District Court In Alabama Dismisses CWA Citizen Suit Claims Where 60-Day Notice Letter Fails To Identify Correct Date Of Alleged Violation

In Black Warrior Riverkeeper, Inc. v. Metro Recycling, Inc., 2017 U.S. Dist. LEXIS 207011 (ND AL, December 18, 2017), the District Court granted defendant’s Motion to Dismiss plaintiffs’ claims brought under the citizen suit provisions of the Clean Water Act for failure to comply with the jurisdictional prerequisite to bringing such a suit: a sufficient Notice of Intent To Sue pursuant to 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.3 (“60-Day Notice Letter”). In addition, the District Court dismissed plaintiffs’ claims seeking to enforce a Consent Decree between plaintiffs and the defendant for lack of subject matter jurisdiction.

In Metro Recycling, plaintiffs alleged they witnessed a discharge from the landfill formerly operated, and in the process of being closed, by defendant Metro Recycling. Pursuant to a Consent Decree between the parties, defendants were to fulfill the requirements of a Modified Closure Plan as well as construct a retention basin that would capture run-off from the landfill in a manner that would prevent additional sediments and contamination from entering an adjacent waterway. While the alleged discharge from the landfill’s retention basin occurred on January 28, 2016, sample results were returned on February 3, 2016 showing levels of Total Suspended Solids in excess of the limits allowed in the Consent Decree. The parties agreed the plaintiffs’ 60-Day Notice Letter stated defendant’s alleged violation took place on February 3, 2016 when the actual date of the alleged violation was January 28, 2016. On this basis, defendant sought to dismiss plaintiffs’ CWA claims for failure to provide a legally sufficient 60-Day Notice Letter in violation of 33 U.S.C. § 1365(b) and 40 C.F.R. § 135.3.

As an initial matter, the District Court affirmed that compliance with the 60-Day Notice Letter requirement was a jurisdictional prerequisite to the filing of a citizen suit under the Clean Water Act. Citing Eleventh Circuit authority, the Court held, “‘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.’ Nat’l Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096, 1097 (11th Cir. 1991). ‘If a plaintiff fails to comply with this notice requirement where it is applicable, the district court is required to dismiss the action.’ Id. at 1097-98.” Metro Recycling, *8.

The District Court then addressed the appropriate standard of review, noting the somewhat contradictory nature of adhering to the Eleventh Circuit’s mandate to strictly construe compliance with the notice requirements of 40 C.F.R. § 135.3 which, in turn, require only that the 60-Day Notice Letter “‘include sufficient information to permit the recipient to identify…the date or dates of such violation.’” Metro Recycling, *10. While the District Court noted the specific issue of an erroneous date of violation had not been addressed by the Eleventh Circuit, it found, consistent with a strict construction, that the 60-Day Notice Letter did not provide “sufficient information” to the defendant as the stated date of violation was wrong. On this basis, the Court granted the defendant’s motion to dismiss the Clean Water Act claims. The District Court made this ruling despite the fact defendant was actually present during plaintiffs’ testing and had actual knowledge of the date of violation.

The District Court also dismissed plaintiffs’ claim to enforce the Consent Decree itself for lack of subject matter jurisdiction. Plaintiffs argued that, while the Order affirming the Consent Decree expressly stated the District Court was to retain jurisdiction for one year (and that year had passed), the Order also provided the Court will enforce the settlement between the parties as reflected in the Consent Decree. As the Consent Decree stated the Court was to retain jurisdiction to resolve disputes that might arise thereunder, plaintiffs argued the Order bestowed ancillary jurisdiction on the District Court. The District Court disagreed, noting the Consent Decree language conflicted with the Order’s express limitation on the Court’s retention of jurisdiction. Holding the specific jurisdictional language in the Order took precedence, the District Court granted the defendant’s motion to dismiss plaintiffs’ claim to enforce the Consent Decree for lack of subject matter jurisdiction.