UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Conservation Law Foundation, Inc., Plaintiff

v. Case No. 13-cv-214-SM Opinion No.

Plourde Sand and Gravel Co., Inc., Defendant

O R D E R

This is a citizen suit brought by the Conservation Law

Foundation (“CLF”). CLF alleges that Plourde Sand and Gravel

Co., Inc. (“Plourde”) violated the Federal Water Pollution

Control Act (the “Clean Water Act,” the “Act,” or “CWA”),

et seq., by discharging storm water associated with

its industrial activities, as well as other pollutants, into

waters of the United States. Specifically, CLF alleges in count

I that Plourde has been discharging pollutants from at least one

point source into the Merrimack River, without authorization

under a valid National Pollution Discharge Elimination System

(“NPDES”) permit as required by the CWA. In count II, CLF

alleges that Plourde violated the CWA by failing to obtain either

an individual NPDES permit or coverage under the Multi-Sector

General Permit issued by the Environmental Protection Agency (the

“EPA”). In count III, CLF alleges that Plourde violated the CWA

by failing to comply with its permit requirements. CLF seeks declaratory and injunctive relief, as well as civil penalties,

costs, and attorney’s fees.

Plourde moves to dismiss CLF’s complaint pursuant to Rules

12(b)(1) and 12(b)(6)1 of the Federal Rules of Civil Procedure,

arguing that CLF has not alleged sufficient facts to demonstrate

that it has constitutional standing to maintain this lawsuit, and

it has not complied with the statutory preconditions to filing

suit.

Because CLF has pled sufficient facts in its complaint, as

supplemented by the declaration of one of its members, to support

associational standing to pursue its claims, and has sufficiently

complied with the notice provisions described in

(b)(1) and

(a), the motion to dismiss

(document no. 32) is denied.

Background

Plourde operates a sand and gravel processing facility in

Hooksett, New Hampshire, near the Merrimack River. CLF is a

1 Although Plourde purports to move to dismiss based on Rule 12(b)(6) in addition to Rule 12(b)(1), because Plourde addresses its motion and supporting papers to its Rule 12(b)(1) (lack of jurisdiction for, in this case, lack of constitutional and statutory standing), this order speaks only to Plourde’s standing arguments.

2 regional non-profit organization with more than 4,000 members,

including more than 450 members in New Hampshire, dedicated to

protecting the environment, including protecting New Hampshire’s

waterways from the significant adverse water quality impacts of

storm water pollution.

CLF alleges in its complaint that Plourde maintains earth

material piles — including sand, gravel, overburden, raw

materials, intermediate product, finished product, by-product,

and waste product — at its facility. CLF further asserts that

Plourde engages in industrial activities, such as storing,

moving, and processing materials using heavy machinery and

equipment, and that the materials, heavy machinery and equipment,

maintenance areas, loading areas, shipping areas, vehicles, and

onsite refueling of activities, are all exposed to storm water

and snow-melt, and on occasion, equipment and material may be

sprayed down with water under certain conditions.

When the industrial materials and equipment located at

Plourde’s facility are exposed to storm water, says CLF, the

water becomes contaminated with dust, suspended solids, dissolved

solids, fines, hydrocarbons (oil, grease, and fuel), heavy

metals, sediment, road salt, trash, and other pollutants. The

polluted water is then discharged, CLF alleges, via various point

3 sources, such as site grading, surface water channels, subsurface

hydrological connections, and detention ponds, into two surface-

water wetlands complexes located in the northeasterly and

southeasterly areas of Plourde’s facility. CLF claims that the

south detention pond-wetlands discharges polluted water into the

Merrimack River via surface water flows and a culvert, and the

north detention pond-wetlands discharges polluted water into the

Merrimack River via surface water flows and a man-made conduit.

CLF contends that these activities harm both its

organization, whose interest is protection of New England’s and

New Hampshire’s environment and waterways, and its members, who

use and enjoy New England's and New Hampshire's waterways,

including waters of the United States affected by Plourde’s

industrial activities, such as the Merrimack River, for

recreational and aesthetic purposes, including boating, swimming,

fishing, hunting, and sightseeing.

In addition to the allegations in CLF’s complaint, CLF also

offers a declaration from one of its members, Mark Feigl, of

Concord, New Hampshire, who regularly makes use of the

approximately four mile stretch of the Merrimack River in the

area of Plourde’s facility to swim, canoe, and hunt. Feigl

states in his declaration that he is “concerned ab[o]ut the water

4 quality and overall environmental health of the river . . ., the

surrounding tributaries, streams, wetlands, and ponds that may

flow into the Merrimack River.” He also expressed “concerns”

that the river is not safe for his daughter, his dog, or himself,

and he limits the quantity of duck harvested from the Merrimack

River and ponds near the Plourde facility that he serves friends

and family.

CLF claims that Plourde’s alleged discharge of pollutants

into the detention ponds, wetlands, and eventually the Merrimack

River without obtaining a permit violates the CWA. The CWA

prohibits the “discharge of any pollutant” into navigable waters

from any “point source” without an NPDES permit.

(a);

. “Discharge of a pollutant”

includes “surface runoff which is collected or channelled by

man.”

. “Point source” is defined broadly to

mean “any discernible, confined, and discreet conveyance,

including but not limited to any pipe, ditch, channel, tunnel,

conduit, well, discreet fissure, container, rolling stock,

concentrated animal feeding operation, landfill leachate

collection system, vessel or other floating craft from which

pollutants are or may be discharged.” Id.2 “Pollutants” include

2 The definition of “point source” expressly excludes “agricultural storm water runoff,” but does not exclude “storm water discharge associated with industrial activity.” See

5 “solid waste, incinerator residue, filter backwash, . . .

garbage, . . . chemical wastes, . . . wrecked or discarded

equipment, rock, sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water.”

Additionally, the CWA requires a permit for “a discharge

associated with industrial activity.”

(p)(2)(B).

The EPA regulations implementing this section provide that

“[s]torm water discharge associated with industrial activity

means the discharge from any conveyance that is used for

collecting and conveying storm water and that is directly related

to manufacturing, processing or raw materials storage areas at an

industrial plant.”

(a), (b)(14).

CLF asserts that Plourde is in violation of the CWA because

it is discharging storm water associated with its industrial

activities, and other pollutants as described above, without

first obtaining (and complying with) an NPDES permit. Since the

CWA was amended in 1987, it has required that facilities engaged

in certain industrial activities, such as Plourde’s, obtain storm

water discharge permits.

(a)(1), 1342(p)(2),

1342(p)(3)(A), 1342(p)(4), 1342(p)(6).

§ 122.2.

6 The CWA authorizes a “citizen” defined as “a person or

persons having an interest which is or may be adversely

affected,” to file suit to enforce the CWA’s permitting

requirements.

(a), (g). The statute and its

implementing regulations impose a notice requirement on citizen

suits requiring a would-be plaintiff to give notice of the

alleged violation to the EPA, the State in which the alleged

violation occurred, and the alleged violator, at least sixty days

before filing a citizen suit.

at § 1365(b)(1)(A).

In an effort to comply with the statutory notice

requirement, CLF sent Plourde, the EPA Administrator, and the

Commissioner of the New Hampshire Department of Environmental

Services (“NHDES”) a letter on December 3, 2012.3 Receiving no

adequate response from Plourde, and the EPA and NHDES having not

filed any enforcement action, CLF filed suit on May 1, 2013.

3 CLF sent a second letter alleging a separate violation of the CWA to Plourde, the EPA, and the NHDES on December 23, 2013. Plourde argues that CLF should not be permitted to rely on that letter to satisfy the statutory notice requirement because it was filed post-suit, and as such, the suit should be dismissed as premature. (Plourde Br. at 16-17.) CLF explained that the second notice consisted of different, additional allegations involving “process wastewater” rather than “storm water discharge associated with industrial activity.” CLF has not attempted to rely on its allegations in the second letter to support either constitutional standing or statutory compliance in this suit, nor has CLF sought to amend its complaint to include the additional allegations. Consequently, I have not considered the December 23, 2013 letter.

7 Plourde now moves to dismiss the suit because it claims CLF lacks

Article III standing and has not adequately complied with the

statutory notice requirements.

Standard of Review

In deciding a motion to dismiss for lack of standing under

Federal Rule of Civil Procedure 12(b)(1), a court must “accept as

true all well-pleaded factual averments in the plaintiff’s

complaint and indulge all reasonable inferences therefrom in his

favor.” Katz v. Pershing, LLC,

(1st Cir. 2012)

(internal quotation marks omitted). In determining whether a

plaintiff has sufficiently alleged its standing to sue, a court

may consider affidavits and other such materials outside the

pleadings. Gonzalez v. United States,

(1st

Cir. 2002). “[A] suit will not be dismissed for lack of standing

if there are sufficient allegations of fact . . . in the

complaint or supporting affidavits.” Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc.,

(1987)

(internal quotations omitted).

Allegations of standing, even in the context of a motion to

dismiss, must be reasonably definite, factual, and relate either

directly or inferentially to each material element necessary to

establish standing. See United States v. AVX Corp.,

108, 115 (1st. Cir. 1992) (rejecting “conclusory allegations” and

“generalized averments” of standing and requiring “reasonably

definite factual allegations, either direct or inferential,

regarding each material element needed to sustain standing”); see

also Ashcroft v. Iqbal,

(2009).

Constitutional Standing

Associational Standing

“The ingredients of standing are imprecise and not easily

susceptible to concrete definitions or mechanical applications.”

Dubois v. United States Dep’t of Agric.,

(1st

Cir. 1996) (citing Allen v. Wright,

(1984)).

To have standing to sue, a plaintiff must have “such a personal

stake in the outcome of the controversy as to assure that

concrete adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination of

difficult . . . questions.” Dubois,

(quoting

Baker v. Carr,

(1962)).

“Standing consists of both a constitutional aspect and a

prudential aspect. The constitutional dimension derives from the

requirement that federal courts can act only upon a justiciable

case or controversy.” Dubois,

-81 (citing U.S.

Const. art. III). “If a party lacks Article III standing to

9 bring a matter before the court, the court lacks subject matter

jurisdiction to decide the merits of the underlying case” and

must dismiss it. Dubois,

(citing FW/PBS, Inc.

v. City of Dallas,

(1990)).

To satisfy the constitutional aspect of standing, a

“plaintiff must demonstrate standing for each claim he seeks to

press and for each form of relief that is sought.” Davis v.

F.E.C.,

(2008) (internal quotations omitted).

To carry this burden, the plaintiff must show that “(1) it has

suffered an injury in fact that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc.,

(2000). As an

exception to the general prudential rule that a party must assert

its own legal rights and not those of third parties, an

“association has standing to bring suit on behalf of its members

when its members would otherwise have standing to sue in their

own right, the interests at stake are germane to the

organization's purpose, and neither the claim asserted nor the

10 relief requested requires the participation of individual members

in the lawsuit.”

.4

CLF Sufficiently Alleges Standing at the Motion to Dismiss Stage

Plourde challenges whether CLF has alleged “an injury-in-

fact fairly traceable to Plourde” sufficient to establish

associational standing. Plourde does not argue that the

interests at stake are not germane to CLF’s purpose, or that the

participation of individual CLF members is necessary to the

lawsuit, or that the relief CLF seeks will not redress its

alleged harm.

Our court of appeals has recognized that the injury-in-fact

component of the constitutional standing analysis “may be

satisfied by environmental or aesthetic injuries.” Dubois v.

United States Dep’t of Agric.,

(1st Cir.

1996) (citing United States v. Students Challenging Regulatory

Agency Procesures (SCRAP),

(1973); Sierra Club

v. Morton,

(1972)). Further, the injury

alleged “need not be ‘significant’; a ‘small’ stake in the

outcome will suffice if it is ‘direct.’” Dubois,

. The Supreme Court has likewise held “that environmental

4 Plourde does not contest the prudential aspect of standing that a “plaintiff’s complaint fall within the zone of interests protected by the law invoked.”

.

11 plaintiffs adequately allege injury in fact when they aver that

they use the affected area and are ‘persons for whom the

aesthetic and recreational values of the area will be lessened’

by the challenged activity.” Laidlaw,

(quoting

Sierra Club v. Morton,

(1972); citing Lujan v.

Defenders of Wildlife,

(1992) (“Of course,

the desire to use or observe an animal species, even for purely

esthetic purposes, is undeniably a cognizable interest for

purposes of standing.”).

Further, the “relevant showing for purposes of Article III

standing . . . is not injury to the environment but injury to the

plaintiff.” Laidlaw,

. That is because to

“insist upon the former rather than the latter as part of the

standing inquiry . . . is to raise the standing hurdle higher

than the necessary showing for success on the merits in an action

alleging noncompliance with an NPDES permit.”

In Dubois, an environmental organization and an individual

alleged, in relevant part, that the Department of Agriculture

failed to require the operator of a ski resort to obtain an NPDES

permit, in violation of the CWA, prior to discharging water

allegedly containing pollutants into waters of the United States.

Dubois,

. The court of appeals agreed with the

12 district court’s determination that the organizational plaintiff

sufficiently alleged standing when it asserted that its members

who lived and worked in the vicinity of the ski area would be

harmed by the proposed expansion of its activities.

.

The organization supported its allegations with affidavits from

members who claimed that they lived in the town where the resort

was located, used the town's water supply system, which relied in

part on a pond at issue as a water source, and made regular

recreational use of the area in which the expansion would occur.

They also alleged that they would be directly affected by “noise,

water quality, taxes, conversion of forested areas, impacts [on]

wildlife and a degradation of the visual quality of the town if

[the resort] is allowed to expand.” Dubois v. United States

Dep’t of Agric., No. 95-50,

, at *2

(D.N.H. Nov. 2, 1995).

The court of appeals determined that the individual

plaintiff had standing when he alleged that:

[his] principal residence from 1959-1977 was in Lincoln, New Hampshire. [He] has returned to the Lincoln area at least once per year — and occasionally up to twelve or more times per year — since 1977. During these trips, [he] has visited relatives and friends, collected botanical samples for scientific analysis, and engaged in recreational activities in and around the [White Mountain National Forest] and the Loon Mountain Ski Area. Plaintiff’s interest in the environmental, recreational and aesthetic

13 quality of the [White Mountain National Forest] are and will be adversely affected by the Defendants’ actions challenged in this Complaint.

Dubois,

.

Similarly, in the Supreme Court’s decision in Laidlaw, one

association member averred in an affidavit “that he lived a half-

mile from [the defendant’s] facility; that he occasionally drove

over the [river at issue], and that it looked polluted; and that

he would like to fish, camp, swim, and picnic in and near the

river between 3 and 15 miles downstream from the facility, as he

did when he was a teenager, but would not do so because he was

concerned that the water was polluted by [the defendant’s]

discharges.” Laidlaw,

.

Arguing, here, that CLF fails to allege an injury-in-fact,

Plourde contends that CLF “claims violations” of the CWA “but

points to no actual environmental harm.” (Def.’s Br. at 1.)

But, requiring CLF to show environmental harm in order to

establish standing, would “raise the standing hurdle higher than

the necessary showing for success on the merits.” See Laidlaw,

. CLF need not allege environmental harm to

establish standing, only harm to its and its members’ interests.

See

14 Plourde further contends that the allegations of injury in

CLF’s complaint are too general and specious to satisfy the

requirements of Article III standing. In its complaint, CLF

alleges:

Plaintiff, CLF, is a nonprofit, member- supported organization incorporated under the laws of Massachusetts with an office at 27 North Main Street, Concord, NH 03301 . . . . CLF is a regional organization with more than 4,000 members, including more than 450 members in New Hampshire, and is dedicated to protecting New England’s environment. CLF has a long history of working to protect the health of New England’s and New Hampshire’s waterways, including addressing the significant water quality impacts of stormwater [sic] pollution. CLF members use and enjoy New England’s and New Hampshire’s waterways for recreational and aesthetic purposes, including boating, swimming, fishing, hunting, sightseeing, including but not limited to waters of the United States affected by Plourde Sand and Gravel’s activities, including the Merrimack River. CLF actively seeks federal and state agency implementation of the Clean Water Act and, where necessary, directly initiates enforcement actions on behalf of itself and its members.

Discharges of pollutants by Defendant adversely affect CLF members’ use and enjoyment of water resource, including but not limited to the Merrimack River. The interests of CLF’s members have been, are being, and will continue to be adversely affected by Defendant’s failure to comply with the Clean Water Act and the Multi-Sector General Permit. The relief sought in this action will redress these harms. The unlawful acts and omissions described herein have irreparably harmed and will continue to irreparably harm Plaintiff’s members, for

15 which harm they have no plain, speedy, or adequate remedy at law.

(Compl. at ¶¶ 12-13.) Standing alone, the allegations fail to

identify any CLF member by name, specify that its members use a

portion of the Merrimack River within reasonable proximity to

Plourde’s facility, or state how frequent its members use that

particular portion of the Merrimack River, and may fall short of

the level of specificity required under Iqbal, Laidlaw, Dubois,

and the court of appeals’ decision in United States v. AVX Corp.,

(1st Cir. 1992).

In AVX Corp., the court held that the plaintiff’s

allegations of injury in fact were insufficient where the

organization alleged that its “members have been and will

continue to be harmed by the releases” at issue in the case, but

no organization members were identified, their places of abode

were not provided, and “the extent and frequency of any

individual use of the affected resources [was] left open to

surmise.”

The allegations in CLF’s complaint are similar to

the plaintiff’s allegations in AVX Corp. held to be insufficient

to establish an injury-in-fact.

However, it is not necessary to decide whether the

allegations in CLF’s complaint, without more, adequately allege

16 an injury-in-fact fairly traceable to Plourde because, unlike the

plaintiff in AVX Corp., CLF also submitted the declaration of one

of its members, Mark Feigl. In that declaration, Feigl alleges

that he has lived in Concord for fourteen years and that he

joined CLF prior to its filing this lawsuit. Feigl alleges that

“it is [his] hope and intention to continue to use the Merrimack

River in this area for many years to come,” but that he is

“concerned with the water quality of the Merrimack River and its

tributaries”. He alleges that he has “canoed, swam, duck hunted,

performed retrieving drills with [his] dogs Willow and Daisy, and

picked up trash with [his] daughters on the section of the

Merrimack River between the Merrimack Station coal-fired Electric

Generation Plant and the Hooksett Dam” and that due to his

activities along the section of the Merrimack River that includes

the area adjacent to and just downstream from Plourde, he is

“concerned about the water quality and the overall environmental

health of the river as well as the surrounding tributaries,

streams, wetlands and ponds that may flow into the Merrimack

River.”

Feigl asserts that he has hunted duck on the Merrimack River

for years near Plourde’s facility. He says that he has seen

ducks on a pond on Plourde’s property, but, because he

understands that Plourde is discharging storm water associated

17 with its industrial activities into the Merrimack River, and

other waters of the United States, he is concerned that the river

is not clean and safe in that area. Consequently, Feigl limits

the consumption of ducks harvested from that section of the river

near Plourde’s facility. Feigl also states that he would enjoy

his use of the Merrimack River more if “it was less polluted and

if industrial facilities such as Plourde’s complied with the

Clean Water Act and reduced their pollution.”

Like the association members’ contentions in Laidlaw and

Dubois, and the individual plaintiff’s allegations in Dubois,

Feigl’s allegations sufficiently establish that he, as a CLF

member, has suffered actual injury under the law. Consequently,

CLF has satisfied the “injury-in-fact” requirement of Article III

standing.

Plourde next contends that even if CLF has adequately

pleaded an injury-in-fact, that injury is not “fairly traceable”

to Plourde. Plourde relies upon CLF v. Public Serv. Co., No. 11-

353,

, at *12-*13 (D.N.H. Sept. 27,

2012) for the proposition that CLF cannot show that the injury

alleged by CLF and its member is “fairly traceable” to Plourde

because CLF does not allege that Plourde would discharge less

18 polluted water if it had obtained and complied with one of the

required permits. Plourde’s analogy misses the mark.

In CLF v. Public Serv. Co., the defendant was not required

to have a permit for the regular operation or the preexisting

emissions of its power plant. See id. at *12-13. Rather, the

obligation to obtain a permit arose because the defendants’

planned changes and repairs to the plant would allegedly cause an

increase in emissions. Id. Therefore, in order to show that

plaintiff’s injuries were “fairly traceable” to the defendant’s

allegedly illegal activity — increasing its emissions without the

required permits — plaintiff in that case needed to allege that

its members were exposed to more pollutants than they would have

been had the defendant obtained the proper permits — because,

otherwise, the plaintiff’s members’ harm would have resulted from

the same pollution the defendant was allowed to emit without a

permit. Id. at *21-*22.

A plaintiff alleging permitting violations under the CWA,

however, is not required to demonstrate, or even allege, that the

defendant's discharge of pollutants would be any less had it

obtained a permit in order to sufficiently allege standing, or

even state a claim under the CWA. See Dubois,

. In Dubois, the court recognized that the “most

19 important component of the [CWA] is the requirement that an NPDES

permit be obtained” before discharging pollutants from any point

source into waters of the United States.

.

That interpretation is confirmed by the Supreme Court and the

statutory language itself. See

(p) (requiring a

permit for “discharge associated with industrial activity”);

Laidlaw,

(stating “Noncompliance with a permit

constitutes a violation of the [CWA]”).

In this case, brought under the CWA, CLF alleges that

Plourde’s discharge of any storm water associated with industrial

activity and pollutants is illegal activity because Plourde is

required to obtain a permit to discharge any amount. CLF and its

member have sufficiently alleged injury as set out above. Since

CLF has adequately alleged that Plourde is, without the requisite

permit, discharging pollutants from point sources, including site

grading, surface water channels, subsurface hydrological

connections, and detention ponds, into waters of the United

States, and that the unlawful discharges have caused it and its

members harm, CLF has also sufficiently alleged, at least at the

pleading stage, that its injury is “fairly traceable” to

Plourde’s allegedly illegal conduct.

20 Therefore, CLF’s allegations that Plourde is discharging

storm water and pollutants into waters of the United States,

including the Merrimack River, without obtaining and complying

with the required permit, and that these illegal discharges harm

at least one of its identified members, are sufficient, at this

stage, to confer constitutional standing.

Statutory Standing

In addition to Article III standing, CLF must also have

statutory standing to assert a CWA claim. See

(b)(1)(A); Paolino v. JF Realty, LLC,

(1st Cir. 2013).5 Under the CWA, at least sixty days before

filing a citizen suit, a would-be plaintiff must provide written

notice to the would-be defendant, the EPA Administrator, and the

State in which the alleged violation occurred.

Our court of

appeals has held that the “required contents of pre-suit notice

are prescribed in

, and assessing whether these

requirements have been met is a functional, fact-dependent, and

case-specific inquiry. Where the information contained in

pre-suit notice identifies the potential plaintiffs, provides

basic contact information, and allows the putative defendants to

5 The court of appeals declined to hold that the notice requirements of the CWA are strictly jurisdictional. See Paolino,

n.4. However, the court there held that the notice provisions are “mandatory conditions precedent to the filing of a citizen suit.”

21 identify and remedy the alleged violations, we hold that these

requirements have been satisfied and that the enforcement action

may proceed.” Paolino,

.

“In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc.,

(1987), the Supreme Court

explained that the CWA’s pre-suit notice requirements serve two

purposes, each related to the supplementary role Congress

envisioned for citizen enforcement actions. First, pre-suit

notice allows federal and state agencies to initiate their own

enforcement action against an alleged violator, obviating the

need for a citizen suit.” Paolino,

(citing

Gwaltney of Smithfield, Ltd.,

; see also

(b)(1)(B) (barring citizen suits where “the

Administrator or State has commenced and is diligently

prosecuting” its own civil or criminal action)). “Similarly, the

second purpose of notice ‘is to give [the alleged violator] an

opportunity to bring itself into complete compliance with the Act

and thus likewise render unnecessary a citizen suit.’” Paolino,

-37 (quoting Gwaltney,

; see also

Hallstrom v. Tillamook Cnty.,

(1989) (relying on

Gwaltney in identifying same purposes for parallel notice

requirements under the Resource Conservation and Recovery Act)).

22 Congress tasked the EPA to determine what information a pre-

suit notice letter must contain to achieve its dual purposes.

See Paolino,

(citing

(b)). “In

the CWA’s legislative history, Congress clarified that [the

EPA’s] implementing regulations ‘should not require notice that

places impossible or unnecessary burdens on citizens but rather

should be confined to requiring information necessary to give a

clear indication of the citizens' intent.’” Paolino,

(quoting S. Rep. No. 92-414, at 80 (1971), reprinted in 1972

U.S.C.C.A.N. 3668, 3745). The applicable regulations provide

that pre-suit notice must contain “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, the person or persons

responsible for the alleged violation, the location of the

alleged violation, the date or dates of such violation, and the

full name, address, and telephone number of the person giving

notice.”

(a).

In this circuit, the “key language in § 135.3(a) is that

pre-suit notice must permit ‘the recipient’ to identify the

listed information, i.e., the specific standard at issue, the

dates on which violations of that standard are said to have

occurred, and the activities and parties responsible for causing

23 those violations.” Paolino,

. The necessary

inquiry is “whether the notice’s contents place the defendant in

a position to remedy the violations alleged.”

(emphasis in

original). Further, the court in Paolino explained that the

“adequacy of the information contained in pre-suit notice will

depend upon, inter alia, the nature of the purported violations,

the prior regulatory history of the site, and the actions or

inactions of the particular defendants.”

In Paolino, the court stated that where, as in this case,

“the alleged violations concern the unlawful discharge of

pollutants,” some courts have required that pre-suit notice

letters identify the particular pollutants being discharged.

Paolino,

. However, because the standard was so

clearly met in that case, the court declined to address whether

that holds true in every case alleging the discharge of

pollutants.

The court there also provided that “in many cases, there

must be sufficient facts asserted about the mechanisms and

sources involved in these unlawful discharges so that the

defendants may take appropriate remedial action,” but recognized

that a pre-suit notice letter could be sufficient where it

asserted a specific permit that was violated but failed to assert

24 specific point sources for each alleged discharge. Paolino,

-38 (citing Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp.,

(4th Cir. 2011); Atl. States

Legal Found., Inc. v. Stroh Die Casting Co.,

(7th Cir. 1997)).

In Paolino, the pre-suit notice identified sections of the

CWA that plaintiffs alleged the defendant violated and stated

that the violations consisted of holding a permit in the wrong

name and “continually discharging pollutants into United States

waters.” Paolino,

. The plaintiffs alleged that

defendant was discharging hazardous storm water runoff via a

drainage ditch that flowed through the plaintiffs’ property into

waters of the United States.

The plaintiffs further set out

a list of dates and water levels that plaintiffs tested on their

own property that allegedly exceeded allowable levels.

While CLF’s pre-suit notice in this case is not as specific

as the notice provided by the plaintiffs in Paolino, the court of

appeals has recognized that the CWA does not require a plaintiff

to “list every specific aspect or detail of every alleged

violation, or describe every ramification of a violation,”

Paolino,

.

25 CLF’s pre-suit letter was delivered to Plourde, the EPA

Administrator, and the Commissioner of the New Hampshire

Department of Environmental Services, as required by the

regulation. See 33 U.S.C. 1365(a). The letter identified “the

specific standard [or] limitation” violated as well as the

activity alleged to be in violation,”

(a). The

letter asserted that Plourde “is discharging storm water directly

associated with the construction sand and gravel site at 591 West

River Rd., Hooksett, NH 03106 . . . to the waters of the United

States without a permit, in violation of

(a) and

1342(p)(2)(B) [and] failed to obtain coverage under any [CWA]

permit including the Multi-Sector General Permit adopted by the

EPA for industrial sources of polluted storm water runoff, and

failed to comply with the specific requirements of any such

permit, in violation of

(p)(3)(A) and (p)(4)(A),

and

(c)(1) and (e)(1).” Letter from Zachary

K. Griefen, CLF, to Oscar P. Plourde et al., Plourde Sand and

Gravel Co., Inc. (Dec. 3, 2012) (“Dec. 3, 2012 Letter”) at 1

(document no. 1-1).

CLF also alleged in its notice letter that the point where

Plourde discharged storm water associated with industrial

activities into the Merrimack River, and just downstream from

that point, is impaired under the CWA “for failure to meet

26 minimum water quality standards,” because it is impaired for

mercury, aluminum, dissolved oxygen saturation, pathogens, and

pH, to which “storm water is a significant contributor.” It

further asserted that Plourde is discharging pollutants,

including dust, total suspended solids, total dissolved solids,

diesel and gas fuel, oil, heavy metals, and trash, and “storm

water discharge associated with industrial activity,” as defined

by the CWA and its implementing regulations “through at least the

following point sources: the sand and gravel piles that are open

to the elements; the machines and equipment left outdoors, and

the vehicles driving on and off [Plourde’s facility], while

additionally conveying pollutants through site grading, surface

water channels, subsurface hydrological connections, detention

ponds, culverts, and other conveyances to the Merrimack River.”

Dec. 3, 2012 Letter at 2-4.

The letter went on to inform Plourde of the steps it could

take to remedy its violations. Id. at 5-7.

The letter identified Plourde Sand and Gravel Co., Inc., and

its officers and directors, including Oscar P. Plourde, as “the

person responsible for the alleged violation.” It identified the

Plourde Sand and Gravel facility “located at 519 West River Rd.,

Hooksett, NH 03106" as “the location of the alleged violation.”

27 Dec. 3, 2012 Letter at 1-2. It identified “every day since at

least 2007 on which there has been a measurable precipitation

event” as “the date of dates of [the] violation.” Id. at 8. The

court of appeals has suggested that such notice of times is

compliant. Paolino,

(citing Waterkeepers N. Cal.

v. AG Indus. Mfg., Inc.,

, 917-18 (9th Cir. 2004)).

Finally, the letter is signed by and provides “the full name and

address of the person giving notice,” a CLF attorney. Id. at 9.

Plourde complains that CLF’s pre-suit notice letter contains

both too much information and too little detail. Plourde

concedes that CLF’s notice letter provides lists of pollutants

and point sources that all allegedly conveyed pollutants into the

Merrimack River, but charges that the notice is “bereft of any

particularized facts” that would allow Plourde to remedy the

alleged violations, such as one specific mechanism by which

Plourde allegedly discharges pollutants into United States

waters. Plourde cites to a case in which the plaintiff, an

individual, sued no less than nine defendants, including the EPA

Administrator, the United States Secretary of Commerce, the State

of Washington, the City of Olympia, Weyerhaeuser NR Company, the

Federal Railroad Administration, and others, accusing them “of a

vast conspiracy among the recipients of the letter to violate

most of the provisions of the CWA.” West v. Johnson, No. 08-

28 5741,

, at *9-*12 (W.D. Wash. Aug. 10,

2009). There the court held that the notice was too broad to

provide the defendants with sufficient notice, in part because it

did not permit the multiple defendants to discern what activities

each of them engaged in that allegedly constituted a violation.

at *11-*12. Plourde also relies on a Tenth Circuit decision

in which the pre-suit notice letter failed to allege any point

source from which alleged pollution arising from “construction

activities” was discharged. Karr v. Hefner,

(10th Cir. 2007) (finding the plaintiff’s pre-suit notice letter

insufficient where it alleged that pollution from “construction

activities” was being discharged from the defendant’s well rather

than from any point sources actually associated with its

construction activities).

In this case, however, CLF’s pre-suit notice letter is both

more targeted and specific than the letters in West and Karr.

CLF alleges that only one defendant, Plourde, violated specific

sections of the CWA by discharging storm water associated with

industrial activities and other specified pollutants from no more

than eight point sources on Plourde’s property.

Courts in this and other circuits do not require “a citizen

plaintiff to list every specific aspect or detail of every

29 alleged violation.” Paolino,

. Rather, “the

[CWA's] notice provisions and their enforcing regulations require

no more than ‘reasonable specificity’.”

(citations omitted).

CLF’s pre-suit letter in this case provided Plourde with

sufficient notice that it was and is violating the CWA by

discharging pollutants, including storm water discharge

associated with industrial activity, from several discrete point

sources on its property, without a required permit, and in

violation of the same. The notice provided Plourde with

sufficient information for it to identify and remedy the alleged

violations arising from its failure to obtain the proper permit.

Consequently, CLF satisfied the statutory conditions

precedent to maintaining this suit provided in

(a).

Conclusion

For the foregoing reasons, CLF has sufficiently alleged

Article III standing and has satisfied the statutory condition

precedent to filing a citizen suit in this case. Accordingly,

Plourde’s motion to dismiss (document no. 32) is denied.

30 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

November 6, 2014

cc: Zachary K. Griefen, Esq. Thomas F. Irwin, Esq. George D. Bisbee, Esq. Daniel E. Will, Esq. Joshua M. Wyatt, Esq.

31