By Glen C. Hansen

Two Federal District Court opinions in California examined the sufficiency of pre-lawsuit notices that must be given to responsible parties and relevant agencies before citizen suits are filed either under the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq. (“60-Day Notice”), and/or under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. (“90-Day Notice”). In one case, the District Court held that the notices of CWA and RCRA claims were sufficient and did not have to be as specific as defendants suggested; in the other case, the pre-lawsuit notices of the RCRA claims were merely “boilerplate and conclusory” and therefore insufficient.

In Ecological Rights Foundation v. PG&E (N.D. Cal., March 31, 2011) ____ F.Supp.2nd ____, (No. C09-03704), U.S. District Court for the Northern District of California held that, in a citizen suit that alleged that wooden utility and telephone poles were discharging a toxic chemical into the environment, the plaintiff’s 60-Day Notices under CWA and 90-Day Notices under RCRA were sufficiently specific under the applicable Environmental Protection Agency (“EPA”) regulations, even though such notices did not include the location of each alleged pole at issue in the case.

In the Ecological Rights case, plaintiff alleged that wooden utility poles of Defendants Pacific Gas and Electric (“PG&E”) and telephone poles of Pacific Bell Telephone (“PacBell”) are discharging a toxic chemical into the environment in violation of the CWA and RCRA. The several 60-Day Notice and 90-Day Notice letters that were sent to PG&E and PacBell alleged violations of the CWA and RCRA caused by the pressure-treating of poles with an oil-pentachlorophenol mixture, which poles are used and “located in San Francisco, Alameda, Contra Costa, and Marin Counties….” The letters included a non-exhaustive list of poles in dispute and dates of the alleged violations. According to plaintiff’s complaint, the chemical mixture oozes to the surface of the poles, is washed off the poles by rainwater, leaks onto whatever surface the pole contacts, and thereby contaminates the San Francisco Bay, its tributaries and adjacent wetlands. PG&E and PacBell filed motions to dismiss on several grounds, one of which was that the District Court lacked subject matter jurisdiction because the notice letters were deficient in that they did not specifically identify the location of each pole. The District Court rejected that argument, evn though it granted the motions to dismiss without leave to amend on other grounds.

In Ecological Rights, the District Court relied on the CWA notice regulations that were promulgated by the EPA. Those regulations provide: “Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, 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(a).) The District Court noted that RCRA’s notice provision in the EPA regulations is “worded almost identically.” (40 C.F.R. § 254.3(a).) The District Court explained that the purposes of the notice requirement are to provide an alleged violator with the opportunity to negotiate a resolution to the dispute, and to afford state and federal agencies the opportunity to enforce their laws and regulations. The court added: “Compliance with these notice provisions is a jurisdictional prerequisite to filing.” However, in this case, PG&E’s argument about the sufficiency of plaintiff’s notices was wrong. PG&E failed to present any compelling authority demonstrating that the specific identity of the location of each allegedly leaking pole is required under the pre-lawsuit notice requirements under the CWA or RCRA. Accordingly, the District Court rejected that argument in support of the motions to dismiss.

A different result was reached in Enns Pontiac, Buick & GMC Truck v. Flores, (E.D.Ca. April 20, 2011    ____ F.Supp.2d ____ (No. 1:07-cv-01043). There, plaintiff property owners brought a federal lawsuit in the District Court for the Eastern District of California against prior owners of the property who previously operated a dry cleaning business on that property. Plaintiffs also sued current and former owners of neighboring properties. Plaintiffs alleged that the defendants caused the release of various hazardous substances, specifically solvents used in the dry cleaning industry, into a groundwater plume underlying a wide area of the city that included plaintiffs’ property. Plaintiffs then moved to amend the complaint to, among other things, add claims under the citizen suit provisions of RCRA. The District Court noted that citizen suits under RCRA require proof of pre-lawsuit notice, without which a district court lacks subject matter jurisdiction to hear the claims. As the District Court noted, courts may not take a “flexible or pragmatic” approach to RCRA’s notice requirements; if a citizen commences an action under RCRA without complying with the notice requirements, the action must be dismissed. The issue in Enns Pontiac was whether plaintiffs properly complied with the RCRA notice provisions. The District Court held they did not.

The District Court in Enns Pontiac explained that, under RCRA, the notice that must be given to potential defendants has to contain sufficient information to allow the recipient to identify the specific standard, regulation, condition, requirement, or order which has allegedly been violated. The District Court explained that this requirement necessarily includes identification of (1) the dates or a range of dates applicable to the alleged violations; (2) the types of pollutants allegedly discharged; and (3) the suspected source of the alleged problem, such as debris, manufacturing materials, activities, or practices possibly leading to the discharge of contamination. The District Court held that the “boilerplate and conclusory” RCRA notices provided by plaintiffs were insufficient. The notices did not provide any information to enable the recipients to ascertain a range of dates for the alleged violations; they said nothing about what operations on the site are alleged to have caused contamination; and they did not generally identify the types of contaminants at issue. Accordingly, the District Court denied plaintiffs’ motion to amend the complaint to add the RCRA claims.

The two separate holdings in Ecological Rights and Enns Pontiac provide the essential guidelines and some practical examples of the degree of specificity that is required in pre-lawsuit notices for citizen suits under CWA and RCRA.           

Glen C. Hansen is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.