content requirements of 40 C.F.R. § 135.3(a) is just as important--and no less a statutory prerequisite to suit--as is the requirement of waiting sixty days after the giving of such notice before commencing suit. Section 1365 explicitly provides that "notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation." 33 U.S.C. § 1365(b) (emphasis added).
Moreover, the Supreme Court, citing its decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987), a Clean Water Act case, also cited a policy consideration militating in favor of strict construction. The Court cited legislative history as indicating "an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits." Hallstrom, 493 U.S. at 29 (citations to legislative history omitted). The Court explained that requiring citizens to comply with the notice and delay requirements serves this congressional goal in two ways. First, notice helps obviate the need for citizen suits by allowing Government agencies to take responsibility for enforcing environmental regulations. Id. (citing Gwaltney, 484 U.S. at 60). 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.'" Hallstrom, at 29 (quoting Gwaltney at 60).
A vague or open-ended notice, such as plaintiffs' notice at issue here, not only falls short of the statutory notice requirement, but it also fails to perform either of these two functions. Such notice does not help the EPA to assess intelligently whether to investigate or launch an enforcement action. Nor does it inform the violator of what it must do to avoid suit and bring itself into compliance.
It is true, as plaintiffs note, and as defendant acknowledges, that "the bulk of Hercules' testing and monitoring records were produced to plaintiffs on October 5, 1990 and January 11, 1991[,]" after the plaintiffs filed their sixty-day letter. See Pl. Reply Br. at 5 n. 2; Def. Br. at 7 n. 20. Consequently, plaintiffs argue that "Congress could not have intended to require that the notice letter include violations about which plaintiffs had no knowledge, and could have had no knowledge, at the time the notice letter was written." Pl. Reply Br. at 5 n. 2. It may be true that Congress could not have expected plaintiffs to include such violations in their March 21, 1989 letter. But nothing prevented plaintiffs from complying with the Act's requirements and the clear mandate of Hallstrom by filing another notice letter including these newly discovered violations, and then waiting sixty-days before filing another Complaint or even an Amended Complaint.
This result may seem counterproductive in light of the significant resources already invested in this case by all parties. But in Hallstrom the Supreme Court declined to allow the "'absurd or futile results,'" id., 493 U.S. at 29 (quoting United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940)), which petitioners argued would be compelled by giving effect to the literal meaning of the notice provisions, to dictate the outcome. Petitioners in Hallstrom made two arguments. First, they asserted that "strictly enforcing the 60-day delay provision would give violators an opportunity to cause further damage or actually accomplish the objective that the citizen was attempting to stop." Id., 493 U.S. at 30. Similarly, they argued that the courts would thereby be precluded from giving essential injunctive relief until sixty days had elapsed. Id. The Court acknowledged this potential undesirable by-product of the sixty-day waiting period, but explained that the problem arises "as a result of the balance struck by Congress in developing the citizen suit provisions." Id. The Court further noted that Congress addressed the dangers of delay in certain circumstances (neither of which is applicable here) by making certain exceptions to the required notice periods.
The Hallstrom petitioners also argued that a strict construction of the notice provision would cause "procedural anomalies." Id., 493 U.S. at 30. They asserted that if Government agencies explicitly declined to act after being notified of alleged violations, it would be pointless to require the citizen to wait sixty days before commencing its suit. Id. The Court stated that "while such a result may be frustrating to the plaintiff, it is not irrational[.] . . . 'Permitting immediate suit ignores the possibility that a violator or agency may change its mind as the threat of suit becomes more imminent.'" Id. (quoting Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 82 (1st Cir. 1985)).
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. Similarly, all of the discharge violations which occurred before the filing of the Complaint on May 24, 1989 but which were not listed in the plaintiffs' sixty-day notice letter must be dismissed.
The court will not dismiss those discharge violations which occurred after the filing of the Complaint, however, even though they were not specifically alleged in the notice letter. I believe that this result is implicitly, if not explicitly, dictated by the Supreme Court's decision in Gwaltney, supra, and by the Act's anticipation of a continuing post-complaint violations of the same type as alleged when the action was commenced.
In Gwaltney, the Court held that the Clean Water Act does not permit citizen suits for "wholly past violations." Id., 484 U.S. at 60-61. But, the Court further held, Section 505 of the Act does confer jurisdiction on the federal courts in citizen suits where either the defendant continues to violate its permit after the complaint has been filed or where the plaintiff makes a good-faith allegation of continuing violations in the complaint. Id. at 64. Moreover, "once such jurisdiction does attach, the court can assess penalties for all current and past violations of the Act, even if it is later proved that no violations actually occurred subsequent to the filing of the complaint." PIRG v. New Jersey Expressway Authority, slip op. at 8 (D.N.J. Dec. 3, 1992) (Gerry, C.J.) (emphasis in original) (citing Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696 (4th Cir. 1989) (on remand from Supreme Court); PIRG v. Carter-Wallace, Inc., 684 F. Supp. 115 (D.N.J. 1988)).
As Gwaltney makes clear, subsequently occurring violations not noticed in a citizen's sixty-day 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. Such later-occurring violations therefore can be maintained notwithstanding their absence from the sixty-day letter, provided they are of the "type of activity" (e.g., discharging pollutants in excess of permit limitations) as have been alleged in the notice letter. But 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.
The court is not unsympathetic to the amount of time and resources that the parties, as well as the court itself, have put into this case on violations which must be dismissed for lack of statutory notice. The court also recognizes that the plaintiffs might decide to file another letter noticing the violations dismissed by the court today, thereby obligating the parties and the court to revisit the parties' arguments concerning the merits of those particular allegations.
Such considerations of judicial economy, however, do not override the statutory notice requirements.
This court "must dismiss the action [with respect to those violations not noticed in plaintiffs' sixty-day letter other than post-Complaint effluent limitation violations] as barred by the terms of the statute." Hallstrom, 493 U.S. at 33. See also National Environmental Foundation v. ABC Rail Corp., supra, 926 F.2d at 1097-1098; Bettis v. Town of Ontario, N.Y., 800 F. Supp. 1113, 1118 (W.D.N.Y. 1992).
Therefore, the court will grant summary judgment for defendant on all of the alleged violations not listed in plaintiffs' March 21, 1989 notice letter, i.e., all of the alleged monitoring, reporting and recordkeeping violations whenever occurring, as well as on the alleged discharge violations which occurred before the Complaint was filed but which were not listed in plaintiffs' notice letter. The discharge violations which will be dismissed for improper notice are those numbered 1, 10, 12, 35, 37, 39-40, 43, 47-48, 52, 54-55, 59-60, 62-66, 68, 70-71, 79-86, 88, 91, 93-97, 99-102, and 104-105 on the chronological list of discharge violations attached to plaintiffs' September 14, 1992 letter to the undersigned.
In addition to arguing that it is entitled to summary judgment for those violations not properly noticed by plaintiffs, defendant contends that the court must dismiss many of the remaining violations as well for various reasons. I will address these reasons in turn, below.
B. Gwaltney's "On-going Violation" Requirement
1. Subject Matter Jurisdiction
Defendant argues that it is entitled to summary judgment as to those parameters
where violations are not continuing. Plaintiffs argue that this court's jurisdiction depends on defendant's violations of its permit generally and not provision by provision of its permit. They further assert that even if a parameter-by-parameter analysis were required, most of the violations challenged by defendant would not be barred.
Both parties rely primarily on the Supreme Court's opinion in Gwaltney Of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987), albeit on different interpretations thereof. As discussed, supra, Gwaltney held that the federal courts lack subject matter jurisdiction over citizen suits brought on the basis of wholly past violations. Id., 484 U.S. at 60-61. The Court further held, however, that it was sufficient for jurisdictional purposes if the citizen-plaintiffs made good-faith allegations of ongoing violations.
Id. at 64.
Hercules concedes that it has violated its permit on certain occasions since the filing of the Complaint in May, 1989. See, e.g., Def. Br. at 61 (discharge excursion occurred in August 1990); Def. Sept. 15, 1992 Letter Brief at 2 n.3 (violation at outfall 002 in December, 1989). But with respect to the question whether a court is to look at each parameter separately, or whether a court may exercise jurisdiction over all parameters based on an ongoing violation of only one (or some) parameters, plaintiffs and defendant each cite various lower court cases interpreting Gwaltney and supporting the parties' respective positions. See, e.g., Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F. Supp. 281, 287 (D.Del. 1989) (rejecting parameter-by-parameter approach); Sierra Club v. Port Townsend Paper Corp., 1988 U.S. Dist. LEXIS 17137, 28 ERC 1676, 1678 (W.D.Wash. 1988) (rejecting parameter-by-parameter approach); Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d at 697-98 (adopting parameter-by-parameter approach) (ruling on appeal from district court after case was remanded by Supreme Court); Natural Resources Defense Council, Inc. v. Gould, Inc., 733 F. Supp. 8, 10 (D.Mass. 1990) (noting its intent to conduct parameter-by-parameter analysis) (citing Fourth Circuit's opinion in Chesapeake Bay v. Gwaltney, 890 F.2d at 698). The Honorable Anne E. Thompson noted this conflict among the courts in her opinion upon motions for reconsideration of her previous decision in PIRG v. Yates Industries, Inc., 757 F. Supp. 438 (D.N.J. 1991). See Corrected Memorandum and Order, dated June 9, 1991, slip op. at 10. Judge Thompson held on reconsideration:
Evidence of violations in some parameters is admissible as evidence that future violations are likely in other parameters, thus satisfying the requirements of [the Supreme Court's decision in] Gwaltney, particularly where, as is the case here, numerous parameters have been violated on many occasions since the filing of the suit. Evidence that defendant is generally not in compliance with the permit can convince the reasonable trier of fact that there is a continuing likelihood of recurring violations.