Opinion
Civil No. 00-1201-KI
November 30, 2000
Thane Tienson, Brent Foster, Jamie B. Jefferson, Portland, Oregon, Attorneys for Plaintiff.
Richard S. Gleason, Beverly C. Pearman, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
Before the court is the motion to dismiss (#4) by defendant Blue Heron Paper Company ("BHPC"). For the reasons set forth below, I grant in part and deny in part the motion.
FACTS
BHPC operates a mill on the Willamette River in Oregon City. The mill recycles old newspapers, magazines, other used paper, and residual wood chips. As part of the recycling process, high-temperature wastewater is discharged into the river. Plaintiff Northwest Environmental Defense Center ("NEDC") alleges that high water temperatures in the river cause significant adverse effects on aquatic species such as salmon and steelhead. NEDC further alleges that waste heat discharges from the mill, when owned by BHPC's predecessor (Smurfit Newsprint Corporation ("Smurfit")) and now by BHPC, violate the terms and conditions of a National Pollutant Discharge Elimination System ("NPDES") permit. As such, NEDC alleges two claims: (1) for violation of Section 301(a) of the federal Clean Water Act and ORS 468B.025(2); and (2) for violation of ORS 468.025(1)(b) Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, BHPC argues that this court lacks subject matter jurisdiction over both of NEDC's claims.
ORS 468B.025(2) states: "No person shall violate the conditions of any waste discharge permit issued under ORS 468B.050."
ORS 468.025(1)(b) states that no person shall "[d]ischarge any wastes into the waters of the state if the discharge reduces the quality of such waters below the water quality standards established by rule of such waters by the Environmental Quality Commission."
DISCUSSION
I. Claim I: Clean Water Act Claim (and ORS 468B.025(2))
BHPC makes two arguments for why this court lacks subject matter jurisdiction over Claim 1: (a) NEDC has failed to allege Article III standing; and (b) NEDC's notice to BHPC fails to satisfy statutory requirements.
A. Standing
To satisfy Article III's standing requirements, a plaintiff must show:
(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.Friends of Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693, 704 (2000).
BHPC argues that NEDC has not adequately alleged an injury in fact. BHPC argues that NEDC has not pleaded how it or its members have suffered a particularized injury as a result of waste heat being discharged into the river in violation of the NPDES permit. Although BHPC acknowledges that NEDC has pleaded that its members fish in the river, and that NEDC alleges that warm river water hurts fish, BHPC argues that this is not enough.
I believe that NEDC has included enough in its Complaint to plead injury-in-fact, especially given its professed interest in the health of fish in the river. Nonetheless, I grant NEDC leave to amend its Complaint, as it has requested, to strengthen its standing allegations.
BHPC also makes the argument that NEDC fails to satisfy the second requirement for standing, i.e., that the injury is fairly traceable to actions of the defendant. BHPC argues that, in NEDC's notice to BHPC, NEDC only alleges violations by Smurfit rather than BHPC. As I explain further below, I reject this argument given that NEDC alleges in the notice that violations continue under BHPC's ownership of the mill.
B. Adequacy of Notice
A private entity can commence a suit under the Clean Water Act sixty days after sending notice of the alleged violation to the Administrator of the Environmental Protection Agency, the state in which the violation occurred, and the alleged violator. 33 U.S.C. § 1365 (b)(1)(A). The following details must be included in the notice:
[1] sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, [2] the activity alleged to constitute a violation, [3]the person or persons responsible for the alleged violation, [4] the location of the alleged violation, [5] the date or dates of such violation, and [6] the full name, address, and telephone number of the person giving notice.40 C.F.R. § 135.3 (a) (numbers added).
NEDC sent a notice to BHPC on June 26, 2000. In most respects, the notice is identical to notices that had been sent to Smurfit before BHPC had acquired the mill on May 9, 2000. Significantly, the notice to BHPC includes allegations and supporting data that had been submitted earlier by NEDC to Smurfit. Because the notice recites specific violations that could only have occurred before BHPC took over the mill, and does not recite specific dates on which violations occurred after BHPC owned the mill, BHPC argues that the notice is defective. To emphasize this point BHPC argues that the nature of the sale of the mill prevents BHPC from having any successor liability for Smurfit's actions.
I find BHPC's arguments to be unpersuasive for the following reasons. First, the notice to BHPC contains explicit allegations that BHPC is continuing to violate the Clean Water Act through its discharges of waste heat into the river. As such, NEDC was not limiting its allegations to Smurfit's actions. Second, the information included in the notice about Smurfit's operations could only help BHPC and the Oregon Department of Environmental Quality ("DEQ") to understand what NEDC was alleging and assist BHPC and DEQ in identifying any violations, thus allowing the notice to serve its essential functions. See Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995) (purposes of sixty-day notice are to provide an opportunity for the parties to resolve their conflicts in a nonadversarial time period and to alert appropriate government agencies so that administrative action may provide relief and avoid court involvement). I recognize that the notice does not state any particular dates on which violations occurred after BHPC took control of the mill. Nevertheless, given the date of the notice (June 26, 2000) and the date that BHPC took over the mill's operations (May 9, 2000), the notice effectively alleges a short time period in which violations by BHPC could have occurred. Given this limited time period, and that the notice alleges that BHPC violates the law essentially on a daily basis through its waste heat discharges, I decline to find the notice defective for failing to list particular dates of alleged violations.
Because NEDC's allegations are not limited to Smurfit's actions, a determination of whether BHPC has successor liability for Smurfit's actions is not dispositive. Moreover, the issue of successor liability presents fact questions that should be addressed in a summary judgment motion and not resolved at this juncture. Nevertheless, based on the current record, I note that NEDC may be overreaching in its argument that BHPC has successor liability for Smurfit's actions. If NEDC decides to file an amended complaint as allowed in other portions of this opinion, I suggest that it evaluate whether to eliminate its allegations and requests for relief related to mill operations prior to the date that BHPC assumed control of the mill.
Because I find that NEDC has adequately pleaded standing, and that its notice to BHPC is not deficient, I deny BHPC's motion to dismiss as to Claim 1.
Given this ruling, I do not reach the question of whether adequate notice under the Clean Water Act is jurisdictional.
II. Claim 2: Claim Under ORS 468.025(1)(b)
BHPC argues that NEDC cannot bring a claim under ORS 468.025(1)(b) because there is no provision for a private right of action. I find BHPC's argument on this point to be persuasive.
As noted above, ORS 468.025(1)(b) states that no person shall "[d]ischarge any wastes into the waters of the state if the discharge reduces the quality of such waters below the water quality standards established by rule of such waters by the Environmental Quality Commission." Other statutes make clear that the DEQ is charged with enforcing this and related water pollution statutes. ORS 468.090; 468B.032(1). There is, however, no provision that allows for private parties to sue to enforce such statutes.
In Serles v. Beneficial Oregon, Inc., 91 Or. App. 697, 756 P.2d 1266 (1988), the Oregon Court of Appeals held that there is no private right of action to enforce ORS 725.060, which prohibits false or deceptive advertising. The court held that where a statute is silent as to private enforcement rights, courts may recognize a claim by a private citizen only when it is necessary to carry out the policy of the statute. Id. at 703. The court went on to find that, because the Director of the Department of Insurance and Finance has authority to enforce ORS 725.060, there is no need to recognize a private cause of action to carry out the statutory policy. Id. This same logic applies in this case and prevents the court from implying a private right of action as NEDC asserts. The motion to dismiss is granted against Claim 2.
At oral argument, counsel for NEDC essentially conceded that Claim 2, as pleaded, is not viable and indicated that NEDC may like the opportunity to replead the claim in the form of common law tort. NEDC is granted leave to make such a change in an amended complaint.
CONCLUSION
The motion to dismiss (#4) by defendant Blue Heron Paper Company is granted in part and denied in part.
IT IS SO ORDERED.