PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRIENDS OF THE EARTH,
INCORPORATED; CITIZENS LOCAL
ENVIRONMENTAL ACTION NETWORK,
INCORPORATED,
Plaintiffs-Appellees,
No. 06-1714
v.
GASTON COPPER RECYCLING
CORPORATION,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(3:92-cv-02574-MJP)
Argued: September 22, 2010
Decided: January 5, 2011
Before TRAXLER, Chief Judge, and DAVIS and
KEENAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Keenan wrote the opinion, in which Chief
Judge Traxler and Judge Davis joined.
2 FRIENDS OF THE EARTH v. GASTON COPPER
COUNSEL
ARGUED: Jeffrey M. Gaba, GARDERE, WYNNE &
SEWELL, LLP, Dallas, Texas, for Appellant. Kathleen L.
Millian, TERRIS, PRAVLIK & MILLIAN, LLP, Washing-
ton, D.C., for Appellees. ON BRIEF: Stacy R. Obenhaus,
GARDERE, WYNNE & SEWELL, LLP, Dallas, Texas, for
Appellant. Bruce J. Terris, Carolyn Smith Pravlik, Aamra S.
Ahmad, TERRIS, PRAVLIK & MILLIAN, LLP, Washing-
ton, D.C., for Appellees.
OPINION
KEENAN, Circuit Judge:
In this appeal, we consider whether Friends of the Earth,
Inc. (FOE) and Citizens Local Environmental Action Net-
work, Inc. (CLEAN), (collectively, the plaintiffs), maintained
standing to prosecute a citizen suit asserting violations of the
Clean Water Act, 33 U.S.C. §§ 1251-1387, against Gaston
Copper Recycling Corporation (Gaston). Before the district
court’s entry of a final judgment order, William Shealy, a
CLEAN member who had established standing on behalf of
CLEAN, passed away. In 2008, we ordered a limited remand
of this case for factual findings relating to whether the plain-
tiffs continued to maintain standing through other group
members after Shealy’s death. After reviewing these findings,
we now conclude that the plaintiffs established standing to
sue through FOE and CLEAN member Guy Jones.
We also consider in this appeal Gaston’s argument chal-
lenging the district court’s imposition of penalties. Gaston
argues that the district court erred: 1) in imposing penalties
against Gaston for violations not contained in the plaintiffs’
pre-suit "notice letter" required by 33 U.S.C. § 1365(b); and
2) in imposing penalties against Gaston for violations alleg-
FRIENDS OF THE EARTH v. GASTON COPPER 3
edly "wholly past," contrary to the requirement set forth in
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 64 (1987), that citizen suits brought under the
Clean Water Act may only assert ongoing violations. We hold
that the district court erred in imposing certain penalties
against Gaston. We affirm in part and reverse in part the dis-
trict court’s judgment, and remand the case.
I.
A.
The Clean Water Act prohibits the discharge of any pollu-
tant from a "point source" into navigable waters without a
permit. 33 U.S.C. §§ 1311(a), 1319(c)(2)(A), 1362(7),
1362(12), 1362(14). The National Pollutant Discharge Elimi-
nation System (NPDES) authorizes the issuance of permits for
the discharge of limited amounts of effluents.1 33 U.S.C.
§ 1342. Permit holders must comply with effluent limits and
also must comply with various monitoring, testing, and
reporting requirements. 33 U.S.C. § 1318. In South Carolina,
the Department of Health and Environmental Control
(DHEC) is authorized to issue NPDES permits. See S.C. Code
Ann. § 48-1-100.
The Clean Water Act provides a mechanism for private cit-
izen and public agency enforcement. The Act authorizes citi-
zen suits, stating that "any citizen may commence a civil
action on his own behalf" "against any person . . . who is
alleged to be in violation of [ ] an effluent standard or limita-
tion." 33 U.S.C. § 1365(a)(1). A violation of an "effluent stan-
1
Although the Clean Water Act does not define "effluent," it does define
"effluent limitation" as "any restriction established by a State or the
Administrator on quantities, rates, and concentrations of chemical, physi-
cal, biological, and other constituents which are discharged from point
sources into navigable waters, the waters of the contiguous zone, or the
ocean, including schedules of compliance." 33 U.S.C. § 1362(11).
4 FRIENDS OF THE EARTH v. GASTON COPPER
dard or limitation" includes a violation of any term or
condition of an approved permit. 33 U.S.C. § 1365(f)(6).
Remedies available in a citizen suit include an injunctive
award and the imposition of civil penalties. 33 U.S.C.
§ 1365(a).
Under the Clean Water Act, no citizen suit "may be com-
menced" "prior to sixty days after the plaintiff has given
notice of the alleged violation" to the Administrator of the
Environmental Protection Agency (EPA), the state, in which
the alleged violation occurred, and the alleged violator. 33
U.S.C. § 1365(b)(1)(A). Also, no citizen suit "may be com-
menced" if the EPA or the state has begun and is diligently
prosecuting an action for a violation. 33 U.S.C.
§ 1365(b)(1)(B).
The notice required in citizen suits "shall be given in such
manner as the Administrator [of the EPA] shall prescribe by
regulation." 33 U.S.C. § 1365(b). The corresponding regula-
tion states that the notice must include sufficient information
to allow the recipient
to identify the specific standard, limitation, or order
alleged to have been violated, the activity alleged to
constitute a violation, the persons or person responsi-
ble 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).
B.
The detailed facts of this case are set forth in two of our
prior opinions. See Friends of the Earth, Inc. v. Gaston Cop-
per Recycling Corp., 263 F. App’x 348 (4th Cir. 2008)(Gas-
ton II); Friends of the Earth, Inc. v. Gaston Copper Recycling
FRIENDS OF THE EARTH v. GASTON COPPER 5
Corp., 204 F.3d 149 (4th Cir. 2000)(en banc)(Gaston I). We
summarize those facts and the relevant procedural history
below.
Gaston owns a metals smelting facility in Lexington
County, South Carolina, which Gaston operated until 1995.
After 1995, Gaston continued to treat contaminated storm
water at the facility and to release this treated water into Lake
Watson, which is located on Gaston’s property. Lake Wat-
son’s water overflow discharges into Boggy Branch, a tribu-
tary of Bull Swamp Creek. The water in that creek flows into
the North Fork of the Edisto River. The pollutants entering
the waterway from Gaston’s facility result from the contact of
rainwater with scrap metal stored by Gaston on its property.
When Gaston purchased the facility in 1990, the prior
owner had obtained a NPDES permit, which was reissued to
Gaston and was effective through March 1, 1991. Gaston was
issued a new permit (1991 permit), which contained two
phases of effluent limits. The Phase I limits were effective
beginning March 1, 1991, and the Phase II limits initially
were effective from June 1, 1992 until the permit expired.
The Phase I limits in the 1991 permit were substantially the
same as those contained in the previous permit. Those limits
applied to numerous specified pollutants. The Phase II limits
imposed more severe restrictions for specified pollutants.
The 1991 permit contained monitoring and reporting
requirements, and included a three-part schedule of compli-
ance for Gaston to meet its Phase II effluent limits. This
schedule required that Gaston: 1) submit a preliminary engi-
neering report by March 31, 1991; 2) submit final plans and
specifications by September 1, 1991 for any upgrade to its
wastewater treatment plant necessary to comply with the
Phase II discharge limits; and 3) begin complying with the
Phase II limits on June 1, 1992.
6 FRIENDS OF THE EARTH v. GASTON COPPER
Gaston failed to meet the September 1, 1991 deadline for
submitting final plans for the necessary plant upgrade, and
requested an extension until November 15, 1991. On Septem-
ber 17, 1991, DHEC, relying on Gaston’s representation that
the extension would not affect the compliance date of June 1,
1992 for Phase II limits, modified Gaston’s permit by grant-
ing the extension until November 15, 1991. In October 1991,
Gaston requested another extension, and DHEC granted an
extension until December 15, 1991, but did not modify Gas-
ton’s permit. On December 23, 1991, Gaston submitted plans
detailing its intended improvements to the treatment plant.
In March 1992 and again in April 1992, Gaston requested
an extension of the June 1, 1992 deadline for complying with
the Phase II effluent limits. On June 15, 1992, DHEC issued
a public notice discussing Gaston’s proposal to extend that
deadline until March 14, 1993. On March 13, 1993, DHEC
modified Gaston’s permit to require that Gaston comply with
the Phase II limits by April 2, 1993. In mid-July 1992, Gaston
began construction on the upgrade of its wastewater treatment
plant.
On July 13, 1992, the plaintiffs sent Gaston a letter (the
notice letter), as required by 33 U.S.C. § 1365(b), asserting
that Gaston had violated and continued to violate its permit
requirements "in at least the instances set forth in [an]
attached chronological list of permit violations." The attached
list identified eight violations of effluent limitations for flow,
mercury, and polychlorinated biphenyls (PCBs), between July
1990 and September 1991.
The plaintiffs also asserted in the notice letter that "there
appear to be instances in which the facility has failed to com-
ply with the monitoring and reporting requirements of the per-
mit. However, the extent of these violations cannot be
determined from the information available." The letter also
contained the plaintiffs’ allegation that Gaston failed to meet
the requirements of the schedule of compliance when Gaston
FRIENDS OF THE EARTH v. GASTON COPPER 7
did not submit its final plans and specifications by September
1, 1991.
The plaintiffs further asserted that based on reports from
January 1991 through April 1992, Gaston’s facility "is not in
compliance with the Phase II limits [in effect as of June 1,
1992] because (1) the facility’s discharges have consistently
exceeded the Phase II limits and (2) the facility has not yet
implemented remedial measures which would lower the pol-
lution levels." Therefore, the plaintiffs asserted, in "June
1992, the facility will have violated its permit limits at least
as to pH, copper, PCBs, and mercury."
The plaintiffs also stated in the notice letter that the "facili-
ty’s history of noncompliance" indicated "a strong possibility
that the facility will not comply" with any potentially revised
schedule of compliance. Thus, the plaintiffs stated that they
intended to file a citizen suit under the Clean Water Act to
ensure Gaston’s compliance with the conditions of its permit.
On September 14, 1992, the plaintiffs filed their complaint
in the district court. In the complaint, the plaintiffs alleged
that Gaston had discharged pollutants into a waterway in vio-
lation of its permit by failing to comply with discharge limits,
failing to monitor and report its discharge properly, and fail-
ing to adhere to its compliance schedule. The plaintiffs also
appended their notice letter to the complaint. The plaintiffs
sought declaratory and injunctive relief, as well as civil penal-
ties and costs. In its answer, Gaston asserted several argu-
ments, including that the plaintiffs lacked standing to bring
the action.
After discovery was completed, the plaintiffs filed a motion
for summary judgment. In that motion, the plaintiffs asserted
that Gaston committed 349 pollutant discharge violations, 239
monitoring violations, 493 reporting violations, 54 days of
violation for failing to timely submit final improvement plans
in accordance with the schedule of compliance, and 334 viola-
8 FRIENDS OF THE EARTH v. GASTON COPPER
tions of the schedule of compliance date for meeting the
Phase II limits. Gaston opposed the motion for summary judg-
ment on numerous grounds but did not raise an objection to
the sufficiency of the plaintiffs’ notice letter.
Although the record does not indicate that the district court
ruled directly on the plaintiffs’ motion for summary judg-
ment, the case proceeded to a bench trial in July 1995. During
this trial, the district court received evidence and heard argu-
ment regarding Gaston’s alleged violations of its permit
requirements. Gaston did not raise any objection during trial
regarding the adequacy of the plaintiff’s notice letter.
Over two years later, but before the district court entered its
judgment, the district court permitted the parties to file sup-
plemental findings of fact. On August 27, 1997, Gaston filed
a "supplemental proposed findings of fact and conclusions of
law," asserting for the first time that the district court lacked
authority to assess penalties for permit violations not alleged
in the plaintiffs’ notice letter.
In May 1998, the district court entered judgment dismissing
the complaint on the ground that the plaintiffs failed to estab-
lish standing to bring the suit. Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 9 F. Supp. 2d 589, 601
(D.S.C. 1998). The plaintiffs appealed to this court.
On appeal, Gaston argued that the plaintiffs lacked standing
because they failed to establish "environmental degradation"
to the waterway and, therefore, had not demonstrated an
injury in fact. A divided panel of this court agreed with Gas-
ton and affirmed the district court’s judgment. See Friends of
the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d
107 (4th Cir. 1999)(vacated). We granted rehearing en banc,
vacated the panel’s decision, reversed the district court’s
judgment, and remanded the case. Gaston I, 204 F.3d at 155-
64.
FRIENDS OF THE EARTH v. GASTON COPPER 9
On remand, the district court determined that Gaston vio-
lated its Phase I and Phase II effluent limitations for a period
of 91 days. The district court concluded that Gaston violated
Phase I discharge limits for levels of pH, cadmium, zinc, and
iron. The district court also concluded that Gaston violated
Phase II discharge limits for pH, cadmium, zinc, iron, copper,
and oil and grease. Because DHEC had delayed the effective
date of the Phase II effluent limitations, the district court held
that Gaston was not required to comply with those stricter
limits until April 2, 1993, and, therefore, was not liable for
any Phase II violations prior to that date.
The district court found that Gaston had committed 396
monitoring violations, which included monitoring frequency
violations, failure to complete required tests and periodic
sampling, "holding time violations," and other methodological
violations. The district court also found that Gaston commit-
ted 323 reporting violations, which included the failure to
report exceeded Phase I limits for pH and Phase II limits for
zinc, and failure to report monitoring violations. The district
court further found that Gaston violated its schedule of com-
pliance for 54 days.
On July 21, 2003, the district court entered judgment
imposing a civil penalty of $2,340,000, and ordering Gaston
to pay the plaintiffs’ attorneys’ fees and costs. The district
court declined to include a penalty enhancement requested by
the plaintiffs, because the court found that Gaston had made
a good faith effort to comply with the permit requirements
and did not enjoy an economic benefit based on its noncom-
pliance.
After the district court entered judgment, Gaston moved to
amend the judgment asserting that the court erred in imposing
penalties for "matters not covered by the notice letter." The
plaintiffs opposed this motion and asserted that Gaston had
forfeited any argument regarding the adequacy of the notice
10 FRIENDS OF THE EARTH v. GASTON COPPER
letter by failing to raise the argument until two years after the
trial had concluded.
The plaintiffs also moved to amend the judgment to reflect
that Shealy had died prior to the judgment date, asserting that
they continued to maintain standing through members Guy
Jones and William McCullough, Jr. Gaston opposed the plain-
tiffs’ motion and argued that the plaintiffs no longer had
standing to prosecute the case.
In September 2005, the district court granted the plaintiffs’
motion to amend the judgment to reflect that Shealy had died,
and held that the plaintiffs had maintained standing through
Jones and McCullough. In May 2006, the district court
entered a final order, denying Gaston’s motions challenging
the plaintiffs’ demonstration of standing and the amount of
the civil penalty. The district court modified one portion of its
findings of fact by reducing the number of reporting viola-
tions from 323 to 317.
Gaston filed an appeal to this court asserting several argu-
ments. Gaston contended that the district court did not have
jurisdiction to enter its final judgment because the plaintiffs
did not satisfy the constitutional requirements for standing
after Shealy died. Gaston also asserted that the district court
erred in imposing penalties for violations not identified in the
notice letter and for violations that were not ongoing at the
time the complaint was filed.
After considering the parties’ arguments, we entered an
unpublished per curiam opinion ordering a limited remand.
Gaston II, 263 F. App’x at 356. We ordered the remand
because the record was insufficient to determine whether the
plaintiffs had maintained standing through Jones or McCul-
lough. Id.
On remand, the district court made additional factual find-
ings and concluded that the plaintiffs established standing
FRIENDS OF THE EARTH v. GASTON COPPER 11
based on Jones’ membership in FOE and CLEAN and his use
of the affected waters. We now consider the merits of Gas-
ton’s appeal to this court.
II.
We first address Gaston’s argument that the plaintiffs have
failed to establish standing through their member, Jones. To
inform our discussion, we recite a brief summary of this
court’s previous consideration of the plaintiffs’ standing and
the district court’s most recent factual findings.
A.
In the district court’s initial holding in 1998 dismissing the
plaintiffs’ complaint, the court held that the plaintiffs failed to
demonstrate the requisite injury to establish standing. Gaston
Copper Recycling Corp., 9 F. Supp. 2d at 601. The district
court concluded that the plaintiffs did not present evidence
concerning the chemical content of the waterways affected by
the facility’s pollutants, an increase in the salinity of the
waterways, or other negative change to the ecosystem of the
water. Id. at 601.
In Gaston I, we explained that under the recently-released
opinion in Friends of the Earth v. Laidlaw Envtl. Servs., 528
U.S. 167, 181 (2000), a plaintiff is not required to show envi-
ronmental harm to establish an injury in fact. Gaston I, 204
F.3d at 160-61. We concluded that CLEAN member Shealy
established an injury in fact by asserting a reasonable fear and
concern about the effects of the facility’s discharge on his use
and enjoyment of his lake, which is located four miles down-
stream of Gaston’s facility. Id.
Also in Gaston I, we explained that the record demon-
strated that the discharges from Gaston’s facility affected or
could affect the water "a significant distance downstream" of
the facility. Id. at 158. We cited as "objective evidence," a
12 FRIENDS OF THE EARTH v. GASTON COPPER
written response by a DHEC official to a property owner’s
question raised during the comment period for Gaston’s per-
mit, in which the official stated:
the runoff will go to Boggy Branch to Bull Swamp
to the Edisto River. The confluence of Bull Swamp
and [the] Edisto River is 16.5 miles [from the Gaston
facility].
Id. at 158, 162.
We concluded that "the clear implication of DHEC’s
response is that [the facility’s] discharges can impact the
receiving waterway for a good distance downstream – well
past Shealy’s property and on down to the Edisto River
itself." Id. at 158. We stated that the discharge "affects or has
the potential to affect the waterway for 16.5 miles down-
stream" from Gaston’s facility. Id. We also observed that
Shealy’s lake was more than four times closer to the facility
than "the acknowledged outer perimeter of the discharge
zone." Id. Thus, we concluded that the district court improp-
erly required the plaintiffs to demonstrate that "the chemical
content of the waterway was affected" by the facility, or that
there was "other negative change in the ecosystem of the
water." Id. at 159.
After the district court entered judgment on the merits
against Gaston and after Shealy’s death, we considered in
Gaston II whether the plaintiffs continued to have standing
through Jones or McCullough. Gaston II, 263 F. App’x at
353. In Gaston II, we reiterated that the plaintiffs were not
required to present evidence of actual harm to the environ-
ment so long as a direct nexus existed between the plaintiffs
and the "area of environmental impairment." Id. (quoting
Gaston I, 204 F.3d at 159). We concluded, however, that the
plaintiffs were required to show that their members Jones or
McCullough used the area affected by the challenged activity,
and that use of "an area roughly in the vicinity" of the affected
FRIENDS OF THE EARTH v. GASTON COPPER 13
area was insufficient. Id. at 355 (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 565-66 (1992)).
In describing the affected area, we noted that in Gaston I,
we described the "confluence" of Bull Swamp Creek and the
North Fork of the Edisto River as the "outer perimeter of the
discharge zone" acknowledged by DHEC. Id. at 356 (quoting
Gaston I, 204 F.3d at 158). However, in Gaston II, we
explained that this outer perimeter was not necessarily the far-
thest point that the runoff reached. Id. We concluded that we
were unable to determine whether Jones or McCullough
had the requisite connection to the waters in the
affected area without knowing either that they used
the waters at the confluence of Bull Swamp Creek
and the Edisto’s North Fork, or knowing how much
farther beyond the confluence that the runoff pro-
ceeded and where, in relation to this point, the
waters that Jones and McCullough used and planned
to use were.
Id. We therefore ordered a "limited remand" for the district
court to resolve those specific factual issues. Id.
On remand in the district court, the plaintiffs filed a motion
for summary judgment, asserting that Jones used the water in
the area of the confluence and the affected water farther
downstream from the confluence. The plaintiffs filed several
affidavits from Jones describing his use of the waterways.
After considering the parties’ pleadings and conducting a
hearing, the district court made numerous factual findings,
which included the following determinations. Since 1983,
Jones has been the president of River Runner Outdoor Center
(River Runner), a company that provides guided canoe and
kayak trips on the Edisto River and elsewhere. Jones has
guided trips on a route that begins upstream of the confluence
and continues through the waters at the confluence and farther
14 FRIENDS OF THE EARTH v. GASTON COPPER
downstream. In recent years, River Runner has decreased the
number of trips it takes near the confluence, in part because
of concern that runoff from the Gaston facility is polluting the
area waters.
The district court also found that a substantial portion of
certain pollutants discharged by Gaston’s facility reaches the
confluence and travels the Edisto River at least 105 miles
downstream of the confluence. Jones has made many canoe
or kayak trips on the Edisto River within 105 miles down-
stream of the confluence.
B.
In this factual context, we now consider Gaston’s argument
that the district court erred in holding that the plaintiffs estab-
lished standing through their member, Jones. We observe that
Gaston does not dispute the district court’s findings of fact
made pursuant to our limited remand. Instead, Gaston argues
that the plaintiffs failed to prove an injury in fact necessary
to establish standing because they failed to show that Jones
used an area of the water affected by the discharge. In particu-
lar, Gaston asserts that the plaintiffs did not show that the
water at the confluence of Bull Swamp Creek and the North
Fork of the Edisto River is affected by the facility’s discharge.
In response, the plaintiffs contend that they established
standing based on the district court’s factual finding that
Jones used the water at the confluence of Bull Swamp Creek
and the North Fork of the Edisto River. According to the
plaintiffs, this court previously determined that the water at
the confluence was impacted by the discharge from Gaston’s
facility. We agree with the plaintiff’s arguments.
Article III of the Constitution restricts federal courts to the
adjudication of cases and controversies. The requirement of
standing is "perhaps the most important" condition of justicia-
bility. Gaston I, 204 F.3d at 153 (quoting Allen v. Wright, 468
FRIENDS OF THE EARTH v. GASTON COPPER 15
U.S. 737, 750 (1984)). This requirement ensures that a plain-
tiff has a personal stake in the outcome of a dispute, and that
judicial resolution of the dispute is appropriate. Emery v. Roa-
noke City Sch. Bd., 432 F.3d 294, 298 (4th Cir. 2005).
To meet the constitutional requirement for standing, a
plaintiff must prove that: 1) he or she suffered an "injury in
fact" that is concrete and particularized, and is actual or immi-
nent; 2) the injury is fairly traceable to the challenged action
of the defendant; and 3) the injury likely will be redressed by
a favorable decision. Gaston I, 204 F.3d at 154 (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555 (1992)). As we
explained in Gaston I, in addition to the above constitutional
standing requirements, an individual also must satisfy any
applicable statutory requirements for standing. Id. at 155.
The Clean Water Act confers standing on any "person or
persons having an interest which is or may be adversely
affected." 33 U.S.C. § 1365(a), (g). If a plaintiff asserting an
interest under the Clean Water Act meets the constitutional
standing requirements to satisfy Article III, then that plaintiff
satisfies the statutory threshold as well. Gaston I, 204 F.3d at
155.
An organization may have standing to sue based on an
injury to the organization itself or as a representative of its
harmed members. Id. (citing Warth v. Seldin, 422 U.S. 490,
511 (1975)). To have representational standing, as asserted by
the plaintiffs in this case, an organization must show that one
of its members would have standing to sue in his or her own
right. Id. (citing Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 343 (1977)).
In this case, Gaston challenges only the plaintiffs’ ability to
establish an injury in fact through their member, Jones. There-
fore, we will focus our analysis on this aspect of the standing
inquiry.
16 FRIENDS OF THE EARTH v. GASTON COPPER
Injury in fact is alleged adequately by "environmental
plaintiffs" when they "aver that they use the affected area and
are persons ‘for whom the aesthetic and recreational values of
the area will be lessened’ by the challenged activity." Laidlaw
528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S.
727, 735 (1972)). However, a plaintiff "claiming injury from
environmental damage must use the area affected by the chal-
lenged activity and not an area roughly ‘in the vicinity’ of it."
Lujan, 504 U.S. at 565-66 (citation omitted).
We determined in Gaston I that the objective evidence
showed that discharges from Gaston’s facility impacted the
waterway "on down to the Edisto River itself," including the
confluence of Bull Swamp Creek and the North Fork of the
Edisto River (the confluence), 16.5 miles from the Gaston
facility’s discharge point. See Gaston I, 204 F.3d at 158. In
Gaston II, we explained that we were unable to determine
whether Jones had the requisite connection to the affected
waterway because the record showed only that Jones used the
water "downstream" of Bull Swamp Creek and of the conflu-
ence. Gaston II, 263 F. App’x at 356. We particularly noted
that the record did not show whether Jones used the waters at
the confluence. Id. at 355-56.
On remand, the district court found that Jones and other
River Runner employees have conducted canoe and kayak
trips on a route beginning slightly upstream of the confluence,
continuing through the waters at the confluence, and then far-
ther downstream. The district court found that Jones began
using the waters at the confluence for canoeing and kayaking
in the 1980s, and continued to use those waters throughout the
next two decades. The district court also found that River
Runner has decreased the number of trips it takes near the
confluence, in part because of concern that runoff from Gas-
ton’s facility is polluting the waters in that area.
We hold that these uncontested factual findings establish
Jones’ direct connection to the use of the waters slightly
FRIENDS OF THE EARTH v. GASTON COPPER 17
upstream of the confluence on Bull Swamp Creek, and
through the waters of the confluence where Bull Swamp
Creek enters the North Fork of the Edisto River. Based on our
determination in Gaston I that these waters were impacted by
the discharges from Gaston’s facility, we are now able to con-
clude that Jones used "area affected by the challenged activ-
ity" rather than "an area roughly in the vicinity of it." See
Lujan, 504 U.S. at 565-66. In view of Jones’ use of the waters
in this area, and his reasonable concern that runoff from Gas-
ton’s facility is polluting the waters in that area, we hold that
the plaintiffs asserted an injury in fact through their member
Jones and established standing to prosecute this suit.
III.
We next consider Gaston’s argument that the district court
erred in imposing penalties for violations of the Clean Water
Act not identified in the plaintiffs’ notice letter. Gaston asserts
that the notice letter did not allege violations of the Phase I
limits for pH, cadmium, zinc, and iron. Gaston also contends
that because it ultimately received an extension of time until
April 1993 to comply with the Phase II limitations, the plain-
tiffs could not have provided notice of Phase II violations at
the time they sent their notice letter in July 1992.
Additionally, Gaston asserts that the allegations in the
notice letter relating to violations of monitoring and reporting
requirements were inadequate, because those allegations did
not refer to the specific permit condition violated or to the
dates of those violations. Based on these various omissions,
Gaston contends that the plaintiffs’ notice letter did not
include sufficient information to permit Gaston to identify the
specific standard, limitation, or order violated, as required by
40 C.F.R. § 135.3(a). Therefore, according to Gaston, the dis-
trict court lacked jurisdiction or otherwise erred in imposing
penalties based on the court’s finding of those violations.
In response, the plaintiffs assert that Gaston’s argument,
which essentially presents a legal defense, is not a true chal-
18 FRIENDS OF THE EARTH v. GASTON COPPER
lenge to the district court’s subject matter jurisdiction. The
plaintiffs argue that, therefore, Gaston forfeited its right to
raise this argument, because Gaston waited until two years
after the district court heard the evidence in this case to raise
the matter before the district court.
Alternatively, the plaintiffs argue that they provided ade-
quate notice to Gaston based on the information available at
the time they sent the notice letter in July 1992. Regarding the
Phase I limits, the plaintiffs assert that the notice letter
informed Gaston of a likely violation of "at least" mercury,
flow, and PCBs. The plaintiffs contend that because Gaston
had failed to report pH violations and because Gaston’s viola-
tions for cadmium, zinc, and iron occurred after the plaintiffs
filed their complaint, the plaintiffs were unable to include
these violations in the notice letter.
In addition, the plaintiffs assert that they sufficiently
addressed Gaston’s Phase II limit violations in the notice let-
ter by stating that the facility consistently had exceeded those
limits and had not yet implemented remedial measures to
lower these pollution levels. Therefore, in their notice letter,
the plaintiffs concluded that in June 1992, Gaston will have
violated its limits "at least" as to pH, copper, PCBs, and mer-
cury.
Finally, the plaintiffs assert that because Gaston’s monitor-
ing and reporting data were unavailable to the plaintiffs when
they sent the notice letter, the plaintiffs’ general allegation
that Gaston failed to comply with the monitoring and report-
ing requirements of the permit was sufficient. The plaintiffs
contend that they were not required to wait until additional
information became available, or until Gaston committed
additional violations of its permit, to give notice and file suit
under the Clean Water Act.
In considering the parties’ arguments, we are presented
with several issues, including the alleged mandatory nature of
FRIENDS OF THE EARTH v. GASTON COPPER 19
the Clean Water Act’s notice requirement, the information
that notices given under the Act must contain, and the timing
of Gaston’s challenge to the plaintiffs’ notice. We begin our
analysis by examining the plain language of the Clean Water
Act that a citizen suit may not "be commenced" before 60
days after the plaintiff has given notice of the alleged viola-
tion to the EPA, to the state in which the violation occurred,
and to the alleged violator. 33 U.S.C. § 1365(b)(1)(A).
We note that the Supreme Court, in Hallstrom v. Tillamook
County, 493 U.S. 20 (1989), considered an identical statutory
notice requirement found in the Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. § 6972(b)(1). The Supreme
Court held that the plain language of that RCRA provision
created a mandatory condition precedent to the commence-
ment of a citizen suit under the RCRA. Hallstrom, 493 U.S.
at 31.
In Hallstrom, the defendants asserted before trial that the
district court lacked jurisdiction to hear the case because the
plaintiff failed to provide the required statutory notice to the
EPA and to the state of Oregon. Id. at 24. The Supreme Court
declined to decide whether the notice provision in the RCRA
was a jurisdictional or a procedural requirement, but con-
cluded that a district court may not disregard the notice
requirements at its discretion and ordered that the case be dis-
missed. Id. at 31.
In addressing the RCRA statutory notice requirement, the
Supreme Court emphasized that maintaining strict compliance
with such requirements serves Congress’ goals in permitting
citizen suits for the enforcement of environmental regulations.
Id. at 29. By authorizing such citizen suits, Congress sought
to balance the benefit of encouraging citizen enforcement of
environmental regulations against the problems encountered
when excessive numbers of citizen suits are filed in the fed-
eral courts. Id.
20 FRIENDS OF THE EARTH v. GASTON COPPER
The Supreme Court further observed that statutory notice
and delay provisions like the ones found in the RCRA serve
two other important legislative objectives. Id. These provi-
sions allow governmental agencies to take responsibility for
the enforcement of environmental laws and regulations, elimi-
nating the need for multiple citizen suits. Id. The notice and
delay requirements also provide an alleged violator the oppor-
tunity to attempt compliance with its permit restrictions,
thereby avoiding litigation based on the alleged violations.
Id.; see Gwaltney, 484 U.S. at 60.
These legislative objectives cannot be met, however, if citi-
zen plaintiffs are excused from providing adequate informa-
tion in their pre-suit notice to enable the recipients of such
notices to identify the specific alleged violations. Thus, the
Supreme Court held in Hallstrom that the notice and delay
requirements of the RCRA are "mandatory conditions prece-
dent to commencing suit" under that statutory scheme. 493
U.S. at 31.
Applying this same reasoning, we conclude that compli-
ance with the notice and delay provisions of § 1365(b)(1)(A)
of the Clean Water Act is a mandatory condition precedent to
the commencement of a suit under this Act. This statute
explicitly requires that "[n]otice under this subsection shall be
given in such manner as the Administrator [of the EPA] shall
prescribe by regulation." 33 U.S.C. § 1365(b). Thus, to ensure
evenhanded application of the Clean Water Act, we further
conclude that compliance with the requirements of 40 C.F.R.
§ 135.3(a) is a mandatory condition precedent to filing suit
under the Act. See Hallstrom, 493 U.S. at 31.
We observe that our conclusion is in accord with a decision
of the Second Circuit concerning the required content of a
notice letter for citizen suits brought under the Clean Water
Act. In Catskill Mountains Chapter of Trout Unlimited, Inc.
v. City of New York, 273 F.3d 481, 487-88 (2d Cir. 2001), the
court held that the notice letter must inform the alleged viola-
FRIENDS OF THE EARTH v. GASTON COPPER 21
tor of each violation that will be targeted in the citizen suit,
and must differentiate one pollutant from another.
Although the notice requirements for citizen suits brought
under the Clean Water Act are strict and specific, we never-
theless agree with the cautionary reasoning of other circuits
warning against an overly technical application of regulatory
requirements. As these other decisions have emphasized, the
requirement of adequate notice does not mandate that citizen
plaintiffs "list every specific aspect or detail of every alleged
violation." Pub. Interest Research Group of N.J., Inc. v. Her-
cules, Inc., 50 F.3d 1239, 1248 (3d Cir. 1995); accord
Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913,
917 (9th Cir. 2004).
Based on our holding that compliance with 40 C.F.R.
§ 135.3(a) is a mandatory condition precedent to filing suit
under the Clean Water Act, the issue of the sufficiency of the
plaintiffs’ notice letter, at its core, presents a legal defense to
the plaintiffs’ claim. However, before we examine the merits
of Gaston’s challenge, we first must decide whether Gaston
timely asserted this defense in the district court.
Although Gaston presented this defense about two years
after the evidence was heard by the district court, the determi-
native consideration nonetheless is whether Gaston raised its
defense before the trial was concluded in the district court.
Under Rule 12(h)(2), a legal defense challenging a claim may
be made in any pleading permitted or ordered under Rule
7(a), or by motion for judgment on the pleadings under Rule
12(c), or "at trial." Fed. R. Civ. P. 12(h)(2). Given the proce-
dural posture of this case, the only applicable issue under
Rule 12(h)(2) is whether Gaston raised its defense "at trial."
This term is not ambiguous. In the context of a bench trial,
the term encompasses matters placed before the trial court up
to the point that the court has reached a decision on the merits
of the case. As the Third Circuit has observed, "[w]hile
22 FRIENDS OF THE EARTH v. GASTON COPPER
authority is sparse as to what constitutes presenting a defense
‘at’ the trial, it would appear that the defense must be pre-
sented so that the court may consider whether there has been
a failure to state a claim before disposition on the merits."
Weaver v. Bowers, 657 F.2d 1356, 1360 (3d Cir. 1981).
In the present case, although Gaston’s challenge to the suf-
ficiency of the plaintiffs’ notice letter was raised about two
years after the district court had concluded hearing evidence
in the case, Gaston nevertheless made this argument before
the district court disposed of the merits of the plaintiffs’ com-
plaint. Therefore, Gaston did not waive this defense, but ade-
quately preserved it under the requirement of Rule 12(h)(2)
that challenges to the legal sufficiency of a claim must be
raised "at trial," if not before. See id.; see also Eberhardt v.
Integrated Design & Constr., Inc., 167 F.3d 861, 871 (4th Cir.
1999.); Weatherhead v. Globe Int’l, Inc., 832 F.3d 1226, 1228
(10th Cir. 1987).
Because we conclude that Gaston’s defense was timely
raised, we need not determine whether the mandatory notice
requirement of § 1365(b)(1)(A) is "jurisdictional in the strict
sense of the term." See Hallstrom, 493 U.S. at 31. Therefore,
we turn to consider whether the plaintiffs’ notice letter com-
plied with the requirements of 40 C.F.R. § 135.3(a).
This regulation provides, in relevant part, that the notice
"shall include 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). Notice given by a
citizen plaintiff under the Clean Water Act thus must provide
the alleged violator with enough information to attempt to
correct the violation and avert the citizen suit. Natural Res.
Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 995 (9th Cir.
2000); see Atl. States Legal Found., Inc. v. Stroh Die Casting
Co., 116 F.3d 814, 819 (7th Cir. 1997)(holding notice suffi-
cient under Clean Water Act when notice asserted violation of
FRIENDS OF THE EARTH v. GASTON COPPER 23
specific permit requirement but did not specify a particular
source point of non-compliance).
In the present case, none of the Phase I discharge violations
that the district court found concerned pollutants identified by
the plaintiffs in their notice letter. Therefore, because the
plaintiffs failed to comply with the requirements of 40 C.F.R.
§ 135.3(a) in their notice letter with regard to the Phase I lim-
its, this portion of their claim cannot survive Gaston’s chal-
lenge to the adequacy of that notice.
With regard to the alleged Phase II violations, the notice
letter alleged violations for pH and copper but did not include
alleged violations for cadmium, zinc, iron, or oil and grease.
Thus, at the outset, the plaintiffs’ failure to allege Phase II
violations for cadmium, zinc, iron, or oil and grease in their
notice letter rendered their claims for these alleged violations
subject to Gaston’s attack on the adequacy of the notice letter,
and requires reversal of the Phase II violations that the district
court found involving these pollutants.
With regard to the alleged violations for pH and copper,
Gaston argues that these alleged violations of the Phase II
limitations were premature when the plaintiffs sent their
notice letter, because Gaston was given until April 1993 to
begin complying with the Phase II standards. We disagree
with Gaston on this point, because at the time the plaintiffs
sent their notice letter in July 1992, Gaston’s permit had not
been amended to extend the compliance date for the Phase II
standards. Rather, at the time the plaintiffs sent their notice
letter, Gaston still was operating under a permit that set June
1992 as the deadline for compliance with Phase II limitations.
The fact that the permit was amended about nine months
later in March 1993, to provide Gaston until April 2, 1993 to
comply with the Phase II limits, did not shield Gaston from
the specific Phase II violations alleged in the plaintiffs’ notice
letter. The sufficiency of the plaintiffs’ notice letter must be
24 FRIENDS OF THE EARTH v. GASTON COPPER
assessed based on the facts that existed in July 1992, not on
facts that developed several months later. Therefore, we con-
clude that the plaintiffs’ notice letter sufficiently alleged vio-
lations of the Phase II limitations for pH and copper.2
The district court found that Gaston had violated its Phase
II permit limitations for copper on October 5, 1993 and on
March 22, 1994. The district court additionally found that
Gaston had violated its Phase II permit limitations for pH on
October 15, 1993. Because the plaintiffs’ notice letter suffi-
ciently alleged ongoing violations relating to these pollutants,
the three particular violations identified above do not suffer
from the notice deficiency affecting the other Phase II viola-
tions that the district court found.
We next conclude that the allegations of the plaintiffs’
notice letter were insufficient to claim that Gaston had com-
mitted monitoring and reporting violations. As stated above,
the notice letter merely recited that "there appear to be
instances in which the facility has failed to comply with the
monitoring and reporting requirements of the permit." Thus,
in the absence of information indicating the nature or the
dates of such reporting and monitoring violations, Gaston was
not given adequate notice of those alleged violations.
Our conclusion is not altered by the fact that when the
plaintiffs sent their notice letter, they did not have access to
2
Exhibits in the record demonstrate that in May 1992, DHEC informally
extended Gaston’s deadline for compliance with the Phase II limits until
October 1992. Later in May 1992, DHEC issued a draft modification of
Gaston’s permit extending the June 1992 compliance date until March
1993. However, this draft modification was not effective until DHEC
amended the permit in March 1993. While these facts led the district court
to hold Gaston not liable for violations of Phase II limits before April
1993, the informal extensions given by DHEC do not affect the adequacy
of the notice letter. That letter informed Gaston of current and ongoing
violations of its "approved permit" for Phase II limits regarding pH and
copper. See 33 U.S.C. § 1365(a)(1), (f)(6).
FRIENDS OF THE EARTH v. GASTON COPPER 25
information that they later acquired in discovery in this case.
The plaintiffs’ lack of information before their suit was filed
cannot excuse the deficiencies in the notice letter, because
those deficiencies prevented attainment of the legislative
objectives of encouraging pre-suit governmental involvement
and securing violator compliance. See Hallstrom, 493 U.S. at
29.
Accordingly, we hold that the district court erred in finding
violations that were not alleged specifically in the plaintiffs’
notice letter. These erroneous findings include all violations
of Phase I effluent limits that the district court found; all vio-
lations of Phase II effluent limits that the district court found
with the exception of three violations for pH and copper dis-
cussed above; and all the findings of reporting and monitoring
violations.
IV.
Finally, we turn to consider Gaston’s argument that the dis-
trict court lacked subject matter jurisdiction to assess penalties
for "wholly past" violations of Gaston’s permit. Gaston chal-
lenges the district court’s decision finding Gaston liable for
54 days of violations relating to its failure to timely submit its
final improvement plans. Gaston argues that because it sub-
mitted those plans on December 23, 1991, any violation of the
various deadlines had concluded before the plaintiffs filed
their complaint in September 1992.
The plaintiffs argue, however, that Gaston’s violations
were ongoing when the plaintiffs filed their complaint.
Addressing the content of the compliance schedule, the plain-
tiffs contend that the schedule required Gaston to meet the
Phase II limitations by June 1992, and that Gaston violated
these limitations until March 1993, several months after the
complaint was filed.
We disagree with the plaintiffs’ arguments. The arguments
are unresponsive to the issue raised by Gaston, because they
26 FRIENDS OF THE EARTH v. GASTON COPPER
involve different alleged permit violations, rather than Gas-
ton’s violation of the filing deadlines for submitting its sched-
ule of compliance.
In considering the merits of Gaston’s argument, we observe
that a district court has subject matter jurisdiction over claims
in a citizen suit filed under the Clean Water Act that are based
on good-faith allegations of a defendant’s ongoing violation
of the Act. Gwaltney, 484 U.S. at 64. We have instructed that
a citizen plaintiff can prove an ongoing violation:
(1) by proving violations that continue on or after the
date the complaint is filed, or (2) by adducing evi-
dence from which a reasonable trier of fact could
find a continuing likelihood of a recurrence in inter-
mittent or sporadic violations.
Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd.,
890 F.2d 690, 693 (4th Cir. 1989). We also explained, how-
ever, that penalties may not be imposed for "wholly past vio-
lations" of one permit requirement even though violations of
a separate permit requirement are ongoing. Id. at 698.
The record before us shows that Gaston did not meet its
September 1, 1991 deadline for filing its final improvement
plans. Sixteen days later, on September 17, 1991, DHEC
granted Gaston’s request for an extension of that deadline,
and amended Gaston’s permit to reflect a new deadline of
November 15, 1991. DHEC later granted Gaston another
extension to submit its final improvement plans until Decem-
ber 15, 1991, but did not further modify the terms of Gaston’s
permit.
When Gaston submitted its final plans on December 23,
1991, Gaston was in violation of the November 15, 1991
deadline in the amended permit for 38 days. However, after
submitting those plans on December 23, 1991, Gaston was no
longer engaged in any ongoing violation relating to this sub-
FRIENDS OF THE EARTH v. GASTON COPPER 27
mission requirement. Thus, at the time the plaintiffs filed their
complaint in July 1992, Gaston’s violation of this submission
requirement in the permit was "wholly past."
The fact that Gaston’s violation of the Phase II effluent lim-
itations continued beyond the date that the complaint was
filed, and beyond the deadline imposed in the initial schedule
of compliance, does not affect our conclusion. Gaston’s
alleged violation of these effluent limitations constituted sepa-
rate permit violations, which did not impact the "wholly past"
nature of Gaston’s violations for failing to timely submit its
schedule of compliance. See Gwaltney, 484 U.S. at 64.
Accordingly, we hold that the district court lacked jurisdiction
to impose penalties for the 54 days involving schedule of
compliance violations that were "wholly past" at the time the
plaintiffs filed their complaint.
V.
In conclusion, we hold that the plaintiffs maintained stand-
ing throughout their suit in the district court; that based on the
legal insufficiency of portions of the notice letter, the district
court erred in finding violations and imposing penalties for all
but the three violations for pH and copper discussed above;
and that the district court erred in assessing penalties for 54
days of violations that were "wholly past" when the plaintiffs
filed their complaint. Accordingly, we affirm the part of the
district court’s judgment relating to the Phase II violation for
pH occurring on October 15, 1993, and to the Phase II viola-
tions for copper occurring on October 5, 1993 and March 22,
1994, and the accompanying penalties imposed for those three
violations; we reverse the balance of the district court’s find-
ings of violations and the court’s imposition of penalties for
those violations; and we remand the case for further proceed-
ings consistent with our opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED