Monet v. State of Hawaii et al
Filing
25
ORDER GRANTING STATE DEFENDANTS' MOTION TO DISMISS 12 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/14/11. ("For the foregoing reasons, all CWA, CERCLA, and EPCRA claims (if asserted) against the State Defendants are dismi ssed. This order leaves for further adjudication the claims asserted against the Federal Defendants.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Sam Monet shall be served by first class mail at the address of record on June 15, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SAM MONET,
Plaintiff,
vs.
STATE OF HAWAII;
HAWAII DEPARTMENT OF LAND AND
NATURAL RESOURCES;
WILLIAM AILA, DIRECTOR OF THE
DEPARTMENT OF LAND AND
NATURAL RESOURCES, in his
official capacity;
LORETTA J. FUDDY, ACTING
DIRECTOR OF THE DEPARTMENT OF
HEALTH, in her official
capacity;
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; and
LISA P. JACKSON, ADMINISTER
OF THE UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY, in her official
capacity,
Defendants.
_____________________________
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CIV. NO. 11-00211 SOM/RLP
ORDER GRANTING STATE
DEFENDANTS’ MOTION TO DISMISS
ORDER GRANTING STATE DEFENDANTS’ MOTION TO DISMISS
I.
INTRODUCTION.
Plaintiff Sam Monet, proceeding pro se, claims
violations of various environmental laws.
Monet sues 1) the
State of Hawaii, 2) the State of Hawaii Department of Land and
Natural Resources (“DLNR”), 3) William Aila, whom Monet alleges
is the Director of the DLNR, in his official capacity, and 4)
Loretta J. Fuddy, Acting Director of the State of Hawaii
Department of Health, in her official capacity (collectively,
“State Defendants”).
Monet also sues 5) the United States
Environmental Protection Agency (“EPA”), and 6) Lisa P. Jackson,
Administrator of the United States EPA, in her official capacity
(collectively, “Federal Defendants”).
Monet claims violations of the Clean Water Act, 33
U.S.C. §§ 1251-1387 (“CWA”) and the Comprehensive Environmental
Response Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675
(“CERCLA”).
His Complaint also mentions the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11101-11050
(“EPCRA”), but it is unclear whether the Complaint asserts a
claim under EPCRA.
The State Defendants have moved to dismiss.
That
motion is granted without a hearing pursuant to Local Rule
7.2(d).
This order leaves for further adjudication Monet’s
claims against the Federal Defendants.
II.
BACKGROUND.
Monet lives on a boat docked in the Ala Wai Small Boat
Harbor.
See Complaint ¶¶ 3, 8, 15, Apr. 1, 2011, ECF No. 1.
Monet complains about a parcel of land allegedly owned by the
State of Hawaii that is located on the Waikiki side of the Ala
Wai Small Boat Harbor and abuts the navigable waters in which
Monet surfs, swims, dives, canoes, and paddles.
Id. ¶ 37.
Monet alleges that the State of Hawaii and the DLNR
leased the land to a boat yard operator, whose operations
2
polluted the land with various hazardous materials.
48.
Id. ¶¶ 43,
Monet says that this pollution is now leaking into the ocean
from the land.
Id. ¶¶ 38, 51.
operator closed down in 2007.
Monet alleges that the boat yard
Id. ¶ 50.
Monet alleges that, on or about December 4, 2009, he
sent a complaint to the EPA, asking it to investigate the site
“for any violation of State or Federal law” because the site was
a former boat repair yard that had leaked gasoline, diesel fuel,
lead-based paint, and other hazardous material into the soil that
was leaching into the ocean.
See id., Ex. A.
this exhibit into his Complaint.
Monet incorporates
See id. ¶ 19.
Monet alleges that, in August 2010, Shinsato Engineers
performed a “core sample” of the site.
Monet says that he was
told that “petroleum products” were seen in the land.
Id. ¶ 51.
The results of this testing have not been released to the public.
Id. ¶ 51.
Monet says that, in early August 2010, he took pictures
of various items located on the land, including discarded
batteries, oil, and chemical containers, and possible hazardous
materials on the land.
Id. ¶ 52.
pictures to the State.
Id.
Monet says that he sent these
Monet says he sent the State a
notice of his intent to enforce environmental laws on August 18,
2010.
See Id., Ex. B (August 18, 2010, letter from Monet to
1) Linda Lingle, the former governor of the State of Hawaii;
3
2) the DLNR, and 3) Laura H. Thielen, who is described as the
former Chaiperson of DLNR), ECF No. 1-2.
exhibit into his Complaint.
Monet incorporates this
See id. ¶ 21.
In January 2011, Monet alleges that the State attempted
to “cover up” the mess on the land by power washing the land,
covering it with new soil, and removing the abandoned car
batteries and containers of oil and chemicals.
III.
Id. ¶ 54.
RULE 12(b)(1) and 12(b)(6) STANDARDS.
A motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) may either attack the
allegations of the complaint as insufficient to confer upon the
court subject matter jurisdiction, or attack the existence of
subject matter jurisdiction in fact.
Thornhill Publ’g Co. v.
Gen, Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When the motion to dismiss attacks the “face” of the allegations
of the complaint as insufficient to confer subject matter
jurisdiction, all allegations of material fact are taken as true
and construed in the light most favorable to the nonmoving party.
Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d
1204, 1207 (9th Cir. 1996).
Here, the State Defendants contend
that the allegations contained in the Complaint, including the
exhibits incorporated into the Complaint by reference, are
insufficient to invoke federal jurisdiction.
attack on jurisdiction.
This is a facial
See Safe Air for Everyone v. Meyer, 373
4
F.3d 1035, 1039 (9th Cir. 2004).
This court may therefore
examine the exhibits attached to Monet’s Complaint.
See Medici
v. Pocono Mountain Sch. Dist., 2010 WL 1006917, *2 (M.D. Pa. Mar.
16, 2010).
Similarly, on a Rule 12(b)(6) motion to dismiss, all
allegations of material fact are taken as true and construed in
the light most favorable to the nonmoving party.
Fed’n of
African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996).
However, conclusory allegations of law,
unwarranted deductions of fact, and unreasonable inferences are
insufficient to defeat a motion to dismiss.
Sprewell v Golden
St. Warriors, 266 F.3d 979, 988, as amended by 275 F.3d 1187 (9th
Cir. 2001); Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.
1996).
In evaluating a Complaint under Rule 12(b)(6), the court
may consider not only the allegations contained in the Complaint,
but also exhibits attached to the Complaint and matters properly
subject to judicial notice.
Williston Basin Interstate Pipeline
Co. v. An Exclusive Gas Storage, 524 F.3d 1090, 1096 (9th Cir.
2008).
Additionally, the court need not accept as true
allegations that contradict matters properly subject to judicial
notice or allegations contradicting the exhibits attached to the
complaint.
Sprewell, 266 F.3d at 988.
Dismissal under Rule
12(b)(6) may be based on either: (1) lack of a cognizable legal
theory, or (2) insufficient facts under a cognizable legal
5
theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699
(9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530, 533-34 (9th Cir. 1984)).
IV.
ANALYSIS.
The State Defendants move to dismiss the environmental
claims asserted against them, arguing that they have Eleventh
Amendment immunity from those claims.
It is not entirely clear whether an Eleventh Amendment
challenge should be analyzed under Rule 12(b)(1) of the Federal
Rules of Civil Procedure for lack of subject matter jurisdiction
or under Rule 12(b)(6) for failure to state a claim upon which
relief can be granted.
Compare Edelman v. Jordan, 415 U.S. 651,
678 (1974) (“the Eleventh Amendment defense sufficiently partakes
of the nature of a jurisdictional bar so that it need not be
raised in the trial court”); In re Jackson, 184 F.3d 1046, 1048
(9th Cir. 1999) (“Eleventh Amendment sovereign immunity limits
the jurisdiction of the federal courts and can be raised by a
party at any time during judicial proceedings or by the court sua
sponte”), with ITSI T.V. Prods., Inc. v. Agricultural Ass’ns, 3
F.3d 1289, 1291 (9th Cir. 1993) (“Eleventh Amendment immunity . .
. does not implicate a federal court’s subject matter
jurisdiction in any ordinary sense . . . . we believe that
Eleventh Amendment immunity, whatever its jurisdictional
attributes, should be treated as an affirmative defense”); see
6
also Wis. Dep’t of Corr. v. Schact, 524 U.S. 381, 392 (1998)
(noting that, as of 1998, the Supreme Court had not yet decided
whether Eleventh Amendment immunity is a matter of subject matter
jurisdiction).
The Ninth Circuit has since tried to reconcile
these cases by calling Eleventh Amendment immunity “quasijurisdictional.”
Bliemeister v. Bliemeister (In re Bliemeister),
296 F.3d 858, 861 (9th Cir. 2002).
One Ninth Circuit case decided after Bliemeister (as
well as a few unreported cases) has continued to characterize
Eleventh Amendment immunity as going to this court’s subject
matter jurisdiction.
See, e.g., Savage v. Glendale Union High
Sch., Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040-44 (9th
Cir. 2003).
However, other Ninth Circuit cases have indicated
that Eleventh Amendment immunity should be analyzed under Rule
12(b)(6).
See Elwood v. Drescher, 456 F.3d 943, 949 (9th Cir.
2006) (“dismissal based on Eleventh Amendment immunity is not a
dismissal for lack of subject matter jurisdiction, but instead
rests on an affirmative defense.” (quotations and citation
omitted)); Tritchler v. County of Lake, 358 F.3d 1150, 1153-54
(9th Cir. 2004); Miles v. Cal., 320 F.3d 986, 988-89 (9th Cir.
2003).
In this case, whether the court examines Eleventh
Amendment immunity under Rule 12(b)(1) for lack of jurisdiction
or under Rule 12(b)(6) for failure to state a claim makes no
7
difference, as those standards are essentially the same for
purposes of this motion.
This court limits itself to examination
of the allegations of the Complaint and the exhibits attached to
and incorporated into the Complaint, interpreting those facts in
the light most favorable to Monet.
The Eleventh Amendment states: “The Judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.”
The Eleventh Amendment has been construed
to bar suits by citizens against their own states, including
state agencies.
See Stoner v. Santa Clara County Office of
Educ., 502 F.3d 1116, 1121-22 (9th Cir. 2007); Eason v. Clark
County Sch. Dist., 303 F.3d 1137, 1140 (9th Cir. 2002).
The
Eleventh Amendment also shields state officials from official
capacity suits.
See Krainski v. Nev. ex rel. Bd. of Regents of
Nev. Sys. of Higher Educ., 616 F.3d 963, 967-68 (9th Cir. 2010)
States, their agencies, and their officials in their
official capacities are immune from damage suits under state or
federal law by private parties in federal court unless there is a
valid abrogation of that immunity or an unequivocal express
waiver by the state.
See Sossamon v. Tex., 131 S. Ct. 1651, 1658
(2011); Va. Office for Protection & Advocacy v. Stewart III, 131
8
S. Ct. 1632, 1638 (2011); In re Harleston, 331 F.3d 699, 701 (9th
Cir. 2003).
A narrow exception to a state’s Eleventh Amendment
immunity was established in Ex Parte Young, 209 U.S. 123 (1908).
In that case, the Supreme Court recognized that a “suit
challenging the constitutionality of a state official’s action is
not one against the State.”
Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 103 (1983) (citing Young).
Under the Ex
Parte Young doctrine, a federal court may enjoin a state
official’s future conduct when a plaintiff brings suit alleging a
violation of federal law, Edelman v. Jordan, 415 U.S. 651 (1974),
but not when a plaintiff alleges a violation of state law,
Pennhurst, 465 U.S. at 106 (stating that “when a plaintiff
alleges that a state official has violated state law,” “the
entire basis for the doctrine of Young . . . disappears”).
To
avoid the Eleventh Amendment bar to a suit, a plaintiff must
allege an ongoing violation of federal law and seek prospective
relief from a state official.
See Porter v. Jones, 319 F.3d 483,
490 (9th Cir. 2003) (“Under the doctrine of Ex parte Young, suits
against an official for prospective relief are generally
cognizable, whereas claims for retrospective relief (such as
damages) are not.”).
There is no contention here that, with respect to the
federal environmental claims asserted by Monet, Congress
abrogated any of the State Defendants’ immunity or that any of
9
them expressly waived that immunity.
Accordingly, except for the
prospective injunctive relief claims under federal law asserted
against Aila and Fuddy--state officials sued in their official
capacities, the State Defendants have Eleventh Amendment immunity
with respect to Monet’s environmental law claims.
are therefore dismissed.
Those claims
See Natural Res. Defense Council v.
Cal. Dep’t of Transp., 96 F.3d 420, 423 (9th Cir. 1996)
(affirming dismissal of Clean Water Act claims based on Eleventh
Amendment immunity); Celanese Corp. v. Coastal Water Authority,
475 F. Supp. 2d 623, 632-34 and n.5 (S.D. Tex. 2007) (applying
Eleventh Amendment to bar CERCLA claims against an arm of the
state and noting that Congress did not abrogate Eleventh
Amendment immunity from CERCLA claims because CERCLA was enacted
pursuant to the commerce clause and, under Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 59, 65-66 (1996), Congress may
only abrogate Eleventh Amendment immunity when acting pursuant to
section 5 of the Fourteen Amendment); Trepanier v. Ryan, 2003 WL
21209832, *3 and n.7 (N.D. Ill. May 21, 2003) (applying the
Eleventh Amendment to bar claims under EPCRA for compensatory
damages, but holding that, to the extent the plaintiffs sought
prospective injunctive relief against state officials, EPCRA
claims were not so barred).
Aila says he is the chairperson of the Board of Land
and Natural Resources, which is the executive board of the DLNR,
as opposed to the Chairperson of the DLNR, as alleged by Monet.
10
Aila and Fuddy, acting director of the Department of Health, seek
dismissal of the prospective injunctive relief claims under CWA,
CERCLA, and EPCRA (if an EPCRA claim is being asserted), arguing
that the prefiling notice requirements were not met.
The court
agrees and dismisses those claims.
A.
The Prospective Injunctive Relief Claims Under CWA
Against Aila and Fuddy Are Dismissed.
Monet brings a citizen suit for violations of CWA
pursuant to 33 U.S.C. § 1365(a)(1), which provides:
(a) Authorization; jurisdiction
Except as provided in subsection (b) of this
section and section 1319(g)(6) of this title,
any citizen may commence a civil action on
his own behalf-(1) against any person (including
(i) the United States, and (ii) any other
governmental instrumentality or agency to the
extent permitted by the eleventh amendment to
the Constitution) who is alleged to be in
violation of (A) an effluent standard or
limitation under this chapter or (B) an order
issued by the Administrator or a State with
respect to such a standard or limitation, . .
.
. . . .
The district courts shall have jurisdiction,
without regard to the amount in controversy
or the citizenship of the parties, to enforce
such an effluent standard or limitation, or
such an order, or to order the Administrator
to perform such act or duty, as the case may
be, and to apply any appropriate civil
penalties under section 1319(d) of this
title.
11
Except for suits brought under 33 U.S.C. §§ 1316 and
1317a, anyone filing a citizen suit under CWA must first send a
notice to the Administrator of the EPA, the state in which the
violation occurred, and to any alleged violator.
See 33 U.S.C.
§ 1365(b)(1)(A) (stating that no citizen suit may be commenced
under § 1365(a)(1) “(A) prior to sixty days after the plaintiff
has given notice of the alleged violation (i) to the
Administrator, (ii) to the State in which the alleged violation
occurs, and (iii) to any alleged violator of the standard,
limitation, or order”); 33 U.S.C. 1251(d) (defining
“Administrator” as used in CWA as “the Administrator of the
Environmental Protection Agency”).
This 60-day notice
requirement is a “mandatory condition precedent to the filing of
a citizen suit under the Clean Water Act.”
Nat’l Environ. Found.
v. ABC Rail. Corp., 926 F.2d 1096, 1097 (11th Cir. 1991).
Accordingly, the Ninth Circuit has ruled that, when a plaintiff
brings a citizen suit under CWA but fails to comply with the 60day notice provision, a court lacks subject matter jurisdiction
over the claim.
See Center for Biological Diversity v. Marina
Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2009); Waterkeepers
N. Cal. v. AG Indus. Mfg., 375 F.3d 913, 916 (9th Cir. 2004);
Wash. Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354-55 (9th
Cir. 1995).
The purpose of CWA’s 60-day notice provision is to give
the alleged violator an opportunity to bring itself into complete
12
compliance and render unnecessary any citizen suit.
See Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
59 (1987); Cmty. Ass’n for Restoration of the Environ. v. Henry
Bosma Dairy, 305 F.3d 943, 950 (9th Cir. 2002).
The EPA’s implementing regulations, 40 C.F.R. §§ 135.1
to 125.5, describe what is necessary before filing a CWA citizen
suit.
The regulations also set forth to whom the notice must be
sent.
40 C.F.R. § 135.2(a)(2).
Because the alleged violator is
the State of Hawaii and/or the DLNR, service was required to be
by certified mail or personal service on “the head of such
agency.”
The notice attached to the Complaint indicates that it
was hand-delivered to Linda Lingle, Hawaii’s Governor, as well as
to Laura H. Thielen, the then-Chairperson of the Board of Land
and Natural Resources, which is the executive board of the DLNR,
whom Monet describes as the chairperson of the DLNR.
Because the
court dismisses all CWA claims as set forth below, the court need
not decide whether Monet properly sent notice to “the head of
such agency” by hand-delivering it to Lingle and Thielen.
To the extent Aila, the current chairperson of the
Board of Land and Natural Resources, claims that he should have
been provided notice, Aila misses the mark.
Aila has, in
essence, been substituted as the “head” of the DLNR.
The court
is unpersuaded by Aila’s contention that he should have been sent
the notice because he is the alleged “violator” being sued by
Monet.
Aila is not being sued as the “violator” himself, but,
13
instead, is being sued in his official capacity as the “head” of
the DLNR.
The Complaint alleges that the State of Hawaii owns
the former boat yard containing the hazardous waste and that the
state is responsible for the release of hazardous materials.
Complaint ¶ 37, 38.
See
The Complaint seeks to have the State of
Hawaii comply with various federal environmental laws.
The
Complaint therefore does not allege that Aila himself is a
violator of the CWA, but instead seeks relief from him as the
person in the DLNR who can effectuate CWA compliance.
Moreover, nothing in the record indicates that, at the
time Monet sent the notice, Aila was the “head” of the DLNR such
that he, rather than Thielen, Aila’s predecessor, should have
been sent the notice.
If this court were to hold that 60 days’
notice was required every time a department head changed, this
court would be required to dismiss properly noticed suits and
force citizens to begin the process anew whenever the department
head changed.
This would be inconsistent with Rule 25(d) of the
Federal Rules of Civil Procedure, which allows the automatic
substitution of a public officer’s successor when a predecessor
ceases to hold office.
Even assuming Monet’s notice was sent to the “head” of
the State of Hawaii and the head of DLNR, the notice was
insufficient, as there is no indication that a copy of the notice
was sent to the Administrator of the EPA, the regional
administrator of the EPA, or the chief administrative officer of
14
the water pollution control agency for the state of Hawaii.
40 C.F.R. § 135.2(a)(2).
See
Accordingly, Monet’s CWA claims must be
dismissed because Monet failed to properly provide the required
notice.
See Swanson v. U.S. Forest Serv., 87 F.3d 339 (9th Cir.
1996) (affirming dismissal of CWA claims against all defendants
when notice was not sent to EPA); accord Allens Creek/Corbetts
Glen Pres. Group v. Caldera, 88 F. Supp 2d 77, 85 (W.D.N.Y.
2000).
Dismissal is also required because this court lacks
subject matter jurisdiction given the insufficiency of the
content of the notice.
See Ctr. for Biological Diversity, 566
F.3d at 803-04 (holding that a district court lacked jurisdiction
to adjudicate CWA claims when CWA notices were insufficient).
The implementing regulations describe the required contents of
the required notice:
Notice regarding an alleged violation of an
effluent standard or limitation or of an
order with respect thereto, shall include
sufficient information to permit the
recipient to identify the specific standard,
limitation, or order alleged to have been
violated, the activity alleged to constitute
a violation, the person or persons
responsible for the alleged violation, the
location of the alleged violation, the date
or dates of such violation, and the full
name, address, and telephone number of the
person giving notice.
40 C.F.R. § 135.3(a).
Although Monet’s “notice” complained of
the “boatyard” being a “superfund site,” it did not describe what
effluent standard or limitation was being violated.
15
See
Complaint, Ex. B, ECF No. 1-2.
The notice Monet attaches to his
opposition to the motion to dismiss, even if considered, is
similarly deficient.
See ECF No. 16-1.
Accordingly, Monet’s CWA claims for prospective
injunctive relief against Aila and Fuddy are dismissed pursuant
to Rule 12(b)(1).
To the extent Monet requests that he be
allowed to file an Amended Complaint after he complies with CWA’s
notice requirement, that request is denied as inconsistent with
the purpose of the notice provision, which is to allow an alleged
violator to cure the violation before a suit is brought.
B.
The Prospective Injunctive Relief Claims under
CERCLA Against Aila and Fuddy Are Dismissed.
Congress enacted CERCLA “in response to the serious
environmental and health risks posed by industrial pollution.”
U.S. v. Bestfoods, 524 U.S. 51, 55 (1998).
The Supreme Court has
characterized CERCLA as “a comprehensive statute that grants the
President broad power to command government agencies and private
parties to clean up hazardous waste sites.”
Id. (quoting Key
Tronic Corp. v. U.S., 511 U.S. 809, 814 (1994)).
Like CWA, CERCLA allows citizen suits, stating with
exceptions not relevant here that:
any person may commence a civil action on his own
behalf-(1) against any person (including the United
States and any other governmental
instrumentality or agency, to the extent
permitted by the eleventh amendment to the
Constitution) who is alleged to be in
16
violation of any standard, regulation,
condition, requirement, or order which has
become effective pursuant to this chapter
(including any provision of an agreement
under section 9620 of this title, relating to
Federal facilities);
42 U.S.C. § 9659(a)(1).
Also like CWA, CERCLA requires notice of a violation to
be sent to the following at least 60 days before a citizen suit
can be filed pursuant to § 9659(a)(1):
(A) The President.
(B) The State in which the alleged violation
occurs.
(C) Any alleged violator of the standard,
regulation, condition, requirement, or order
concerned (including any provision of an
agreement under section 9620 of this title).
42 U.S.C. § 9659(d)(1).
Proper notice is necessary to give this
court subject matter jurisdiction over such a citizen suit.
See
Rennie v. T&L Oil Inc., 540 F. Supp. 2d 1198, 1202 (N.D. Okla.
2007); Frost v. Perry, 919 F. Supp. 1459, 1469 (D. Nev. 1996);
Pollution Control Indus. of Am., Inc. v. Reilly, 715 F. Supp 219,
221 (N.D. Ill. 1989).
“The purpose of this notice requirement is to ensure
that a private citizen does not interfere with the government’s
diligent prosecution of the environmental violation.”
540 F. Supp. 2d at 1201.
Rennie,
Here, nothing in the record indicates
that the notice was provided to the President.
The CERCLA notice is also insufficient.
It makes sense
that, like CWA’s notice provision, CERCLA’s notice provision is
17
intended to allow a violator to cure.
Accordingly, CERCLA’s
applicable implementing regulation, 40 C.F.R. § 374.3(a),
provides:
Notice regarding an alleged violation of a
standard, regulation, condition, requirement,
or order (including any provision of an
agreement under section 120 of the Act,
relating to Federal facilities) which has
become effective under this Act shall include
sufficient information to allow the recipient
to identify the specific standard,
regulation, condition, requirement, or order
(including any provision of an agreement
under section 120 of the Act, relating to
Federal facilities) which has allegedly been
violated; the activity or failure to act
alleged to constitute a violation; the name
and address of the site and facility alleged
to be in violation, if known; the person or
persons responsible for the alleged
violation; the date or dates of the
violation; and the full name, address, and
telephone number of the person giving notice.
As discussed in the section above with respect to the notice for
the alleged CWA violations, Monet’s notice did not provide
sufficient information to allow any recipient to identify how
CERCLA was allegedly being violated.
See City of Waukesha v. PDQ
Food Stores, Inc., 500 F. Supp. 2d 1119, 1121-22 (E.D. Wis. 2007)
(noting that, when a notice timely provides the proper persons
with actual notice of a violation of a standard, regulation,
condition, requirement, or order, it satisfies CERCLA’s
jurisdictional prior notice requirement for citizen suits)
Accordingly, Monet’s prospective injunctive relief
claims under CERCLA against Aila and Fuddy must be dismissed
18
pursuant to Rule 12(b)(1).
To the extent Monet requests that he
be allowed to file an Amended Complaint after he complies with
CERCLA’s notice requirement, that request is denied as
inconsistent with the purpose of the notice provision.
C.
The Prospective Injunctive Relief Claims Under
EPCRA Against Aila and Fuddy Are Dismissed.
Because the Complaint only mentions EPCRA, it is
unclear whether Monet meant as asserting a claim under it.
Even
construing the Complaint liberally as asserting such a claim
because Monet is pro se, any prospective injunctive relief claim
under EPCRA against Aila and Fuddy must be dismissed for lack of
subject matter jurisdiction.
The Supreme Court has explained:
EPCRA establishes a framework of state,
regional, and local agencies designed to
inform the public about the presence of
hazardous and toxic chemicals, and to provide
for emergency response in the event of
health-threatening release. Central to its
operation are reporting requirements
compelling users of specified toxic and
hazardous chemicals to file annual “emergency
and hazardous chemical inventory forms” and
“toxic chemical release forms,” which
contain, inter alia, the name and location of
the facility, the name and quantity of the
chemical on hand, and, in the case of toxic
chemicals, the waste-disposal method employed
and the annual quantity released into each
environmental medium.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 86-87
(1998).
19
Like CWA and CERCLA, EPCRA contains a citizen suit
provision.
See 42 U.S.C. § 11046(a)(1)(A)-(C).
But, as with CWA
and CERCLA, at least 60 days before a citizen suit alleging an
EPCRA violation is filed, certain notices must be provided.
That
is, before a citizen suit against an owner or operator of a
facility is filed, prior notice is required.
§ 11046(d)(1).
See 42 U.S.C.
Before a citizen suit against the Administrator
of the EPA, a State Governor, or a State emergency response
commission is filed, notice must be provided to “the
Administrator, State Governor, or State emergency response
commission (as the case may be).”
Failure to comply with the
notice requirements for citizen suits under EPCRA deprives this
court of jurisdiction.
Alt. States Legal Found. v. United
Musical Instruments, U.S.A., Inc., 61 F.3d 473, 478 (6th Cir.
1995); Hassain v. City of Chicago, 1999 WL 89612, *2 (N.D. Ill.
Feb. 12, 1999).
Requiring such notice for citizen suits under
EPCRA facilitates dispute resolution and reduces the volume of
costly litigation.
Alt. States Legal Found., 61 F.3d at 478.
It also allows government agencies to fully and adequately
evaluate the alleged violations and allows a violator to cure the
alleged violation before a suit is brought.
Sierra Club Ohio
Chapter v. City of Columbus, 282 F. Supp. 2d 756, 764 (S.D. Ohio
2002).
For that reason, the notice must be detailed enough that
it will allow the EPA to make a decision as to whether the EPA
20
will take action and allow the alleged violator to cure.
As
discussed above, the notice sent by Monet does not provide the
required level of detail, as it does not describe how the EPCRA
was allegedly violated.
Accordingly, the prospective injunctive
relief claims under EPCRA against Aila and Fuddy are dismissed
pursuant to Rule 12(b)(1).
To the extent Monet requests that he
be allowed to file an Amended Complaint after he complies with
EPCRA’s notice requirement, that request is denied as
inconsistent with the purposes of the notice provision.
V.
CONCLUSION.
For the foregoing reasons, all CWA, CERCLA, and EPCRA
claims (if asserted) against the State Defendants are dismissed.
This order leaves for further adjudication the claims asserted
against the Federal Defendants.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 14, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Monet v. State of Hawaii, et al., Civil No. 11-00211 SOM/BMK; ORDER GRANTING STATE
DEFENDANTS’ MOTION TO DISMISS
21
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