Petition for Writ of Certiorari — AG Industrial Manufacturing Inc. v. Waterkeepers Northern California

/

OD earare Court, U.S.

Flie

No. 04- Fong

IN THE

Supreme Court of the titten State

AG INDUSTRIAL MANUFACTURING INC.

and CLAUDE E. BROWN,

Petitioners,

-.

WATERKEEPERS NORTHERN CALIFORNIA,

a non-profit corporation dba DELTAKEEPER

and BILL JENNINGS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Tuomas G. Mouzes*

Dennis M. HAusER

Hauser & MouzZEs,

A PROFESSIONAL LAW CORPORATION

18826 N. Lower Sacramento Rd.

SuiteH —

P.O. Box 1397

Woodbridge, CA 95258-1397

(209) 368-1368

* Counsel of Record Attorneys for Petitioners

189723 cel

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

The United States Court of Appeals for the Ninth Circuit

reversed the district court’s determination that it lacked

subject matter jurisdiction over a private citizen’s action

seeking to enforce provisions of the Clean Water Act

(“the Act”), 86 Stat. 816, 33 U.S.C. §§ 1251, et seq. and the

General Permit issued by the State of California. Standing

to initiate such an action exists if certain pre-suit notice

conditions contained in 33 U.S.C. § 1365(b)(1)(A) as

augmented by regulation promulgated by the Administrator

of the Environmental Protection Agency (“EPA”) at 40 C.F.R.

§ 135.3(a) are satisfied. In that context, the pending Petition

presents the following issues:

1. Whether the required 60 day notice of intent-to-sue

establishes standing and subject matter jurisdiction when

petitioners, who in advance of the sending of the notice made

no efforts to comply with the Act or California’s General

Permit, upon receipt of the 60-day notice and in advance of

the filing of respondents’ complaint took steps to place the

light industrial manufacturing facility owned by petitioner

Ag Industrial Manufacturing, Inc. (“Aim”) in compliance

with the Act and California’s General Permit.

2. Whether respondents can assert in “good-faith” that

the 60-day intent-to-sue notice supplies adequate notice of

the “specific standard, limitation or order alleged to have

constituted a violation” and the dates of alleged violations

within the requirements of 40 C.F.R. § 135.3(a) so as to

confer standing and subject matter jurisdiction where:

(i) California’s General Permit provides that a light industrial

facility of the type owned by Aim is not subject to any effluent

limitations for storm water discharged from that facility;

a

il

(i1) respondent Bill Jennings testified he once saw an

Aim employee using a hose to wash something but never

saw that non-storm water discharge exit the Aim facility;

(111) respondents never collected samples, much less tested

for pollutants, of storm water being discharged into the

protected waterway; and (iv) respondents supplied an

incomplete and contradictory list of dates and amounts of

rainfall at two rainfall stations at least 15 miles from Aim’s

facility asserting in their notice that wrongful storm water

discharge occurs each calendar day that rainfall exceeds one-

tenth of one inch which assertion is subsequently invalidated

by the testimony of respondents’ expert witness.

iil

LIST OF PARTIES

The parties are as listed in the caption.

CORPORATE DISCLOSURE STATEMENT

Ag Industrial Manufacturing, Inc. (“Aim”) is a California

corporation. It has no parent or subsidiary corporation.

No publicly held company has any ownership interest in Aim.

Aim has two shareholders being Paul Burkner and petitioner,

Claude E. Brown, who is Aim’s President.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................0.. i

FP pgs oss | BPperrrrrryee rrr Terr rr erry ili

CORPORATE DISCLOSURE STATEMENT ..... ill

pet Foe fe 3 rr rer yr rr rere iV

TABLE OF CITED AUTHORITIES ............ vi

TABLE OF APPENDICES ........ccesceseesss x

eo ke ere erer Tyr rer yee Ter TTT 1

| STATEMENT OF JURISDICTION ............. ]

STATUTORY AND REGULATORY

PROVISIONS INVOLVED ................. 1

STATEMENT OF THE CASE .......22s0es000: 5

REASONS FOR GRANTING THE PETITION ... 9

I. REVIEW IS WARRANTED TO AVOID

UNNECESSARY EXHAUSTION OF

JUDICIAL RESOURCES AND

ENCOURAGE VOLUNTARY COMP-

RSAC While SED ALCE, 20. ccceeeiecs 12

Contents

Page

A. The Ninth Circuit Has Destroyed the

EPA Requirement that Notice Be

“Specific” In Describing the Alleged

Violation to Include the Dates of

VRE. hk cavesdkasnuee ae 12

B. Subject Matter Jurisdiction Can Only Be

Determined Based Upon Facts that Exist

on the Date the Complaint Is Filed. ... 16

C. The EPA’s Requirement that the Notice

Be “Specific” Must Be Upheld So that a

Determination Can Be Made that Alleged

Violations of the Act Are Made in

“ROUSE 6 + ken deuce ous anneen 21

CURTLEARIIUNE cS cdsecbencencdtessaseundaese 23

vi

TABLE OF CITED AUTHORITIES

Page

Cases: .

Arizonans for Official English v. Arizona,

520 U.S. 43, 117 S. Ct. 1055, 137 L. Ed. 2d 170

CIDP TD oo ccacenceedeaseuesncste tae 19

Bender v. Williamsport Area School Dist.,

475 U.S. 534, 106 S. Ct. 1326, 89 L. Ed. 2d 501

CUSGSD cccecvesvataceuaseuasseeeae Leeann 19

Cmty. Ass'n for Restoration of the Env t v.

Henry Bosma Dairy,

305 F.36 S43 CP COR BOG) cc vcnccdscscccscss 14

_ Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc..,

484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306

(i. 1) BPPOPEPP PETE Te ere ee passim

Hallstrom v. Tillamook County,

493 U.S. 20, 110 S. Ct. 304, 107 L. Ed. 2d 237

CEGGEED ov vccivsasschutuneyereeavereaee 10

KVOS, Inc. v. Associated Press,

299 U.S. 269, 57 S. Ct. 197, 81 L. Ed. 183 (1936)

ob eveuscdveveceeabeesbEebERae sen 17

Land v. Dollar,

330 U.S. 731, 67 S. Ct. 1009, 91 L. Ed. 1209

ts Ey a 16-17

vii

Cited Authorities

Page

Mansfield, C.&.L.M.R. Co. v. Swan,

111 U.S. 379, 4S. Ct. 510, 28 L. Ed. 462 (1884)

sus dddnktsauwssdadendeedsdacmeieadaaress 19

McNutt v. General Motors Acceptance Corp.,

298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)

(un daeedbsdbeces sacs sadaleeeenieieenes 17

Mitchell v. Maurer,

293 U.S. 237, 55 S. Ct. 162, 79 L. Ed. 3381 (1934)

i ¢adbdngiessddoekebakicéeunaeubeniecrn 19

Mollan v. Torrance,

9 Wheat. 537, 6 L. Ed. 154 (1824) ........... 16

Natural Res. Def. Council v. Southwest Marine, Inc.,

296 F.36 FES CB Cae FOG cc cccccscseccs 12, 13, 14

Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574, 119 S. Ct. 1563, 143 L. Ed. 2d 760

CRUE os 554b is 40ub 6ondddesecunnenseuanen 19

San Francisco BayKeeper, Inc. v. Tosco Corp,

SED E26 1655 OC BD cn ca tewveccavccs 14, 15

Smith v. Sperling,

354 U.S. 91, 77 S. Ct. 1112, 1 L. Ed. 2d 1205

CRUE 06 0ScsccWcecedsdvascacueneennasen 16

vill

Cited Authorities

Page

Steel Company v. Citizens For a

Better Environment,

523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210

ER Per re rrr re Ore erry 10, 18, 19

St. Paul Mercury Indemnity Co. v. Red Cab Co.,

303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938)

PO OPE LOT Pee EE PEEP ET ETE CEE Peer 16

Thomson v. Gaskill,

315 U.S. 442, 62 S. Ct. 673, 86 L. Ed. 951 (1942)

PRP Pe eer TP UT Te EL, PTET er 17

United States v. SCRAP,

412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254

SPE ee TCT eT eT Pee T Tee OPTS TOT ee 10

WaterKeepers Northern California v. AG

Industrial Manufacturing, Inc.,

FTO Fe 08 OC. FOOD vcciicnvecevens 1 38,57

Federal Statutes:

40 C.F.R.

Subchapter N

EE coche aca's'n de aes dbs Ra RECS 6

SE 6 dee ne edness daa nee eae 5

peer ai ror cl a i, 4, 5, 10

ix

Cited Authorities

Page

28 U.S.C.

Te Ea eT Pe ae ena

“1” SRS een ecree sear prene rn tert

OD RSC OLR ee TET one

ER are athe aacermenen ets Geter 5

NS ers Fis neta seti ite a) Leon a ae 5

RN Ah Sag ers 1, 5, 16

DG

hk ee eee 10

EAR ee eigen Raoul ie a 10

State Statutes:

Cal. Water Code

SE a kd beds Se ea baseiws 5

Other:

California Water Resources Control Board,

Water Quality Order No. 97-03-DWQ:

NPDES General Permit No. CAS000001 ...5, 6, 8, 21

Federal Rules of Civil Procedure

NG Cbuai ade yale hanes tbaeas ue be 22

x

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Ninth Circuit Filed July 16,

PEP OCT ES PERT ERT CLOT ETT TTT or ere la

Appendix B — Memorandum And Order Of The

United States District Court Eastern District Of

California Filed December 3, 2002 ........... 19a

1

OPINION BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit is reported at WaterKeepers Northern

California v. AG Industrial Manufacturing, Inc., 375 F.3d

913 (9" Cir. 2004). See Appendix A at 1a. The Ninth Circuit

reversed the unreported December 3, 2002 Memorandum and

Order of the United States District Court for the Eastern

District of California (see Appendix B at 19a) upon which a

-judgment of dismissal was entered.

STATEMENT OF JURISDICTION

- The district court had jurisdiction under 33 U.S.C.

§ 1365(a). The Ninth Circuit’s jurisdiction existed pursuant

to 28 U.S.C. § 1291. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

The Ninth Circuit’s opinion was rendered on July 16,

2004.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Title 33 United States Code, Section 1365

Citizen suits

(a) Authorization; jurisdiction

Except as provided in subsection (b) of this

section and section 1319(g)(6) of this title, any

citizen may commence a civil action on his own

behalf —

2

(1) against any person (including (i) the

United States, and (ii) any other governmental

instrumentality or agency to the extent permitted

by the eleventh amendment to the Constitution)

who 1s alleged to be in violation of (A) an effluent

standard or limitation under this chapter or

(B) an order issued by the Administrator or a State

with respect to such a standard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to perform

any act or duty under this chapter which is not

discretionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the

citizenship of the parties, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such act

or duty, as the case may be, and to apply any

appropriate civil penalties under section 1319(d)

of this title.

(b) Notice

No action may be commenced —

(1) under subsection (a)(1) of this section —

(A) prior to sixty days after the plaintiff

has given notice of the alleged violation

(i) to the Administrator, (11) to the State

in which the alleged violation occurs, and

(111) to any alleged violator of the standard,

limitation, or order, or

3

(B) if the Administrator or State has

commenced and is diligently prosecuting a

civil or criminal action, in a court of the

United States, or a State to require

compliance with the standard, limitation, or

order, but in any such action in a court of the

United States any citizen may intervene as a

matter of right.

(2) under subsection (a)(2) of this section prior

to sixty days after the plaintiff has given notice of

such action to the Administrator,

except that such action may be brought immediately

after such notification in the case of an action under

the section respecting a violation of sections 1316

and 1317(a) of this title. Notice under this subsection

shall be given in such manner as the Administrator

shall prescribe by regulation. [emphasis added]

(f) Effluent standard or limitation

For purposes of this section, the term “effluent

standard or limitation under this chapter” means

(1) effective July 1, 1973, an unlawful act under

subsection (a) of section 1311 of this title; (2) an

effluent limitation or other limitation under

section 1311 or 1312 of this title; (3) standard of

performance under section 1316 of this title;

(4) prohibition, effluent standard or pretreatment

standards under section 1317 of this title;

(5) certification under section 1341 of this title;

4

(6) a permit or condition thereof issued under

section 1342 of this title, which is in effect under

this chapter (including a requirement applicable

by reason of section 1323 of this title); or (7) a

regulation under section 1345(d) of this title.

(g) “Citizen” defined

For the purposes of this section the term

“citizen” means a person or persons having an

interest which is or may be adversely affected.

Title 40, Code of Federal Regulations, Section

135.3(a)

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 constituted a violation, the person or persons

responsible for the alleged violation, the date or

dates of such violation, and the full name, address,

and telephone number of the person giving notice.

5

STATEMENT OF THE CASE .

1. On June 28, 2000, respondents attempted to comply with

33 U.S.C. § 1365(a) and 40 C.F.R. § 135.3(a) by mailing their

60-day intent-to-sue letter (hereafter, “the Notice’’) to petitioner

Aim. It is undisputed that in advance of that mailing, Aim had

made no effort to comply with the Act and California’s General

Permit.'

The Act is administered largely through the National

Pollution Discharge Elimination System (“NPDES”) permit

program. See 33 U.S.C. § 1342(p). Much of the responsibility

for administering the NPDES permit system has been delegated

to the states. See 33 U.S.C. § 1342(b) and Cal. Water Code

§ 13370 (expressing California’s intent to implement its own

NPDES permit program.) Pursuant to 40 C.F.R. § 122.26(c),

California has issued one general permit to cover industrial

dischargers who are not subject to the specific effluent

limitations set forth in 40 C.F.R., Subchapter N. California Water

Resources Control Board, Water Quality Order No. 97-03-

DWQ: NPDES General Permit No. CAS000001 (“the General

Permit”).” ic

1. While irrelevant to the pending petition, petitioners assert

that until receipt of the Notice they were ignorant of the potential

applicability of the Act and the General Permit to the Aim facility.

2. The Order issuing the General Permit specifically provides

that there are no numerical effluent limitations as follows:

9. For facilities which do not have established effluent

limitation guidelines for storm water discharges in 40

C.F.R. Subchapter N, it is not feasible at this time to

establish numeric effluent limitations. This is due to the

large number of discharges and the complex nature of

storm water discharges.

General Permit Order, Addendum at ¥ 9, p. 14.

6

To elect coverage under the General Permit, individual

dischargers must file a notice of intent with the state. General

Permit at 1-2 ¥ 3. Thereafter, the discharger must develop

and implement a Storm Water Pollution Prevention Plan

(“SWPPP”) and develop and implement a comprehensive

storm water discharge monitoring, sampling’ and reporting

program. General Permit at 24-25 4§ B.1-B.15. The SWPPP

has two major objectives: (a) to identify and evaluate

pollutant sources associated with industrial activity which

may affect the quality of water discharge; and (b) to identify

and implement best management practices (“BMPs”) to

reduce or prevent pollutants associated with industrial

activities in water discharge. General Permit at 11, § A.2.

BMPs are defined at 40 C.F.R. § 122.2 and a listing of

potential non-structural and structural BMPs is set forth in

the General Permit at 19-21, J] A.8.

Aim is a small light industrial manufacturing facility with

a net worth of less than $1 million. Aim is located in the

City of Lodi, California, approximately one mile from the

Mokelumne River which the Notice specified as being the

protected waterway affected by Aim’s alleged wrongful

discharge. Aim storm water discharge does not directly flow

to the Mokelumne River but some storm water discharge may

reach the Mokelumne River through the City of Lodi’s storm

drain system. Aim sells agricultural equipment manufactured

by it or others primarily focusing upon the wine grape

industry employing approximately 40 people at peak season.

3. Samples are to be collected at least twice during the “wet”

season and are to be analyzed by a certified laboratory for certain

specified elements such as total suspended solids as well as any toxic

chemicals and other pollutants that are likely to be present in

significant quantities. General Permit at 27, | B.5.c.

7

Aim also services and repairs the equipment which it

manufactures or sells although frequently such activity occurs

in the field.

Respondents’ Notice correctly asserted that as of June

28, 2000, Aim had not filed a notice of intent, prepared a

SWPPP or developed and implemented a comprehensive

storm water monitoring and reporting program. Respondents

conducted no analysis of storm water discharge from the Aim

facility. Respondents conducted no analysis of storm water

discharge into the Mokelumne River at the point the City of

Lodi’s storm drain system discharged into that waterway.

Respondent Bill Jennings saw an Aim employee using a

hose to wash something (i.e., non-storm water); however,

Mr. Jennings did not see any non-storm water discharge

leaving the Aim facility.‘

Nevertheless, respondents’ Notice further asserted that

on unspecified dates Aim illegally discharged non-storm

water whenever equipment was hosed down and illegally

discharged storm water whenever daily rainfall exceeded one-

tenth of one inch as reflected on enclosed rainfall data.

That data purported to reflect rainfall events by date and

amount occurring at two separate reporting stations both of

which were more than 15 miles from the Aim facility.

The data was frequently incomplete and contradictory. Steven

Bond, respondents’ expert witness, admitted at his deposition

that it was incorrect to assert that storm water discharge of

one-tenth of one inch was sufficient the generate sufficient

flow to reach the Mokelumne River and that .19 inch must

occur for such discharge to reach the protected waterway.

4. Mr. Jennings conducted his initial drive by inspection of the

Aim facility on August 8, 1999 or nearly one year in advance of

sending the Notice.

8

Upon receipt of the Notice, petitioners immediately

retained the services of Dan Barber, a professional engineer,

to get the Aim facility into compliance and filed a notice of

intent for Aim with the State of California on July 7, 2000.

By July 21, 2000 Aim had developed a SWPPP which

contained several BMPs as well as a storm water discharge

monitoring® and reporting program. Respondents knew of

Aim’s notice of intent and had received a copy of Aim’s

SWPPP before they filed their Complaint initiating the

pending case.

Respondents assert that so long as the Notice in good

faith asserted on the date it was mailed that Aim’s facility

was not in compliance with the General Permit, it is irrelevant

to the issue of subject matter jurisdiction and standing what

steps Aim had taken to get into compliance with the Act

before the respondents filed their Complaint.

2. Respondents filed their Complaint in the United

States District Court for the Eastern District of California

[Sacramento Division] on September 12, 2000. Even though

respondents knew of Aim’s filed notice of intent and had a

copy of Aim’s SWPPP, that Complaint asserts several distinct

claims of violation of the Act through the failure to file a

notice of intent, the failure to adopt a SWPPP, the failure to

adopt and implement a storm water monitoring and reporting

program and wrongful discharge of storm water and non-

storm water. Respondents thereafter filed their motion for

summary judgment requesting an award of civil penalties of

$5,000,000. In response, on March 29, 2002, petitioners filed

5. Under the General Permit, monitoring of storm water

discharge is only required during day light hours at scheduled facility

operating hours within the “wet” season commencing October 1 and

concluding May 30. General Permit at 26, J§ B.4.a and 4.b.

9

their motion for summary judgment a portion of which

suggested that the Notice was inadequate so that the district

court lacked jurisdiction. The district court agreed and entered

its Memorandum and Order on December 3, 2002 upon which

a judgment of dismissal was entered.

3. Respondents filed their Notice of Appeal to the Ninth

Circuit Court of Appeals on December 31, 2002. The Ninth

Circuit’s decision reversing the district court was entered on

July 16, 2004.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit position that the sole criteria to

determine that subject matter jurisdiction and standing exists

is whether respondents’ subjective good faith exists in the

accuracy of their intent-to-sue notice on the date it was mailed

appears at variance with at least two earlier decisions of this

Court.

In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc. (hereafter, “Gwaltney”), 484 U.S. 49, 60,

64-66, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987), this Court

determined that, among other things, the purpose of the

intent-to-sue notice was to allow an opportunity for voluntary

compliance thereby avoiding the need to file and prosecute

a private citizen’s enforcement action. Inherent in Gwaltney

is that efforts of a party alleged to be in violation of the Act

to get into voluntary compliance is indeed extremely relevant

on the issue of the effectiveness of the Notice at the time the

Complaint is filed so that subject matter jurisdiction may

become the subject of attack in a properly filed summary

judgment motion if party alleged to be in violation promptly

acts to get into compliance. Indeed, the Court commented:

10

... [If the plaintiffs’ allegations of [standing]

were in fact untrue, then the [defendants] should

have moved for summary judgment on the

standing issue and demonstrated ... that the

allegations were sham and raised no genuine issue

of fact.

Gwaltney, supra, 484 U.S. at 66 quoting from United States

v. SCRAP, 412 U.S. 669, 689, 93 S. Ct. 2405, 2417,

37 L. Ed. 2d 254.

In Steel Company v. Citizens For a Better Environment

(hereafter, “Steel Co.”), 523 U.S. 83, 118 S. Ct. 1003, 140

L. Ed. 2d 210 (1998) this Court determined that the 60-day

intent-to-sue notice contained in a similar statute® which

properly asserted a statutory violation when it was mailed

would not support U.S.C.A. Const. Article III, § 2 standing

where, upon receipt of the notice and before the complaint

was filed, the alleged violator took steps which placed it in

compliance.

Further, this Court has ruled that the notice requirements

of another like type statute’ permitting private citizen’s

enforcement actions must be strictly construed and complied

with. Hallstrom v. Tillamook County, 493 U.S. 20, 110

S. Ct. 304, 107 L. Ed. 2d 237 (1989). The content of the

notice is important and must advise the alleged violator of

what conduct violates the Act and when that conduct

occurred. 40 C.F.R. § 135.3(a) requires that the notice be

6. The Emergency Planning and Community Right-To-Know

Act of 1986, 100 Stat. 1755, 42 U.S.C. § 11406(a)(1).

7. Resource Conservation and Recovery Act of 1976, 90 Stat.

2825, 42 U.S.C. § 6972.

11

“specific”. This requirement should be strictly construed and

require “good-faith” efforts on the part of the sender to avoid

mere speculation and conjecture by both identifying the

specific standards violated and supplying all known material

facts upon which the assertion of violation is made. In the

context of only sixty days within which cure may be possible,

specific information is required so that the alleged violator

can quickly evaluate its alleged wrongful conduct and

determine whether cure is possible so as to avoid unnecessary

litigation.

Simply stated, how can the proper policy of avoiding

unnecessary litigation and burden on the judicial system be

achieved if a court looks solely to the state of events that

existed at the time the intent-to-sue notice was sent as

opposed to the state of events at the time the Complaint is

filed. Such an approach completely ignores the 60-day grace

period mandated by Congress.

This Court’s guidance on the issue of the effectiveness

of notice to support jurisdiction over a private citizen’s action

is urgently needed. New light industrial manufacturing

companies who may become potentially subject to the Act

start up every day. Further, California’s General Permit has

been recently revised so as to require, for the first time, all

farming activities in California to comply with the General

Permit. Specific to petitioners, they should not be required

to go forward with the burden of obtaining summary

judgment on the merits or even trial.

The Ninth Circuit’s attitude concerning the time at which

jurisdiction attaches is as of the date of sending of notice

likely makes litigation inevitable and specifically rejects the

notion that cure is possible before a complaint is filed.

12

Subjecting an alleged violator to the reality of litigation even

if full compliance with the Act and California’s General

permit is achieved in advance of the complaint being filed

does not promote the policy of encouraging voluntary

compliance. Indeed, if confronted with the inevitability of

litigation, the alleged violator may elect to litigate and delay

compliance efforts. Any delay in compliance potentially

exacerbates delay in achieving the objectives of the Act which

will lead to less stress to the country’s natural resources

through reduced discharge of contaminants into protected

waterways.

I. REVIEW IS WARRANTED TO AVOID UNNECES-

SARY EXHAUSTION OF JUDICIAL RESOURCES

AND ENCOURAGE VOLUNTARY COMPLIANCE

WITH THE ACT.

A. The Ninth Circuit Has Destroyed the EPA

Requirement that Notice Be “Specific” In

Describing the Alleged Violation to Include the

Dates of Violation.

Natural Res. Def. Council v. Southwest Marine, Inc., 236

F.3d 985 (9% Cir. 2000) reflects the Ninth Circuit’s relaxed

attitude towards the adequacy of notice to support a private

citizen’s action. The alleged violator operated a large shipyard

which removed old paint from ships and then repainted them

having received a NPDES permit and a supplemental General

Industrial Permit which applied to storm water discharge.

Both permits required adoption of BMPs. A SWPPP was

also required which must include certain specified material.

The permits required that the SWPPP require that the

defendant perform daily inspections to ensure compliance

with its BMPs and maintain records of those inspections.

13

Id. at 992. Among other things, plaintiff’s intent-to-sue letter

asserted that the defendant was not conducting the daily

inspections or maintaining records of those inspection.

Shortly before the complaint was filed, the defendant adopted

an amended SWPPP which attempted to address and correct

various shortcomings described in plaintiffs’ notice letter.

At trial, the court determined the amended SWPPP was

adequate; however, convincing evidence was presented that

the defendant did not conduct the required daily inspections

and even if it did, it did not maintain records of those

inspections. Jd. at 993.

Plaintiff’s intent-to-sue letter did not provide specific

dates of alleged violation. Rather it specifically described

how the existing SWPPP failed to comply with the

defendant’s storm water permit by failing to perform daily

inspections and maintain records of those inspections. On

appeal, the Ninth Circuit correctly determined that subject

matter jurisdiction existed; however, in doing so the Ninth

Circuit addressed an issue which was unnecessary to the

determination of liability given the trial court determination

that there existed an ongoing and continuous failure to inspect

and maintain records of those inspections. That issue was

whether subject matter jurisdiction was lost as a consequence

of the defendant adopting an amended adequate SWPPP after

receipt of the intent-to-sue notice but in advance of filing

the complaint. The Ninth Circuit held:

If a defendant receives a proper notice letter

alleging that it has failed to prepare and implement

an adequate plan and, in response, prepares a new

plan and begins to implement it before the

complaint is filed, is the otherwise proper notice

letter defective for failing to identify and discuss

’

Bee Nae BESS AE TIES OME LBD

14

the new plan and its implementation? In those

circumstances, must a citizen-plaintiff send a

new notice letter? We think not. Subject matter

Jurisdiction is established by providing a notice

that is adequate on the date it is given to the

defendant. [emphasis added]

Id. at 997.

Cmty. Ass'n for Restoration of the Env t v. Henry Bosma Dairy,

305 F.3d 943 (9" Cir. 2002) involved two dairies operated by

the defendant who was subject to specific effluent guidelines

upon which the defendant had obtained an individual permit

for storm water discharges. There was a long history of

compliance problems. The State of Washington then adopted a

General Dairy Permit which contained specific discharge

limitations for dairies who elected to be covered by this Permit.

Plaintiff’s intent-to-sue letter described 12 specific violations

of the General Dairy Permit. Plaintiff’s complaint sought

statutory penalties not only for the 12 violations identified in

its notice letter but also 32 additional like type alleged violations.

At trial, a total of 16 violations were ultimately established.

The Ninth Circuit held that so long as the initial intent-to-sue

letter was broad enough to encompass additional like type

discharge violations and the additional alleged violations were

“from the same source, were of the same nature, and were easily

identifiable”, no new notice was required and those additional

claims could be included in the assessment of civil penalties.

Id. at 950-53.

San Francisco BayKeeper, Inc. v. Tosco Corp, 309 F.3d

1153 (9" Cir. 2002) involved the unloading and storage of

petroleum coke by the defendant. Plaintiff’s intent-to-sue

letter asserted that a violation occurred each time coke was

spilled during ship unloading and supplied fourteen dates

15

when ships had been docked at the defendant’s facility.

The notice also asserted wrongful discharge “occurred on

each day when the wind [was] sufficiently strong to blow

coke” from storage piles into a nearby waterway. The notice

further asserted whenever rain exceed one-tenth of an inch

wrongful storm water discharge containing petroleum coke

also occurred and supplied a list of 190 dates when rainfall

exceeded one-tenth of an inch. /d. at 1158. The Ninth Circuit

held that where an alleged violation is continuous and

ongoing, the notice need not contain specific dates and, in

any event, the dates of unloading of petroleum coke and when

the wind blew was presumptively known to the defendant.

The Ninth Circuit’s rule that whenever the alleged

violation is continuous and ongoing the dates of violation

either need not be stated or are presumptively known to the

defendant was specifically applied to petitioners when the

Ninth Circuit commented the respondents were “not required

to include any rain tables under San Francisco BayKeeper”

[375 F.3d at 918]® and “AG Industrial is in a much better

position to know when it periodically washes down areas of

its facility” [375 F.3d at 919]. Effectively the Ninth Circuit

has adopted a rule which states that all an intent-to-sue letter

to a light industrial company not subject to specific effluent

limitations need contain is a very general statement that the

company violated the General Permit and the Act every time

it rains or every time it allows an employee to turn on a hose

for any period of time for whatever purpose and that these

violations are continuous and ongoing. Not only does this

rule stand in apparent disregard of the EPA regulation

controlling the required contents of the intent-to-sue notice,

8. These rain tables were apparently supplied in an effort to

supply date specific information when rainfall may have exceeded

one-tenth of one inch at the Aim facility.

16

it also effectively eliminates consideration at any stage of

the litigation that specific substantive allegations of violation

must be made in good faith so that jurisdiction exists.

B. Subject Matter Jurisdiction Can Only Be

Determined Based Upon Facts that Exist on the

Date the Complaint Is Filed.

In Gwaltney, this Court commented that the “to be in

violation” language of § 505(a)(1) of the Act, 33 U.S.C.

§ 1365(a) together with the remaining statutory language of

the Act involving “the pervasive use of the present tense”

compelled the conclusion that

... the harm sought to be addressed by the citizen

suit lies in the present or the future, not in the

past.

Gwaltney, supra, 484 U.S. at 59

Determining subject matter jurisdiction solely upon the

adequacy of the intent-to-sue notice upon the date it was sent,

an event in the past, as opposed to the date the complaint is

filed is patently flawed. Subject matter jurisdiction “depends

on the state of things at the time of the action brought”.

Mollan v. Torrance, 9 Wheat. 537, 539, 6 L. Ed. 154 (1824);

see, e.g., Smith v. Sperling, 354 U.S. 91, 93 n.1, 77 S. Ct.

1112, 1113 n.1, 1 L. Ed. 2d 1205 (1957); St. Paul Mercury

Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58

S. Ct. 586, 590-91, 82 L. Ed. 845 (1938). Subject matter

jurisdiction can be called into question either by challenging

the sufficiency of the allegation or by challenging the

accuracy of the jurisdictional facts alleged. See, e.g., Land v.

Dollar, 330 U.S. 731, 735, n.4, 67 S. Ct. 1009, 1011 n.4,

17

91 L. Ed. 1209 (1947); Thomson v. Gaskill, 315 U.S. 442, 446,

62 S. Ct. 673, 675, 86 L. Ed. 951 (1942); KVOS, Inc. v.

Associated Press, 299 U.S. 269, 278, 57 S. Ct. 197, 201, 81

L. Ed. 183 (1936); McNutt v. General Motors Acceptance Corp.,

298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936).

A significant purpose of the intent-to-sue notice is as

follows:

... the purpose of notice to the alleged violator

is to give it an opportunity to bring itself into

complete compliance with the Act and thus render

unnecessary a citizen suit.

Gwaltney, supra, 484 U.S. at 60.

Against one Congressional policy objective of providing

a grace period to an alleged violator to opt for voluntary

compliance and thereby avoid the expense of a private

citizen’s enforcement action, Gwaltney establishes that

subject matter jurisdiction exists so long as allegations of

continuous and ongoing violation are made in “good-faith”.

Gwaltney, supra, 484 U.S. at 64. However, there exists no

sound policy reason for the Ninth Circuit rule which requires

the “good-faith” determination occur as of the date of the

Notice as follows:

Regardless of whether WaterKeepers is able to prove

each claimed discharge, its intent-to-sue letter put

AG Industrial on notice as to the violations that

WaterKeepers would allege in its complaint. The

statute and regulation require no more.

375 F.3d at 918.

18

The Ninth Circuit rule focusing on the date the Notice

was mailed makes litigation inevitable (assuming the alleged

transgressor does not want to settle by stipulating to a civil

penalty award) thereby unnecessarily burdening the judicial

system. Such litigation provides no immediate benefit to our

natural water resources where an alleged violator has

voluntarily elected to place itself into compliance with the

Act and the General Permit.

In determining that subject matter jurisdiction would

exist upon “good-faith” allegations in the complaint, this

Court cautioned:

Our acknowledgment that Congress intended a

good-faith allegation to suffice for jurisdictional

purposes, however, does not give litigants license

to flood the court with suits premised on baseless

allegations. Rule 11 of the Federal Rules of Civil

Procedure, which requires pleadings to be based

on a good-faith belief, formed after reasonable

inquiry, that they are “well grounded in fact,”

adequately protects defendants from frivolous

allegations.

Gwaltney, 484 U.S. at 65.

With due respect, Rule 11 of the Federal Rules of Civil

Procedure should not be the exclusive remedy of a defendant.

A motion for summary judgment which leads into the

conclusion that subject matter jurisdiction did not exist

and standing does not exist is an appropriate way to

address whether the complaint should ever have been filed.

Steel Company, supra, 523 U.S. at 94-95 held a federal court

must resolve any jurisdictional doubt prior to a decision on

19

the merits so as to avoid a constitutionally prohibited advisory

opinion as follows:

The requirement that jurisdiction be established

as a threshold matter “spring[s] from the nature

and limits of the judicial power of the United

States” and is “inflexible and without exception”.

Mansfield, C.&.L.M.R. Co. v. Swan, 111 U.S. 379,

382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884).

Further this Court quoted from its then recent decision?

unanimously setting aside a Ninth Circuit’s merits decision

where the case had lost the elements of a justiciable

controversy as follows:

[E]very federal appellate court has a special

obligation to “satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a

cause under review,” even though the parties are

prepared to concede it. Mitchell v. Maurer, 293

U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 3381

(1934).

Steel Company, supra, 523 U.S. at 95. See also Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574, 577, 119 S. Ct. 1563,

1570-72, 143 L. Ed. 2d 760 (1999).

The issue is not whether a validly filed complaint’s

allegations have been rendered moot. The issue is whether

the respondents could properly invoke the jurisdiction of the

9. Arizonans for Official English v. Arizona, 520 U.S. 43, 73,

117 S. Ct. 1055, 1071-72, 137 L. Ed. 2d 170 (1997) itself quoting

from Bender v. Williamsport Area School Dist., 475 U.S. 534, 541,

106 S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986).

20

federal courts at the time the complaint was filed. No other

Circuit has followed, or refused to follow, the Ninth Circuit

position on the precise issue of subject matter jurisdiction

being determined as of the date of the sending of the intent-

to-sue notice.

It remains undisputed in their complaint, respondents

accused the petitioners of failing to file a notice of intent

and failing to adopt a SWPPP and storm water monitoring

program. Those allegations were no longer true when the

complaint was filed. Since the respondents had actual

knowledge that Aim had initiated compliance efforts with

the filing of Aim’s notice of intent and adoption of a SWPPP

which included several BMPs as well as a storm water

monitoring and reporting program, to include allegations in

the complaint to the contrary can never be in “good-faith”.

Remaining allegations in the complaint of speculative non-

storm water discharge and the level of contaminants of

untested storm water discharge for a facility which is not

subject to any effluent limitations in the storm water which

it discharges do not remotely meet the specificity of the EPA

regulation governing the contents of the intent-to-sue notice

and certainly do not achieve the requirement of “good-faith”

so that subject matter jurisdiction can exist. The lack of

sufficient notice grows when respondents’ own expert witness

concedes at deposition that certain rainfall data related

assertions in the Notice are inaccurate.

The district court did precisely what it was supposed to

do. Confronted with cross-motions for summary judgment,

the district court analyzed whether subject matter jurisdiction

existed. It correctly concluded that it did not. The Ninth

Circuit’s reversal shall lead other courts down the wrong path.

21

C. The EPA’s Requirement that the Notice

Be “Specific” Must Be Upheld So that a

Determination Can Be Made that Alleged

Violations of the Act Are Made in “Good-Faith”.

The Ninth Circuit has also abandoned the necessity of

specific information concerning: (i) the dates of violation;

and (ii) the standards and orders violated. True, the Notice

contains a fairly detailed reference to the General Permit and

certain of its provisions. Respondents’ Notice contains only

very general reference to the necessity of adopting BMPs to

reduce or avoid the existence of pollutants in storm water

discharge. However, the Aim facility is not subject to any

specific effluent limitations in storm water discharged under

the General Permit. See Footnote 3, supra. The Notice does

not advise what specific BMPs should be in place at the Aim

facility.

The General Permit prohibits storm water discharge

which causes, or threatens to cause, otherwise unspecified

receiving water limitations to be exceeded. Receiving water

limitations vary for each protected waterway in California

and indeed may vary as to specified portions within a

protected waterway. The Notice supplies no information what

those limitations are with reference to the Mokelumne River.

Further, through the date cross-motions for summary

judgment were filed petitioners never collected a sample of

storm water discharge at the point of discharge from the City

of Lodi storm drain system into the Mokelumne River nor

are they aware of anyone else doing so which would

determine what level, if any, that discharge from the City of

Lodi storm drain system would exceed receiving water

limitations.

22

The generality of what the Ninth Circuit believes is

sufficient for subject matter jurisdiction and standing shall

likely render Rule 11 completely ineffective since the sender

of the notice shall likely always establish that it was at least

proceeding in subjective “good-faith” when the notice was

sent. However, the critical time is whether “good-faith”

continues to exist at the time the complaint is filed since

filing the complaint marks the point in time that Rule 11 can

even start to apply.

If Rule 11 is to be an effective barrier against frivolous

litigation, upholding the requirement that the intent-to-sue

letter contain “specific” information best serves several

public policy objectives. First and consistent with due process

concerns, it provides concrete information to the alleged

violator who can then quickly examine its options. Next and

in the context of escalating exposure to civil penalties based

upon each day of violation, limiting the scope of the intent-

to-sue letter to the events specified therein encourages

voluntary compliance. Finally, voluntary compliance will

hopefully lead to improved conditions in protected waterways

while avoiding unnecessary litigation.

23

CONCLUSION

For all of the foregoing reasons, petitioners respectfully

request that the Supreme Court grant review of this matter.

Respectfully submitted,

Tuomas G. Mouzes*

DENNIS M. HAUSER

HAusER & MouzZEs,

A PROFESSIONAL LAW CORPORATION

18826 N. Lower Sacramento Rd.

Suite H

P.O. Box 1397

Woodbridge, CA 95258-1397

(209) 368-1368

Attorneys for Petitioners

* Counsel of Record