MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
Plaintiff California Sportfishing Protection Alliance ("CSPA") brought this action against defendants USA Waste of California, Inc. ("USA Waste") and Steve Cameron arising out of defendants' alleged violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387. Presently before the court are USA Waste's motion to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(h)(3), (Docket No. 37), and USA Waste and Cameron's joint motion for summary judgment on all claims pursuant to Rule 56.
I. Factual and Procedural Background
A. CWA Notice and Delay Compliance On August 9, 2011, plaintiff gave notice to Cameron,
Art Rasmussen, and "Waste Management of Nevada County" of alleged violations of the CWA.*fn1 (FAC Ex. A (Docket No. 6).) Cameron and Rasmussen were notified in their respective capacities as District and Facility Managers at Waste Management of Nevada County. (Id.) On August 10, 2011, a courtesy copy of the notice was also emailed to USA Waste's legal counsel. (Packard Decl. Ex. A (Docket No. 18-1).)
On August 24, 2011, USA Waste's legal counsel notified plaintiff that "Waste Management of Nevada County" was a trade name for USA Waste. (Id. Ex. B.) Later that day, plaintiff served a second notice, specifically naming USA Waste as a party liable for the CWA violations. (FAC Ex. B.)
USA Waste's counsel, Mr. Kenefick, responded to the notice served on USA Waste by email on September 7, 2011. (Packard Decl. Ex. D.) In this email, Kenefick stated that he "assume[d] that the 60-day period will expire at the end of October based on USA Waste's receipt of the Notice on August 30th" and that he "intend[ed] to use the next 50 or so days to complete  assessment of [plaintiff's] letter and the facility." (Id.)
On October 8, 2011, sixty days after serving the initial notice and forty-five days after serving the second notice, plaintiff filed a complaint in federal court against Cameron and Rasmussen alleging violations of the CWA. (Docket No. 1.) On October 24, 2011, sixty-one days after plaintiff served its second notice, plaintiff filed its FAC, which added USA Waste as a party to the action. (Docket No. 6.)*fn2
B. Parties' Prior Litigation and Settlement Agreements The parties have previously been engaged in litigation
regarding CWA violations at different facilities on at least four separate occasions.*fn3 (Lozeau Decl. ¶¶ 3-4, Exs. A, B (Docket No.19-3); Butler Decl. ¶¶ 4-7, Exs. E, G (Docket No. 16).) In November 2010, the parties entered into a consent agreement to resolve litigation regarding USA Waste's North Valley facility in California Sportfishing Protection Alliance v. USA Waste of California, Inc., Case No. 2:10-CV-01096-GEB-KJN (E.D. Cal.) ("North Valley"). The consent agreement includes the following language:
14. CSPA Waiver and Release. Upon Court approval and entry of this Consent Agreement, CSPA, on its own behalf and on behalf of its members, subsidiaries, successors, assigns, directors, officers, agents, attorneys, representatives, and employees, releases Defendants and their officers, directors, employees, shareholders, parents, subsidiaries, and affiliates, and each of their predecessors, successors, and assigns, and each of their agents, attorneys, consultants, and other representatives (each a "Released Defendant Party") from, and waives all claims which arise or could have arisen from or pertain to the Action, including, without limitation, all claims for injunctive relief, damages, penalties, fines, sanctions, mitigation, fees (including fees of attorneys, experts, and others), costs, expenses or any other sum incurred or claimed or which could have been claimed in this Action, for the alleged failure of USA Waste to comply with the Clean Water Act and Proposition 65 at the Facility, up to the Effective Date of this Consent Decree.
During the term of the Consent Agreement, CSPA agrees that neither CSPA, its officers, executive staff, or members of its governing board nor any organization under the control of CSPA, its officers, executive staff, or member of its governing board, will file any lawsuit against USA Waste seeking relief for alleged violations of the Clean Water Act, General Permit or Proposition 65.
(Butler Decl. Ex. E ("North Valley Consent Agreement") ¶ 14.) The North Valley Consent Agreement term expires on September 30, 2012. (Id. ¶ 18.)
Rule 12(h)(3) of the Federal Rules of Civil Procedure
provides that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). "The distinction between a Rule 12(h)(3) motion and a Rule 12(b)(1) motion is simply that the former may be asserted at any time and need not be responsive to any pleading of the other party." Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 880, n.3 (3d Cir. 1992); see also Kairy v. SuperShuttle Int'l, Inc., 721 F. Supp. 2d 884, 885 (N.D. Cal. 2009) (applying a single standard to a motion to dismiss pursuant to Rules 12(b)(1) and 12(h)(3)).
Under Federal Rule of Civil Procedure 12(b)(1), a complaint must be dismissed once it is determined that a court lacks subject matter jurisdiction to adjudicate the claims. Fed.
R. Civ. P. 12(b)(1). The court presumes a lack of jurisdiction until the party asserting jurisdiction proves otherwise, and, once subject matter jurisdiction has been challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376 (1994); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that "the party ...