Notice of intent to sue under Clean Water Act need not specify exact dates of violations

Law Reporter, May 2003

San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153 (9th Cir. 2002).

The Ninth Circuit Court of Appeals held that citizens suing under the Clean Water Act (CWA), 33 U.S.C. [sec][sec] 1251-1387, do not have to cite the specific date of each alleged violation of the act when notifying a prospective defendant of their intent to sue. As long as the notification is reasonably specific as to the nature and time of the violations, it satisfies the CWA's notice requirement, the court held.

Tosco Corporation (Tosco) operated a petroleum coke storage facility that allegedly polluted a waterway flowing into San Francisco Bay, in violation of the CWA. BayKeeper, a nonprofit environmental organization, sent a letter to Tosco notifying it of Bay Keeper's intent to sue under the act. The letter did not specify the dates of some of the alleged violations. BayKeeper sued Tosco.

Defendant moved for dismissal on the grounds that plaintiff's notice of intent to sue did not meet the statutory requirements, and that the fact that defendant had since sold the facility in question made plaintiff's claims against it moot. The trial court held for defendant on both grounds.

Reversing on both grounds, the Ninth Circuit held that the notice letter was sufficiently specific to permit Tosco to identify the dates of the violations. Even without the exact dates, the letter was sufficient to inform defendant of what it was doing wrong and to allow it to attempt to comply with the CWA, the court said. Furthermore, citing Supreme Court case law, the court said diat selling a facility that violates the CWA does not preclude liability under the act.

Accordingly, the court remanded.

Plaintiff's Counsel

Robert Perlmutter, San Francisco, Cal.

Leo O'Brien, San Francisco, Cal.