Atwell v. Kw Plastics Recycling Div., Civ.A. 01-A-911-N.

• Decision Date: 19 November 2001
• Docket Number: No. Civ.A. 01-A-911-N.,Civ.A. 01-A-911-N.
• Citation: 173 F.Supp.2d 1213
• Parties: Jimmy ATWELL, Plaintiff, v. KW PLASTICS RECYCLING DIVISION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

173 F.Supp.2d 1213

Jimmy ATWELL, Plaintiff, v. KW PLASTICS RECYCLING DIVISION, Defendant.

No. Civ.A. 01-A-911-N.

United States District Court, M.D. Alabama, Northern Division.

November 19, 2001.

G. Keith Clark, Montgomery, AL, for plaintiff.

Nicholas J. Cervera, Grady A. Reeves, Troy, AL, for defendant.

MEMORANDUM OPINION

ALBRITTON, Chief Judge.

I. INTRODUCTION

This cause is before the court on a Motion to Dismiss (doc. # 4), filed by Defendant on August 15, 2001. Plaintiff Jimmy Atwell filed his Complaint with this court on July 24, 2001. Atwell brings a citizen suit seeking a declaratory judgment, injunctive relief, penalties, and attorneys' fees to enforce provisions of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., the Alabama Water Pollution Control Act ("AWPCA"), Code Ala. § 22-22-1 et seq., and State Indirect Discharge ("SID") permit no. IU 32 55 00076 issued by the Alabama Department of Environmental Management ("ADEM").

The Motion to Dismiss is made pursuant to Fed.R.Civ.P. 12(b)(1), alleging lack of subject matter jurisdiction. For reasons to be discussed, the Motion to Dismiss is due to be granted.

II. STANDARD OF REVIEW

A Rule 12(b)(1) motion challenges the district court's subject matter jurisdiction and takes one of two forms: a "facial attack" or a "factual attack." A "facial attack" on the complaint requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990); Hayden v. Blue Cross & Blue Shield of Alabama, 855 F.Supp. 344, 347 (M.D.Ala. 1994). A "factual attack," on the other hand, challenges the existence of subject matter jurisdiction based on matters outside the pleadings. See Lawrence, 919 F.2d at 1529. Under a factual attack, the court may weigh conflicting evidence and decide the factual issues that determine jurisdiction. See Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. See Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942).

III. FACTS

This case is a companion to CV 00-A-1668-N ("Atwell I"), filed on December 6, 2000. In Atwell I, the Plaintiff alleged that Defendant KW Plastics Recycling Division ("KW"), an Alabama Partnership, discharged a number of pollutants that caused the Troy, Alabama Waste Water Treatment Plant ("the Plant") to violate its National Pollutant Discharge Elimination System ("NPDES"), which in turn violated KW's State Indirect Discharge ("SID") permit. In this case, Atwell alleges a number of instances where KW failed to report the sampling and testing of its effluent to the Alabama Department of Environmental Management ("ADEM"), in violation of its SID permit and ADEM Admin.Code R. 335-6-5-.15(12)(e)(3).¹

On August 15, 2000, Atwell sent a "60-day notice letter" to KW.² In this letter, Atwell informed KW that he intended to file suit for violations of several of its SID permit provisions "from at least March 31, 1997, to the present." The letter enumerated five permit provisions addressing the discharge of pollutants.³ As previously noted, Atwell filed his first suit on December 6, 2000.

At some point after the Atwell I complaint was filed, Atwell reviewed the files maintained by ADEM pertaining to KW. He discovered a report prepared by an engineering firm, Dames & Moore, that suggested KW had sampled and tested its waste stream without reporting the results to ADEM. The report did not indicate exactly when the sampling had taken place. Apparently, the sampling and testing at issue was part of an effort by KW to characterize its waste stream in order to select an appropriate means of upgrading its pre-treatment system.

Based on this information, Atwell sent KW a second 60-day notice letter on March 16, 2001, with copies to the Administrator and the state. The notice indicated that Atwell intended to sue KW for violations of its SID permit's reporting requirements.⁴ Atwell admits that he did not identify specific reporting violations in the March 16, 2001 letter because he did not have sufficient information at the time. In connection with the second notice, Atwell moved for an extension of the deadline to amend the pleadings in Atwell I. The court granted Atwell's motion and extended the deadline to March 31, 2001.

In the meantime, Atwell served KW with a request for production of documents on March 12, 2001. This request specifically asked for the results of the sampling and testing referenced in the Dames & Moore report. KW apparently failed to respond or object to the request within the 30 days allotted by Fed.R.Civ.P. 34(b). After several informal attempts to obtain the requested documents, Atwell filed a motion to compel on May 17, 2001. A hearing on the motion was held before the magistrate judge on May 30, 2001. During the hearing, the magistrate judge informed KW that she was of the opinion that sanctions were in order. KW then produced the requested documents on May 31 and June 1, 2001, too late for Atwell to amend his complaint in Atwell I. Consequently, Atwell filed his complaint in this case.

IV. DISCUSSION

KW moves to dismiss this action for lack of jurisdiction on two grounds, or in the alternative, to dismiss a portion of the allegations for failure to state a claim upon which relief can be granted. First, KW contends that Atwell's March 16, 2001 notice letter was insufficiently specific as to the violations or dates being alleged. Because proper notice is a jurisdictional prerequisite for citizen suits under the CWA, KW argues, failure to comply with the applicable statutory provision and regulation requires dismissal of this suit. Second, KW avers that Atwell's complaint in this case fails to allege any "ongoing violations." Since citizen suits cannot be maintained for "wholly past violations," KW contends that dismissal is warranted on this ground as well. Because these arguments challenge the subject matter jurisdiction of the court, they will be considered pursuant to the standard of review appropriate for motions under Fed.R.Civ.P. 12(b)(1). Based on its disposition of KW's motion on lack of subject matter jurisdiction grounds, the court finds it unnecessary to address that portion of KW's motion properly considered under the Fed. R.Civ.P. 12(b)(6) standard.

A. Notice

KW argues that Atwell's March 16, 2001 notice letter did not comply with the notice provision of the CWA because it was not sufficiently specific with regard to the alleged violations and the dates on which they occurred. Accordingly, KW argues, this suit should be dismissed for failure to comply with the jurisdictional prerequisite embodied in 33 U.S.C. § 1365(b).⁵ Citing case law that liberally construes the notice requirement with regard to reporting violations "directly related" to previously noticed discharge violations, Atwell counters that the March 16, 2001 letter was not required. Furthermore, Atwell argues, the second letter was sufficiently specific. Finally, he avers that KW had actual notice of the alleged violations. Accordingly, Atwell contends, he should be allowed to proceed with his claim regardless of whether the statutory notice requirement has been met.

1. Interpretation of 40 C.F.R. § 135.3

It is axiomatic that "the starting point for interpreting a statute is the language of the statute itself." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). As previously noted, the citizen suit provision of the CWA provides:

No action may be commenced ... (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order....

...

Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

33 U.S.C. § 1365(b). The required contents of such notice are set forth in the Code of Federal Regulations:

(a) Violation of standard, limitation or order. 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) (2000).

The court notes at the outset that there is a divergence of approaches among courts that have had occasion to apply the notice provisions of environmental statutes. See, e.g., Robin Kundis Craig, "Notice Letters and Notice Pleading: The Federal Rules of Civil Procedure and the Sufficiency of Environmental Citizen Suit Notice," 78 Or.L.Rev. 105 (1999). Some courts have strictly construed the notice requirements, while others have given them a more liberal interpretation. Id. Accordingly, the court finds it necessary to survey briefly the competing approaches set forth in the case law before addressing the specific issues presented in this case.

Construing the citizen suit notice provision of the CWA, the Eleventh Circuit held that "the 60-day notice requirement of 33 U.S.C. § 1365(b) is a mandatory condition precedent to the filing of a citizen suit under the Clean Water Act." National Environmental Foundation v. ABC Rail Corporation, 926 F.2d 1096, 1097 (11th Cir. 1991) (citing Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989)). As noted, the Hallstrom court determined that strict compliance with the 60-day notice requirement of the Resource Conservation and Recovery Act ("RCRA") was a "mandatory...