On March 13, 2013, the First Circuit issued its opinion in Paolino v. JF Realty, LLC,No. 12-2031 (1st Cir. Marc. 13, 2013), reversing in part the District Court’s dismissal of a Citizen’s Suit brought pursuant to the Clean Water Act, and in so doing addressing an “issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given” before such a suit can be brought.  

The suit was initiated by the owners of a five-acre parcel sited downhill from property owned and operated by the defendants, in which plaintiffs allege that the plaintiffs relocated a ditch to drain a contaminated pond and divert storm run-off into, eventually, the Robin Hollow Reservoir, and that the drainage ditch created an “intermittent stream” across their property.  As this was the third attempt by the plaintiffs to meet the citizen suit requirements of the CWA, the district court dismissed the case with prejudice, finding that the pre-suit notice did not describe with sufficient specificity the CWA violations, and in particular, the specific CWA standards or limitations that were being violated or which of the multiple defendants were responsible for the violations.   

In its decision, the First Circuit adopted as its standard the requirement that the plaintiffs must provide sufficient information so as to (a) identify the plaintiffs, (b) provide basic contact information, and (c) “allow[] the putative defendants to identify and remedy the alleged violations.”  (Emphasis added).  Focusing on the language in 40 C.F.R.  § 135.3(a) that pre-suit notice must permit “the recipient” to identify the specific information required, and noting that any more stringent requirements could place an impossible or unnecessary burden on plaintiffs, the Court held that the notice need not contain every date on which violative discharges occurred if an adequate number of dates were provided along with a description of the activity resulting in the discharges, the pollutants alleged to have been discharged and the levels of those pollutants allowed.   Because this information would ”permit[] the defendants to identify [the specific standard of the CWA alleged to have been violated] themselves and to remedy the alleged violations if accurate,” it met the requirements of the Clean Water Act.  

For the same reason, the Court also rejected the argument that the Notice had to identify which defendant(s) were liable for which discharges.  Given the “extensive history of changing hands amongst the defendants, [the defendants were] in a much better position than the plaitniffs to determine their respective responsibilities,” the Court held.

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