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Potomac Riverkeeper, Inc. v. Marcella M. Klinger, LLC

United States District Court, Fourth Circuit

October 1, 2013

POTOMAC RIVERKEEPER, INC., Plaintiff
v.
MARCELLA M. KLINGER, LLC, Defendant

MEMORANDUM AND ORDER

James K. Bredar, United States District Judge

I. Background

On August 8, 2012 (ECF No. 1-2), prior to filing the instant suit in federal court, Plaintiff Potomac Riverkeeper, Inc. (“Riverkeeper”) sent a Notice of Intent to Sue (“NOI”) letter to Defendant Marcella M. Klinger, LLC (“Klinger”), as required by the Clean Water Act’s (“CWA”) citizen suit provision, 33 U.S.C. § 1365(b) (mandating that sixty days prior to initiating a civil action against an alleged violator, a citizen must file a notice of intent to sue with the Environmental Protection Agency (“EPA”) Administrator, the State in which the violations are alleged to have occurred, and the alleged violator). The Plaintiff filed the complaint in this case in the District Court of Maryland on March 15, 2013. (Compl., ECF No. 1.) The Defendant has moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6). (ECF No. 8.) This Court has considered the motion, the Plaintiff’s response in opposition (ECF No. 9), and the Defendant’s reply thereto. (ECF No. 10.) No hearing is necessary. Local Rule 105.6 (D. Md. 2011). The motion will be DENIED.

II. Standard for Dismissal under Rule 12(b)(1)

The burden of proving subject-matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (noting challenge may be either facial, i.e., complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual, i.e., jurisdictional allegations of complaint are not true). See also Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (same); Richmond, Fredericksburg & Potomac Ry. Co., 945 F.2d 765, 768 (4th Cir. 1991) (same). In the case of a factual challenge, it is permissible for a district court to “consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg, 945 F.2d at 768 (citing Adams, 697 F.2d at 1219).

III. Standard for Dismissal under Rule 12(b)(6)

A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

IV. Statutory Background

Congress passed the CWA with the stated purpose of restoration and maintenance of the chemical, physical, and biological integrity of the Nation’s waters. 33 U.S.C. § 1251(a). One way in which the Act is designed to meet that end is by prohibiting the discharge of any “pollutant” from a “point source” into the navigable waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. § 1311(a); 33 U.S.C. § 1342. The term “pollutant” covers a range of substances, including “sewage, garbage, sewage sludge … [and] biological materials.” 33 U.S.C. § 1362(6). Further, the term “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Any discharge of pollutants[1] outside the requirements of an NPDES permit or without a permit is subject to an enforcement action by EPA, States, or private citizens. 33 U.S.C. § 1319(b); 33 U.S.C. § 1365(a)(1). A private citizen, however, may not commence a civil action on his own behalf prior to sixty days after filing a Notice of Intent to Sue (“NOI”) letter with the EPA Administrator, the State in which the alleged violation occurs, and any alleged violator. 33 U.S.C. § 1365(b)(1)(A). If after sixty days EPA or the State has not commenced a civil or criminal action to require compliance with the standard, limitation, or order alleged to have been violated in the NOI letter, the citizen may file suit in federal court.

The specific notice required in citizen suits shall be given in a manner prescribed by EPA regulation. 33 U.S.C. § 1365(b). The corresponding regulation states,

[n]otice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include 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.

40 C.F.R. § 135.3(a).

V. Analysis

The question to be resolved is whether Plaintiff satisfied the statutory and regulatory notice requirements prior to filing suit.[2] Defendant asserts that the allegations in the Plaintiff’s NOI were inadequate to provide it with a reasonable opportunity to attempt compliance and thereby avoid civil suit. Specifically, Defendant asserts that the Plaintiff’s complaint alleges materially different violations from those alleged in the NOI letter, and that the NOI letter lacked the necessary specificity as to the dates and locations of the alleged violations. (Klinger ...


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