Paolino v. JF Realty, LLC

United States Court of Appeals
For the First Circuit

No. 12-2031

LOUIS PAOLINO; MARIE ISSA,

Plaintiffs, Appellants,

v.

JF REALTY, LLC; JOSEPH I. FERREIRA; ROBERT YABROUDY;
LKQ ROUTE 16 USED AUTO PARTS, INC., d/b/a Advanced Auto
Recycling; JOSEPH I. FERREIRA, Trustee of The Joseph I.
Ferreira Trust,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard, Circuit Judge,
and Casper,* District Judge.

Michael J. O'Neill, with whom McGregor & Associates, P.C., was
on brief, for appellants.
Christopher M. Kilian was on brief for Conservation Law
Foundation, amicus curiae.
Robert Clark Corrente, with whom Christopher L. Ayers and
Burns & Levinson LLP, were on brief, for appellees.

March 13, 2013

*
of the District of Massachusetts, sitting by designation.
 LYNCH, Chief Judge. This appeal presents 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 at least sixty days before a citizen enforcement

action may be brought under the federal Clean Water Act (CWA), 33

U.S.C. § 1251 et seq. Failure to comply with the CWA's sixty-day

notice requirement bars such an action and calls for dismissal of

the suit. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 32-33

(1989).

The required contents of pre-suit notice are prescribed

in 40 C.F.R. § 135.3, 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 identify and

remedy the alleged violations, we hold that these requirements have

been satisfied and that the enforcement action may proceed. This

does not mean that the defendants are precluded from asserting

defenses under Fed. R. Civ. P. 12(b)(6); only that the suit is not

barred in the district court.

This holding requires us to find error in the district

court's dismissal of this case. We reverse, in part, and remand

for further proceedings consistent with this opinion.

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 I.

Plaintiffs Louis Paolino and Marie Issa appeal from a

district court order dismissing with prejudice their most recent

attempt to bring a citizen enforcement action against the

defendants pursuant to 33 U.S.C. § 1365(a). Plaintiffs' two

previous citizen suits were dismissed without prejudice due to

defects in the service or contents of earlier pre-suit notices.1

An overview of the CWA, including its provisions

governing citizen enforcement actions, helps to explain our

conclusion. Congress adopted the CWA in 1972 "to restore and

maintain the chemical, physical, and biological integrity of the

Nation's waters." 33 U.S.C. § 1251(a). To that end, the CWA

prohibits the discharge of any pollutant into navigable waters, id.

§ 1311(a), unless authorized by a valid National Pollutant

Discharge Elimination System (NPDES) permit, id. § 1342. NPDES

1
Plaintiffs originally filed suit in Rhode Island state court
in 2006. After plaintiffs amended the complaint to include counts
under the CWA, the Resource Conservation and Recovery Act (RCRA),
42 U.S.C. § 6901 et seq., and the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§ 9601 et seq., defendants removed the case to federal court and
asserted that pre-suit notice was inadequate. On March 30, 2011,
the court dismissed plaintiffs' federal claims without prejudice
for failure to comply with the notice requirements of the various
statutes invoked, and remanded the remaining state claims to the
Rhode Island Superior Court. LM Nursing Serv., Inc. v. Ferreira,
No. 09-CV-413-SJM-DLM, 2011 WL 1222894, at *9 (D.R.I. Mar. 30,
2011).
On June 6, 2011, plaintiffs filed a new federal complaint
against the defendants in the District of Rhode Island, which was
dismissed without prejudice by stipulation when notice was
defective.

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permits may be issued by the EPA or an authorized state, id.

§ 1352(a), (b); 40 C.F.R. § 123.25, and incorporate both state

water quality standards and federal effluent limitations, 33 U.S.C.

§ 1342(a)(3), (b)(1)(A); 40 C.F.R. § 123.25.2 In Rhode Island, the

NPDES is administered by the Department of Environmental Management

(DEM) through the Rhode Island Pollutant Discharge Elimination

System (RIPDES) permit program. See, e.g., Approval of Rhode

Island's NPDES Program, 49 Fed. Reg. 39,063, 39,063 (Oct. 3, 1984);

Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d

9, 14-16 (1st Cir. 2012).

State and federal authorities are authorized to enforce

the CWA through suit. 33 U.S.C. §§ 1319, 1342(b)(7). In addition,

private citizens are given a more limited enforcement role. A

citizen may bring a civil enforcement action in federal district

court against an NPDES permit holder for failure to comply with

that permit's conditions. 33 U.S.C. § 1365(a)(1) (authorizing

citizen suits); see also id. §§ 1319(a)-(b), 1342(h)-(i)

(describing state and federal enforcement actions for violations of

2
States and the federal government share responsibility for
achieving the CWA's purposes. States are primarily responsible for
adopting ambient water quality standards within their territory,
which designate, inter alia, acceptable levels for various
hazardous materials. 33 U.S.C. § 1313(c)(2)(A). These standards,
in turn, supplement technology-based effluent limitations,
established by the Administrator of the EPA, on individual
discharges of pollutants into navigable waters. See, e.g., 33
U.S.C. §§ 1311(b)(1)(A)-(C) & (e), 1312(a), 1313(d)(1)(A), (d)(2),
(e)(3)(A).

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discharge permit conditions). If the citizen prevails, the

district court may award to him or her injunctive relief and

attorneys' fees, and impose civil penalties on the defendant

payable to the United States Treasury. Id. § 1365(a), (d); see

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 185 (2000).

At least sixty days before initiating such an action,

however, a citizen plaintiff must give notice of the alleged

violations to the state in which they occurred, the EPA

Administrator, and the putative defendant(s). 33 U.S.C.

§ 1365(b)(1)(A). Additionally, no citizen suit may be brought if

the "Administrator or State has commenced and is diligently

prosecuting" an enforcement action for these alleged violations

prior to the date on which the citizen files her complaint. Id.

§ 1365(b)(1)(B). In cases such as this one, with a long history of

environmental enforcement at the site, this may impose a

significant limitation on citizen suits. See, e.g., Piney Run

Pres. Ass'n v. Cnty. Comm'rs Of Carroll Cnty., Md., 523 F.3d 453,

455 (4th Cir. 2008).

The CWA does not describe the service or contents of pre-

suit notice, providing instead that "[n]otice . . . shall be given

in such manner as the [EPA] Administrator shall prescribe by

regulation." 33 U.S.C. § 1365(b)(2). These regulations are

contained in 40 C.F.R. Part 135, and are discussed below.

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 In this case, the plaintiffs jointly own a five-acre

property in the Town of Cumberland, Rhode Island. Their property

sits downhill from and abuts the southwestern edge of a larger

thirty-nine-acre property (the "Property") owned by defendant JF

Realty, LLC, of which defendant Joseph I. Ferreira is the only

member.3 Since 1984, Ferreira has used or permitted others to use

the Property to operate an automobile salvage and recycling

business. The Property is currently leased for that purpose to the

defendant LKQ Route 16 Used Auto Parts, Inc., and contains

approximately 2,000 automobiles in various stages of recycling.

Plaintiffs filed this action in the District of Rhode

Island on January 20, 2012. The complaint contains a single count,

which alleges that the defendants are in continuing violation of

CWA §§ 1311, 1313, and 1342 because (1) they do not have a valid

RIPDES permit in the name of the actual owner and operator of the

Property; and (2) they are continually discharging pollutants into

United States waters at levels in excess of state water quality

standards, federal effluent limitations, and other restrictions

imposed by their RIPDES permit.

On October 7, 2011 -- more than ninety days before filing

their complaint -- plaintiffs sent notice (the "Notice") of the

3
In 1997, Ferreira transferred the Property to Joseph I.
Ferreira, Trustee of the Joseph I. Ferreira Trust, which
subsequently transferred the Property to JF Realty, LLC, the
Property's current owner, in 2005.

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alleged violations to the relevant parties, including each of the

defendants, as required under 33 U.S.C. § 1365(b). Whether that

Notice was properly served on each defendant is a separate issue

which we address later. The Notice is fifteen pages long, and

attaches and incorporates by reference an additional fifteen-page

report prepared by an environmental consulting group on the

plaintiffs' behalf.

Defendants filed their motion to dismiss the complaint on

February 14, 2012, arguing that plaintiffs had failed to allege or

establish several mandatory prerequisites to a citizen suit under

the CWA. Specifically, defendants asserted that (1) plaintiffs'

pre-suit Notice did not describe the alleged CWA violations with

the specificity required under 40 C.F.R. § 135.3(a); (2)

plaintiffs' service of the Notice on defendant Robert Yabroudy was

defective under 40 C.F.R. § 135.2; and (3) plaintiffs did not mail

an as-filed and date-stamped copy of the complaint to the EPA

Administrator, EPA Regional Administrator, and U.S. Attorney

General, as required by 40 C.F.R. § 135.4. Defendants also

requested that the district court dismiss the complaint with

prejudice based upon plaintiffs' previous failures to comply with

the CWA's notice requirements.

The district court issued an order on July 26, 2012,

dismissing the complaint under Fed. R. Civ. P. 12(b)(1) for lack of

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subject matter jurisdiction.4 Paolino v. JF Realty, LLC, C.A. No.

12-39-ML, 2012 WL 3061594 (D.R.I. July 26, 2012). It found that

plaintiffs' pre-suit Notice suffered from each of the deficiencies

alleged in the motion to dismiss, and agreed that a dismissal with

prejudice was in order as to all defendants on the first ground.

This timely appeal followed.

We limit our review to the sufficiency of plaintiffs'

pre-suit Notice and the adequacy of service on defendant Yabroudy.5

II.

The primary issue on appeal is whether the district court

erred in finding that the contents of plaintiffs' pre-suit Notice

were insufficiently specific to satisfy the requirements set forth

in 40 C.F.R. § 135.3(a). Our review of that determination is de

novo. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir.

2001).

4
Most courts to consider this issue have concluded that the
CWA's pre-suit notice provisions at least implicate the subject
matter jurisdiction of the federal courts. City of Newburgh v.
Sarna, 690 F. Supp. 2d 136, 151-52 (S.D.N.Y. 2010) (collecting
cases). Whether we treat the CWA's notice requirements as strictly
jurisdictional or not, they remain mandatory conditions precedent
to the filing of a citizen suit. See Alphas Co., Inc. v. Dan Tudor
& Sons Sales, Inc., 679 F.3d 35, 40 (1st Cir.), cert. denied, 133
S. Ct. 652 (2012).
5
The district court also found plaintiffs' pre-suit Notice
deficient under 40 C.F.R. § 135.4, but did not conclude that this
was an independent basis which would justify dismissing the case.
Paolino, 2012 WL 3061594, at *7.

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 In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 59-60 (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. Id. at 59-60; see also 33 U.S.C. § 1365(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." Gwaltney, 484 U.S. at 60; see also Hallstrom, 493

U.S. at 29 (relying on Gwaltney in identifying same purposes for

parallel notice requirements under the RCRA).

Congress entrusted to the EPA the task of determining

what information a pre-suit notice letter would need to include in

order to achieve these purposes. 33 U.S.C. § 1365(b). In the

CWA's legislative history, Congress clarified that these

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

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indication of the citizens' intent." S. Rep. No. 92-414, at 80

(1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3745.

Pursuant to these directives, the EPA adopted 40 C.F.R.

§ 135.3. In the relevant part, § 135.3 states that pre-suit

notice:

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.

Id. § 135.3(a).

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 those violations. See Pub.

Interest Research Grp. of N.J., Inc. v. Hercules, Inc., 50 F.3d

1239, 1248 (3d Cir. 1995). Our sister circuits are in relative

agreement that this language indicates the appropriate measure of

sufficiency under § 135.3(a) is whether the notice's contents place

the defendant in a position to remedy the violations alleged. See,

e.g., S.F. BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1158 (9th

Cir. 2002) ("Notice is sufficient if it is specific enough 'to give

the accused company the opportunity to correct the problem.'"

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(quoting Atl. States Legal Found., Inc. v. Stroh Die Casting Co.,

116 F.3d 814, 819 (7th Cir. 1997))); Atl. States, 116 F.3d at 819-

20 (finding that "notice must be sufficiently specific to inform

the alleged violator about what it is doing wrong, so that it will

know what corrective actions will avert a lawsuit," and that "[t]he

key to notice is to give the accused company the opportunity to

correct the problem"). We agree.

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. For example,

where, as here, the alleged violations concern the unlawful

discharge of pollutants, several courts have found that only those

discharges for which the notice identifies a particular pollutant

will withstand a sufficiency challenge. Friends of the Earth, Inc.

v. Gaston Copper Recycling Corp., 629 F.3d 387, 401 (4th Cir.

2011); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City

of New York, 273 F.3d 481, 487-88 (2d Cir. 2001); see also Brod v.

Omya, Inc., 653 F.3d 156, 169 (2d Cir. 2011) (same under RCRA

notice requirements (citing Catskill, 273 F.3d at 487)). Since

that was done here, we do not decide whether it is always required.

Moreover, 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

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remedial action. Cf. Alt. States, 116 F.3d at 819-20 (finding

earlier pre-suit notice sufficient for new violations alleged in

amended complaint where the source of violations was adequately

disclosed).

The CWA does not require, however, that a citizen

plaintiff "list every specific aspect or detail of every alleged

violation," or "describe every ramification of a violation."

Hercules, 50 F.3d at 1248. This is so because, "in investigating

one aspect" of an alleged violation, "the other aspects of that

violation . . . will of necessity come under scrutiny" by the

putative defendant. Id. Thus, the Ninth Circuit has twice found

that a notice letter alleging continuing unlawful discharges of

pollutants need not list every date on which such discharges

occurred. Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d

913 (9th Cir. 2004); BayKeeper, 309 F.3d 1153. In both cases,

other information in the notice letter concerning the cause and

source of the alleged discharges permitted the defendants to

identify an adequate number of specific dates on which these

discharges occurred and to take remedial action. Waterkeepers, 375

F.3d at 917-18 (violations caused on "every rain event over 0.1

inches" (internal quotation marks omitted)); BayKeeper, 309 F.3d at

1159 (violations caused "on each day when the wind has been

sufficiently strong to blow" pollutants into adjacent slough

(internal quotation marks omitted)). Similarly, the Third Circuit

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in Hercules held that a sufficiently alleged discharge violation in

pre-suit notice also informed the defendants of "any subsequently

discovered monitoring, reporting or recordkeeping violation that is

directly related to the discharge violation." 50 F.3d at 1248.

"In short, the Clean Water Act's notice provisions and their

enforcing regulations require no more than 'reasonable

specificity.'" BayKeeper, 309 F.3d at 1158 (quoting Catskill, 273

F.3d at 488); Natural Res. Council of Me. v. Int'l Paper Co., 424

F. Supp. 2d 235, 249 (D. Me. 2006).

In the present dispute, the defendants launch an omnibus

attack on the contents of plaintiffs' October 7 Notice letter.

They assert that the Notice did not contain sufficient information

to identify: (1) the specific standard or limitation at issue, (2)

the activity alleged to have caused a violation of that standard or

limitation, and (3) the particular defendant responsible for that

violative activity.6 The district court granted defendants' motion

to dismiss on the first of these grounds, finding that the Notice

"fail[ed] to provide sufficiently specific information for the

recipients to identify which CWA standard is being violated."

Paolino, 2012 WL 3061594, at *7.

6
For the first time in their Response Brief, defendants
assert that the contents of the Notice letter are also insufficient
to identify the date and location of the alleged violations. Our
discussion of the Notice's contents will demonstrate that, even if
the defendants have not waived this argument, it is without merit.

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 Plaintiffs respond that this conclusion was erroneous in

two respects: first, § 135.3(a) does not require that the pre-suit

notice itself identify the specific standard at issue, but rather

that it contain sufficient information to place the defendants in

a position to do so; and second, even if it did, the Notice

identifies the specific standard or limitation at issue throughout.

The information in plaintiffs' October 7 pre-suit Notice,

as we soon describe, was at least adequate to allow the defendants

to identify and remedy several of the alleged CWA violations. At

the outset of the Notice, plaintiffs restate the basic allegations

in the complaint, namely that defendants are in continuing

violations of CWA §§ 1311, 1313, and 1342 because (1) their RIPDES

permit is not in the name of the Property's current owner and

operator, and (2) the Property is continually discharging

pollutants into United States waters. Most of the Notice concerns

the second of these allegations, and so we begin our discussion

there.

On pages three and four of the Notice, plaintiffs

describe in some detail the mechanisms through which they allege

the Property is discharging pollutants into navigable waters.

Specifically, the Notice states that in 1984 defendant Ferreira

relocated a drainage ditch from the Property onto the plaintiffs'

land, creating an "Intermittent Stream." This Intermittent Stream

flows through the plaintiffs' property into the Curran Brook, which

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eventually discharges into the Robin Hollow Reservoir--a source of

drinking water for the City of Pawtucket, Rhode Island. The Notice

asserts that defendants use the Intermittent Stream to drain a

contaminated pond on the rear of the Property and to divert

otherwise hazardous storm water runoff from the Property into the

pathway leading to the Reservoir.

As to the specific pollutants at issue, the Notice also

contains a three-page list of individual dates, from November of

2002 to September of 2011, on which reported measures or

observations of hazardous materials on the Property, or in its

runoff, exceeded allowable levels under Rhode Island water quality

standards.7 These entries vary in specificity, but none fails to

identify a particular pollutant discharge said to be in violation

of the terms of defendants' RIPDES permit. For example, the

following is among the shortest entries in the list:

2. On March 11, 2004, runoff from the
Property sampled by [the Pawtucket Water
Supply Board], analyzed to contain 8 ug/l of
MBTE (none allowed).

From this information alone, defendants can identify the pollutant

at issue (methyl tertiary butyl ether), the purported standard

7
The Notice also quotes the relevant language from
defendant's RIPDES permit providing that violations of state water
quality standards are unlawful, and cites additional authority in
support of this proposition. See Santa Monica Baykeeper v. Int'l
Metals Ekco, Ltd., 619 F. Supp. 2d 936, 947 (C.D. Cal. 2009).

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under Rhode Island law (0 micrograms per liter), and the alleged

violation (an amount of MBTE in excess of 0 ug/l).

Other entries on the three-page list note turbidity

measurements in discharges from the Property said to exceed those

on which Rhode Island's DEM based its March 2, 2010 Notice of

Violation to the defendants. Treating these allegations as

accurate, defendants may identify the required information under

§ 135.3(a) by turning to the contents of this March 2 Notice.

In concluding that this list was insufficiently specific,

the district court noted that "not one of the listed items

identifies 'the specific standard [or] limitation' of the CWA that

has allegedly been violated." Paolino, 2012 WL 3061594, at *6

(alteration in original). But given the other information which

was provided, 40 C.F.R. § 135.3(a) did not require such

identification. The information contained in the list permitted

the defendants to identify these standards themselves and to remedy

the alleged violations if accurate. See Int'l Paper Co., 424 F.

Supp. 2d at 249.

Plaintiffs' Notice letter also contains sufficient

information for the defendants to identify and remedy the alleged

violations arising from the Property's purportedly invalid RIPDES

permit. On pages six and seven, the Notice furnishes the relevant

permit's identification number (Permit No. RIR 50M006), date of

issuance (July 3, 2007), and original recipient (Joseph Ferreira

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Trust). It asserts that this permit is invalid on two grounds:

first, the permit was issued to the Joseph I. Ferreira Trust in

July 2007, which was not the Property's owner or operator at that

time; and second, defendants' attempted transfer of the RIPDES

permit to the Property's actual owner and operator in October 2010

did "not satisfy the requirements of [RIPDES Regulation Rule

22(b)]." See 25-16 R.I. Code R. 14 § 22(b) (setting out

requirements for RIPDES permit transfers to new property owners).

In addition to providing its own historical narrative

describing these violations, the Notice also notes that the DEM

independently attempted to resolve these issues in a September 23,

2010 letter addressed to defendant Robert Yabroudy of the Joseph I.

Ferreira Trust. As with the alleged enforcement proceedings

concerning the property's turbidity levels, described above, the

defendants may avail themselves of this letter, and any related

enforcement proceedings arising from it, in identifying the

particulars of the two grounds for invalidity.

Defendants also argue that, notwithstanding its

specificity as to the nature and dates of the violations, the

Notice "did not make any effort to identify the person or persons

responsible for each alleged violation." We disagree. At a

minimum, the information in the Notice did allow the defendants to

determine each other's responsibility for the individual

violations, as required under § 135.3(a). As an example, from the

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dates provided for the individual unlawful discharges in the three-

page list, the defendants may determine who owned or controlled the

Property at that time. Additionally, in describing the DEM's

enforcement efforts on the Property, the Notice identifies the

specific defendant whom the DEM treated as responsible for the

issues addressed in the relevant notice letter. Rec. App'x at 35

(concerning DEM water quality violations: "On April 9, 2008, DEM

issued a Notice of Intent to Enforce to the Joseph I. Ferreira

Trust" and "On March 2, 2010, DEM issued a Notice of Violation to

JF Realty LLC and Joseph Ferreira"); id. at 36 (concerning sampling

and reporting violations: "On September 23, 2010, Eric Beck of DEM

sent a letter to Robert Yabroudy of Joseph Ferreira Trust"). It is

also worth mentioning that, in light of the Property's extensive

history of changing hands amongst the defendants, they are in a

much better position than the plaintiffs to determine their

respective responsibilities during the dates in question. Cf.

BayKeeper, 309 F.3d at 1158 (finding that "[the defendant] is

obviously in a better position than [the plaintiff] to identify the

exact dates, or additional dates" on which violations occurred).

For these reasons, we reverse the district court's

dismissal for lack of subject matter jurisdiction with respect to

plaintiffs' claims arising from the list of discharge violations

and the invalid RIPDES permit. If on remand the plaintiffs press

other claims, not discussed here, which fail to meet this test,

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defendants may move to dismiss those claims. Cf. Hercules, 50 F.3d

at 1253 (remanding to the district court with instruction to

"reinstate those discharge violations which are of the same type

. . . as the discharge violations included in the plaintiffs' 60-

day notice letter"). Nothing in this opinion precludes the

defendants from raising other defenses under Fed. R. Civ. P.

12(b)(6). See, e.g., Catskill, 273 F.3d at 485; Jones v. City of

Lakeland, 224 F.3d 518, 520 (6th Cir. 2000).

III.

The district court also held that, as to defendant Robert

Yabroudy,8 an independent basis for dismissal was that plaintiffs'

service of pre-suit notice was defective under 40 C.F.R. § 135.2.

In the relevant part, § 135.2 states that service of notice on

"individual[s] and corporation[s] . . . shall be accomplished by

certified mail addressed to, or by personal service upon, the owner

or managing agent of the building, plant, installation, vessel,

facility, or activity alleged to be in violation." 40 C.F.R.

§ 135.2(a)(1). We review the district court's factual findings

concerning service on Yabroudy for clear error, and its ultimate

legal conclusion based upon those findings de novo. Gill v. United

States, 471 F.3d 204, 205 (1st Cir. 2006).

8
According to the Complaint, Yabroudy has represented to the
DEM that he acts as treasurer for defendants Joseph I. Ferreira
Trust and Advanced Auto Recycling.

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 There is no dispute that plaintiffs sent to each of the

defendants by certified mail a copy of the Notice on October 7,

2011. Each of these copies was received and signed for by the

relevant defendant, except for the Notice addressed to Yabroudy.

That copy of the Notice was sent to the Property's street address,

and returned by the post office with the parcel marked "Refused."

Other boxes on the certified mailing form, such as "Attempted --

Not Known" and "Unclaimed," were not checked.

We cannot conclude that the district court erred in

finding that this Notice was defective. In his April 20, 2010

deposition, Yabroudy provided to plaintiffs his personal and work

addresses, both of which were different than the Property's

address. Although plaintiffs maintain that Yabroudy continued to

work at the Property after this date, this did not ensure that he

would receive notice sent there.9 At the very least, it was not

clearly erroneous for the district court to conclude "that the

notice . . . was not sent to Yabroudy at his residential or work

address." Paolino, 2012 WL 3061594, at *5.

9
Plaintiffs note that an earlier March 2011 notice letter in
this litigation was successfully served on Yabroudy at the
Property's address. This evidence, also before the district court,
does not establish that the October 7 Notice was properly served,
which must be independently shown. Cf. United States v. DuPont,
972 F.2d 337 (Table) (1st Cir. 1992) (finding undelivered notice to
prior address effective where recipient failed to show sender's
actual knowledge of new address).

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 Moreover, as the district court noted, it "[wa]s not

required . . . to infer . . . that Mr. Yabroudy received and read

the [Notice] Letter when it was delivered" based upon its being

marked as "Refused." Id. (third alteration in original) (internal

quotation marks omitted). The record does not reveal to whom at

the Property the post office attempted to deliver the Notice

addressed to Yabroudy. This case is not about the principle that

a defendant may not render notice defective by refusing its

delivery herself. See, e.g., Comm. on Grievances of the U.S. Dist.

Court for the E. Dist. of N.Y. v. Feinman, 239 F.3d 498, 499 (2d

Cir. 2001); Patmon & Young Prof'l Corp. v. Comm'r of Internal

Revenue, 55 F.3d 216, 218 (6th Cir. 1995).

Finally, we reject plaintiffs' argument that neither the

CWA nor § 135.2 prescribe the address to which notice must be sent

for an individually named defendant, as if that negated the

requirement of service of process. The CWA does state that a

citizen suit may not be commenced "prior to sixty days after the

plaintiff has given notice of the alleged violation . . . to any

alleged violator." 33 U.S.C. § 1365(b)(1)(A) (emphasis added).

Since the purpose of notice under the CWA is to provide the

recipient with an opportunity to correct the violations alleged

therein, see Gwaltney, 484 U.S. at 60, there is no reason to vary

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the usual requirements.10 Accordingly, plaintiffs' CWA claims

against Yabroudy were properly dismissed. See City of Newburgh v.

Sarna, 690 F. Supp. 2d 136, 153 (S.D.N.Y. 2010).

IV.

The judgment of the district court is reversed, in part,

and the case is remanded for further proceedings consistent with

this opinion. No costs are awarded.

10
Plaintiffs read our opinion in Valentin, 254 F.3d at 363-64,
to require that the defendants submit an affidavit from Yabroudy,
or other material of evidentiary quality, showing that Yabroudy did
not receive actual notice of their intention to file suit. Not so.
Defendants' proffer of Yabroudy's deposition testimony, in
conjunction with the certified mailing form showing the Notice
addressed to Yabroudy had not been delivered, was enough to shift
the burden to the plaintiffs to prove that notice was effective.

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