F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 2, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BILLY K AR R; BETTY SCO TT;
G EN E H A N D LEM A N ; R OWE NA
H A N D LEM A N ,
Plaintiffs - Appellants,
v. No. 05-7105
R OBER T A . H EFN ER , III; TH E GHK
C OM PA N Y ; R AM IIILA J, IN C.; THE
G H K CO RPO RA TIO N ; G H K
TR AD IN G A N D IN V ESTM ENT
C OM PA N Y ; L.L.C .; G H K TR ADING
CO M PAN Y L.L.C.; GH K/POTATO
HILLS LIM ITED PARTNERSHIP;
THE GLEBE GROUP, INC.; GLEBE
ROYALTY, LLC; W YNN -CROSBY
ENERGY; KCS RESOURCES, IN C.;
EL DORADO DOZERS, IN C.,
Defendants - Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E EASTERN DISTRICT O F O K LAH O M A
(D.C. NO . 05-CV-117-S)
Jason B. Aamodt, M iller, Keffer & Bullock, (Rayanne G . Tobey, M iller, Keffer &
Bullock; James C. Lang, G. Steven Stidham, Brian S. Gaskill, Sneed Lang, P.C.,
with him on the briefs), Tulsa, Oklahoma, for Plaintiffs - Appellants.
Frederick W . Addison III, Locke, Liddell & Sapp, LLP, Dallas, Texas, (Kirsten
M . Castañeda, Locke, Liddell & Sapp LLP; R. Forney Sandlin, M uskogee,
Oklahoma, with him on the brief for Defendant-Appellee Wynn-Crosby Energy
n/k/a Petrohawk Operating Company), P. Scott Hathaway, M elinda L. Kirk and
Conner & W inters, of counsel, Tulsa, Oklahoma, on the brief for Defendant -
Appellee, KCS Resources, Inc.; Colin H . Tucker, Rhodes, Hieronymus, Jones,
Tucker & Gable, and Ronald D. W ood, Jones, Gotcher & Bogan, P.C., Tulsa,
Oklahoma, on the brief for Defendant - Appellee, El Dorado Dozers, Inc.; Drew
Neville, Russell Cook, Hartzog, Conger, Cason & Neville, and M ary Ellen
Ternes, M cAfee & Taft, Oklahoma City, Oklahoma, on the brief, for Defendants -
A ppellees, R obert A . H efner, III, The GHK Company, Ramiiilaj, Inc., The GH K
Corporation, GHK Trading and Investment Company, L.L.C., GHK Trading
Company, L.L.C., GHK/Potato Hills Limited Partnership, The Glebe Group, Inc.,
Glebe Royalty, L.L.C.
Before TA CH A, Chief Circuit Judge, BR ISC OE, and HA RTZ, Circuit Judges.
HA RTZ, Circuit Judge.
The Clean Water Act (CW A), 33 U.S.C. § 1251 et seq., authorizes citizen
lawsuits against defendants alleged to be in violation of the CW A, see 33 U.S.C.
§ 1365(a)(1), but only when (1) the plaintiffs have given proper notice of the
alleged violation to the defendants, the Administrator of the Environmental
Protection Agency (EPA), and the state in which the alleged CW A violations have
occurred, see id. § 1365(b)(1)(A); and (2) the EPA is not “diligently prosecuting”
a court action against the violations, see id. § 1365(b)(1)(B). Billy Karr, Betty
Scott, Gene Handleman, and Rowena Handleman (Plaintiffs), allegedly owners of
land and water resources in Oklahoma’s Pushmataha and Latimer Counties, filed
such a citizen suit against (1) an individual and eight companies that we
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collectively term the “GHK Defendants”; 1 (2) W ynn-Crosby Energy; (3) KCS
Resources, Inc.; and (4) El Dorado Dozers, Inc. The district court dismissed
Plaintiffs’ action, ruling that the EPA’s investigation and entry of a consent
decree foreclosed the suit against the GHK Defendants and that Plaintiffs
provided inadequate notice to the other Defendants. Plaintiffs appeal. W e have
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. B ACKGR OU N D
This is the second action that Plaintiffs have brought against D efendants in
the United States D istrict Court for the Eastern District of Oklahoma. Both
complaints alleged “wrongful and illegal construction, reconstruction, operation
and maintenance of numerous oil and gas [locations] throughout the Potato Hills
in Latimer and Pushmataha Counties in Southeastern Oklahoma causing many
sources of pollution to be created.” Aplt. App. at 1, 640. Plaintiffs first
attempted to send Defendants the required notice on April 12, 2004, and they first
filed suit on June 24, 2004. The district court dismissed Plaintiffs’ initial action
without prejudice on September 28, 2004, holding that it had no jurisdiction
because Plaintiffs’ notice letters were insufficient under § 1365. The court
explained:
1
The GHK Defendants are (a) Robert A. Hefner, III; (b) The GHK Company; (c)
Ramiiilaj, Inc.; (d) The GHK Corporation; (e) GHK Trading and Investment Company,
L.L.C.; (f) GHK Trading Company, L.L.C.; (g) GHK/Potato Hills Limited Partnership;
(h) The Glebe Group, Inc.; and (i) Glebe Royalty, L.L.C.
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Plaintiffs’ approach can best be described as a “shotgun” method of
citing to the entirety of the CW A, with highlighted references to
particular sections and federal regulations (some of which apparently
have no application to the oil and gas exploration taking place in the
Potato Hills area), coupled with generic references to “construction,”
“pollutants,” “hazardous pollutants,” “streams and rivers of the
Potato Hills,” and “dredged wetlands.” A dditionally, no dates are
alleged, no attempt is made to link specific violations with individual
violators, and no attempt is made to link specific violations w ith
listed well sites. This type of Notice is deficient because it (1) fails
to identify the specific standard, limitation, or order violated, (2)
fails to identify the activity constituting the violation, with reference
to the point source of any discharge and the pollutants at issue, (3)
fails to identify the dates on which the alleged violations occurred,
and (4) fails to link specific violations with violators and locations.
Aplt. App. at 644–45 (footnotes omitted).
Plaintiffs sent a second round of notice letters to Defendants on
November 14, 2004. They also sent copies of the letters to the EPA and the
Oklahoma Department of Environmental Quality, as § 1365(b)(1)(A) directs.
On M arch 15, 2005, the EPA filed an action in the Eastern District of
Oklahoma against two of the GHK Defendants (The GHK Company and
GHK/Potato Hills Limited Partnership, which we shall refer to collectively as
GHK). At the same time, the EPA submitted a proposed consent decree between
itself and GHK. As the district court later summarized:
The Consent Decree was the product of an extensive investigation by
the EPA into alleged CW A violations in the Potato Hills area and the
resulting negotiations with GHK. On M ay 16, 2005, this Court
approved the Consent Decree which has as its underlying purpose the
resolution of all claims that GHK violated the CW A with respect to
well sites in the Potato Hills area. Among other things, the Consent
Decree (1) enjoins the discharge of pollutants into waters of the
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United States in violation of . . . 33 U.S.C. § 1311(a); (2) requires
GHK, at its own expense, to restore and stabilize the well sites to
prevent further erosion and water contamination and/or mitigate
damages caused by their construction activities at thirty-two sites
under GHK control and ownership; (3) orders G HK to comply with
the terms and conditions of applicable CW A permits during the
construction of drill sites in the future, including, among other
things, the development and implementation of a Stormwater
Pollution Prevention Plan and the application of best management
practices to minimize or eliminate stormwater discharges from the
site; and (4) requires GHK to pay a $325,000 civil penalty.
Id. at 271–72. Although Plaintiffs had the right under § 1365(b)(1)(B) to
intervene in the EPA’s action, they did not exercise this right. Nor did they
object to the consent decree during the 30-day public-comment period provided
by 28 C.F.R. § 50.7.
Later on the same day on which the EPA filed its enforcement action,
Plaintiffs filed their second complaint. The complaint raised three claims under
the CW A: (1) construction at well locations w ithout a stormwater permit, in
violation of 33 U.S.C. §§ 1311, 1342, and other CW A provisions; (2) discharge of
pollutants from point sources without a permit, in violation of 33 U.S.C. §§ 1311,
1317, 1341, and other CW A provisions; and (3) dredging and filling wetlands
without a permit, in violation of 33 U.S.C. §§ 1311, 1344, and other CW A
provisions. The complaint also raised several state-law claims, including
negligence, trespass, private nuisance, public nuisance, and unjust enrichment.
The GHK Defendants moved to dismiss the complaint against them on the
ground that the EPA’s pursuit of the consent decree qualified as diligent
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prosecution under § 1365(b)(1)(B). Their motion asserted that the EPA had
investigated and addressed with the consent decree each of the three types of
alleged CW A violations. W ith respect to Plaintiffs’ first claim (stormwater), the
G H K D efendants contended that the consent decree addresses 14 of the 36 GH K
sites listed in Plaintiffs’ complaint, and that of the remaining 22, 9 were not GH K
sites (or at least G HK asserted that they were unknown to it) and 13 were “small”
sites of less than five acres, which are not subject to CW A stormwater
requirements. The GHK Defendants further contended that the consent decree
requires remedial measures that Plaintiffs could not have compelled through their
private lawsuit and covers some sites not listed in Plaintiffs’ complaint. In
response to the second claim (point-source discharges), the GHK Defendants
contended that of the seven sites listed by Plaintiffs, three were not related to the
GHK Defendants, and the consent decree resolved all violations w ith respect to
three of the other four, while requiring some mitigation efforts at the fourth. And
in response to Plaintiffs’ third claim (wetlands), the GHK Defendants contended
that the EPA considered all listed GHK sites, found violations in three, and found
no violation in nine. They also noted that the consent decree, in addition to
requiring GHK to address problems at the three sites at which the EPA found
violations, required GHK to take remedial measures at six of the nine sites at
which the EPA found no violations, as well as at four sites not listed by Plaintiffs.
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Plaintiffs’ response to the motion to dismiss did not contest any of these
specific contentions concerning their three claims. Instead, to counter the
diligent-prosecution defense, they challenged the timing of the EPA’s action and
its choice of defendants, and they raised the since-abandoned argument that 33
U.S.C. § 1319(g)(6)(B) (relating to administrative actions for civil penalties)
prevented the EPA from preempting their claim. The district court rejected these
arguments and found that the EPA had diligently prosecuted the alleged
violations; accordingly, it dismissed the claims against the GHK Defendants on
July 19, 2005.
After a motion from defendant W ynn-Crosby, the district court dismissed
the remaining defendants (W ynn-Crosby, KCS, and El Dorado) on September 9,
2005. The court held that it had no jurisdiction to hear the complaint because
Plaintiffs’ notice letters were again insufficient. (Because the court determined
that it lacked jurisdiction, it dismissed the claims against KCS and El Dorado
even though they had not themselves moved for dismissal.) The court found the
notices defective for substantially the same reasons as before; in particular, it held
that the notices “fail to identify the specific standards, limitations, or orders
alleged to have been violated,” Aplt. App. at 284, and “fail to adequately identify
the activities which allegedly constitute the violations,” id. at 287.
II. D ISC USSIO N
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The CW A authorizes citizen suits “against any person . . . who is alleged to
be in violation of (A) an effluent standard or limitation under [the CW A] or (B)
an order issued by the [EPA ] or a State with respect to such a standard or
limitation.” 33 U.S.C. § 1365(a)(1). Section 1365(b) then sets the following
limitations on these suits:
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff has given notice of
the alleged violation (i) to the [EPA], (ii) to the State in
which the alleged violation occurs, and (iii) to any
alleged violator of the standard, limitation, or order, or
(B) if the [EPA] or State has commenced and is diligently
prosecuting a civil or criminal action in a court of the
United States, or a State to require compliance with the
standard, limitation, or order, but in any such action in a
court of the United States any citizen may intervene as a
matter of right.
****
Notice under this subsection shall be given in such manner as the
[EPA] shall prescribe by regulation.
W e review de novo the meaning of diligently prosecuting under § 1365(b)(1)(B)
and the requirements of proper notice under § 1365(b)(1)(A) (and the regulations
thereunder); and we review the district court’s factual findings for clear error.
See Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d
1019, 1030 (10th Cir. 2003).
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A. Diligent Enforcement
Under § 1365(b)(1)(B) a citizen cannot bring a private action to enjoin
violations of the CW A “if the [EPA] or State has commenced and is diligently
prosecuting a civil or criminal action in a court of the United States, or a State to
require compliance with the standard, limitation, or order.” The district court
ruled that the EPA’s investigation and entry of a consent decree with two of the
G H K D efendants qualified as diligent prosecution with respect to all the GHK
Defendants.
Plaintiffs do not dispute that the EPA pursued enforcement of the CW A
against GHK. But they urge four reasons w hy the EPA’s actions do not foreclose
their claims: (1) the EPA did not file its action within 60 days of Plaintiffs’
notice; (2) the consent decree between the EPA and GHK did not address
violations at all 37 well sites named in their complaint; (3) the consent decree
addressed stormwater and wetlands violations but not point-source-discharge
requirements under the CW A; and (4) the consent decree names only two of the
GHK Defendants. W e address each contention after a discussion of the diligence
requirement.
1. Diligence Under § 1365(b)(1)(B)
The CW A gives primary enforcement authority to the EPA and state
enforcement agencies. Under § 1365(b)(1)(B), diligent prosecution of alleged
CW A violations by these agencies may preclude the filing of a citizen CW A
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lawsuit. As the Supreme Court stated in Gwaltney of Smithfield v. Chesapeake
Bay Found., 484 U.S. 49, 60 (1987), “[T]he citizen suit is meant to supplement
rather than to supplant governmental action.” Citizen lawsuits under the CW A
have a merely “interstitial” role; Congress did not intend for them to be even
“potentially intrusive” on agency discretion. Id. at 61.
Section 1365(b)(1)(B) does not require government prosecution to be far-
reaching or zealous. It requires only diligence. Nor must an agency’s
prosecutorial strategy coincide with that of the citizen-plaintiff. As expressed by
the Sixth Circuit, “[S]econd-guessing of the EPA’s assessment of an appropriate
remedy . . . fails to respect the statute’s careful distribution of enforcement
authority among the federal EPA , the States and private citizens, all of which
permit citizens to act where the EPA has ‘failed’ to do so, not where the EPA has
acted but has not acted aggressively enough in the citizens’ view.” Ellis v.
Gallatin Steel Co., 390 F.3d 461, 477 (6th Cir. 2004); see N. & S. Rivers
Watershed Ass’n v. Scituate, 949 F.2d 552, 558 (1st Cir. 1991) (“M erely because
the State may not be taking the precise action Appellant wants it to or moving
with the alacrity Appellant desires does not entitle Appellant to injunctive
relief.”); Conn. Fund for Env’t v. Contract Plating Co., 631 F. Supp. 1291, 1293
(D. Conn. 1986) (“[A] federal court ought not to allow a citizens’ suit to proceed
merely because a prior pending state suit has not alleged as many separate
violations of the A ct as has the citizens’ suit and therefore seeks to impose a less
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substantial civil penalty on the defendant.”). M oreover, an unsatisfactory result
does not necessarily imply lack of diligence. See Scituate, 949 F.2d at 558
(“[V]iolations may continue despite everything reasonably possible being done by
the State . . . to correct them.”); cf. Supporters to Oppose Pollution v. Heritage
Group, 973 F.2d 1320, 1324 (7th Cir. 1992) (42 U.S.C. § 6972, which is closely
analogous to 33 U.S.C. § 1365, “does not require that the EPA succeed; it
requires only that the EPA try, diligently”).
Particularly when the EPA chooses to enforce the CW A through a consent
decree, failure to defer to its judgment can undermine agency strategy. If a
defendant is exposed to a citizen suit whenever the EPA grants it a concession,
defendants will have little incentive to negotiate consent decrees. The Supreme
Court has recognized the importance of deference to the EPA’s bargains:
Suppose . . . that the A dministrator agreed not to assess or otherwise
seek civil penalties on the condition that the violator take some
extreme corrective action, such as to install particularly effective but
expensive machinery, that it otherw ise would not be obliged to take.
If citizens could file suit . . . in order to seek the civil penalties that
the Administrator chose to forgo, then the Administrator’s discretion
to enforce the Act in the public interest would be curtailed
considerably.
Gwaltney, 484 U.S. at 60–61. As one court nicely put it, “An Administrator
unable to make concessions is unable to obtain them.” Heritage Group, 973 F.2d
at 1324; see Ark. Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir.
1994) (“It would be unreasonable and inappropriate to find failure to diligently
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prosecute simply because [defendants] prevailed in some fashion or because a
compromise was reached.”). W e should not interpret § 1365 in a manner that
would undermine the EPA’s ability to reach voluntary settlements w ith
defendants.
Allowing the EPA to compromise does not strip citizens of their role in
helping to bring about remedies for CW A violations. Indeed, the Department of
Justice’s regulations entitle citizens to comm ent on pending environmental
consent decrees. See 28 C.F.R. § 50.7 (“It is hereby established as the policy of
the Department of Justice to consent to a proposed judgment in an action to enjoin
discharges of pollutants into the environment only after or on condition that an
opportunity is afforded persons (natural or corporate) who are not named as
parties to the action to comment on the proposed judgment prior to its entry by
the court.”).
In sum, our evaluation of the EPA’s diligence is quite deferential. Citizen-
plaintiffs must meet a high standard to demonstrate that it has failed to prosecute
a violation diligently. See, e.g., Scituate, 949 F.2d at 557 (“W here an agency has
specifically addressed the concerns of an analogous citizen’s suit, deference to the
agency’s plan of attack should be particularly favored.”); Comty. of Cambridge
Envtl. Health Cmty. & Dev. Group v. City of Cambridge, 115 F. Supp. 2d 550,
554 (D. M d. 2000) (“M ost courts considering the diligence of a state or federal
prosecution have exhibited substantial deference for the agency’s process.”);
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Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1324 (S. D. Iowa
1997) (“The plaintiff in a citizens suit bears the burden of proving the state
agency’s prosecution was not diligent. The burden is heavy, because the
enforcement agency’s diligence is presumed. The . . . agency must be given great
deference to proceed in a manner it considers in the best interests of all parties
involved.” (citations, brackets, and internal quotation marks omitted)).
2. Enforcement Against the G H K Defendants
In light of our deferential review of the matter, w e do not hesitate to hold
that the EPA ’s prosecution against the GHK Defendants was diligent. The EPA
chose to investigate and reach a settlement with GHK concerning essentially the
same violations alleged in Plaintiffs’ complaint. From the uncontested assertions
of the GHK Defendants in district court, it appears that the prosecution was not
only diligent but vigorous and thorough; indeed, in some respects the EPA
appears to have accomplished more through its consent decree than Plaintiffs
sought to achieve on their own. W e reject Plaintiffs’ four challenges to the
district court’s determination of diligence— delay, inadequate coverage of sites,
inadequate coverage of violations, and inadequate coverage of defendants.
a. Delay
Plaintiffs argue that the EPA’s action cannot bar their complaint because
the EPA did not file its suit within 60 days of when they sent notice of their
claims. But § 1365(b)(1) does not require the EPA to act w ithin 60 days.
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Instead, it prevents plaintiffs from acting within 60 days of their own notice.
Plaintiffs rely on Chesapeake Bay Foundation v. American Recovery Co., 769
F.2d 207 (4th Cir. 1985); but it is not helpful to their position. In that case “the
government did not act within the sixty-day waiting period and it had not yet filed
suit when plaintiffs filed their independent action.” Id. at 208 (emphasis added).
In contrast, in this case the EPA did file its suit before Plaintiffs— even if only by
a short time. 2 Thus, as long as the EPA’s prosecution was otherwise diligent, it
does not matter that it commenced after the 60-day notice period provided by
§ 1365(b)(1)(A).
b. Coverage of Sites
Plaintiffs contend that the EPA’s enforcement action against GHK was not
diligent because the consent decree addressed only between 19 and 21 of the 37
sites listed in Plaintiffs’ complaint. (Plaintiffs’ complaint in fact lists only 36
sites; one is a duplicate.) As we have noted, however, we do not evaluate the
EPA ’s diligence by requiring that its accomplishments track those sought by the
citizen-plaintiffs.
In any event, Plaintiffs have not established that the EPA failed to pursue
diligently all relevant sites named in their complaint. For example, regarding
2
Plaintiffs argued before the district court that their second complaint related
back (under Fed. R. Civ. P. 15) to their first one, and that it was therefore filed before
the EPA action. The district court rejected this argument, and Plaintiffs do not pursue
it on appeal.
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Plaintiffs’ stormwater and point-source-discharge claims, the GHK Defendants
asserted in their motion to dismiss, and Plaintiffs did not dispute, that the consent
decree addresses all GHK-related sites governed by the CW A’s stormwater and
point-source-discharge regulations. As for the wetlands-permit claims, it was the
GHK Defendants’ uncontradicted assertion that the EPA found no violations at
nine of the twelve GHK-related sites listed by Plaintiffs and that the consent
decree required mitigation at the other three sites, as well as at several other sites,
including sites not listed by Plaintiffs. Nothing in the record indicates that the
district court clearly erred in its assessment of the consent decree’s aim— that is,
that the consent decree “has as its underlying purpose the resolution of all claims
that GHK violated the CW A with respect to well sites in the Potato Hills area.”
Aplt. App. at 271–72.
c. Coverage of Violations
Plaintiffs argue cursorily in their opening brief on appeal that the EPA was
not diligent because it prosecuted only “stormwater and wetlands violations,”
whereas Plaintiffs “seek to recover as well for violations of the point source
discharge requirements of the CW A.” Aplt. Br. at 23. But Plaintiffs did not
make this argument in their brief before the district court, leading the district
court to find broadly that “Plaintiffs do not take direct issue w ith the EPA’s
diligent prosecution as manifested in the Consent D ecree.” Aplt. A pp. at 274.
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Because this contention was not preserved below, we do not address it on appeal.
See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005).
d. Coverage of Defendants
Plaintiffs also contend that the EPA’s prosecution, which resulted in a
consent decree against only two of the GHK Defendants, should not bar citizen
lawsuits against the remaining GHK Defendants. W e disagree.
The discretion we afford the EPA extends to its choice of defendants.
Section 1365(b)(1)(B) does not speak of diligently prosecuting particular
defendants but of “diligently prosecuting a civil or criminal action . . . to require
compliance.” Even a diligent prosecutor may decide that the strategically
appropriate course of action is to seek a consent decree against a particular set of
parties rather than to pursue further action against all parties alleged to have
violated provisions of the CW A. Cf. Heritage Group, 973 F.2d at 1324 (“To say .
. . that the EPA is not ‘diligently prosecuting’ the action if it does not sue the
persons . . . the private plaintiff prefers w ould strip EPA of the control the statute
provides.” (interpreting 42 U.S.C. § 6972)). In this case, paragraph 4 of the
consent decree suggests that GHK could adequately ensure compliance and that
other entities who might be liable under the CW A had essentially passive, or at
least subordinate, interests. The paragraph states:
The obligations of this Consent Decree shall apply to and be binding
upon GHK, including its officers, directors, successors and assigns.
GHK will ensure that the obligations of this Consent Decree will be
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fulfilled, either by GHK directly, or by its officers, directors, agents,
employees, servants, or another person, firm, association or
corporation who is, or will be, acting in concert or participation with
GHK, except any one who is merely a Co-Owner of Interest in a Site,
whether or not such person has notice of this Consent Decree.
Aplt. App. at 294. Plaintiffs have not indicated why the EPA’s choice of
defendants showed that its prosecution of violations w as less than diligent.
For the above reasons, we affirm the dismissal of all the GHK Defendants
from Plaintiffs’ action.
B. Adequacy of Notice Letters
Because w e affirm the dismissal of the GHK Defendants on other grounds,
we consider the adequacy of Plaintiffs’ notice letters only with respect to the
remaining defendants— W ynn-Crosby, KCS, and El Dorado. W e note in passing,
however, that Plaintiffs sent some of their notice letters to all Defendants and sent
others to the GHK Defendants and at least one other defendant. Accordingly, our
discussion of the notice letters might well apply to the GHK Defendants also.
The district court dismissed the non-GHK defendants on the jurisdictional
ground that the notices did not satisfy 33 U.S.C. § 1365. W e review jurisdictional
decisions and statutory constructions de novo. See Seneca-Cayuga Tribe, 327
F.3d at 1030; Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001).
1. Section 1365(b)(1)(A)
Section 1365(b) states that notice “shall be given in such manner as the
[EPA] shall prescribe by regulation.” The EPA’s regulation requires the notice to
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provide “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.”
40 C.F.R. § 135.3(a). The guiding principle is that “the purpose of notice to the
alleged violator is to give it 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. Accordingly, notice is to be evaluated from the
recipient’s perspective, and the notice’s identification of the alleged violations
must be clear:
The language of the regulation does not suggest that the notice may
be good enough if it generally orients the agency or violator as to the
type of violation. . . . [T]he recipient of the notice must understand
from the notice what the citizen is alleging— not what the citizen
could allege if the citizen knew more or cared about other possible
transgressions.
Cal. Sportfishing Prot. Alliance v. City of W. Sacramento, 905 F. Supp. 792, 799
(E.D. Cal. 1995).
Comparison with notice letters held to be sufficient can be instructive. In
reversing a decision that a notice letter was insufficient because it did not identify
particular dates for alleged violations, the Ninth Circuit noted that the letter
“describes the problem of storm water pollution in the [relevant river;]
specifically identifies pollutants associated w ith [the defendant’s] operations;
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describes in detail the sources and practices that lead to the discharge of
contaminated storm water from [the defendant’s] site; . . . suggests solutions for
[the defendant’s] storm and non-storm water discharge problems, including
grading, berming, roofing, structural controls to prevent the discharge of
contaminated water, and a filtration system to treat contaminated water”; and
discusses “Permit requirements in detail and directs the reader’s attention to the
specific Permit sections that explain what is required.” WaterKeepers N. Cal. v.
AG Indus. M fg., 375 F.3d 913, 917 (9th Cir. 2004). Although the Ninth Circuit
did not quote the notice letter extensively, it is clear from the court’s description
that the letter provided enough information to make the defendant’s alleged
violations “easy to understand.” Id. at 918 n.2.
Similarly, the Third Circuit held valid a letter that contained a
chronological list of particular violations. See Pub. Interest Research Group v.
Hercules, Inc., 50 F.3d 1239, 1242 n.3 (3d Cir. 1995). The precise information
that the letter disclosed is not clear from the court’s opinion, but an attachment to
the letter listed at least specific pollutants, specific locations, and specific permits
the defendant was alleged to have violated. See id. at 1242–43 & n.3.
2. Plaintiffs’ Notice Letters
Plaintiffs’ notice letters exhibit no such specificity. They are hardly more
helpful than a letter telling Defendants merely that they have violated the CW A at
each listed well site. Aiming for breadth of coverage, the letters substitute
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sweeping language for the particularity required by 40 C.F.R. § 135.3(a). They
consistently fail to specify the activities that constituted the alleged violations and
the laws that Defendants were allegedly violating.
To illustrate, w e will consider a representative notice letter, reproduced in
full in a footnote, 3 that alleges violations of point-source-discharge limitations at
3
RE: Notice of Bill Karr, Betty Scott, and Mr. and Mrs. Gene Handleman’s
Intent to File Suit Pursuant to Section 505 of the Clean Water Act (the
“CWA”), 33 U.S.C. § 1365(b) and 40 C.F.R. § 135.3 (2004).
Dear Prospective Defendants:
Bill Karr, Betty Scott, and Mr. and Mrs. Gene Handleman hereby provide
you with this Notice of Intent to File Suit pursuant to the Clean Water Act (the
“CWA”), 33 U.S.C. § 1365(b) and 40 C.F.R. § 135.3 (2004). Provision of such a
notice may be required before a lawsuit is filed by the citizens under 33 U.S.C. §
1365. Notice is being provided to ROBERT A. HEFNER, III; THE GHK
COMPANIES; THE GHK COMPANY; THE GHK COMPANY, A LIMITED
PARTNERSHIP; GHK TRADING AND INVESTMENT COMPANY, L.L.C;
GHK TRADING COMPANY, L.L.C; GHK/POTATO HILLS LIMITED
PARTNERSHIP; THE GLEBE GROUP, INC.; GLEBE ROYALTY, L.L.C;
RAMIIILAJ, LLP (hereinafter the Hefner Companies); WYNNE CROSBY
ENERGY, INC, KCS RESOURCES, INC., and EL DORADO DOZERS INC. and
in the future to those additional persons now unknown who are owners and
operators of the wells and associated roads identified herein because you have
caused and continue to cause the illegal discharge of pollutants, and are violating
the Clean Water Act, and/or are the owner or operator of the wells and
associated roads identified in herein.
A. The specific point source standards, limitations, or orders alleged to have
been violated at the TAMI No. 1-26.
The persons identified herein have caused pollutants to commence
and to continue to discharge from a point source into streams and waters
of the United States and their tributaries at the TAMI No. 1-26, including
associated lease roads, without [A footnote here states: “Where the TAMI
No. 1-26 is used, it refers also to the lease and service roads associated
with the well.”] complying with the provisions of the Clean Water Act and
(continued...)
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3
(...continued)
associated regulations relating to the point source discharge of pollutants.
Specifically, the persons have caused construction to commence and
continue at this location, inter alia:
1. Without obtaining coverage under a general, state or regional Clean Water
Act permit for the discharge of pollutants, including heavy metals, sand,
rocks, and mud, from a point source at the TAMI No. 1-26;
2. Causing a continuous release of pollutants, including hazardous and toxic
pollutants, as indicated by the presence of acid rock drainage at the TAMI
No. 1-26 flowing into the waters of the United States and the tributaries of
the Waters of the United States, specifically to the tributary of the NAME
NAVIGABLE RIVER in violation of 33 U.S.C. §§ 1311, 1317 and 1341,
and other statutory and regulatory provisions of or under the Clean Water
Act, including orders and regulations, without limitation 40 C.F.R. pts.
122, 123, 124, 125, 129 and 131; 40 C.F.R. §§ 122.28, 122.29; and/or any
potentially applicable general permit.
3. Causing heavy metals to continuously or intermittently discharge from the
TAMI No. 1-26 into a tributary of Kiamichi River.
4. Without documenting permit eligibility with regard to endangered species
and the maintenance of critical habitat, including identifying whether
federally-listed endangered or threatened species, or federally-designated
critical habitat may be in the location of the well or the lease road;
whether such species or critical habitat may be adversely affected by
storm water discharges or storm water discharge-related activities from
the project; results of the listed species and critical habitat screening
determinations; any correspondence for any stage of project planning
between the U.S. Fish and Wildlife Service (FWS), EPA, the U.S.
National Marine Fisheries Service (NMFS), or others regarding listed
species and critical habitat; and a description of measures necessary to
protect federally-listed endangered or threatened species, or federally-
designated critical habitat.
5. Without documenting permit eligibility with regard to total maximum
daily loads;
6. Without complying with the National Historic Preservation Act, section
106 consultation for federally permitted construction activities at the
TAMI No. 1-26;
(continued...)
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3
(...continued)
7. Discharging pollutants from TAMI No. 1-26 into tributaries of Kiamichi
River without complying with the Effluent Limitations Guidelines and
New Source Performance Standards for the Oil and Gas Extraction Point
Sources found at 66 Fed. Reg. 6849, et. seq. or any applicable state
standards;
B. The activity alleged to constitute a violation at the TAMI No. 1-26.
Continuing construction activities at the TAMI No. 1-26 well site
and associated lease roads that have caused and continue to cause
disc[h]arges of orange colored water believed to contain heavy metals and
acids in illegal ways as set forth in “A. The specific point source
standards, limitations, or orders alleged to have been violated at the TAMI
No. 1-26” causing discharges to a tributary to Kiamichi River.
C. The person or persons responsible for the alleged violations at the TAMI
No. 1-26.
All owners and operators of the TAMI No. 1-26 well site and
associated lease roads, including the WYNNE CROSBY ENERGY, INC.;
KCS MEDALLION, INC.; Hefner Companies and El Dorado Dozers.
D. The location of the alleged violation at the TAMI No. 1-26.
That natural gas well pad and associated lease roads associated
with N. 34.69898 (latitude) and W -95.1661 (longitude) as the location
information for the TAMI No. 1-26 on file with the Oklahoma
Corporation Commission.
E. The date or dates of the violations at the TAMI No. 1-26.
From the first date of construction, approximately 1/10/2001 to
present and continuing.
F. Persons Giving Notice.
The full name and address and telephone numbers of the person
giving notice are: [Plaintiffs’ contact information.]
Bill Karr, Betty Scott, and Mr. and Mrs. Gene Handleman hereby provide
(continued...)
-22-
a particular well site, identified as “TAM I No. 1-26.” Its shortcomings are
pervasive. We w ill address a few.
a. Point Source
To begin with, identifying a point-source-discharge violation requires
identifying a point source. The CW A defines a point source 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); see also
40 C.F.R. § 122.2. It is not apparent from the notice letter what “discernible,
confined and discrete conveyance” has discharged the alleged pollutants. In
response to W ynn-Crosby’s contention that Plaintiffs failed to identify a point
source, Plaintiffs state that the source is “TA M I No. 1-26” and note that “[t]he
definition of ‘point source’ in the CW A specifically includes wells.” Aplts.
Reply Br. to Aplee. W ynn-Crosby Br. at 6. But the notice letter does not suggest
that pollutants are emanating from the well itself. On the contrary, the letter
states that the pollution arises from “construction activities” at the well site, Aplt.
3
(...continued)
you with 60 days from the date of mailing of this Notice of Intent to File Suit to
respond and to remediate the damages you have caused by failing to follow the
mandated point source provisions of the Clean Water Act.
Aplt. App. at 204–06 (formatting altered).
-23-
App. at 205, not the operation of the well, and the letter states that the polluting
activities have occurred “[f]rom the first date of construction,” id. at 206, which
would predate the w ell itself. The alleged violations listed in paragraphs 1
through 7 of Section A of the notice letter provide no further specification of
what the point sources are.
b. Law s Allegedly Violated
Just as the letters fail to specify a point source, they fail to identify with
appropriate specificity the laws that Defendants allegedly violated. Perhaps
because identifying particular regulations poses such a small burden for potential
plaintiffs, notice letters must provide “sufficient information to permit the
recipient to identify the specific standard, limitation, or order alleged to have
been violated.” 40 C.F.R. § 135.3(a). The citations in Plaintiffs’ letters, by
contrast, frequently are to regulations that do not apply to D efendants or are
irrelevant to CW A citizen-suits, and generally are too broad to help Defendants
“identify the specific standard, limitation, or order alleged to have been violated.”
Id. (emphasis added). W e consider in turn each paragraph in the letter’s Section
A, entitled, “The specific point source standards, limitations, or orders alleged to
have been violated at the TA M I No. 1-26.”
Paragraph 1 states that Defendants caused construction at the well site
“[w]ithout obtaining coverage under a general, state or regional Clean Water Act
permit for the discharge of pollutants, including heavy metals, sand, rocks, and
-24-
mud, from a point source at the TA M I No. 1-26.” Aplt. App. at 204. The
paragraph fails to cite a specific statute or regulation that requires D efendants to
“obtain[] coverage under a general, state or regional Clean W ater A ct permit.”
Paragraph 2 alleges that Defendants have engaged in construction
[c]ausing a continuous release of pollutants, including hazardous and
toxic pollutants, as indicated by the presence of acid rock drainage at
the TA M I No. 1-26 flowing into the waters of the United States and
the tributaries of the W aters of the United States, specifically to the
tributary of the NAM E NAVIGABLE RIVER in violation of 33
U.S.C. §§ 1311, 1317 and 1341, and other statutory and regulatory
provisions of or under the Clean Water Act, including orders and
regulations, without limitation 40 C.F.R. pts. 122, 123, 124, 125, 129
and 131; 40 C.F.R. §§ 122.28, 122.29; and/or any potentially
applicable general permit.
Id. at 204–05. Aside from the failure to identify the waters affected (the language
“NAM E NAVIGABLE RIVER” is evidently an imperative intended for the
letter’s author), the paragraph provides no assistance regarding what provisions of
a statute, regulation, or permit have been violated. M any of the citations simply
do not apply to Defendants. For example, 40 C.F.R. part 123 is entitled “State
Program Requirements” and addresses “the procedures EPA will follow in
approving, revising, and withdrawing State programs.” 40 C.F.R. § 123.1.
Similarly, part 124 (“Procedures for Decisionmaking”) “contains EPA procedures
for issuing, modifying, revoking and reissuing, or terminating” permits. Id.
§ 124.1. Part 131 (“W ater Quality Standards”) sets “requirements and procedures
for developing, reviewing, revising, and approving water quality standards by the
-25-
States as authorized by section 303(c) of the Clean Water Act.” Id. § 131.1. And
even if individual provisions within the cited material may govern D efendants’
conduct, the citations are too general to be helpful. For example, 40 C.F.R. part
122 contains four subparts, several dozen sections, and 10 appendices; in the 2004
volumes of the Code of Federal Regulations, parts 122, 125, and 129 occupy
approximately 160 pages. And 33 U.S.C. § 1311 alone contains 16 paragraphs,
many of which are intricate in their own right. Paragraph 2 of the notice letter
similarly refers to “any potentially applicable general permit,” a reference that is
almost entirely useless to the recipients. As noted above, the letter would have
been no less informative if it had baldly alleged, “Defendants have violated the
CW A and regulations and permits thereunder.”
Paragraph 3 of the letter alleges that Defendants engaged in construction
“[c]ausing heavy metals to continuously or intermittently discharge from the
TAM I No. 1-26 into a tributary of Kiamichi River.” Aplt. App. at 205. Again,
there is no reference to any statute, regulation, or permit.
Paragraph 4 comes out of left field. It alleges that Defendants have caused
construction activity
[w]ithout documenting permit eligibility with regard to endangered
species and the maintenance of critical habitat, including identifying
whether federally-listed endangered or threatened species, or
federally-designated critical habitat may be in the location of the
well or the lease road; whether such species or critical habitat may be
adversely affected by storm water discharges or storm water
discharge-related activities from the project; results of the listed
-26-
species and critical habitat screening determinations; any
correspondence for any stage of project planning between the U.S.
Fish and W ildlife Service (FW S), EPA , the U.S. National M arine
Fisheries Service (NM FS), or others regarding listed species and
critical habitat; and a description of measures necessary to protect
federally-listed endangered or threatened species, or federally-
designated critical habitat.
Id. These allegations may involve the Endangered Species Act, but they do not
appear to relate to the CW A. There is not even a hint of where to look in the
CW A, or a regulation or permit thereunder, to see what illegality is charged.
Paragraph 5, like paragraph 4, alleges a failure of documentation.
Defendants are said to have caused construction to proceed “[w]ithout
documenting permit eligibility with regard to total maximum daily loads.” Id.
This is apparently another irrelevant allegation. KCS asserts on appeal that “the
Oklahoma D epartment of Environmental Quality has not yet established any total
maximum daily loads for any relevant w ater bodies.” Aplee. KCS’s Br. at 29.
Plaintiffs have not disputed this contention in their reply brief, nor have they
suggested that there is another agency that has set maximum daily loads.
Paragraph 6 resembles paragraph 4 in referencing a statute other than the
CW A. It alleges that Defendants’ construction proceeded “[w]ithout complying
with the National Historic Preservation Act, section 106 consultation for federally
permitted construction activities at the TA M I No. 1-26.” Aplt. App. at 205. The
-27-
notice letter supplies no explanation of how a violation of the National Historic
Preservation Act 4 would support a CW A citizen suit.
Paragraph 7, the final paragraph of the notice letter’s Section A (which,
recall, was entitled “The specific point source standards, limitations, or orders
alleged to have been violated at the TA M I No. 1-26”), alleges “[d]ischarging
pollutants from TAM I No. 1-26 into tributaries of Kiamichi River without
complying with the Effluent Limitations Guidelines and New Source Performance
Standards for the Oil and Gas Extraction Point Sources found at 66 Fed. Reg.
6849, et. seq. or any applicable state standards.” Id. But this cited regulation,
too, is facially inapplicable to Defendants, for it “applies to existing and new
sources that perform oil and natural gas extraction drilling in certain offshore and
coastal waters,” 66 Fed. Reg. at 6850 (emphasis added), not to inland sites in
Oklahoma. Plaintiffs argue that the regulation is more far-reaching; they point to
a section of the regulation entitled “Background,” which explains that the CW A
4
Section 106 of the Act, 16 U.S.C. § 470f, reads in full:
The head of any Federal agency having direct or indirect jurisdiction over
a proposed Federal or federally assisted undertaking in any State and the
head of any Federal department or independent agency having authority to
license any undertaking shall, prior to the approval of the expenditure of
any Federal funds on the undertaking or prior to the issuance of any
license, as the case may be, take into account the effect of the undertaking
on any district, site, building, structure, or object that is included in or
eligible for inclusion in the National Register. The head of any such
Federal agency shall afford the Advisory Council on Historic Preservation
established under [16 USCS §§ 470i et seq.] a reasonable opportunity to
comment with regard to such undertaking.
-28-
generally “prohibits the discharge of pollutants into navigable w aters except in
compliance with the statute.” 66 Fed. Reg. at 6852. But the referenced language
does not impose a rule; it simply explains the context of the new rules.
There are other deficiencies in this notice letter, but we think it sufficient
to hold that it failed to comply with 40 C.F.R. § 135.3(a) because it did not
specify a point source or provide adequate guidance regarding what provision of a
statute, regulation, or permit had been violated.
Similar inadequacies appear in the notice letters for alleged storm-water
and wetlands violations. Indeed, the storm-water notices fail to point to any
applicable regulation. There is a statutory exemption from stormwater
requirements for oil-and-gas activities:
The Administrator shall not require a permit . . . for discharges of
stormwater runoff from . . . oil and gas exploration, production,
processing, or treatment operations or transmission facilities,
composed entirely of flows which are from conveyances or systems
of conveyances (including but not limited to pipes, conduits, ditches,
and channels) used for collecting and conveying precipitation runoff
and which are not contaminated by contact with, or do not come into
contact with, any overburden, raw material, intermediate products,
finished product, byproduct, or waste products located on the site of
such operations.
33 U.S.C. § 1342(l)(2). W ynn-Crosby noted this exemption in its Answer Brief,
and Plaintiffs failed to respond.
In evaluating notice letters, we are mindful of their purpose: they must
allow the prospective defendants to identify the alleged problems within a 60-day
period. Even if Plaintiffs’ letters contain individual sentences, deeply buried, that
-29-
give Defendants some appropriate information— and from the foregoing analysis,
it is not clear that they do— Defendants could not reasonably be expected to
process these letters and take appropriate action within 60 days.
As Plaintiffs note, some courts have held that when a defendant takes
remedial measures in response to a notice letter, the letter must have been
sufficient. See Atlantic States Legal Found., Inc. v. Stroh Die Casting Co., 116
F.3d 814, 820 (7th Cir. 1997); Sierra Club v. El Paso Gold M ines, Inc., 198 F.
Supp. 2d 1265, 1274 (D . Colo. 2002), rev’d on other grounds, 421 F.3d 1133
(10th Cir. 2005). But Plaintiffs have not show n that their letters were the cause
of specific action by Defendants. They assert that W ynn-Crosby took remedial
action in response to their letters, but they point to no facts in the record to
substantiate this assertion. W ynn-Crosby disputes the assertion, contending that
whatever remedial actions it took were in response to a report by the Oklahoma
Corporation Commission and at any rate were taken before the notice letters at
issue in this case were sent. Plaintiffs do not respond to these arguments in their
reply brief.
Plaintiffs also seem to argue that letters that spur an EPA investigation
must be sufficient, and they assert that there is “no question” that their notices led
to the EPA’s prosecution of GHK. Aplt. Br. at 16. But again they cite no
evidence to substantiate their assertion.
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III. C ON CLU SIO N
For these reasons, w e A FFIRM the district court’s dismissal of the GHK
Defendants because the EPA’s prosecution was diligent under 33 U.S.C.
§ 1365(b)(1)(B) and A FFIRM the dismissal of the remaining defendants because
Plaintiffs’ notice letters were inadequate under § 1365(b)(1)(A).
-31-
Karr v. Hefner
Court: Court of Appeals for the Tenth Circuit
Date filed: 2007-02-02
Citations: 475 F.3d 1192
Copy CitationsCombined Opinion