Page 234 - California Stormwater Workshop Handouts

Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141 (2000)
51 ERC 1545, 31 Envtl. L. Rep. 20,246, 00 Cal. Daily Op. Serv. 8692...
with § 1365(b) is a mandatory prerequisite to citizen suit).
Such notice must 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.
To comply with this notice requirement, ERF and Mateel
sent letters to Pacific Lumber on October 30 and
November 12, 1996, giving notice of intent to sue
regarding alleged CWA violations at Yager Camp and
Carlotta, respectively. The Yager Camp letter alleged the
following violations of the 1992 General Permit:
unpermitted discharges of contaminated storm water;
failure to prepare and implement an adequate SWPPP;2
failure to comply with the General Permit’s reporting and
monitoring conditions; and failures to conduct required
visual observations and to collect storm water samples.
The Carlotta letter alleged: discharges of pollutants in
violation of the 1992 General Permit; failure to prepare
and implement an adequate SWPPP; failure to monitor
discharges of pollutants in violation of the General
Permit’s conditions; failures to conduct visual
observations and to collect and analyze storm water
samples; inadequate record-keeping and reporting; failure
to mitigate discharges of pollutants; and failure to
properly operate and maintain facilities to minimize
pollution. The letters also alleged that both sites were in
violation of California’s “Proposition 65,” Cal. Health &
Safety Code § 25249.5.3
2 At that time, Pacific Lumber was four years late in
filing an SWPPP for Yager Camp. The company filed a
Yager Camp SWPPP on November 8, 1996. In
response to comments from the SWRCB, the company
amended and refiled the Yager Camp SWPPP on
January 27, 1997.
3 “No person in the course of doing business shall
knowingly discharge or release a chemical known to
the state to cause cancer or reproductive toxicity into requirement of Article III of the Constitution. See
water or onto or into land where such chemical passes
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
or probably will pass into any source of drinking water,
notwithstanding any other provision or authorization of
law except as provided in Section 25249.9 [describing
exemptions].”
On January 28, 1997, ERF and Mateel filed a complaint
against Pacific Lumber, reiterating the allegations of 1992
General Permit violations that were set forth in the Yager
Camp and Carlotta letters.4 The plaintiffs filed their first
amended complaint, alleging violations of the 1997
General Permit then in effect, on August 12, 1998,
without first sending new 60–day notice letters to Pacific
Lumber. Both the complaint and the amended complaint
sought injunctive and declaratory relief, civil penalties,
and attorneys’ fees. Pacific Lumber sought dismissal of
the lawsuit on several grounds, including standing,
mootness, and the sufficiency of the 60–day notice letters.
4 Although the General Permit expired on November 19,
1996, and the 1997 General Permit did not take effect
until July 1, 1997, plaintiffs do not dispute that during
the interim between General Permits, Pacific Lumber
could discharge into Yager Creek as long as the
discharges remained in compliance with the 1992
General Permit.
On cross-motions for summary judgment, the district
court concluded that ERF and Mateel lacked standing,
and dismissed their lawsuit. Ecological Rights
Foundation v. Pacific Lumber Co., 61 F.Supp.2d 1042,
1058 (N.D.Cal.1999). Because the district court dismissed
the case, it had no reason to and did not reach the other
issues raised by the parties in their summary judgment
motions. The plaintiffs seek reversal of the district court’s
decision on standing, while Pacific Lumber urges us to
affirm the district court either on standing grounds or on
the mootness or inadequate notice arguments raised but
not decided in the district court.
*1147 II.
Standing Issue
[1] [2] The CWA’s citizen suit provision extends standing
to the outer boundaries set by the “case or controversy”
Middlesex County Sewerage Authority v. National Sea
Clammers Ass’n, 453 U.S. 1, 16, 101 S.Ct. 2615, 69
6