San Francisco Baykeeper, Inc. v. Tosco Corp.

• Decision Date: 01 November 2002
• Docket Number: No. 01-15939.,01-15939.
• Citation: 309 F.3d 1153
• Parties: SAN FRANCISCO BAYKEEPER, INC., Plaintiff-Appellant, v. TOSCO CORPORATION, Diablo Services, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

309 F.3d 1153

SAN FRANCISCO BAYKEEPER, INC., Plaintiff-Appellant, v. TOSCO CORPORATION, Diablo Services, Inc., Defendants-Appellees.

No. 01-15939.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2002.

Filed November 1, 2002.

COPYRIGHT MATERIAL OMITTED

Robert S. Perlmutter, Shute, Mihaly and Weinberger, San Francisco, CA; H. Sinclair Kerr, Jr., Timothy J. Fox, Kerr & Wagstaffe LLP, San Francisco, CA; Leo P. O'Brien, Waterkeepers Northern California, San Francisco, CA, for the appellant.

John J. Lyons, James L. Arnone, Evelyn Heidelberg, Latham and Watkins, Los Angeles, CA; Sandi L. Nichols, Lawrence S. Bazel, Christopher J. Carr, Stoel Rives, LLP, San Francisco, CA, for the appellees.

Michael Axline, Western Environmental Law Center, Eugene, OR, for the amicus.

Appeal from the United States District Court for the Northern District of California; Susan Illston, District Judge, Presiding. D.C. No. CV-00-0256-SI.

Before: GOODWIN, Senior Circuit Judge, and THOMAS and W. FLETCHER, Circuit Judges.

OPINION

WILLIAM A. FLETCHER, Circuit Judge.

This case presents the questions of whether a citizen plaintiff under the Clean Water Act must always notify the defendant of the specific dates of alleged violations in order to pursue claims for those violations, and whether that plaintiff can maintain a suit against a defendant firm that no longer operates the polluting facility at issue.

We hold that as long as a notice letter is reasonably specific as to the nature and time of the alleged violations, the plaintiff has fulfilled the notice requirement. The letter does not need to describe every detail of every violation; it need only provide enough information that the defendant can identify and correct the problem. We also hold that a plaintiff can still pursue civil penalties against a defendant even though the defendant no longer owns and operates the source of pollution. Because of the important deterrent function of civil penalties under the Clean Water Act, a defendant cannot escape liability arising out of past violations by selling a polluting facility that continues to operate.

I

San Francisco BayKeeper, Inc. ("BayKeeper") appeals the district court's grant of summary judgment in favor of Tosco Corporation and Diablo Services Corporation (collectively "Tosco") in its suit alleging violations of the Clean Water Act. See 33 U.S.C. §§ 1251-1387. When the suit was filed, Tosco owned and operated a petroleum coke storage and loading facility (the "Diablo facility") located in Pittsburg, California near New York Slough, a navigable waterway that flows into the San Francisco Bay. Petroleum coke, a by-product of the petroleum refining process, is stored at the Diablo facility and then loaded onto ships that travel over the New York Slough into the Bay.

BayKeeper is a nonprofit corporation "dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of the San Francisco Bay." On September 2, 1999, BayKeeper notified Tosco of its intention to file suit for violations of the Clean Water Act, and on January 24, 2000, BayKeeper filed suit. BayKeeper claimed that Tosco had allowed illegal discharges of petroleum coke to enter the New York Slough, alleging, among other things, that Tosco stored petroleum coke in large uncovered piles at the Diablo facility, and that this method of storage allowed coke to be carried into the slough by wind and rain. BayKeeper further alleged that Tosco's careless procedures for loading coke onto ships caused coke to spill into the slough. BayKeeper sought injunctive and declaratory relief, civil penalties, and attorneys' fees under the Clean Water Act.

The Clean Water Act prohibits discharge of pollutants into navigable waterways except as authorized by the statute. The Act is largely administered through the National Pollution Discharge Elimination System ("NPDES") permit program, under which states are authorized to issue and administer NPDES permits. 33 U.S.C. § 1342(b). Any discharge of pollutants not allowed by an NPDES permit is illegal. Id. § 1311(a). The California State Water Resources Control Board issues a General Permit that regulates discharges into California waters. Industrial facilities in California must either comply with the requirements of the General Permit or obtain an individualized NPDES permit allowing a variance.

Those who violate the Clean Water Act and its implementing NPDES permit program are subject to a variety of sanctions. Among other things, a court may order payment of

a civil penalty not to exceed $ 25,000 per day for each violation. In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.

Id. § 1319(d).

The Act authorizes the EPA Administrator to file suits against polluters. Id. § 1319(b). The Clean Water Act also authorizes "any citizen" to sue "any person... who is alleged to be in violation of ... an effluent standard or limitation under this chapter or ... an order issued by the Administrator or a State with respect to such a standard or limitation." Id. § 1365(a). The citizen suit provision allows plaintiffs to seek injunctive relief, civil penalties, and attorneys' fees. Id. § 1365(a), (d). If civil penalties are awarded in citizen suits, they are payable not to the citizen plaintiff but to the U.S. Treasury. Id. § 1365(a); Friends of the Earth v. Laidlaw, 528 U.S. 167, 175, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

In this case, Tosco moved to dismiss the suit on the ground that BayKeeper did not give adequate notice as required by the statute. The district court denied the motion but held that BayKeeper had failed to describe the dates of certain violations with adequate specificity. It therefore limited BayKeeper's claim to violations that, in its view, had been sufficiently described in the notice.

On August 31, 2000, seven months after the commencement of the suit, Tosco sold the Diablo facility to Ultramar Diamond Shamrock Corporation ("Ultramar"). Tosco then moved for summary judgment on the grounds that the case became moot once it sold the Diablo facility. The district court agreed. In granting summary judgment to Tosco, it concluded that "in this case, where Tosco no longer owns or operates the facility, it is absolutely clear that the alleged violations cannot reasonably be expected to recur."

BayKeeper timely appealed both the district court's limitation of the suit to violations on certain dates its dismissal based on mootness. We address each issue in turn.

II

We review the district court's ruling on sufficiency of notice de novo. See Cmty. Ass'n v. Bosma Dairy, 305 F.3d 943, 949 (9th Cir.2002); Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1353 (9th Cir.1995). The district court limited BayKeeper's ability to pursue certain alleged violations because it found that BayKeeper's notice letter did not adequately notify Tosco of the nature of those violations. We disagree and hold that BayKeeper's notice was sufficiently specific as to all of the alleged violations.

The Clean Water Act requires citizen plaintiffs to notify defendants of their intent to sue at least sixty days before filing suit. 33 U.S.C. § 1365(b)(1)(A).¹ The Act authorizes the EPA Administrator to prescribe the manner of the notice. Id. § 1365(b). Regulations promulgated under that authorization instruct that the notice

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 notice requirement and the 60-day delay are intended to give government regulators an opportunity to take action, and to give alleged violators an opportunity to comply with the Clean Water Act. See Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59-61, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).

In Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), the Supreme Court held that a citizen suit under the Clean Water Act must be dismissed if the plaintiff fails to give the required notice under the Act. In declining to "create an exception" to the notice requirements, id. at 27, 110 S.Ct. 304, the Court sought to further the congressional goals of allowing "Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits," as well as giving "the alleged violator an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit," id. at 29, 110 S.Ct. 304 (internal quotation marks omitted).

Following Hallstrom, we have "strictly construed" the notice requirements for citizen suits under the Clean Water Act. Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 998 (9th Cir.2000). In Washington Trout, we affirmed the dismissal of a citizen suit where the notice letter failed to give the identity and contact information of the plaintiffs. See 45 F.3d at 1355. In that case, because the defendants did not know the identities of the plaintiffs, "they were not in a position to negotiate with the plaintiffs or seek an administrative remedy. This made any sort of resolution between the parties during the notice period an impossibility." Id. at 1354.

The regulation does not require, however, that plaintiffs "list every specific aspect or detail of...