The Third Circuit has affirmed the dismissal of a Clean Water Act (CWA) citizen suit because the plaintiff failed to provide the defendants with adequate notice of the basis of the claim. Adequate notice is a procedural hurdle to citizen suit actions intended to provide defendants with an opportunity to correct CWA violations prior to litigation. EPA regulations explain that proper notice includes, among other things, the standard or limitation that was violated and the location of the violation. Without prior notice, defendants cannot discern what response will avoid litigation.
The case, Shark River Cleanup Coalition v. Wall Township, concerned a sewer line that discharged to the Shark River Brook. Plaintiff discovered that a large void had formed around an otherwise buried sewer pipe and surmised that the missing soil had entered the damaged pipe and discharged to the nearby creek. The Shark River Cleanup Coalition’s counsel sent a CWA pre-suit notice letter to the property owner and the municipality that operated the sewer system. The notice alleged that the exposed sewer line violated New Jersey regulations and the CWA.
The Third Circuit addressed the specificity of both the location of the violation and the alleged violations. The District Court had dismissed the case because the notice letter did not identify the location of the alleged violation. For some reason, the plaintiff chose not to identify the precise location of the damaged pipe. On appeal, the Third Circuit reversed the District Court decision, finding that while the plaintiff could have been more helpful the defendants were eventually able to locate the exposed sewer line based on the information provided in the notice letter.
However, the Third Circuit also decided that the notice did not identify the alleged violations with sufficient specificity. The CWA regulations require that the notice “include sufficient information to permit [Defendants] to identify the specific standard, limitation, or order alleged to have been violated[.]” In this case, the notice referred to the entirety of the Clean Water Act and all of the related federal regulations. The Third Circuit found that a citation to the entirety of the CWA was not sufficient to apprise the defendants of an eventual claim based on an unpermitted discharge of pollutants (in this case, soil) pursuant to 33 USC 1311(a).
Going forward, plaintiffs will be sure to include the specific CWA provision alleged to be violated within their notice letters. To the extent that defendants previously received notice letters that were followed by litigation, those letters should be reviewed to ensure they specify alleged violations in sufficient detail to satisfy the EPA regulations.