Paolino v. JF Realty, LLC

• Decision Date: 13 March 2013
• Docket Number: No. 12–2031.,12–2031.
• Citation: 710 F.3d 31
• Parties: Louis PAOLINO; Marie Issa, Plaintiffs, Appellants, v. JF REALTY, LLC; Joseph I. Ferreira; Robert Yabroudy; LKQ Route 16 Used Auto Parts, Inc., d/b/a Advanced Auto Recycling; Joseph I. Ferreira, Trustee of The Joseph I. Ferreira Trust, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

710 F.3d 31

Louis PAOLINO; Marie Issa, Plaintiffs, Appellants,

v.JF REALTY, LLC; Joseph I. Ferreira; Robert Yabroudy; LKQ Route 16 Used Auto Parts, Inc., d/b/a Advanced Auto Recycling; Joseph I. Ferreira, Trustee of The Joseph I. Ferreira Trust, Defendants, Appellees.

No. 12–2031.

United States Court of Appeals,First Circuit.

March 13, 2013.

Michael J. O'Neill, with whom McGregor & Associates, P.C., was on brief, for appellants.

Christopher M. Kilian was on brief for Conservation Law Foundation, amicus curiae.

Robert Clark Corrente, with whom Christopher L. Ayers and Burns & Levinson LLP, were on brief, for appellees.

Before LYNCH, Chief Judge, HOWARD, Circuit Judge, and CASPER, ^* District Judge.

LYNCH, Chief Judge.

This appeal presents an issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given at least sixty days before a citizen enforcement action may be brought under the federal Clean Water Act (CWA), 33 U.S.C. § 1251 et seq. Failure to comply with the CWA's sixty-day notice requirementbars such an action and calls for dismissal of the suit. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 32–33, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989).

The required contents of pre-suit notice are prescribed in 40 C.F.R. § 135.3, and assessing whether these requirements have been met is a functional, fact-dependent, and case-specific inquiry. Where the information contained in pre-suit notice identifies the potential plaintiffs, provides basic contact information, and allows the putative defendants to identify and remedy the alleged violations, we hold that these requirements have been satisfied and that the enforcement action may proceed. This does not mean that the defendants are precluded from asserting defenses under Fed.R.Civ.P. 12(b)(6); only that the suit is not barred in the district court.

This holding requires us to find error in the district court's dismissal of this case. We reverse, in part, and remand for further proceedings consistent with this opinion.

I.

Plaintiffs Louis Paolino and Marie Issa appeal from a district court order dismissing with prejudice their most recent attempt to bring a citizen enforcement action against the defendants pursuant to 33 U.S.C. § 1365(a). Plaintiffs' two previous citizen suits were dismissed without prejudice due to defects in the service or contents of earlier pre-suit notices.¹

An overview of the CWA, including its provisions governing citizen enforcement actions, helps to explain our conclusion. Congress adopted the CWA in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To that end, the CWA prohibits the discharge of any pollutant into navigable waters, id. § 1311(a), unless authorized by a valid National Pollutant Discharge Elimination System (NPDES) permit, id. § 1342. NPDES permits may be issued by the EPA or an authorized state, id. § 1352(a), (b); 40 C.F.R. § 123.25, and incorporate both state water quality standards and federal effluent limitations, 33 U.S.C. § 1342(a)(3), (b)(1)(A); 40 C.F.R. § 123.25.² In Rhode Island, the NPDES is administered by the Department of Environmental Management (DEM) through the Rhode Island Pollutant Discharge Elimination System (RIPDES) permit program. See, e.g.,Approval of Rhode Island's NPDES Program, 49 Fed.Reg. 39,063, 39,063 (Oct. 3, 1984); Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 14–16 (1st Cir.2012).

State and federal authorities are authorized to enforce the CWA through suit. 33 U.S.C. §§ 1319, 1342(b)(7). In addition, private citizens are given a more limited enforcement role. A citizen may bring a civil enforcement action in federal district court against an NPDES permit holder for failure to comply with that permit's conditions. 33 U.S.C. § 1365(a)(1) (authorizing citizen suits); see also id. §§ 1319(a)–(b), 1342(h)–(i) (describing state and federal enforcement actions for violations of discharge permit conditions). If the citizen prevails, the district court may award to him or her injunctive relief and attorneys' fees, and impose civil penalties on the defendant payable to the United States Treasury. Id. § 1365(a), (d); see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

At least sixty days before initiating such an action, however, a citizen plaintiff must give notice of the alleged violations to the state in which they occurred, the EPA Administrator, and the putative defendant(s). 33 U.S.C. § 1365(b)(1)(A). Additionally, no citizen suit may be brought if the “Administrator or State has commenced and is diligently prosecuting” an enforcement action for these alleged violations prior to the date on which the citizen files her complaint. Id. § 1365(b)(1)(B). In cases such as this one, with a long history of environmental enforcement at the site, this may impose a significant limitation on citizen suits. See, e.g., Piney Run Pres. Ass'n v. Cnty. Comm'rs Of Carroll Cnty., Md., 523 F.3d 453, 455 (4th Cir.2008).

The CWA does not describe the service or contents of pre-suit notice, providing instead that “[n]otice ... shall be given in such manner as the [EPA] Administrator shall prescribe by regulation.” 33 U.S.C. § 1365(b)(2). These regulations are contained in 40 C.F.R. Part 135, and are discussed below.

In this case, the plaintiffs jointly own a five-acre property in the Town of Cumberland, Rhode Island. Their property sits downhill from and abuts the southwestern edge of a larger thirty-nine-acre property (the “Property”) owned by defendant JF Realty, LLC, of which defendant Joseph I. Ferreira is the only member.³ Since 1984, Ferreira has used or permitted others to use the Property to operate an automobile salvage and recycling business. The Property is currently leased for that purpose to the defendant LKQ Route 16 Used Auto Parts, Inc., and contains approximately 2,000 automobiles in various stages of recycling.

Plaintiffs filed this action in the District of Rhode Island on January 20, 2012. The complaint contains a single count, which alleges that the defendants are in continuing violation of CWA §§ 1311, 1313, and 1342 because (1) they do not have a valid RIPDES permit in the name of the actual owner and operator of the Property; and (2) they are continually discharging pollutants into United States waters at levels in excess of state water quality standards, federal effluent limitations, and other restrictions imposed by their RIPDES permit.

On October 7, 2011—more than ninety days before filing their complaint—plaintiffssent notice (the “Notice”) of the alleged violations to the relevant parties, including each of the defendants, as required under 33 U.S.C. § 1365(b). Whether that Notice was properly served on each defendant is a separate issue which we address later. The Notice is fifteen pages long, and attaches and incorporates by reference an additional fifteen-page report prepared by an environmental consulting group on the plaintiffs' behalf.

Defendants filed their motion to dismiss the complaint on February 14, 2012, arguing that plaintiffs had failed to allege or establish several mandatory prerequisites to a citizen suit under the CWA. Specifically, defendants asserted that (1) plaintiffs' pre-suit Notice did not describe the alleged CWA violations with the specificity required under 40 C.F.R. § 135.3(a); (2) plaintiffs' service of the Notice on defendant Robert Yabroudy was defective under 40 C.F.R. § 135.2; and (3) plaintiffs did not mail an as-filed and date-stamped copy of the complaint to the EPA Administrator, EPA Regional Administrator, and U.S. Attorney General, as required by 40 C.F.R. § 135.4. Defendants also requested that the district court dismiss the complaint with prejudice based upon plaintiffs' previous failures to comply with the CWA's notice requirements.

The district court issued an order on July 26, 2012, dismissing the complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.⁴Paolino v. JF Realty, LLC, C.A. No. 12–39–ML, 2012 WL 3061594 (D.R.I. July 26, 2012). It found that plaintiffs' pre-suit Notice suffered from each of the deficiencies alleged in the motion to dismiss, and agreed that a dismissal with prejudice was in order as to all defendants on the first ground. This timely appeal followed.

We limit our review to the sufficiency of plaintiffs' pre-suit Notice and the adequacy of service on defendant Yabroudy.⁵

II.

The primary issue on appeal is whether the district court erred in finding that the contents of plaintiffs' pre-suit Notice were insufficiently specific to satisfy the requirements set forth in 40 C.F.R. § 135.3(a). Our review of that determination is de novo. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir.2001).

In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 59–60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), the Supreme Court explained that the CWA's pre-suit notice requirements serve two purposes, each related to the supplementary role Congress envisioned for citizen enforcement actions. First, pre-suit notice allows federal and state agencies to initiate their own enforcement action against an alleged violator, obviating the need for a citizen suit. Id. at 59–60, 108 S.Ct. 376;see also33 U.S.C. § 1365(b)(1)(B) (barring citizen suits where “the Administrator or State has commenced and is diligently prosecuting” its own civil or criminal action). Similarly, the second purpose of notice “is to give [the alleged violator] an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.” Gwaltney, 484 U.S. at 60, 108 S.Ct. 376;see also Hallstrom, 493 U.S. at 29, 110 S.Ct. 304 (relying on Gwaltney in identifying same purposes for parallel notice requirements under the...