Addressing an issue of first impression, the First Circuit Court of Appeals has held that the pre-suit notice required before filing a citizen suit under the Clean Water Act (CWA) is sufficiently detailed if it is "at least adequate to allow the defendants to identify and remedy several of the alleged CWA violations." Paolino v. JF Realty, LLC, No. 12-2031 (1st Cir. 3/13/13). The CWA requires citizens who want to sue dischargers for violations to give notice both to the discharger and the regulatory entities involved 60 days before filing suit.
Plaintiffs had sent a notice and subsequently sued current and former owners and operators of property used as an auto salvage yard, asserting illegal discharges from the operation. The district court dismissed plaintiffs’ claims, agreeing with the defendants that the plaintiffs’ notice lacked the specificity required by U.S. Environmental Protection Agency regulations. Those regulations call for the notice to 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, [and] the date or dates of such violation . . . ."
The First Circuit found that a list of asserted improper discharges attached to the notice "permitted the defendants to identify" the legal standards that plaintiffs believed were violated and to remedy any actual violations. It therefore found the pre-suit notice adequate and reinstated the case against most of the defendants. The court upheld the dismissal of claims against one defendant on the ground that the notice had not been properly served on him. Plaintiffs attempted to serve that defendant by certified mail at the business address of the salvage yard, but the letter was returned as "Refused." The court declined to infer that notice had been properly given because the certified letter was sent to an address the defendant testified was neither his home nor his current work address.