Appendix — AG Industrial Manufacturing Inc. v. Waterkeepers Northern California

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED JULY 16, 2004

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 03-15023

D.C. No.

CV-00-01967-

MCE(PAN)

WATERKEEPERS NORTHERN CALIFORNIA, a non-profit

corporation dba Deltakeeper; BILL JENNINGs,

Plaintiffs-Appellants,

V.

AG INDUSTRIAL MANUFACTURING INC.; CLAUDE E. BROWN,

Defendants-Appellees.

No. 03-15631

D.C. No.

CV-00-01967-

MCE(PAN)

WATERKEEPERS NORTHERN CALIFORNIA, a non-profit

corporation dba Deltakeeper; BILL JENNINGS,

Plaintiffs-Appellees,

V.

AG INDUSTRIAL MANUFACTURING INC.; CLAUDE E. Brown,

Defendants-Appellants.

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Appendix A

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

March 8, 2004—-San Francisco, California

Filed July 16, 2004.

Before: B. FLETCHER, REINHARDT, Circuit Judges, and

RESTANI, Chief IT Judge.”

OPINION

BETTY B. FLETCHER, Circuit Judge.

Plaintiffs WaterKeepers Northern California and Bill

Jennings (collectively, “WaterKeepers”) appeal the district

court’s dismissal of their Clean Water Act suit for lack of

jurisdiction. Defendants AG Industrial Manufacturing and

Claude E. Brown (collectively, “AG Industrial”) cross-appeal

the district court’s denial of their motion as prevailing parties

for attorney’s fees. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we reverse the district court’s dismissal in part,

affirm in part, and affirm the district court’s denial of

attorney’s fees.

* The Honorable Jane A. Restani, Chief Judge, United States

Court of International Trade, sitting by designation.

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Appendix A

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WaterKeepers Northern California is a non-profit

corporation dedicated to protecting wildlife and preserving

natural resources in the San Francisco Bay and the

Sacramento-San Joaquin Delta (“the Delta”). Bill Jennings

is the director of DeltaKeeper, a WaterKeepers Northern

California project focused specifically on the Delta.

AG Industrial Manufacturing is a California company that

produces farm machinery and equipment for the wine grape

industry. The company was formed in 1980 and now employs

approximately forty people at its Lodi facility. Claude E.

Brown is the company’s CEO and one of its two shareholders.

On June 28, 2000, WaterKeepers sent AG Industrial

notice of its intent to sue for violations of the Clean Water

Act (“the Act’). More than sixty days later, WaterKeepers

filed this suit, alleging numerous continuing or recurring

violations of the Act at AG Industrial’s Lodi facility.

The parties briefed the merits of WaterKeepers’ claims in

the district court, and each side submitted a motion for

summary judgment. Without reaching the merits, however,

the district court concluded that the suit had to be dismissed

because WaterKeepers’ intent-to sue letter provided

insufficient notice of its claims. In a second order, the district

court denied AG Industrial’s motion for prevailing

party attorney’s fees. Although the district court found

AG Industrial to be a prevailing party, it declined to award

fees because it could not say that WaterKeepers’ claims were

“frivolous, unreasonable, or without foundation.” See Razore

v. Tulalip Tribes, 66 F.3d 236, 240 (9th Cir.1995) (adopting

this standard for attorney’s fees motions under the Clean

Water Act).

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Appendix A

We address the notice letter and attorney’s fees issues in

turn, but we begin with an explanation of the relevant

statutory and regulatory background.

II.

Congress enacted the Clean Water Act in 1972 in order

to “restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C. § 1251;

S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians,

124 S.Ct. 1537, 1541 (2004). The Act prohibits the discharge

of pollutants into United States waters except as authorized

by the statute. 33 U.S.C. § 1311; San Francisco BayKeeper,

Inc. v. Tosco Corp., 309 F.3d 1153, 1156 (9th Cir.2002), cert.

dismissed, 539 U.S. 924 (2003). The Act is administered

largely through the National Pollution Discharge Elimination

System (“NPDES”) permit program. 33 U.S.C. § 1342. In

1987, the Act was amended to establish a framework for

regulating storm water discharges through the NPDES

system. Water Quality Act of 1987, Pub.L. 100- 4, § 405,

101 Stat. 7, 69 (1987) (codified at 33 U.S.C. § 1342(p));

see also Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 840-41

(9th Cir.2003) (describing the problem of storm water runoff

and summarizing the Clean Water Act’s permitting scheme),

cert. denied, 72 U.S.L.W. 3513 (U.S. June 7, 2004). The

discharge of pollutants without an NPDES permit, or in

violation of a permit, is illegal. Ecological Rights Found. v.

Pacific Lumber Co., 230 F.3d 1141, 1145 (9th Cir.2000).

Much of the responsibility for administering the

NPDES permitting system has been delegated to the states.

See 33 U.S.C. § 1342(b); see also Cal. Water Code § 13370

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Appendix A

(expressing California’s intent to implement its own NPDES

permit program). States may issue individual permits to

industrial dischargers or may cover many dischargers under

the terms of one general permit. See 40 C.F.R. § 122.26(c);

Envtl. Def. Ctr., 344 F.3d at 853 (describing the general permit

model). California has issued a general permit to cover

industrial dischargers. State Water Resources Control Board,

Water Quality Order No. 97-03-DWQ: NPDES General

Permit No. CAS000001 (the “General Permit” or “Permit”);

Ecological Rights Found., 230 F.3d at 1145. In order to be

covered under California’s General Permit, individual

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

Permit at 1-2 { 3.

The parties to this case agree that AG Industrial falls

within an industrial classification under the Act and General

Permit for which no specific pollutant effluent limitations

have been set. Nonetheless, California’s General Permit

requires AG Industrial to identify and implement “best

management practices” (“BMPs”),' id. at 4 | B.3, and

generally prohibits all non-storm water discharges, with a

few exceptions for activities such as fire hydrant flushing

1. BMPs are “schedules of activities, prohibitions of practices,

maintenance procedures, and other management practices to prevent

or reduce the pollution of waters of the United States.” 40 C.F.R.

§ 122.2 (internal quotation marks omitted). “BMPs also include

treatment requirements, operating procedures, and practices to control

plant site runoff, spillage or leaks, sludge or waste disposal, or

drainage from raw material storage.” Jd. According to the General

Permit, BMPs may be “structural” (e.g:, roofing, berms, treatment

facilities) or “non-structural” (e.g., good housekeeping, preventive

maintenance, training). See Natural Res. Def. Council v. Southwest

Marine, Inc., 236 F.3d 985, 991 n. 1 (9th Cir.2000).

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Appendix A

and landscape watering. Jd. at 3 A.1, 5 § D.1. The Permit

also requires dischargers to develop and implement an

effective Storm Water Pollution Prevention Plan (“SWPPP”),

id. at 11-23 § A.1-A.10, and to develop and implement a

comprehensive monitoring and reporting program. /d. at 24-

35 Ff B.1-B.15.

Private citizens may sue under the Clean Water Act to

enforce the specific provisions of California’s General

Permit. 33 U.S.C. § 1365(a)(1), (f)(6); Russian River

Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136,

1139 (9th Cir. 1998). In this case, WaterKeepers contends that

AG Industrial has violated the Permit by discharging

contaminated storm and non-storm water; by failing to

develop and implement adequate BMPs; by failing to develop

and implement an adequate SWPPP; and by failing to develop

and implement an adequate monitoring and reporting

program.

Ii.

The Clean Water Act requires citizen plaintiffs to notify

alleged violators of their intent to sue at least sixty days before

filing a complaint. 33 U.S.C. § 1365(b)(1)(A). In our circuit,

compliance with this notice provision is required for

jurisdiction. See Natural Res. Def. Council v. Southwest

Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000); cf: Hallstrom

v. Tillamook County, 493 U.S. 20, 31 (1989) (holding that

notice is a mandatory prerequisite to suit under the Resource

Conservation and Recovery Act but declining to decide

whether the notice requirement “is jurisdictional in the strict

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Appendix A

sense of the term”). In order to comply, a citizen plaintiff

must send an intent-to-sue letter that includes

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, . . . [and] the date or dates

of such violation.

40 C.ER. § 135.3(a).

“The key language in the notice regulation is the phrase

‘sufficient information to permit the recipient to identify’

the alleged violations and bring itself into compliance.”

Cmty.Ass’n for Restoration of the Envt v. Henry Bosma

Dairy, 305 F.3d 943, 951 (9th Cir.2002) [hereinafter Bosma

Dairy]. Notice is sufficient if it is reasonably specific and if

it gives “the accused company the opportunity to correct the

problem.” San Francisco BayKeeper, 309 F.3d at 1158

(quoting Atl. States Legal Found., Inc. v. Stroh Die Casting

Co., 116 F.3d 814, 820 (7th Cir.1997)). Although the Act’s

notice requirement is “strictly construed,” Southwest Marine,

236 F.3d at 998, plaintiffs are not required to “list every

specific aspect or detail of every alleged violation.” Bosma

Dairy, 305 F.3d at 951 (quoting Pub. Interest Research Group

v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir.1995)).

We review the adequacy of pre-suit notice de novo.

San Francisco BayKeeper, 309 F.3d at 1157.

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Appendix A

A.

WaterKeepers sent AG Industrial a ten-page notice letter

that is significantly longer and more detailed than the notice

letter we held sufficient in Southwest Marine. 236 F.3d at

1003-08. WaterKeepers’ letter describes the problem of storm

water pollution in the Mokelumne River, which is a tributary

to the San Joaquin River and the Delta. It specifically

identifies pollutants associated with AG Industrial’s

operations; describes in detail the sources and practices that

lead to the discharge of contaminated storm water from

AG Industrial’s site; and explains that non-storm water,

contaminated by washing er hosing down dirty machinery

or equipment, is flushed from AG Industrial’s site into the

storm sewer system. The letter faults AG Industrial for failing

to seek coverage under California’s General Permit, and

accuses AG Industrial of violating the Act by discharging

contaminated storm water “during at least every rain event

over 0.1 inches.” Two tables attached to the letter list daily

rain accumulation at area sites. The letter also charges AG

Industrial with violating the Act “on each and every date on

which the facility discharged contaminated wash water.” The

letter suggests solutions for AG Industrial’s storm and non-

storm water discharge problems, including grading, berming,

roofing, structural controls to prevent the discharge of

contaminated water, and a filtration system to treat

contaminated water.

With respect to prevention and monitoring requirements,

WaterKeepers’ letter states that AG Industrial has violated

the General Permit by failing to develop and implement

BMPs; by failing to implement an SWPPP; and by failing to

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Appendix A

implement a monitoring and reporting program. The letter

describes these Permit requirements in detail and directs the

reader’s attention to the specific Permit sections that explain

what is required.

B.

The district court ruled WaterKeepers’ notice letter

inadequate solely on the basis of WaterKeepers’ allegation

regarding storm-water discharges. The district court held that

WaterKeepers did not provide enough specific information

about the dates of alleged storm-water discharges. Having

carefully reviewed WaterKeepers’ notice letter, we conclude

that the district court’s ruling on this point cannot be squared

with our recent decision in San Francisco BayKeeper.

San Francisco BayKeeper alleged in its notice letter that

defendant Tosco Corp. illegally discharged petroleum coke

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

coke” from piles at Tosco’s facility into a nearby waterway.

San Francisco BayKeeper, 309 F.3d at 1159. We held this

notice sufficient, even though San Francisco BayKeeper “did

not provide any specific dates” for the alleged violations. Jd.

Here, WaterKeepers’ notice letter states that AG Industrial

discharges contaminated storm water during “every rain

event over 0.1 inches.” Because this allegation is as specific

as San Francisco BayKeeper’s, we hold that it is similarly

sufficient.”

2. The district court believed San Francisco BayKeeper to be

distinguishable because the piles of petroleum coke were “so readily

identifiable” as the pollution source in that case and because “the

nature of potential remedial actions to be taken at the [AG Industrial]

facility is by no means as clear.” We do not agree that San Francisco

BayKeeper can be distinguished in this way.

(Cont’d)

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Appendix A

The district court found it significant that WaterKeepers’

expert, Steven Bond, testified at deposition that storm water

will not always be discharged from AG Industrial’s facility

after a 0.1 inch rainfall; Bond stated that a 0.19 inch standard

would be more accurate. This testimony may be relevant to

the merits of WaterKeepers’ claims, but we do not agree with

the district court that it is relevant to the adequacy of

WaterKeepers’ notice letter. 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. See 33 U.S.C.

§ 1365(b)(1)(A) (explaining that notice must be given of

“alleged” violations); 40 C.F.R. § 135.3(a) (same).

The district court found fault with the rainfall tables

-WaterKeepers attached to its notice letter. The court noted

that the tables record rainfall at locations some distance from

AG Industrial, that data is recorded as missing on many dates

(Cont’d)

Although no single source may be blamed for all of

AG Industrial’s allegedly contaminated discharges, the company’s

pollution problem is as easy to understand as Tosco’s: AG Industrial’s

site is allegedly littered with contaminants, and those contaminants

are carried off the site when it rains. WaterKeepers’ notice letter

clearly identifies the sources of AG Industrial’s problem-debris,

manufacturing materials and activities exposed to rainfall, and oil,

grease and chemical stains throughout the facility. The letter also

describes remedial! steps AG Industrial could take.

As was the case in San Francisco BayKeeper, WaterKeepers

provided notice “sufficiently specific to inform [AG Industrial] about

what it is doing wrong.” 309 F.3d at 1159 (citation omitted).

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Appendix A

in one table, and that in some cases the two tables list different

rainfall amounts for the same dates. Again, however, these

facts are relevant to the merits, not to the adequacy of

WaterKeepers’ notice letter. WaterKeepers was not required

to include any rain tables under San Francisco BayKeeper,

and, even if it had been, the tables it did send provide notice

of several exact dates of alleged discharge violations.’

C.

AG Industrial offers four alternate grounds for affirming

the district court’s dismissal in whole or in part. First it argues

that WaterKeepers’ intent-to-sue letter provided insufficient

notice of the storm water standards, limitations, or orders

allegedly violated. See 40 C.F.R. § 135.3(a). California’s

General Permit prohibits storm water discharges that “cause

or threaten to cause pollution, contamination, or nuisance,”

General Permit at 4 7 A.2; that “adversely impact human

health or the environment,” id. at 49 C.1; and that “contribute

to an exceedance of any applicable water quality standards

contained in a Statewide Water Quality Control Plan or the

applicable Regional Water Board’s Basin Plan.” Jd. at 4,

4 C.2. WaterKeepers contends that AG Industrial has violated

these provisions by discharging contaminated storm water

that fails to meet Environmental Protection Agency (“EPA”)

3. We note that WaterKeepers submitted more complete rainfall

data in support of its summary judgment motion, and that its

supplemental data shows heavy rainfall on many of the same dates

identified in WaterKeepers’ original tables. WaterKeepers may pursue

claims for the new dates included in its revised tables because the

discharges alleged are all “from the same source” and “of the same

nature.” Bosma Dairy, 305 F.3d at 953.

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water quality standards for California. See 40 C.F.R. § 131.38

(setting out quality standards for California waters,

commonly known as the “California Toxics Rule”).

AG Industrial argues that because WaterKeepers did not cite

specifically to the California Toxics Rule in its notice letter,

it cannot rely on the Rule to support its claims.

We are not persuaded. WaterKeepers’ notice letter lists

various contaminants believed to be at AG Industrial’s site,

explains how they are exposed to rainfall, and points to the

specific provisions of the General Permit allegedly violated.‘

WaterKeepers’ notice letter was thus “sufficiently specific

to inform [AG Industrial] about what it is doing wrong.”

San Francisco BayKeeper, 309 F.3d at 1159 (quoting

Southwest Marine, 236 F.3d at 996).

AG Industrial next challenges the sufficiency of

WaterKeepers’ notice regarding non-storm water discharges.

4. The General Permit is an “order” of the State Water Resources

Control Board. See 40 C.F.R. § 135.3(a) (requiring notice that

includes information sufficiently specific to allow the recipient to

identify the “standard, limitation, or order “ allegedly violated)

(emphasis added).

5. For similar reasons, we reject AG Industrial’s challenge to

WaterKeepers’ reliance on EPA benchmark values. See Proposed

Reissuance of NPDES Storm Water Multi-Sector General Permit for

Industrial Activities, 65 Fed.Reg. 171010, 17031 (proposed March

30, 2000) (setting out EPA benchmark values for certain

contaminants). WaterKeepers points to the EPA benchmark values

as evidence to support its claim that AG Industrial has failed to

implement adequate BMPs. WaterKeepers satisfied the Act’s notice

requirement for this claim by specifically referring to the General

Permit’s BMP provisions in its notice letter.

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Appendix A

WaterKeepers’ intent-to-sue letter accuses AG Industrial of

discharging contaminated non-storm water whenever it

periodically washes down dirty areas of the facility or dirty

machinery and equipment. “At these times,” according to

the letter, “contaminants present in the area are carried off

by the wash water and flushed into the storm sewer system.”

WaterKeepers’ letter alleges violations of the Act “on each

and every date on which [AG Industrial’s] facility has

discharged contaminated wash water.”

We follow San Francisco BayKeeper in holding that

these allegations are sufficient to satisfy the Act’s notice

requirement. See San Francisco BayKeeper, 309 F.3d at

1158-59. In addition to the wind-related discharges discussed

above, San Francisco BayKeeper notified defendant Tosco

that it was responsible for illegal petroleum coke spills on

each day of ship loading at Tosco’s facility. Jd. at 1158.

We held this notice sufficient because San Francisco

BayKeeper was only required to “provide sufficient

information to permit the recipients to identify ... the

date or dates” of alleged violations and because

BayKeeper’s allegations were specific enough for this

purpose. Jd. at 1158-59 (omission and emphasis in the

original; internal quotation marks and citation omitted).

As a practical matter, BayKeeper did not have access to

Tosco’s complete records, and Tosco was “obviously in a

better position than BayKeeper” to identify the dates of its

own ship loading. Jd. at 1158. The same is true here.

AG Industrial is in a much better position to know when it

periodically washes down areas of its facility, and

WaterKeepers’ letter provided sufficient information to

permit AG Industrial to identify the nature and dates of the

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Appendix A

alleged violations. The point of the Act’s notice requirement

is not to prove violations, it is to inform the polluter “about

what it is doing wrong,” and to allow it an “opportunity to

correct the problem.” /d. at 1159. (quoting Southwest Marine,

236 F.3d at 996, and Atl. States Legal Found., Inc., 116 F.3d

at 819); see also Bosma Dairy, 305 F.3d at 953 (explaining

that Congress did not intend, in enacting the notice

requirement,” to unduly burden citizens by requiring them to

basically carry out the job of the [environmental enforcement]

agenc[ies]”). WaterKeepers’ notice letter plainly satisfies

these criteria.°

AG Industrial argues that the district court’s dismissal

may be affirmed with respect to WaterKeepers’ prevention,

monitoring and reporting claims because AG Industrial has

now cured all alleged violations. See Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57-64

(1987) (holding that citizen plaintiffs may not sue for “wholly

past” violations of the Clean Water Act but must instead

allege “continuous or intermittent” violations). AG Industrial

contends that it has now filed a notice of intent to comply

6. We note one exception to our general holding regarding non-

storm water discharges. WaterKeepers’ complaint and summary

judgment motion refer to manufacturing “process water” or

“wastewater” that is discharged from AG Industrial’s facility. Because

WaterKeepers’ notice letter does not refer to manufacturing process

water or wastewater, we affirm dismissal with respect to this claim.

We doubt that this holding will have a significant effect on

proceedings below, however, because at oral argument plaintiffs’

counsel indicated that WaterKeepers intends to proceed only with

those non-storm water claims specifically referred to in the notice

letter—that is, non-storm water claims based on facility and

equipment washing.

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Appendix A -

with the General Permit and that it prepared an SWPPP and

a monitoring plan in July 2000, after receiving WaterKeepers’

notice letter but before WaterKeepers filed its complaint.

WaterKeepers responds that AG Industrial’s new management

practices and prevention, monitoring and reporting plans are

inadequate, ineffective and fail to meet the requirements of

the General Permit.

We considered a similar situation and rejected an

argument nearly identical to AG Industrial’s in Southwest

Marine:

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

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.

236 F.3d at 997 (considering “what, if any, effect Defendant’s

post-notice alterations of its plans and facilities had on the

adequacy of the [plaintiffs’] notice letter”). Following

Southwest Marine, we hold that WaterKeepers was not

required to send a second notice letter in order to pursue

specific claims regarding the inadequacies of AG Industrial’s

post-notice compliance efforts. Jd. (“Although we require

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strict compliance with the [Act]’s notice requirement, we do

not require citizen-plaintiffs to refer to provisions of plans

that do not exist.”).

Finally, AG Industrial relies on the Supreme Court’s

decision in Gwaltney to argue that we may affirm dismissal

because the evidence the parties submitted on summary

judgment proves that WaterKeepers did not file its complaint

in “good faith.” See Gwaltney, 484 U.S. at 64 (“[W]e agree

that § 505 [of the Act] confers jurisdiction over citizen suits

when the citizen-plaintiffs make a good-faith allegation of

continuous or intermittent violation. . . .”) (emphasis added).

In essence, AG Industrial argues that we should look ahead

to the parties’ summary judgment evidence, hold that AG

Industrial wins on the merits, further hold that AG Industrial’s

evidence is so strong that it proves WaterKeepers’ complaint

was not filed in good faith, and affirm dismissal because the

Act only confers jurisdiction over good-faith allegations.

We conclude that this argument rests on a misunderstanding

of Gwaltney.

Gwaltney held that citizen plaintiffs may not sue to

remedy “wholly past” violations of the Clean Water Act; the

Act confers jurisdiction only over citizen suits that allege

continuous or intermittent violations.’ Jd. at 56-63. Gwaltney

did not hold, contrary to AG Industrial’s suggestion, that

citizen plaintiffs must prove a violation of the Act before

jurisdiction attaches or that dismissal for lack of jurisdiction

is the proper remedy for allegations that turn out not to have

7. WaterKeepers’ suit plainly passes this test—WaterKeepers’

complaint alleges continuing and recurring violations of the Act.

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been made in good faith. Instead, the Supreme Court

explained that an allegation is sufficient to confer jurisdiction

and that Fed.R.Civ.P. 11 provides the proper remedy for bad-

faith claims. See id. at 64 (“Petitioner argues that citizen-

plaintiffs must prove their allegations of ongoing

noncompliance before jurisdiction attaches under [the Act].

We cannot agree.”) (citation omitted); id. at 65 (“‘The statute

does not require that a defendant ‘be in violation’ of the Act

at the commencement of suit; rather, the statute requires that

a defendant be ‘alleged to be in violation.’”); id. (“Our

acknowledgment that Congress intended a good-faith

allegation to suffice for jurisdictional purposes. . . does not

give litigants license to flood the courts with suits premised

on baseless allegations. Rule /] of the Federal Rules of Civil

Procedure . . . adequately protects defendants from frivolous

allegations.”) (emphasis added). Adopting AG Industrial’s

proposed approach at this stage would ignore these teachings.

Accordingly, we hold that Gwaltney does not require us to

reach the merits of the parties’ summary judgment motions

in order to decide whether the district court has jurisdiction.

D.

Because it is clear under Supreme Court and

Ninth Circuit precedent that the district court has jurisdiction

over nearly all of WaterKeepers’ claims, we cannot say that

AG Industrial is a prevailing party entitled to attorney’s fees

under the Act. See Razore, 66 F.3d at 240 (explaining that a

defendant is entitled to attorney’s fees only if the plaintiff’s

claims were “frivolous, unreasonable, or without

foundation’”’).

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IV.

The district court must ultimately decide whether

WaterKeepers’ evidence of continuous and ongoing

violations is sufficient to survive summary judgment. On this

appeal we hold only that the district court has jurisdiction to

reach the merits of all but WaterKeepers’ industrial process

water claim. Accordingly, we reverse the district court’s

dismissal in part, affirm as to WaterKeepers’ process water

claim, affirm the district court’s denial of attorney’s fees,

and remand so that the district court may reach the merits.

We decline WaterKeepers’ invitation to sanction AG

Industrial under either Fed. R.App. P. 38 or 28 U.S.C.

§ 1927.Appellants are entitled to their costs.

REVERSED IN PART; AFFIRMED IN PART; AND

REMANDED.

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APPENDIX B — MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF CALIFORNIA FILED

DECEMBER 3, 2002

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

NO. CIV. S 00-1967 MCE PAN

WATERKEEPERS NORTHERN CALIFORNIA, a

non-profit corporation, doing business as DELTAKEEPER,

and BILL JENNINGS, an individual;

Plaintiffs,

V.

AG INDUSTRIAL MANUFACTURING INC., a

corporation; and CLAUDE E. BROWN, an individual;

~ Defendants.

MEMORANDUM AND ORDER

This is an action for violation of the Federal Water

Pollution Control Act, 33 U.S.C. § 1251 et seq., hereinafter

referred to as the “Clean Water Act.” Plaintiffs allege that

Defendants AG Industrial Manufacturing, Inc. and its

president, Claude E. Brown, have repeatedly discharged

industrial pollution into the Mokelumne River and the San

Joaquin River Delta ever since Defendants became subject

to the provisions of the Clean Water Act in 1992. Plaintiffs

now move for summary judgment, or alternatively for

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summary adjudication of claims, on grounds that, the

evidence demonstrates as a matter of law Defendants’

continuing failure to comply with the requirements of the

Clean Water Act. Defendants, in turn, have filed their own

cross-motion for summary judgment or summary

adjudication on several grounds, including the failure, by

Plaintiffs, to provide adequate notice of their intent to sue as

required by the Clean Water Act at 33 U.S.C. § 1365(b)(1)(A)

and 40 C.F.R. § 135.3(a). As set forth below, the Court finds

that the notice provided to Defendants was inadequate and

that it accordingly lacks jurisdiction to hear this matter.

Summary judgment in favor of Defendants is therefore

granted.!

BACKGROUND

Defendant AG Industrial Manufacturing, Inc. (hereinafter

““AIM”) is an industrial manufacturing facility engaged in

the fabrication of agriculture machinery, especially equipment

used in harvesting wine grapes. The business has been located

at 110 S. Beckman Rd. in Lodi, California, since its inception

in 1980. Defendant Claude E. Brown is President of AIM.

He has served in that capacity since the company was formed.

Plaintiff WaterKeepers Northern California (hereinafter

““WaterKeepers’”) is a non-profit corporation dedicated to the

preservation and protection of the San Francisco Bay and

the Delta estuary. WaterKeepers alleges its investigation of

the AIMS premises revealed fabrication activities generating

1. Because oral argument will not be of material assistance, the

Court orders this matter submitted on the briefing. E.D. Cal. Local

Rule 78-230(h).

2la

Appendix B

industrial pollutants that occurred outside in uncovered areas

exposed to rainfall. WaterKeepers further contends that the

facility contains rusting equipment and parts also exposed

to the weather, as well as the presence of oily stains, waste

materials and debris. Because of exposure to storm water

flows and lack of essential structural controls like grading,

berming and roofing, WaterKeepers contends that both storm

water flows and wash water from clean-up activities contain

industrial contaminants.

WaterKeepers conducted an on-site inspection of AIM’s

facility on August 8, 1999 when photographs were taken.

The only other visit to AIM on behalf of WaterKeepers was

a subsequent inspection so brief that WaterKeepers’ expert,

Steven Bond, did not even exit his vehicle. Prior to notifying

AIM of its intent to sue, WaterKeepers conducted no testing

of water discharged from the AIM facility and further

performed no tests on dust or particulate matter allegedly

observed by WaterKeepers on the premises. Nonetheless, by

letter dated June 28, 2000, WaterKeepers advised AIM that

it would commence judicial proceedings against AIM once

60 days had passed. In that letter, WaterKeepers charged AIM

with violating the Clean Water Act “each time that you have

discharged storm water or wash water contaminated with

pollutants.”

No specific dates for these alleged violations are set forth

in the June 28, 2000 letter. With respect to the contaminated

wash water, WaterKeepers makes no attempt whatsoever to

list any dates of infraction. As to its charges that AIM

discharged polluted storm water, WaterKeepers again

provides no dates, stating only that such discharges have

22a

Appendix B

occurred during “at least every rain event over 0.1 inches.”

To substantiate that clair1, WaterKeepers attaches two tables

of rain data that it clairas are for the Lodi region. One of

those tables charts rainfall in Stockton, a city some fifteen

miles away from Lodi. Tae remaining chart measures rainfall

at Bear Creek “near” Lodi, and Defendants’ notice contains

no information concerning how close that is to the AIM

facility. In addition, the last recorded data contained in the

Bear Creek chart dates fom June 4, 1997, some three years

before issuance of WaterKeepers’ letter. Even prior to that

time, the Bear Creek rainfall data was frequently incomplete,

with many dates listed aS missing any precipitation

information whatsoevei. Further, comparison of the two

charts for recording period that do overlap show sometimes

significant differences in precipitation levels on given days,”

making their applicability to yet another geographic location

like the AIM facility even more problematic.

Even aside from the dates purportedly reflected on the

precipitation tables, WaterKeepers’ June 28, 2000 notice

contains the additional sweeping statement that, “whether

or not such dates are contained on the rainfall data table,”

AIM “committed violat:ons of the Act on each and every

date on which the rainfall at the Facility exceeded 0.1 inch

...” Significantly, WaterKeepers’ own expert, Steven Bond,

admitted at deposition tiat the premise underlying the 0.1

inch benchmark was incorrect, later stating that 0.19 inches

2. On January 1 and 2, 1997, for example, the Stockton data

shows only .80 and .30 inches of rain, respectively, and during the

same period the Bear Creek levels are 1.26 and .94 inches.

23a

Appendix B

was more accurate in predicting the likelihood of any

contaminated storm runoff.

Prior to receiving WaterKeepers’ letter of June 28, 2000,

AIM management were unaware of either the requirements

of the Clean Water Act or its potential applicability to the

AIM facility. Nonetheless, in an effort to avoid threatened

litigation, Brown located an environmental engineer, Daniel

K. Barber, and proceeded to hire Mr. Brown for purposes of

ensuring compliance with the Clean Water Act. Within

approximately ten days following receipt of Waterkeeper’s

letter, AIM submitted a Notice of Intent certification to the

State of California signifying its intent to comply with the

Clean Water Act. Thereafter, on or about July 21, 2000, a

Storm Water Pollution Prevention Plan was submitted, with

a copy sent to WaterKeepers. WaterKeepers nonetheless

proceeded to file the instant litigation on September 12, 2000.

STANDARD

Summary judgment is appropriate when it is

demonstrated that there exists no genuine issue as to any

material fact, and that the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. §.H. Kress

& Co., 398 U.S. 144, 157 (1970). Under summary judgment

practice, the moving party

“always bears the initial responsibility of

informing the district court of the basis for its

3. Bond Deposition, Exhibit “B” to the Second Supplemental

Declaration of Dennis M. Hauser, 21:19-22:17; see also Declaration

of Steven Bond dated May 23, 2002, ¢ 12.

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Appendix B

motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories,

and admissions on file together with the affidavits,

if any,’ which it believes demonstrate the absence

of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting

Rule 56(c)).

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 585-587 (1986); First Nat’l Bank v. Cities Ser. Co., 391

U.S. 253, 288-289 (1968).

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists.

Fed. R. Civ. P. 56(e). The opposing party must demonstrate

that the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and

that the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

251-52 (1986); Owens v Local No. 169 Assoc. of Western

Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987).

Stated another way, “before the evidence is left to the jury,

there is a preliminary question for the judge, not whether

there is literally no evidence, but whether there is any upon

which a jury could properly proceed to find a verdict for the

25a

Appendix B

party producing it, upon whom the onus of proof is imposed.”

Anderson, 477 U.S. at 251 (quoting Jmprovement Co. v.

Munson, 14 Wal11. 442, 448, 20 L.Ed. 867 (1872)). As the

Supreme Court explained, “[w]hen the moving party has

carried its burden under Rule 56(c), its opponent must do

more that simply show that there is some metaphysical doubt

as to the material facts . .. Where the record taken as a whole —

could not lead a rational trier of fact to find for the nonmoving

party, there is no ‘genuine issue for trial.”’ Matsushita, 475

U.S. at 586-87.

In resolving a summary judgment motion, the evidence

of the opposing party is to be believed, and all reasonable

inferences that may be drawn from the facts placed, before

the court must be drawn in favor of the opposing party.

Anderson, 477 U.S. at 255. Nevertheless, inferences are not

drawn out of the air, and it is the opposing party’s obligation

to produce a factual predicate from which the inference may

be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp.

1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th

Cir. 1987).

ANALYSIS

The purpose of the Clean Water Act, adopted in 1972, is

“to restore and maintain the chemical, physical and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251. Section

402(p) of the Act establishes a framework for regulating

industrial storm water discharges under the National

Pollution Discharge Elimination System (“NPDES”).

33 U.S.C. § 1342(p). States with approved NPDES permit

programs are authorized by Section 402 (p) to regulate

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Appendix B

industrial storm water discharges through either individual

permits or by issuance of a single, statewide general permit

applicable to all industrial dischargers. Jd. In November 1991,

the California State Water Resources Control Board issued

Water Quality Order No. 91-13-DWQ, which created a

statewide general permit program. An industrial facility must

either comply with the terms of this Order, as subsequently

amended, or obtain an individual NPDES permit before

discharging storm water. 33 U.S.C. § 1342.

The Clean Water Act does permit commencement of a

citizen suit to enforce its provisions. Section 505(a) of the

Act, 33 U.S.C. § 1365(a), provides in pertinent part as

follows:

“... any citizen may commence a civil action on

his own behalf —

(1) against any person ... alleged to be in

violation of (A) an effluent standard of limitation

under this chapter or (B) an order issued by... a

State with respect to such a standard or

limitation.”

Before instituting such an action, however, the Act requires

a minimum of 60 days written notice of “any standard,

limitation or order” violated. 33 U.S.C. § 1365(b)(1)(A). By

regulation, the content of this Notice has certain

requirements:

Notice regarding an alleged violation of an

effluent standard or limitation or of an order with

27a

Appendix B

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.

40 C.ER. § 135.3(a).

In Hallstrom v. Tillamook County, 493 U.S. 20 (1989),

the Supreme Court interpreted a provision of the Resource

Conservation and Recovery Act, 42 U.S.C. § 6972.

(“RCRA”), containing a 60 day notice prerequisite similar

to that required before commencement of a citizen suit under

the Clean Water Act. The Court found that failure to meet

the notice requirement required a district court to dismiss a

citizen suit as barred by the terms of the statute, stating as

follows:

“(W]e hold that the notice and 60-day delay

requirements are mandatory conditions precedent

to commencing suit under the RCRA citizen suit

provision; a district court may not disregard these

requirements at its discretion.”

Id. at 31.

28a

Appendix B

The Court expressly rejected the suggestion that it apply a

“flexible or pragmatic construction” to the citizen suit notice

provision:

The equities do not weigh in favor of modifying

statutory requirements when the procedural

default is caused by petitioners’ ‘failure to take

the minimal steps necessary’ to preserve their

claims.” (citation omitted)

Id. at 27-28.

In Washington Trout v. McCain Foods, 45 F.3d 1351,

1352 (9th Cir. 1995), the Ninth Circuit found the logic of

Hallstrom to be equally applicable to the notice provision at

issue here pursuant to 33 U.S.C. § 1365(b)(1). Consequently,

as an initial matter this Court must determine whether the

60-day notice issued by WaterKeepers in this case is

jurisdictionally sufficient to permit maintenance of this action

in federal court. Defendants contend, inter alia, that the notice

is defective because it fails to accurately the state the dates

of the alleged discharges in accordance with the terms of the

statute and corresponding regulation.

In California Sportfishing Protection Alliance v. City of

West Sacramento, 905 F.Supp. 792 (E.D. Cal. 1995), the

Eastern District considered the sufficiency of plaintiff’s Clean

Water Act pre-litigation notice in the context of a motion to

dismiss brought by the defense. California Sportfishing’s

60-day notice advised the City of three specific violations of

its NPDES permit occurring on specified dates, and went on

to claim that the City had violated said permit “[flor the

29a

Appendix B

previous five years on hundreds of occasions.” Citing the

decision in Washington Trout, supra, the court recognized

the strict approach to the notice provision adopted by the

Ninth Circuit as most consistent with the purpose and

structure of the notice statute and the language of the

corresponding regulation. Significantly for purposes of the —

present matter, the California Sportfishing decision offers

the following observation with regard to the specificity

required in identifying the date or dates of alleged violations:

“T]he date or dates of the violation must be stated

with some specificity. Ideally plaintiff will identify

the precise date. But at the least plaintiff should

give a range as to date that is reasonably limited.”

Id. at 799.

Although the Eastern District ultimately found that the

notice provided in California Sportfishing complied

with statutory requirements, it did so because of the three

date-specific violations that were alleged. The court did not

find sufficient, however, plaintiff’s sweeping conclusion that

the City had also violated the Clean Water Act on hundreds

of occasions over the previous five years, stating that such

generalizations do “not give sufficient notice of the date or

dates on which the violations are alleged to have occurred.”

Id. at 800.

Unlike California Sportfishing, there are no specific

violation dates cited in WaterKeepers’ notice. WaterKeepers’

claim that Defendants violated the Act “each time” they

discharged contaminated wash water over the previous eight

30a

Appendix B

year period is just as vague as the language rejected by Judge

Levi as insufficient in California Sportfishing. Nor does

WaterKeepers’ reference to incomplete and geographically

distinguishable rainfall data make its notice adequate with

regard to storm water discharge. Given the Ninth Circuit’s

strict approach to notice requirements, such references do

not give “a range as to date that is reasonably limited” as

required by California Sportfishing. Waterkeepers’ notice

must therefore be found lacking.

More recent Ninth Circuit authority is in accord with

this conclusion. In Friends of Frederick Seig Grove v. Sonoma

County Water Agency, 124 F.Supp.2d 1161 (9" Cir. 2000),

the defendants had been subject to four previous enforcement

orders involving effluent violations of their NPDES permit

during the four month period that preceded plaintiff’s notice

of intent to file suit under the Clean Water Act. In addition,

while plaintiff’s notice advised defendants that they had

committed violations “on numerous separate occasions from

January 1, 1995 to the date of [the] notice,” the notice went

on to state that these violations were based on review of

defendants’ own monitoring data submitted by defendants

to the Regional Board. While the notice did list 326 separate

violations, it failed to specifically identify the dates on which

any of the alleged violations occurred.

Citing approvingly the Eastern District’s decision in

California Sportfishing, supra, the Ninth Circuit in Seig

Grove noted that plaintiff could not “simply allege that

violations occurred within a broad period of time with no

additional information.” Jd. at 1168. While noting that it was

a “close call,” the court nonetheless found plaintiff’s notice

3la

Appendix B

to be sufficient because the violations it identified were based

on the defendants’ own submissions, in the form of

self-monitoring data, to the Regional Board.

In this case we are faced with nothing more that

WaterKeeper’s bald assertion that violations occurred “each

time” wash water was discharged and “on each and every

date” that two rainfall data tables (both of which are not

site-specific to the AIM facility, with one table being

substantially incomplete as well) suggest that precipitation

in excess of .10 inch was present. If the circumstances present

in Seig Grove were a “close call” with respect to the

sufficiency of notice, the situation confronted here certainly

is not.

Community Assn for Restoration of the Environment v.

Henry Bosma Dairy, 305 F.3d 943 (9th Cir. 2002), like Seig

Grove, involved a long history of compliance problems on

the part of the defendant. Plaintiff’s pre-suit notice of Clean

Water Act violations referred to twelve specific violations,

enumerated by date and all involving a single drain for

discharge of manure waste. Because plaintiff’s complaint

listed some thirty two additional violations (also involving

the same drain in question) that had not been delineated by

the notice, defendant argued that plaintiff’s notice was

insufficient as to those additional violations. Although the

Bosma court continued to recognize that notice should give

a range as to date that is reasonably limited, it nonetheless

found that the notice here was sufficiently specific to inform

plaintiff as to its purported shortcomings because the

violations alleged “originated from the same source, were of

the same nature, and were easily identifiable.” Here we are

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Appendix B

not dealing with infractions originating from a single drain

but instead are confronted with a myriad of allegations

pertaining both to systemic (pollutants generated by AIM’s

manufacturing activities themselves), maintenance (the

condition of the AIM facility) and structural (berming to

direct water flow, for example) issues. In short, the present

matter does not involve the same readily ascertainable source

of pollution confronted in Bosma,‘ and the rationale for

relaxing specific date requirements in light thereof is

accordingly not present.

Finally, the Ninth Circuit’s even more recent decision in

San Francisco BayKeeper v. Tosco Corp., 309 F.3d 1153

(9th Cir. 2002) is of no assistance to DeltaKeeper in

validating its pre-suit notice. In that case, the defendant

owned and operated a petroleum coke storage and loading

facility adjacent to the New York Slough, a navigable

waterway flowing into the San Francisco Bay. Plaintiff’s

notice in Tosco alleged that loose coke, stored in large

uncovered piles, both spilled during ship loading and was

blown by the wind into New York Slough, thereby polluting

the water. Plaintiff’s notice identified fourteen dates in 1998

when Coast Guard records showed that ships had been docked

at defendant’s facility. The court, finding that defendant was

in a better position than BayKeeper in identifying the precise

4. According to Defendants, efforts to identify the source of

certain pollutants are ongoing. They claim that certain metals detected

through testing are not in fact produced by AIM’s industrial activities,

arguing, for example, that zinc discharges may be generated not by

anything pertaining to AIM’s manufacturing operations but instead

by rainwater dripping from a corrugated chain link fence surrounding

the facility.

33a

Appendix B

dates of its own ship loading, held that notice was sufficient

as to the alleged loading violations. Here no similar argument

can be made that AIM had ready access to information that

WaterKeepers did not.

While the Tosco court does state that plaintiff’s claim of

wind discharge® presents a “closer question” in terms of the

adequacy of notice, the court nonetheless found that because

the uncovered coke piles were so clearly identified as the

offending practice, plaintiff’s notice was “sufficiently ©

specific” to inform defendant of what it was doing wrong

and “specific enough” to give Tosco an opportunity to

correct the problem by enclosing or covering the coke piles.

Id. at 1159.

The case at bar is distinguishable from 7Josco in this

respect in just the same way it differs from Bosma. In both

Tosco and Bosma the fact that the violation source was so

readily identifiable justified some departure from the

requirement that specific dates be included within the notice

so as to ensure that the defendants understood the allegations

levied against them.

Here there is no justification for any such departure

because the nature of potential remedial actions to be taken

at the AIM facility is by no means as clear.

5. The notice alleged that wind-blown violations took place “on

each day when the wind has been sufficiently strong to blow coke

from the piles into the slough.” Jd. at 1158.

34a

Appendix B

CONCLUSION

Based on the foregoing, the Court finds insufficient the

60-day notice required by 33 U.S.C. § 1365 (b) (1) (A) and

40 C.F.R. § 135.3 (a) as a prerequisite to Plaintiff’s

commencement of the instant litigation. That insufficiency

mandates dismissal of this action, and Defendants’ motion

for summary judgment is accordingly granted. Because the

case is consequently disposed of on jurisdictional grounds,

the Court need not address the remaining allegations made

by Defendants in their motion, or the merits of Plaintiff’s

motion for summary judgment/summary adjudication of

issues. In addition, because the parties’ extensive evidentiary

objections, as well as Plaintiff’s Motion to Strike the

Declaration of Daniel K. Barber, raise issues not necessary

to the Court’s ruling, no ruling is made on those matters

either.

IT IS SO ORDERED.

DATED: DEC 3 2002

s/ Morrison C. England

MORRISON C. ENGLAND, Jr.

UNITED STATES DISTRICT JUDGE