRA standards, located next to the Tillamook County landfill.

In Id. In the petitioners sent the respondent a notice stating their intent to sue. Id an action, the respondent moved for summary judgment on . When the petitioners commenced the grounds that petitioners failed to notify Oregon's Department of Environmental Quality and the [EPA] of their intent to sue. Id. at 23-24. petitioner's formal notification to the State and EPA held that the notice defect was cured by the The district court denied the respondent's motion and judgment. on March 2, 1983, one day after the motion for summary . at 24. The district court went on to find Id that the respondent did violate the RCRA.

On to comply with the sixty-day notice provision deprived the district court of subject matter jurisdiction. Hallstrom v. Tillamook County, 844 F.2d 598, 600-01.

Id appeal, the Ninth Circuit held the petitioners' failure an approach that focuses on the plain language of the followed by the First and Seventh Circuits; [citations] (9th Cir.1987). The Ninth Circuit adopted the approach requirement.

statute and the policy concerns underlying the notice . at 600. The court of appeals held that notice before commencement of the suit, and to accept anything less would constitute a " 'judicial amendment in abrogation of explicit, unconditional statutory language.' " Hallstrom Garcia

Id the plain language [of § 6972(b)] commands sixty days v. Cecos Int'l, Inc., 761 F.2d 76, 78 (1st Cir.1985)). , 844 F.2d at 600 (quoting

The court determined that a strict construction of the notice requirement would best further the statute's provide the citizen relief-relief the individual might goal of first triggering administrative action to

Circuit remanded to the district court with otherwise seek in the courts. Id. at 601. The Ninth instructions to dismiss.

In order to resolve [a] conflict among the circuits, the Supreme Court granted certiorari. The Court found, under the plain language of the statute, the choice was clear. The Court held that "[u]nder a literal reading of the statute, compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit." Hallstrom, 493 U.S. at 26.

Washington Trout, 45 F.3d at 1353-54 (parallel citations omitted).

The remaining plaintiffs in Washington Trout argued that (a) Hallstrom was distinguishable because in Hallstrom the petitioners provided absolutely no presuit notice, and (b) the Supreme Court's holding merely prohibits suit in the total absence of any pre-suit notice. Id. at 1354. The Ninth Circuit rejected this argument.

The plaintiffs' understanding of the Hallstrom is misplaced. In Hallstrom, the petitioners did send a decision notice under the statute. notice to the respondent that they argued qualified as 23. The issue in Hallstrom was whether the notice was , 493 U.S. at See Hallstrom sufficient under the regulation's mandate-whether the notice requirement should be strictly construed or liberally applied by the district courts. The Court held the notice requirement under the regulations was to be strictly construed. Therefore, the Hallstrom decision does not stand for the fact that without any notice, there could be no suit. Rather, the Court held regulation must be satisfied before the case may be that the notice requirements set forth in the heard in federal district court.

Washington Trout, 45 F.3d at 1353-54 (emphasis added) (parallel citations omitted).

Plaintiffs rely heavily on Citizens for a Better Environment v. Union Oil Company of California, 861 F. Supp. 899 (N.D. Cal. 1994) [CBE v. Unocal], a district court case decided before Washington Trout. In that case, although CBE's pre-suit notice was valid and effective, defendants argued that other plaintiffs must be dismissed from the case because their notice(s) were not served more than sixty days prior to the filing of the suit. Plaintiffs countered that "so long as at least one plaintiff has given defendant proper notice in accord with 33 U.S.C. § 1365(b)(1)(A), other plaintiffs who have not individually given the statutory sixty days notice may nonetheless permissibly join in the lawsuit." Id. at 912. The district court sided with the Plaintiffs, reasoning:

This Court recently addressed precisely this issue in the related case of California Public Interest Research Group v. Shell Oil Co. TEH (N.D.Cal. Jan. 5, 1994). In , Nos. C 92-4023 TEH, C 93-0622 Shell the Court wrote:

[A] number of courts have ruled that so long as defendants receive proper notice of the action without filing separate 60 day notices. These from one plaintiff, additional plaintiffs can join the impending suit and an opportunity to resolve cases reason that where defendants have notice of to exclude additional plaintiffs who later join the matter short of litigation, there is no reason Klickitat County v. Columbia River Gorge Comm'n the action. See (E.D.Wash.1991) ("The fact that other plaintiffs , 770 F.Supp. 1419, 1424 fact that the Forest Service was aware of the have joined in the litigation doesn't change the Student Public Interest Research Group ("PIRG") of impending lawsuit and the basis for the claim."); New Jersey, Inc. v. Tenneco Polymers, Inc., 602 prejudice to defendants since they were put on F.Supp. 1394, 1396 (D.N.J.1985) (citing lack of notice as to the nature of the suit); Student PIRG of New Jersey, Inc. v. AT & T Bell Laboratories, plaintiff served adequate notice ... defendant's 617 F.Supp. 1190, 1194 (D.N.J.1985) ("because one right to adequate notice was preserved"); South Carolina Wildlife Federation v. Alexander F.Supp. 118, 123-24 (D.S.C.1978). , 457 implicitly overruled these cases in [Defendant] contends that the Supreme Court Hallstrom v. , 493 U.S. 20 (1989). As discussed Tillamook County above, Hallstrom holds that the 60 day pre-suit courts can waive, but rather is a mandatory notice requirement is not something that the [defendant] argues, to require that each requirement. We should construe this holding, however, never addresses this issue, since in that provide 60 days pre-suit notice. individual plaintiff named in the action must Hallstrom, at all. Moreover, case, the defendants received no pre-suit notice Hallstrom focused on the pre-suit notice so that they would have an statutory mandate that defendants be given some was filed. The reasoning of the cases cited above opportunity to address the matter before a lawsuit undercut, this rationale. We also note that at is completely consistent with, and does not additional persons to join as plaintiffs after least one district court has continued to allow Hallstrom. See Klickitat, 770 F. Supp. at 1424. Id 1365(b)(1)(A) requires only that sixty days notice be ., Slip Op. at 6-7. By its terms, 33 U.S.C. § statute does not provide that every plaintiff must give given before a "[citizen] action" is commenced. The Shell holds that the 33 U.S.C. § 1365(b)(1)(A) requirement such notice. Following its ruling in , the Court plaintiff has given statutorily adequate notice. requirement is satisfied so long as at least one attaches to the lawsuit- not the plaintiff-and that the CBE v. Unocal, 861 F. Supp. at 912-13. CBE v. Unocal, a district court decision from another district has no binding effect.

Although Washington Trout, decided less than six months later, does not explicitly overrule CBE v. Unocal, the holding and reasoning in Washington Trout are impossible to reconcile with the result in CBE v. Unocal. Washington Trout explicitly rejected the argument that Hallstrom could be distinguished on the ground that in Hallstrom no pre-suit notice was given. Washington Trout interprets Hallstrom as requiring strict construction of the notice requirement.

Plaintiffs next cite Natural Resources Defense Council v. Southwest Marine, Inc., 945 F. Supp. 1330 (S.D. Cal. 1996). That case, decided after Washington Trout, centered not on whether some plaintiffs' notices were untimely, but rather on whether the notice, which was otherwise sufficient and timely-served, gave adequate notice of the nature of the violations alleged in the complaint. The district court concluded that the notice was sufficient because it specifically identified the standards required under the applicable permit and how defendants' failure to implement required monitoring and reporting plans allegedly violated those standards. Id. at 1333-34. NRDC v. Southwest Marine is inapposite.*fn2

Plaintiffs emphasize the fact that Washington Trout focused on the purpose of the notice provision, namely to place defendants in "a position to negotiate with the plaintiffs or seek and administrative remedy." In that case, the failure to identify either of the two remaining plaintiffs in the notices "made any sort of resolution between the parties during the notice period an impossibility." Plaintiffs point out that the original notices identified Plaintiffs' counsel as the contact person for communication with all Plaintiffs then giving notice. Plaintiffs maintain that this gave defendants sufficient notice of with whom they should negotiate.

However, the initial notices did not give defendants notice of the extent of the group of Plaintiffs represented by counsel. For example, the City asserts in its motion to dismiss that 1,398 Plaintiffs listed in the FAC failed to serve the City with appropriate CWA/RCRA notices prior to filing suit. (Doc. 135 at 1.) The potential additional liability associated with allegations of harm to almost 1,400 new Plaintiffs is manifest. Defendants are entitled to receive timely notice under the CWA and RCRA that alerts them to the extent of their exposure. To hold otherwise would not be consistent with Washington Trout. Defendants' motions to dismiss are GRANTED.

B. Amendment of the Complaint

Plaintiffs alternatively request leave to amend their complaint to join all Plaintiffs currently represented by Plaintiffs' counsel for whom CWA/RCRA notices were served on Defendants from August 29, 2008 to September 22, 2008.

It is well settled that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). In considering a request for leave to amend, a court must consider whether there has been (1) undue delay or (2) bad faith or dilatory motive on the part of the movant; (3) repeated failure to cure deficiencies by amendments previously allowed; (4) undue prejudice to the opposing party if amendment were allowed; and (5) futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962).

Whether the proposed amendment will prejudice the opposing party is the most important factor; if there is no prejudice or strong showing that any of the other Foman factors counsel against amendment, there is a presumption favoring leave to amend. Eminence Capital, LLC v. Aspeon, 316 F.3d 1048 (9th Cir. 2003). The party opposing amendment bears the burden of showing prejudice. Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir. 1987)).

Here, Defendants do not suggest that amendment would prejudice them in any way. Rather, Defendants point out that the delays associated with amendment are inconsistent with Plaintiffs' desire to move this case quickly to trial. Joinder of the new Plaintiffs by amendment is not possible until the expiration of the relevant waiting periods. Given that the latest of the notice letters was served September 22, 2008, amendment would not be possible until late November 2008, at the earliest. Any amendment would add to the number of Plaintiffs Defendants need to depose, which depositions are currently underway.

However, the alternative is for the new Plaintiffs to file a separate action, which could then be consolidated with this case. Plaintiffs argue that allowing joinder would be preferrable for judicial economy. Plaintiffs have pressed for a relatively quick discovery/trial schedule, but if Plaintiffs are willing to slow the progress of their case, leave to amend is appropriate.

C. Waiver of Objection to Joinder of New Plaintiffs

Plaintiffs incorrectly argue that Defendants waived their right to object to the addition of new Plaintiffs by stipulating to the filing of the Fourth Amended Complaint, which names the new Plaintiffs. The Stipulation to Modify Supplemental Scheduling Conference Order expressly reserves Defendants' right to challenge any of the Plaintiffs. (See, e.g., Doc. 111, "Nothing in this stipulation and order is intended to limit or waive any defenses any of the defendants may have or assert to any of the claims alleged by any of the plaintiffs....") There is no merit to Plaintiffs' waiver argument.

D. RCRA Subtitle III

In the alternative, Plaintiffs maintain that their notices assert claims under subchapter III of RCRA, for which the waiting period is waived. See 42 U.S.C. § 6972. RCRA subchapter III contains requirements for the management of hazardous waste by generators, transporters, and treatment, storage and disposal facilities; land disposal of hazardous wastes; and RCRA enforcement provisions.

Plaintiffs do not cite or quote particular passages from their notice letters or complaint that may be interpreted as references to subchapter III. Instead, in their opposition, Plaintiffs purport to summarize their RCRA subchapter III claims as follows:

In summary RCRA requires that the environment and public be protected from the hazardous wastes generated copper, arsenic, PCP, solvents and peritoneum by Polluters. The pollutants including chromium, constituents found at the Site identified in this Notice constitute hazardous waste under RCRA, and are

cause endangerment to the public or the environment. environment and public is properly managed so as to not required to be managed such that harm to the

RCRA specifically protects groundwater.

The liability of the BAC defendants stems from either the Site by these companies which violate RCRA and have their ownership of the Site or activities conducted on treatment, transportation, or disposal of any hazardous contributed to the past or present handling, storage, endangerment to health or the environment. Victims waste which may present an imminent and substantial prohibition, or order which has become effective standard, regulation, condition, requirement, also allege Polluters to be in violation of a permit, pursuant to RCRA. The BAC defendants are guilty of open dumping as that term is used in RCRA by arsenic, copper, PCP and solvents to the open ground discharging pollutants including hexavalent chromium, allowing these pollutants to discharge to both ground and surface waters. The Site does not qualify as a BAC defendants have no RCRA authorized permit for as a facility for the disposal of hazardous waste. The landfill under 42 U.S.C.S. § 6944, and does not qualify waste of the type currently and historically at the disposal, storage or treatment of solid or hazardous Site.

The liability of Polluters MEADOWBROOK, FCWD, MID, CITY preferential pathways or wells which have caused and COUNTY stem from their ownership or operation of and the like, facilitating pollutant migration and via Polluters' conduits such as sewer lines, utilities pollutants to be discharged to surface and groundwaters discharge to water[s] of the United States and contributing to the past or present handling, storage, treatment, transportation, or disposal of any hazardous waste which may present an imminent and substantial endangerment to health or the environment. (Doc. 203 at 15.)

Unless Plaintiffs can point to portions of their notice letters or complaint that give Defendants fair notice of their intent to bring a claim under any of the diverse provisions contained within RCRA subchapter III, their attempt to circumvent the waiting period fails. A court has no duty to search a voluminous pleading record to find relevant language.


For the reasons set forth above

(1) Defendants' motions to dismiss the CWA and/or RCRA claims of those Plaintiffs for which timely pre-suit notices have not been filed are GRANTED.

(2) Plaintiffs' request for leave to amend is GRANTED. Plaintiffs shall file any amended complaint within ten (10) days of the expiration of the latest waiting period applicable to those CWA and/or RCRA notices already served on Defendants as of the date of entry of this order.


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