ELR Citation: ELR 20684
No(s). s. 93-5720, -5721 (3d Cir. Mar 31, 1995)

The court holds that a Federal Water Pollution Control Act (FWPCA) §505 citizen suit notice letter contained sufficient information to allow identification of a chemical company's violations of its national pollutant discharge elimination system (NPDES) permits not noticed in the letter but subsequently alleged in plaintiff citizen groups' complaint. The groups' complaint initially alleged numerous discharge violations which had occurred from April 1985 through March 1989. Thereafter until the September 14, 1992, deadline for final submissions for purposes of summary judgment, the groups repeatedly modified their list of alleged violations through informal amendments to their complaint. During this time, the groups neither sent a new letter giving notice of these additional violations or formally amended their complaint to include them.

The court first holds that the regulation prescribing the contents of a notice letter, 40 C.F.R. §135.3(a), does not mandate that the plaintiff identify every detail of a violation. Rather, the regulation requires only that the plaintiff provide sufficient information in the letter to enable the recipient to identify the specific effluent discharge violation, including the parameter violated, the date of the violation, the outfall at which it occurred, and the individuals involved.

The court holds that notice of one facet of an effluent infraction is sufficient to permit the recipients of the notice to identify other violations arising from the same episode. Once the discharge violation is noticed, any subsequently discovered pollutant tracking violation directly related to that discharge violation may be included in the citizen suit, because monitoring, reporting, or recordkeeping requirements are elements of a noticed discharge violation. The court also holds that a plaintiff is not required to list in its notice letter every detail, specific aspect, or ramification of a violation. Nor is a plaintiff required to give notice of each individual violation of a specific discharge limitation. The court holds that under 40 C.F.R. §135.3(a), if an excessive discharge is noticed and a citizen suit plaintiff later discovers a monitoring violation for that parameter at that outfall on that day, the plaintiff has given sufficient notice of the monitoring violation to include it in the suit. The court holds conversely that if a plaintiff notices a monitoring violation for a specific parameter and it later discovers that a discharge violation of that parameter also occurred at that outfall on that day, that the plaintiff has given sufficient notice of the discharge violation to include it in the suit. In reaching these conclusions, the court notes that investigating one aspect of a parameter violation will require scrutinizing other aspects of that violation as well.

The court holds that contrary to the district court's holding, FWPCA §505 does not require a citizen suit plaintiff to give notice to the recipients of each individual violation of a specific discharge limitation. The statute requires that the plaintiff identify discharges that exceed the effluent limit, but not necessarily each individual permit exceedence. The court rejects the company's contention that notice of each individual violation is necessary for the recipients of the notice to evaluate the extent of the plaintiffs' claims. The court finds that the company's argument ignores the fact that the FWPCA requires the company to file discharge monitoring reports (DMRs) with the regulatory authorities, who can easily check the DMRs for other discharge violations of the same type as described in a notice letter. In addition, as the author of the DMRs, the company is on notice of the contents of the reports and of the frequency of similar violations.

For purposes of applying the above legal precepts to the present dispute, the court divides the violations into three categories: precomplaint discharge violations; postcomplaint discharge violations; and pollutant tracking violations. Regarding the precomplaint discharge violations, the court holds that the district court erred in finding that those precomplaint violations not included in the notice letter cannot be included in the suit unless listed in a subsequent notice. The court holds that a notice letter that lists discharge violations by parameter provides sufficient information for the recipients of the notice to identify violations of the same parameter and outfall occurring during and after the period the notice letter covered. The court remands the case to the district court to reinstate those alleged violations that are of the same type, parameter, and outfall as the alleged violations included in the plaintiffs' notice letter.

Addressing the postcomplaint violations, the court holds that a new notice letter is not required to include such violations in the suit, as long as the violations are the same type as the violations included in the notice letter (same parameter, same outfall). The court also holds that the recipients of the letter are already on notice of past or continuing violations of the same type. The federal and state enforcement agencies are on notice of continuing or intermittent violations of the same type because the permit holder reports those violations to them in the DMRs. The permit holder is also on notice of such violations, because it is responsible for filing the DMRs. The court therefore affirms the district court's denial of company's motion for summary judgment on the postcomplaint discharge violations, but remands one of these violations to the district court to determine whether this violation was sufficiently related to the noticed violations to enable the company to identify it from the notice letter.

Addressing the pollutant tracking violations, the court holds that when a parameter violation has been noticed, a citizen suit plaintiff may include in its suit subsequently discovered, directly related violations of discharge limitations or of monitoring, reporting, and recordkeeping requirements for that same parameter, outfall, and period. The court remands this matter to the district court to determine which of the tracking violations are directly related to the discharge violations alleged in the suit.

Counsel for Appellants in No. 93-5721
Carolyn S. Pravlik, Bruce J. Terris
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Appellant in No. 93-5720
Joel Schneider
Manta & Welge
2005 Market St., 37th Fl., Philadelphia PA 19103
(215) 851-6600

Before Sloviter, Roth and Pollack,¹ JJ.: