Coastal Environmental Rights Foundation v. American Recycling International, Inc., No. 3:2017cv00425 - Document 23 (S.D. Cal. 2017)
Court Description: ORDER Denying Defendant's 7 Motion to Dismiss. Signed by Judge Cynthia Bashant on 12/8/2017. (mxn)
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Coastal Environmental Rights Foundation v. American Recycling International, Inc. Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COASTAL ENVIRONMENTAL RIGHTS FOUNDATION, 12 13 14 15 16 Case No. 17-cv-00425-BAS-JMA ORDER DENYING DEFENDANT’S MOTION TO DISMISS Plaintiff, v. AMERICAN RECYCLING INTERNATIONAL, INC. dba LKQ PICK YOUR PART OCEANSIDE, [ECF No. 7] Defendant. 17 18 Plaintiff Coastal Environmental Rights Foundation brings this lawsuit against 19 Defendant American Recycling International, Inc., which is doing business as LKQ 20 Pick Your Part Oceanside, for violations of the Federal Water Pollution Control Act, 21 33 U.S.C. §§ 1251–1387 (“Clean Water Act” or “CWA”). 22 Presently before the Court is Defendant’s motion to dismiss Plaintiff’s action 23 for lack of subject matter jurisdiction and for failure to state a claim. (ECF No. 7.) 24 Defendant argues that dismissal is proper because (i) Plaintiff’s sixty-day pre-suit 25 notice does not meet the Clean Water Act’s requirements and (ii) Plaintiff’s legal 26 theories rely on a misinterpretation of the permit that governs Defendant’s storm 27 water discharges. (Id.) Plaintiff opposes. (ECF No. 14.) 28 –1– 17cv0425 Dockets.Justia.com 1 The Court finds this motion suitable for determination on the papers submitted 2 and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the 3 reasons discussed below, the Court DENIES Defendant’s motion to dismiss. 4 5 BACKGROUND 6 Plaintiff is a California non-profit public benefit corporation with its office in 7 Encinitas, California. (Compl. ¶¶ 7–8, ECF No. 1.) The public and members of 8 Plaintiff’s organization use the San Luis Rey River—a river located in northern San 9 Diego County—and the Pacific Ocean to “fish, sail, boat, kayak, surf, swim, scuba 10 dive, birdwatch, view wildlife, and to engage in scientific studies.” (Id. ¶¶ 10–11.) 11 Plaintiff alleges that Defendant’s storm water discharges from its industrial facility 12 into the San Luis Rey River, and ultimately the Pacific Ocean, affect and impair each 13 of these uses and thus pose a continuous threat to Plaintiff’s members’ interests. (Id. 14 ¶¶ 5, 12.) 15 16 Defendant’s Industrial Operations 17 Defendant is a California corporation that operates an industrial facility in 18 Oceanside, California. (Compl. ¶¶ 5, 14.) This facility is a fourteen-acre automobile 19 salvage establishment that is classified under “standard industrial classifications 20 (SIC) code . . . 5015,” which applies to “establishments primarily engaged in 21 dismantling used motor vehicles for the purpose of selling parts.” (Id. ¶ 44.) 22 More specifically, Defendant’s relevant industrial activities include “junk 23 vehicle storage, vehicle loading and unloading, battery removal, dismantling, cutting 24 and baling, and vehicle maintenance, fueling, and washing activities.” (Compl. ¶ 45.) 25 Potential pollutant sources involved in these activities include: “scrap metal outdoor 26 storage areas; oil and lubricant storage; battery storage areas; equipment and 27 container storage areas; loading and unloading areas; maintenance areas; hazardous 28 waste storage areas; and the on-site material handling equipment such as forklifts.” –2– 17cv0425 1 (Id. ¶ 64.) Particularly, Plaintiff describes “containers stored on-Site that are 2 uncovered and/or uncontained” as potential sources of pollutants, (id. ¶ 67), and 3 alleges that Defendant’s pollution control protocols are inadequate to prevent 4 contamination of storm water, (id. ¶ 72). 5 As a result of Defendant’s industrial activities and alleged inadequate controls, 6 Plaintiff contends that “particulates from operations, oil, grease, suspended solids, 7 hazardous waste, phosphorous, and metals such as aluminum, iron, copper, lead, and 8 zinc materials are exposed to storm water” at the facility. (Compl. ¶ 48.) Plaintiff 9 further alleges that this contaminated storm water is then discharged “into the City 10 of Oceanside’s storm water conveyance systems or directly to the San Luis Rey 11 River” from a single discharge point, (id. ¶ 49), where it causes or contributes “to the 12 impairment of water quality in the San Luis Rey River,” (id. ¶ 55). To support its 13 allegations, Plaintiff presents Defendant’s storm water sampling data from May 14 2016, which show measurements of various pollutants in excess of water quality 15 criteria found in the Water Quality Control Plan for the San Diego Basin 1 and 16 promulgated by the U.S. Environmental Protection Agency (“EPA”). (Id. ¶¶ 57, 77– 17 81.) 18 19 20 21 22 23 24 25 26 27 28 1 The California Water Code requires each regional water board to “formulate and adopt water quality control plans for all areas within the region.” Cal. Water Code § 13240. This case implicates the California Regional Water Quality Control Board for the San Diego Region (“Regional Water Board”). See id. § 13200(f). The Regional Water Board has adopted the Water Quality Control Plan for the San Diego Basin (“San Diego Basin Plan”). Cal. Code Regs. tit. 23, § 3983; San Diego Basin Plan (as amended May 17, 2016), https://www.waterboards.ca.gov/sandiego/water_issues/programs/basin_plan/. The San Diego Basin Plan “is designed to preserve and enhance water quality and protect the beneficial uses of all regional waters.” San Diego Basin Plan at 1-1. In particular, “the Basin Plan: (1) designates beneficial uses for surface and ground waters; (2) sets narrative and numerical objectives that must be attained or maintained to protect the designated beneficial uses and conform to the state’s antidegradation policy; (3) describes implementation programs to protect the beneficial uses of all waters in the Region; and (4) describes surveillance and monitoring activities to evaluate the effectiveness of the Basin Plan.” Id. –3– 17cv0425 Alleged Clean Water Act Violations 1 2 Based on this backdrop, Plaintiff alleges that since Defendant commenced its 3 operations in July 2015, Defendant has discharged contaminated storm water in 4 violation of the Clean Water Act and the requirements of California’s National 5 Pollution Discharge Elimination System (“NPDES”) General Permit for Storm Water 6 Discharges Associated with Industrial Activities (“Permit”). (Compl. ¶¶ 5, 76–82, 7 85, 102–12; see also Permit, Def.’s Req. for Judicial Notice (“RJN”) Ex. A, ECF No. 8 8-1.) Likewise, Plaintiff alleges that Defendant has failed to develop and implement 9 a Storm Water Pollution Prevention Plan (“Pollution Prevention Plan”) that meets 10 the requirements of the NPDES Permit. 2 (Compl. ¶¶ 84, 122–29.) 11 More specifically, Plaintiff asserts that Defendant’s industrial activities and 12 corresponding Pollution Prevention Plan have violated the following substantive and 13 procedural requirements of the Permit. First, Plaintiff contends that Defendant has 14 failed to identify and implement site-specific Best Management Practices to reduce 15 or prevent the discharge of pollutants. (Compl. ¶¶ 83, 86.) In addition, Plaintiff 16 alleges a pattern of ongoing noncompliance with various storm water monitoring and 17 reporting requirements. (Id. ¶¶ 98–101.) Plaintiff asserts that Defendant has failed to 18 (i) implement an adequate Monitoring & Reporting Program3 as a component of the 19 Pollution Prevention Plan, (ii) conduct required sampling of storm water for 20 pollutants, and (iii) submit accurate reports of sampling data to the State Water 21 Board. (Id. ¶¶ 98–101, 130–33, 140–42, 145–46.) Finally, Plaintiff alleges that 22 Defendant has failed to meet certain remedial Permit requirements after its samples 23 2 24 25 26 27 28 The Permit and its accompanying Fact Sheet provide definitions for various terms used throughout this order. (See generally Permit Glossary, Permit Attachment C; Permit Fact Sheet.) The Court capitalizes these terms in this order to signify that—unless otherwise noted—the Court is borrowing the terms’ meanings from the Permit. 3 Permit § XI requires dischargers to complete an assortment of monitoring and reporting requirements, including visual observations and storm water sampling. Further, Permit § X.I requires dischargers to include in their Pollution Prevention Plans a “Monitoring Implementation Plan” for executing the Permit’s monitoring and reporting requirements. The Court uses the term “Monitoring & Reporting Program” to refer to these requirements. –4– 17cv0425 1 showed excessive discharges of pollutants. (Id. ¶¶ 158–60; Pre-Suit Notice 3, Compl. 2 Ex. A.) 3 Pursuant to the CWA, Plaintiff issued a sixty-day pre-suit notice (“Pre-Suit 4 Notice”) to Defendant on December 21, 2016, regarding its alleged violations of the 5 CWA and Plaintiff’s intention to file suit against Defendant. See 33 U.S.C. § 6 1365(b)(1)(A). (See also Pre-Suit Notice, Compl. Ex. A.) 4 Plaintiff also submitted 7 the Notice to the Administrator of the EPA, the Administrator of EPA Region IX, the 8 Executive Director of the State Water Board, and the Executive Officer of the 9 Regional Water Board. (Compl. ¶ 2.) Plaintiff then filed its Complaint against 10 Defendant on March 1, 2017. Defendant now moves to dismiss the Complaint for 11 lack of subject matter jurisdiction and several of Plaintiff’s causes of action for failure 12 to state a claim upon which relief may be granted.5 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Courts usually may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). “A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Because Plaintiff attached its Pre-Suit Notice to the Complaint and incorporated the document therein, (Compl. ¶ 2, Ex. A), the Court considers it in adjudicating the instant motion to dismiss, see Ritchie, 342 F.3d at 908. 5 Defendant requests that this Court take judicial notice of the 2015 Permit (Def.’s RJN Ex. A); the previous version of the Permit (id. Ex. B); Defendant’s most recent sampling data (id. Ex. C); its Level 1 Exceedance Response Action Report (id. Ex. D); and its 2015 Pollution Prevention Plan (id. Ex. E). The Court may take judicial notice of facts not subject to reasonable dispute if they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b)(2). That Defendant’s sampling data, response report, and Pollution Prevention Plan have been filed with the State Water Board as public records is a fact subject to judicial notice. Similarly, the Court may take judicial notice of what these documents contain. The Court will not, however, consider Defendant’s administrative filings as evidence of the truth of any assertions made therein. See, e.g., Romero v. Securus Techs., Inc., 216 F. Supp. 3d 1078, 1084 n.1 (S.D. Cal. 2016) (“While matters of public record are proper subjects of judicial notice, a court may take notice only of the existence and authenticity of an item, not the truth of its contents.”). The Court may also take judicial notice of administrative orders, rules, and guidance, such as the State Water Board’s storm water permits. See, e.g., United States v. Woods, 335 F.3d 993, 1000–01 (9th Cir. 2003). Hence, the Court grants Defendant’s request to take judicial notice of the two versions of the Permit. Likewise, the Court also grants Plaintiff’s request to judicially notice the San Diego Basin Plan (Pl.’s RJN Ex. 1, ECF No. 16) and the EPA’s NPDES Permit Writers’ Manual (id. Ex. 2), which are also matters of public record. –5– 17cv0425 1 2 SUBJECT MATTER JURISDICTION Legal Standard 3 A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil 4 Procedure challenges the court’s jurisdiction over the subject matter of the complaint. 5 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 6 Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by 7 Constitution or a statute, which is not to be expanded by judicial decree.” Id. 8 (citations omitted). “It is to be presumed that a cause lies outside this limited 9 jurisdiction and the burden of establishing the contrary rests upon the party asserting 10 jurisdiction.” Id. (citations omitted); see also Abrego Abrego v. Dow Chem. Co., 443 11 F.3d 676, 684 (9th Cir. 2006). 12 Federal district courts have “original jurisdiction of all civil actions arising 13 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A 14 plaintiff invoking this jurisdiction must show “the existence of whatever is essential 15 to federal jurisdiction,” and if the plaintiff fails to do so, the court “must dismiss the 16 case, unless the defect [can] be corrected by amendment.” Tosco Corp. v. Cmtys. for 17 a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam) (quoting Smith v. 18 McCullough, 270 U.S. 456, 459 (1926)), abrogated on other grounds by Hertz Corp 19 v. Friend, 559 U.S. 77 (2010). 20 Further, the doctrines of ripeness and mootness also relate to a federal court’s 21 subject matter jurisdiction, and so challenges to a claim on either ground are properly 22 raised in a Rule 12(b)(1) motion. Chandler v. State Farm Mut. Auto. Ins. Co., 598 23 F.3d 1115, 1122 (9th Cir. 2010); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). 24 25 Analysis 26 Defendant moves to dismiss for lack of subject matter jurisdiction under Rule 27 12(b)(1). Defendant makes two jurisdictional challenges. At the threshold, Defendant 28 argues that Plaintiff’s Pre-Suit Notice is insufficient to confer jurisdiction over this –6– 17cv0425 1 citizen suit under the Clean Water Act. (Mot. 11:1–15:21.) Next, Defendant contends 2 that it voluntarily ceased the conduct underlying several of the alleged Clean Water 3 Act violations before Plaintiff commenced this action. (Id. 25:11–28:20.) Thus, 4 Defendant argues three of Plaintiff’s causes of action are moot. (Id.) As explained 5 below, the Court rejects these challenges. 6 7 The Clean Water Act’s Pre-Suit Notice Requirements 8 For a court to have jurisdiction over a CWA citizen suit, the plaintiff must have 9 “given notice of the alleged violation (i) to the [EPA’s] Administrator, (ii) to the State 10 in which the alleged violation occurs, and (iii) to any alleged violator” at least sixty 11 days before commencing the action. 33 U.S.C. § 1365(b)(1)(A). Adequate notice 12 must “include sufficient information to permit the recipient to identify”: (1) “the 13 specific standard, limitation, or order alleged to have been violated”; (2) “the activity 14 alleged to constitute a violation”; (3) “the person or persons responsible for the 15 alleged violation”; (4) “the location of the alleged violation”; (5) “the date or dates 16 of such violation”; and (6) “the full name, address, and telephone number of the 17 person giving notice” and “of the legal counsel, if any, representing the person giving 18 the notice.” 40 C.F.R. § 135.3(a), (c). This requirement serves the dual purposes of 19 allowing the violator time to bring itself into compliance with the CWA and alerting 20 appropriate agencies so that administrative action may provide relief. See Gwaltney 21 of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987). The Ninth 22 Circuit has embraced “a strict construction of the notice requirement” as “best 23 further[ing] the statute’s goal[s].” See Wash. Trout v. McCain Foods, Inc., 45 F.3d 24 1351, 1354 (9th Cir. 1995); see also Cmty. Ass’n for Restoration of the Env’t v. Henry 25 Bosma Dairy, 305 F.3d 943, 950–51 (9th Cir. 2002). 26 Defendant argues that Plaintiff’s Pre-Suit Notice is insufficient to confer 27 jurisdiction over this citizen suit on two grounds. First, Defendant attacks the Notice 28 because although the letter identifies the contact information for Plaintiff’s counsel, –7– 17cv0425 1 it does not specifically identify Plaintiff’s contact information. (Mot. 12:17–14:2.) 2 Consequently, Defendant argues the Notice does not meet the “strict construction of 3 the notice requirement” embraced by the Ninth Circuit in cases like Washington 4 Trout v. McCain Foods, Inc., 45 F.3d at 1354. 5 To illustrate, in Washington Trout, three plaintiffs brought a citizen suit against 6 the defendant. 45 F.3d at 1352. Only one of these plaintiffs had sent a pre-suit notice, 7 which was sent on behalf of itself, “among perhaps others.” Id. at 1352. Thus, the 8 notice did not “furnish the identity, address, and phone number” of the other two 9 plaintiffs. Id. Subsequently, the plaintiff who sent the pre-suit notice was dismissed 10 from the suit, leaving the two unidentified plaintiffs in the action. Id. The Ninth 11 Circuit held that the single notice was inadequate to confer jurisdiction over the 12 remaining two plaintiffs’ citizen suit. Id. at 1354–55. The court reasoned that because 13 the defendant did not know “other plaintiffs were involved,” it was “not in a position 14 to negotiate with the plaintiffs or seek an administrative remedy.” See id. at 1354. In 15 other words, the pre-suit notice was insufficient because it “made any sort of 16 resolution between the parties during the notice period an impossibility.” See id. The 17 Ninth Circuit held the district court therefore correctly dismissed the action for lack 18 of subject matter jurisdiction. Id. at 1355. 19 Plaintiff’s Pre-Suit Notice is readily distinguishable from the deficient notice 20 provided in Washington Trout. Unlike that case, there is only one plaintiff here. 21 Further, Plaintiff’s Pre-Suit Notice includes Plaintiff’s full name as well as that of its 22 counsel. (Pre-Suit Notice 1.) Given that the Pre-Suit notice identifies the relevant 23 parties, indicates that Plaintiff is represented by counsel, provides Plaintiff’s 24 counsel’s contact information, and requests that all communications to Plaintiff be 25 directed to its counsel, “[t]here can be no doubt about with whom [Defendant] needed 26 to conduct negotiations.” See Nat. Res. Def. Council, Inc. v. Sw. Marine, Inc. (“NRDC 27 I”), 945 F. Supp. 1330, 1333 (S.D. Cal. 1996), aff’d, 236 F.3d 985 (9th Cir. 2000) 28 (finding that a notice letter was adequate where it provided the required information –8– 17cv0425 1 for a plaintiff organization but did not provide separate contact information for the 2 organization’s executive director, an individual plaintiff). As a result, the Pre-Suit 3 Notice is sufficient to meet the regulation’s objective of “provid[ing] a period for 4 nonadversarial negotiation, which would be circumvented by failing to identify all of 5 the parties involved.” See N. Cal. River Watch v. Fluor Corp., No. 10-CV-05105- 6 MEJ, 2014 WL 3385287, at *14 (N.D. Cal. July 9, 2014); see also Wash. Trout, 45 7 F.3d at 1354. 8 Moreover, Plaintiff’s Pre-Suit Notice meets the technical requirements of 40 9 C.F.R. § 135.3(a), (c) in that it does provide “the full name, address, and telephone 10 number” of both “the person giving notice” (Plaintiff) and “the legal counsel, if any, 11 representing the person giving the notice.” (See Pre-Suit Notice 1.) While the Pre- 12 Suit Notice does not explicitly identify Plaintiff’s contact information, the 13 organization shares the same phone number and address as its counsel. (See Pre-Suit 14 Notice 1, 9; see also Compl. ¶ 8.) 6 Accordingly, the Court rejects Defendant’s first 15 challenge to the sufficiency of the Pre-Suit Notice. 16 Second, Defendant argues dismissal is warranted because Plaintiff’s nine-page 17 Pre-Suit Notice fails to identify the industrial activities that underlie Plaintiff’s causes 18 of action. (Mot. 14:3–15:21.) This argument runs contrary to the contents of the 19 Notice. The Pre-Suit Notice identifies Defendant’s facility as an “automobile salvage 20 yard[]” classified in Defendant’s Pollution Prevention Plan under SIC code 5015. 21 22 23 24 25 26 27 28 6 The Court also notes that Plaintiff’s address is a matter of public record, discernable with only a few keystrokes. The Pre-Suit Notice includes Plaintiff’s legal name and identifies it as “a non-profit public benefit corporation organized under the laws of the State of California with its main office in Encinitas, CA.” (Pre-Suit Notice 2.) A free, online search of California’s Secretary of State’s business records, which involves no more than typing Plaintiff’s name into a search box, reveals Plaintiff’s registered address is 1140 S. Coast Highway 101, Encinitas, CA 92024. Business Search – Results, Cal. Sec’y of State, https://businesssearch.sos.ca.gov/ (enter search criteria “Coastal Environmental Rights Foundation”). This address is the same one found in the Pre-Suit Notice. Simply put, this case is not one where the claimed defects in Plaintiff’s Pre-Suit Notice “made any sort of resolution between the parties during the notice period an impossibility.” See Wash. Trout, 45 F.3d at 1354. –9– 17cv0425 1 (Pre-Suit Notice 5–6.) In light of Defendant’s knowledge of its own automobile 2 salvage activities, the definition of SIC code 5015,7 and the single storm water 3 discharge point at issue, Defendant cannot plausibly claim that it was not “well aware 4 of the relevant parties involved, the activities that took place on the Site, and the 5 person or persons allegedly responsible.” See N. Cal. River Watch, 2014 WL 6 3385287, at *14; see also Henry Bosma Dairy, 305 F.3d at 951 (“The key language 7 in the notice regulation is the phrase ‘sufficient information to permit the recipient to 8 identify’ the alleged violations and bring itself into compliance.” (quoting 40 C.F.R. 9 § 135.3(a))). Furthermore, Plaintiff’s Pre-Suit Notice goes on to allege that 10 Defendant is engaged in scrap metal and recycling activities not adequately captured 11 by SIC code 5015 or by its Pollution Prevention Plan. (Pre-Suit Notice 6.) 12 Finally, many of Plaintiff’s allegations relate to Defendant’s inadequate 13 development and implementation of its Pollution Prevention Plan and corresponding 14 Monitoring & Reporting Program. (See generally Pre-Suit Notice.) Accordingly, 15 insofar as the “suit is about the failure to prepare environmental compliance and 16 monitoring plans for an entire facility . . . it is legitimate to allege that the violations 17 are occurring at the facility in general.” See NRDC I, 945 F. Supp. at 1333. Moreover, 18 Defendant’s sampling of two storm events in January 2017—three and four weeks 19 after it received Plaintiff’s Pre-Suit Notice claiming it had failed to conduct adequate 20 sampling—demonstrates that Defendant understood at least some of Plaintiff’s 21 allegations with respect to its deficient Monitoring & Reporting Program. See Nat. 22 Res. Def. Council v. Sw. Marine, Inc. (“NRDC II”), 236 F.3d 985, 997 (9th Cir. 2000) 23 (reasoning that the defendant “obviously understood at least some of the alleged 24 25 26 27 28 7 According to the Department of Labor, SIC code 5015 (Motor Vehicle Parts, Used) applies to “establishments primarily engaged in the distribution at wholesale or retail of used motor vehicle parts . . . [and] establishments primarily engaged in dismantling motor vehicles for the purpose of selling parts.” Dep’t of Labor, SIC Manual, Description for 5015: Motor Vehicle Parts, Used. These facilities are distinguished from “establishments primarily engaged in dismantling motor vehicles for scrap[, which] are classified in Industry 5093.” Id. – 10 – 17cv0425 1 violations” where the defendant “completely revised” its Pollution Prevention Plan 2 in response to the plaintiff’s letter). 3 Hence, to the extent Defendant argues that this Court lacks jurisdiction due to 4 the insufficiency of Plaintiff’s Pre-Suit Notice, the Court denies Defendant’s motion 5 to dismiss. 6 7 Continuous or Intermittent Clean Water Act Violations 8 The Court turns to Defendant’s argument that its voluntary cessation of 9 conduct has mooted part of Plaintiff’s action. “The CWA ‘does not permit citizen 10 suits for wholly past violations’; rather, the statute ‘confers jurisdiction over citizen 11 suits when the citizen-plaintiffs make a good-faith allegation of continuous or 12 intermittent violation.’” NRDC II, 236 F.3d at 998 (quoting Gwaltney, 484 U.S. at 13 64). Thus, a threshold to jurisdiction is that the plaintiff must allege “continuous or 14 intermittent ongoing NPDES permit violations.” Sierra Club v. Union Oil Co. of Cal., 15 853 F.2d 667, 670 (9th Cir. 1988). “The citizen plaintiff, however, need not prove 16 the allegations of ongoing noncompliance before jurisdiction attaches.” Id. at 669. 17 Rather, the plaintiff “need only satisfy the good-faith pleading requirements set forth 18 in Rule 11 of the Federal Rules of Civil Procedure.” Id. 19 Further, under the “‘voluntary cessation’ exception to mootness . . . the mere 20 cessation of illegal activity in response to pending litigation does not moot a case, 21 unless the party alleging mootness can show that the ‘allegedly wrongful behavior 22 could not reasonably be expected to recur.’” Rosemere Neighborhood Ass’n v. U.S. 23 Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting Friends of the 24 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). When a 25 defendant seeks to moot an action based on the voluntary cessation of the conduct 26 constituting a violation, courts apply a “stringent” standard. Laidlaw Envtl. Servs., 27 528 U.S. at 189. Indeed, the defendant bears “[t]he ‘heavy burden of persua[sion]’ 28 . . . that the allegedly wrongful behavior could not reasonably be expected to recur.” – 11 – 17cv0425 1 Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 2 203 (1968)). 3 Defendant moves to dismiss Plaintiff’s fourth, fifth, and sixth causes of action 4 as “wholly past” and fully cured in light of its two storm water sampling reports from 5 January 2017. (Mot. 25:17–22, 27:10–20.) These causes of action allege that 6 Defendant has continuously failed to implement an adequate Monitoring & 7 Reporting Program, to conduct required storm water sampling, and to submit 8 accurate reports related to its storm water discharges. (Compl. ¶¶ 130–55.) Plaintiff 9 contends that Defendant’s activities, including its inadequate implementation of its 10 Pollution Prevention Plan and corresponding Monitoring & Reporting Program, have 11 not been fully remedied and thus continue to adversely impact Plaintiff’s interests. 12 (Id. ¶¶ 5, 12, 69–71, 86, 98–101, 153.) Plaintiff therefore sufficiently pleads 13 “continuous or intermittent ongoing NPDES permit violations.” See Sierra Club, 853 14 F.2d at 670. And, because Plaintiff meets this requirement, the CWA confers 15 jurisdiction over these claims. See NRDC II, 236 F.3d at 998. 16 In addition, the Court rejects Defendant’s position that its voluntary cessation 17 of conduct has mooted some of Plaintiff’s claims. Initially, there are evidentiary 18 concerns with Defendant’s attempt to rely on only judicial notice of administrative 19 filings to establish that it has now complied with Permit requirements. (See Pl.’s 20 Opp’n to Def.’s RJN, ECF No. 15.) See also, e.g., Romero, 216 F. Supp. 3d at 1084 21 n.1 (“While matters of public record are proper subjects of judicial notice, a court 22 may take notice only of the existence and authenticity of an item, not the truth of its 23 contents.”) Regardless, however, the Court finds Defendant’s sampling reports taken 24 within a single month this year and its other administrative submissions do not meet 25 Defendant’s “heavy burden” to show “that the allegedly wrongful behavior could not 26 reasonably be expected to recur.” See Laidlaw Envtl. Servs., 528 U.S. at 189 (quoting 27 Concentrated Phosphate Export Ass’n, 393 U.S. at 203); see also Sierra Club, 853 28 – 12 – 17cv0425 1 F.2d at 669 (“The defendant must show that ‘there is no reasonable expectation that 2 the wrong will be repeated.’”). 3 Accordingly, because Plaintiff alleges a continuous and ongoing pattern of 4 noncompliance with Permit requirements, and because Defendant does not meet its 5 burden to demonstrate the claims are now moot, the Court denies Defendant’s motion 6 to dismiss Plaintiff’s fourth, fifth, and sixth causes of action for lack of jurisdiction 7 on mootness grounds. 8 9 10 FAILURE TO STATE A CLAIM Legal Standard 11 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 12 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 13 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must 14 accept all factual allegations pleaded in the complaint as true and must construe them 15 and draw all reasonable inferences from them in favor of the nonmoving party. 16 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). To avoid a 17 Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; 18 rather, it must plead “enough facts to state a claim to relief that is plausible on its 19 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial 20 plausibility when the plaintiff pleads factual content that allows the court to draw the 21 reasonable inference that the defendant is liable for the misconduct alleged.” 22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 23 “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 24 liability, it stops short of the line between possibility and plausibility of ‘entitlement 25 to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). 26 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 27 relief’ requires more than labels and conclusions, and a formulaic recitation of the 28 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting – 13 – 17cv0425 1 Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need 2 not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference 3 the court must pay to the plaintiff’s allegations, it is not proper for the court to assume 4 that “the [plaintiff] can prove facts that [he or she] has not alleged or that the 5 defendants have violated the . . . laws in ways that have not been alleged.” See 6 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 7 U.S. 519, 526 (1983). 8 9 Analysis 10 Defendant moves under Rule 12(b)(6) to dismiss Plaintiff’s first, second, third, 11 fourth, and seventh causes of action for failure to state a claim. As explained below, 12 the Court finds that Plaintiff pleads sufficient facts for these causes of action “to state 13 a claim to relief that is plausible on its face.” See Twombly, 550 U.S. at 570. Before 14 turning to these claims, however, the Court first reviews the Clean Water Act’s 15 permitting scheme that serves as the foundation for all of Plaintiff’s causes of action. 16 17 The Clean Water Act’s Permitting Scheme 18 “The objective of the Clean Water Act is to restore and maintain the 19 ‘chemical, physical and biological integrity of [the] Nation’s waters.’” Santa Monica 20 Baykeeper v. Int’l Metals Ekco, Ltd., 619 F. Supp. 2d 936, 939–40 (C.D. Cal. 2009) 21 (alteration in original) (quoting 33 U.S.C. § 1251(a)). Accordingly, the Clean Water 22 Act prohibits “the discharge of any pollutant by any person” into waters of the United 23 States except when discharged in compliance with a National Pollution Discharge 24 Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342. Consequently, 25 any person who discharges pollutants is required to submit an NPDES permit 26 application and comply with the applicable permitting conditions. 40 C.F.R. § 27 122.21. “Where a permittee discharges pollutants in compliance with the terms of its 28 NPDES permit, the permit acts to ‘shield’ the permittee from liability under the – 14 – 17cv0425 1 CWA.” Nat. Res. Def. Council, Inc. v. Cty. of Los Angeles, 725 F.3d 1194, 1204 (9th 2 Cir. 2013) (citing 33 U.S.C. § 1342(k)). However, “[a]ny permit noncompliance 3 constitutes a violation of the Clean Water Act and is grounds for enforcement action.” 4 40 C.F.R. § 122.41. Indeed, “[a] party is strictly liable for NPDES Permit violations 5 under the Clean Water Act; and there are no exceptions for minimal violations or 6 mistakes.” Cal. Sportfishing Prot. All. v. River City Waste Recyclers, LLC, 205 F. 7 Supp. 3d 1128, 1151 (E.D. Cal. 2016). 8 9 California’s General Industrial Permit 10 Under the Clean Water Act, the Administrator of the EPA possesses the 11 authority to issue permits under the NPDES, but that authority may be delegated to 12 the states. 33 U.S.C. § 1342(b). The State of California has been granted permitting 13 authority and has issued the Permit implicated here, which applies to industrial storm 14 water discharges. (Permit, Def.’s RJN Ex. A, ECF No. 8-1.) 15 The parties agree that the Permit applies to Defendant’s industrial activities. 16 (See Compl. ¶ 44; Def.’s RJN Exs. A, B.) Defendant uses SIC code 5015 (Motor 17 Vehicle Parts, Used) for its facility, (Def.’s RJN Ex. C), but Plaintiff alleges that code 18 5093 (Scrap and Waste Materials) is the more appropriate SIC code for Defendant’s 19 “scrap metal and recycling activities,” (Pre-Suit Notice 6). 20 The Court’s task at this point is to determine what Plaintiff is “required to show 21 in order to [allege a violation] of this particular NPDES permit.” See Cty. of Los 22 Angeles, 725 F.3d at 1205 (emphasis in original). This analysis requires that the Court 23 interpret the Permit, which is “treated like any other contract.” See id. at 1204. “If the 24 language of the permit, considered in light of the structure of the permit as a whole, 25 ‘is plain and capable of legal construction, the language alone must determine the 26 permit’s meaning.’” Id. at 1204–05 (quoting Piney Run Pres. Ass’n v. Cty. Comm’rs 27 of Carroll Cty., 268 F.3d 255, 270 (4th Cir. 2001)). “If, however, the permit’s 28 – 15 – 17cv0425 1 language is ambiguous,” the Court may consider extrinsic evidence in interpreting its 2 terms. See id. at 1205. 3 The Permit imposes several types of conditions on storm water dischargers, 4 including: Effluent Limitations, Receiving Water Limitations, and mandatory 5 development and implementation of a Pollution Prevention Plan and corresponding 6 Monitoring & Reporting Program. The Court will address each of these conditions, 7 as well as Plaintiff’s corresponding claims, in turn. 8 Effluent Limitations 9 10 The Court starts with the Permit’s Effluent Limitations, which are contained 11 in § V of the Permit and are implicated by Defendant’s challenges to Plaintiff’s 12 second and seventh causes of action. 13 An “Effluent” is “[a]ny discharge of water either to the receiving water or 14 beyond the property boundary controlled by the Discharger.” (Permit Glossary 2.) 15 Thus, an “Effluent Limitation” is “[a]ny numeric or narrative restriction imposed on 16 quantities, discharge rates, and concentrations of pollutants that are discharged from 17 point sources into waters of the United States, waters of the contiguous zone, or the 18 ocean.” (Id.) 19 The Permit incorporates a form of Effluent Limitations that are referred to as 20 Technology-Based Effluent Limitations. (Permit Fact Sheet § II.D.) These 21 limitations are narrative restrictions based on § 301(b) of the Clean Water Act. (Id.; 22 Permit § I.D.31.) See also 33 U.S.C. § 1311; 40 C.F.R. §§ 122.44, 125.3. As explored 23 below, the Permit’s primary Effluent Limitation is that dischargers must implement 24 certain Best Management Practices at their facilities, and the Permit also uses 25 sampling of Effluents to potentially trigger additional obligations under a 26 performance measurement system. 27 28 – 16 – 17cv0425 Best Management Practices 1 2 Dischargers are required to implement Best Management Practices (“BMPs”) 3 that comply with the Best Available Technology Economically Achievable and Best 4 Conventional Pollutant Control Technology standards to reduce or prevent pollutants 5 in storm water discharges. (Permit §§ I.A.1, D.32, V.A.) BMPs are defined broadly 6 to encompass “scheduling of activities, prohibitions of practices, maintenance 7 procedures, and other management practices to reduce or prevent the discharge of 8 pollutants . . . includ[ing] treatment requirements, operating procedures, and practices 9 to control site runoff, spillage or leaks.”8 40 C.F.R. § 122.2. (Accord Permit Glossary 10 2.) 11 To comply with the Permit’s Effluent Limitations, dischargers must implement 12 the Permit’s “minimum BMPs, as well as any advanced BMPs that are necessary to 13 adequately reduce or prevent pollutants in discharges.” (Permit Fact Sheet § II.D; see 14 also Permit § X.H.1–2.) As explained by the Permit Factsheet, the Effluent 15 Limitations “are based on best professional judgment and are nonnumeric 16 (‘narrative’) technology-based effluent limitations expressed as requirements for 17 implementation of effective BMPs.” (Permit Fact Sheet § II.D.3.) These narrative 18 restrictions are used because it “is infeasible for the State Water Board to develop 19 numeric effluent limitations.” (Id. § II.D.4.) Accordingly, “[i]t is up to the Discharger, 20 in the first instance, to determine what must be done to meet the applicable effluent 21 limits.” (Id. § II.D.5.) “Dischargers are required to select, design, install and 22 23 24 25 26 27 28 8 To illustrate, as part of a hypothetical Pollution Prevention Plan, the Permit Fact Sheet lists potential BMPs a discharger may use to avoid fuel pollution while engaging in vehicle and equipment fueling activities. (Permit Fact Sheet Tbl. 2.) Potential BMPs in this setting might include: (1) using “dry cleanup methods” instead of washing down the fueling area; (2) training employees on proper fueling to avoid spills caused by topping off fuel tanks; and (3) regularly inspecting fueling areas to avoid pollution from leaking storage tanks. (Id.) – 17 – 17cv0425 1 implement BMPs . . . in a manner that reflects best industry practice considering their 2 technological availability and economic practicability and achievability.” (Id.) 3 4 Numeric Action Levels and Exceedance Response 5 Actions 6 In addition to Effluent Limitations that are based on the implementation of 7 adequate BMPs, the Permit incorporates “a multiple objective performance 8 measurement system” that may require a discharger to reevaluate its BMPs and 9 implement additional BMPs. (Permit § I.M.61; see also id. § XII.) This system is 10 designed “to inform Dischargers, the public, and the Water Boards on: (1) the overall 11 pollutant control performance at any given facility, and (2) the overall performance 12 of the industrial statewide storm water program.” (Id. § I.M.61.) 13 The performance measurement system revolves around Numeric Action 14 Levels (“NALs”). (See Permit §§ I.M.61–68, XII.) NALs are numeric parameters for 15 common storm water pollutants found in Table 2 of the Permit and “are established 16 as the [EPA’s] 2008 MSGP (Multi-Sector General Permit for Stormwater 17 Discharges) benchmark values.” (Id. § I.M.62.) If an NAL is exceeded, additional 18 obligations under the Permit are triggered. (See id. § XII.) An NAL exceedance 19 “occurs when the average of all analytical results from all samples taken at a facility 20 during a reporting year for a given parameter exceeds an annual NAL value” 21 provided in Table 2. (Id. § I.M.62.a.) To illustrate, the NAL for mercury is 0.0014 22 milligrams per liter. (Id. Tbl. 2.) Therefore, if the average from a discharger’s 23 sampling reveals 0.0085 milligrams of mercury per liter, there is an NAL exceedance. 24 (See id. § I.M.62.a, Tbl. 2.) 25 That said, NAL values are not used as Technology-Based Effluent Limitations, 26 and exceedances “are not, in and of themselves, [Permit] violations.” (Permit 27 § I.M.63.) Rather, a discharger who exceeds an NAL must perform Exceedance 28 Response Actions (“ERAs”). (Id. § XII, Permit Fact Sheet §§ I.D.6, II.K, Fig. 3 – 18 – 17cv0425 1 (“Permit Compliance Flowchart”).) “The ERAs are divided into two levels of 2 responses.” (Permit Fact Sheet § II.K.1.) 3 To explain, “if sampling results indicate an NAL exceedance,” the discharger’s 4 status changes from “Baseline” status to “Level 1” ERA status. (Permit § XII.C.) 5 Dischargers in Level 1 ERA status must take additional actions, including 6 (1) conducting an evaluation of potential sources of the NAL exceedance 7 and (2) identifying “the corresponding BMPs . . . and any additional BMPs and 8 [Pollution Prevention Plan] revisions necessary to prevent future NAL exceedances 9 and to comply with the [Permit’s] requirements.” (Id. § XII.C.1.b–c.) A failure to 10 comply with these requirements is a per se violation of the Permit. (Id. § I.M.63; see 11 also Permit Compliance Flowchart.) 12 If a discharger in Level 1 ERA status continues to have one or more NAL 13 exceedances in the following reporting year, the discharger enters Level 2 ERA 14 status. (Permit § XII.D.) Once again, these NAL exceedances are not per se violations 15 of the Permit, but a failure to then comply with the more stringent compliance 16 requirements of Level 2 ERA status is a violation. (Id.; see also Permit Compliance 17 Flowchart.) 18 These Permit requirements—that Defendant must (1) satisfy the Effluent 19 Limitations by implementing adequate BMPs and (2) comply with additional 20 obligations upon discovering an NAL exceedance—underpin Plaintiff’s second and 21 seventh causes of action. Defendant challenges both claims. (Mot. 21:13–24:17, 22 29:10–30:15.) 23 24 Inadequate Best Management Practices 25 Plaintiff’s second cause of action alleges that Defendant has failed to comply 26 with the Permit’s principal Effluent Limitation that requires dischargers to implement 27 adequate BMPs. (Compl. ¶¶ 114–15.) This claim is based in part on Defendant’s 28 sampling results, which show various NAL exceedances—including several reported – 19 – 17cv0425 1 concentrations that exceed the corresponding NAL values by a factor of ten or more.9 2 (See id. ¶ 114, Pre-Suit Notice 3.) But Plaintiff’s allegation that Defendant’s sampling 3 results show NAL exceedances is insufficient—by itself—to state a claim based on 4 this particular theory. As mentioned above, the Permit provides that “NAL 5 exceedances . . . are not, in and of themselves, violations.” (Permit § I.M.63.) 6 Consequently, Plaintiff must plead facts beyond simply NAL exceedances to state a 7 claim that Defendant has failed to implement adequate BMPs and thus is violating 8 the Permit’s principal Effluent Limitation. 9 Despite Defendant’s assertions to the contrary, Plaintiff meets this 10 requirement. In addition to alleging NAL exceedances, Plaintiff pleads specific 11 violations of the minimum BMPs set forth in Permit § X.H.1. Plaintiff describes 12 inadequate implementation of good housekeeping and preventive measures at the 13 facility, including Defendant’s failure to cover containers and other industrial 14 materials that are exposed to storm water. (Compl. ¶¶ 66–67.) Likewise, Plaintiff 15 alleges that Defendant has failed to ensure that its staff implements the minimum 16 monitoring and observation requirements pursuant to Permit § X.H.1.g. (See id. 17 ¶¶ 84, 130–53; Pre-Suit Notice 6–7.) 18 Accordingly, Plaintiff plausibly alleges that Defendant is violating the 19 Permit’s Effluent Limitations by failing to “implement BMPs that comply with 20 the . . . requirements of [the] Permit to reduce or prevent discharges of pollutants in 21 [its] storm water discharge in a manner that reflects best industry practice . . . .” (See 22 Permit § V.A.) The Court therefore denies Defendant’s motion to dismiss Plaintiff’s 23 second cause of action for failure to state a claim. 24 25 26 27 28 9 Compare Defendant’s reported concentrations of iron (13.3 mg/L), aluminum (8.17 mg/L), and copper (0.231 mg/L), (Pre-Suit Notice 3), with the corresponding NAL values (1.0 mg/L, 0.75 mg/L, and 0.0332 mg/L, respectively), (Permit Tbl. 2). – 20 – 17cv0425 1 Failure to Comply with Level 1 ERA Requirements 2 Plaintiff’s seventh cause of action goes on to allege that Defendant is out of 3 compliance with its Level 1 ERA status obligations under the Permit’s performance 4 measurement system—a per se violation of the Permit. (Compl. ¶¶ 156–64.) Plaintiff 5 contends that Defendant’s sampling results show NAL exceedances for copper and 6 zinc, but Defendant failed to address these exceedances in its Level 1 ERA plan. (Id. 7 ¶¶ 158–60.) Defendant challenges this theory, asserting that the Permit “only requires 8 [it] to sample storm water discharges for TSS [total suspended solids], Oil and 9 Grease, pH, and metals related to its SIC code (5015) – iron (Fe), lead (Pb), and 10 aluminum (Al).” (Mot. 29:21–23.) Stated differently, because Defendant believes it 11 did not have to sample for copper and zinc to begin with, Defendant contends it did 12 not have to address the heightened levels of these pollutants in its storm water 13 discharges under the Permit’s ERA performance measurement scheme. 14 Construing the allegations in the light most favorable to Plaintiff, the Court 15 finds Plaintiff plausibly pleads that Defendant is in violation of the Permit’s Level 1 16 ERA status requirements. Permit § XII describes Defendant’s ERA obligations. It 17 provides Defendant must conduct sampling pursuant to § XI.B’s sampling provisions 18 and then compare the results of the sampling with the NAL values in Table 2. (See 19 Permit § XII.A.) Defendant correctly argues that under § XI.B.6, it is required to 20 sample storm water discharges for “[t]otal suspended solids (TSS) and oil and grease 21 (O&G),” “pH,” and “parameters . . . dependent on the facility Standard Industrial 22 Classification (SIC) code.” (See id. § XI.B.6.a–b, d.) However, § XI.B.6.c also 23 requires Defendant to sample “[a]dditional parameters identified by [Defendant] on 24 a facility-specific basis that serve as indicators of the presence of all industrial 25 pollutants identified in the pollutant source assessment (Section X.G.2).” (See id. 26 § XI.B.6.c.) In turn, § X.G.2 requires that Defendant assess in its pollutant source 27 assessment “[a]t a minimum . . . [t]he pollutants likely to be present in industrial 28 storm water discharges.” (Id. § X.G.2.a.ii.) – 21 – 17cv0425 1 Defendant argues that because it did not identify “copper or zinc as additional 2 parameters” for its facility in its Pollution Prevention Plan pursuant to Permit 3 §§ XI.B.6.c and X.G.2.a.ii., that ends the inquiry. (Mot. 29:24–27.) The Court is 4 unconvinced. Plaintiff alleges Defendant’s storm water discharges contain zinc and 5 copper. (Compl. ¶ 48.) These are “common pollutants” that may be present in storm 6 water discharges from industrial facilities. (See Permit Fact Sheet § J.3; see also 7 Permit Tbl. 2 (listing NAL values for common pollutants).) Further, Plaintiff claims 8 these two pollutants have been “historically found at the Facility.” (Pre-Suit Notice 9 6.) If these two common pollutants have been historically found at the facility, a 10 reasonable interpretation of the Permit is that Defendant should have assessed these 11 constituents in its pollutant source assessment, (see Permit § X.G.2.a.ii), and 12 analyzed its storm water samples accordingly, (see id. § XI.B.6.c).10 Simply put, the 13 Permit requires Defendant to analyze, sample, and address exceedances of common 14 pollutants in its storm water discharges that Defendant allegedly is—or plausibly 15 should be—aware of. 16 Ultimately, Defendant did analyze its storm water discharges for zinc and 17 copper. (See Pre-Suit Notice 3.) And, in light of the Permit’s terms and Plaintiff’s 18 factual allegations summarized above, Plaintiff plausibly pleads that Defendant is 19 required to then compare its sampling data with the NAL values for copper and zinc 20 in Table 2 of the Permit. Further, because a comparison reveals NAL exceedances 21 for these common pollutants in Defendant’s storm water discharges, Plaintiff also 22 sufficiently alleges that the Permit requires Defendant to address these exceedances 23 in its Level 1 ERA plan. (See Permit § XII.A, C.) Given that the company has 24 purportedly failed to do so, Plaintiff states a cognizable claim that Defendant is in 25 violation of the Permit. (See id. § I.M.63 (“A Discharger that does not fully comply 26 27 28 10 The Court also notes that Plaintiff claims Defendant “has failed to acknowledge its scrap metal and recycling activities under SIC code 5093.” (Pre-Suit Notice 6.) This SIC code would also require Defendant to sample for zinc under Permit § XI.B.6.d. (See Permit Tbl. 1.) – 22 – 17cv0425 1 with the Level [ERA] 1 status . . . is in violation of this General Permit.”).) 2 Consequently, the Court denies Defendant’s motion to dismiss Plaintiff’s seventh 3 cause of action for failure to state a claim. 4 5 Receiving Water Limitations 6 Aside from Effluent Limitations, the Permit contains “Receiving Water 7 Limitations” in § VI, which are based in part on Water Quality Standards. To comply 8 with these separate limitations, “Dischargers shall ensure that industrial storm water 9 discharges . . . do not cause or contribute to an exceedance of any applicable water 10 quality standards in any affected receiving water.” (Permit § VI.A.) Further, 11 “Dischargers shall ensure [their] discharges . . . do not adversely affect human health 12 or the environment” and “do not contain pollutants in quantities that threaten to cause 13 pollution or a public nuisance.” (Id. § VI.B–C.) 14 Water Quality Standards “[c]onsist[] of beneficial uses, water quality 15 objectives to protect those uses, an antidegradation policy, and policies for 16 implementation.” (Permit Glossary 8.) These standards “are established in Regional 17 Water Quality Control Plans (Basin Plans) and statewide Water Quality Control 18 Plans.” (Id.) Further, one component of Water Quality Standards—Water Quality 19 Objectives—are defined “as limits or levels of water quality constituents or 20 characteristics which are established for the reasonable protection of beneficial uses 21 of water or the prevention of nuisance within a specific area.” (Id.) 22 The “EPA has also adopted water quality criteria (the same as objectives) for 23 California in the National Toxics Rule and California Toxics Rule.” (Permit Glossary 24 8.) See also 40 C.F.R. §§ 131.36, 131.38. The California Toxics Rule sets out a 25 numeric schedule for toxic pollutants and applies different numeric criteria for the 26 27 28 – 23 – 17cv0425 1 protection of aquatic life and of human health.11 Id. § 131.38. These criteria “apply 2 concurrently with any criteria adopted by the State, except when State regulations 3 contain criteria which are more stringent for a particular parameter and use.” Id. 4 § 131.38(c)(1). “If a waterbody has multiple use designations, the criteria must 5 support the most sensitive use.” Id. § 131.11(a)(1). Moreover, “the criteria apply 6 throughout the water body including at the point of discharge into the water body,” 7 unless the State authorizes a “mixing zone . . . or implementation procedures.” Id. 8 § 131.38(c)(2)(i). 9 Typically, if a discharger implements BMPs that meet the Technology-Based 10 Effluent Limitations discussed above, the discharger will also satisfy the Permit’s 11 requirement that its storm water discharges not cause or contribute to an exceedance 12 of Water Quality Standards. (Permit Factsheet § II.E.) “In addition, however, [the] 13 Permit also makes it clear that, if any individual facility’s storm water discharge 14 causes or contributes to an exceedance of a water quality standard, that Discharger 15 must implement additional BMPs or other control measures that are tailored to that 16 facility in order to attain compliance with the receiving water limitation.” (Id.; accord 17 Permit § I.E.37.) Permit § XX.B requires a discharger who determines its storm water 18 discharges “contain pollutants that are in violation of Receiving Water Limitations” 19 to comply with Water Quality Based Corrective Actions, which impose obligations 20 separate from those of Exceedance Response Actions (“ERAs”) that the Court 21 considered above. 22 23 11 24 25 26 27 28 As detailed in the EPA’s NPDES Permit Writers’ Manual, aquatic life criteria “address both short-term (acute) and long-term (chronic) effects” of pollution and incorporate three separate measurements: (1) magnitude, (2) duration, and (3) frequency. (EPA’s NPDES Permit Writers’ Manual § 6.1.1.2, Pl.’s RJN Ex. 2.) The magnitude is defined as the “level of pollutant (or pollutant parameter), usually expressed as a concentration, that is allowable.” (Id.) The duration is “[t]he period (averaging period) over which the in-stream concentration is averaged for comparison with criteria concentrations,” and the frequency is “[h]ow often criteria may be exceeded.” (Id.) In contrast, human health criteria “express the highest concentrations of a pollutant that are not expected to pose significant long-term risk to human health.” (Id.) – 24 – 17cv0425 1 Plaintiff’s first claim seeks relief for violation of the Permit’s Receiving Water 2 Limitations. (Compl. ¶¶ 102–12.) Defendant moves to dismiss, contending that 3 Plaintiff’s claim is based on an impermissible interpretation of the Permit. (Mot. 4 15:22–21:12.) The Court is unpersuaded. The Permit requires Defendant to “ensure 5 that [its] industrial storm water discharges” do not violate any of the three Receiving 6 Water Limitations. (See Permit § VI.A–C (emphasis added).) Thus, the Permit can 7 be reasonably interpreted as providing that if Defendant fails to make certain that its 8 discharges do not violate these limitations, it is violating the Permit. 12 In addition, 9 because the Permit incorporates Receiving Water Limitations based on Water 10 Quality Standards, the Clean Water Act permits a citizen suit to enforce these 11 limitations. See, e.g., Nw. Envtl. Advocates v. City of Portland, 56 F.3d 979, 987–90 12 (9th Cir. 1995). 13 Plaintiff in turn contends that Defendant has continuously discharged 14 contaminated storm water in violation of the Permit’s Receiving Water Limitations 15 since July 24, 2015. (Compl. ¶¶ 102–08; Pre-Suit Notice 3.) To support this claim, 16 Plaintiff alleges Defendant conducts various industrial activities related to its used 17 motor vehicle parts business, including “junk vehicle storage,” “battery removal,” 18 and “fluid draining.” (Id. ¶ 45.) Further, “various industrial materials comprised of 19 new and used engine oil, anti-freeze, fuel, batteries, mercury switches, detergents, 20 grease, and solvents are utilized and stored onsite.” (Id. ¶ 46.) At least some of these 21 materials are stored outside, and Defendant purportedly fails to cover containers at 22 the facility. (Id. ¶¶ 66–67.) Thus, Plaintiff claims “particulates from operations, oil, 23 24 25 26 27 28 12 The prior version of the Permit provided that a discharger would “not be in violation” of the Permit’s Receiving Water Limitation concerning Water Quality Standards “as long as the [discharger] has implemented BMPs that achieve” the Permit’s technology standards and has also complied with certain reporting requirements. (Def.’s RJN Ex. B.) A comparable safe harbor provision is not found in the 2015 Permit’s Receiving Water Limitations. (See Permit § VI.) Rather, as mentioned, the Permit cautions that a discharger may need to do more than implement BMPs meeting the Permit’s Effluent Limitations to satisfy the separate Receiving Water Limitations. (Permit Fact Sheet § II.E.37.) – 25 – 17cv0425 1 grease, suspended solids, hazardous waste, phosphorous, and metals such as 2 aluminum, iron, copper, lead and zinc materials are exposed to storm water at the 3 LKQ Facility.” (Id. ¶ 49.) This polluted storm water is then “discharged from one 4 discharge point at the Facility into the City of Oceanside’s storm water conveyance 5 systems or directly to the San Luis Rey River.” (Id. ¶ 50.) 6 In addition, Plaintiff asserts Defendant’s polluted discharges from its facility 7 “cause, threaten to cause, and/or contribute to the impairment of water quality in the 8 San Luis River.” (Compl. ¶ 55.) “Elevated levels of bacteria, chloride, phosphorus, 9 total dissolved solids, nitrogen and toxicity have resulted in the inability of the River 10 to support its beneficial uses.” (Id.) The San Luis Rey River is therefore impaired for 11 these items. (Id. ¶ 75). And, because Defendant’s storm water discharges allegedly 12 contain suspended solids, nitrogen, phosphorous, and other pollutants from its 13 industrial activities, Plaintiff asserts Defendant’s “polluted discharges cause and/or 14 contribute to the impairment of water quality in the Receiving Waters.” 13 (Id. ¶¶ 49, 15 76.) Plaintiff also claims these polluted discharges to the Receiving Waters are 16 17 18 19 20 21 22 23 24 25 26 27 28 13 A significant portion of the parties’ briefing is devoted to disputing whether Water Quality Standards apply to the water quality of Defendant’s storm water discharges, as opposed to only the receiving waters. (See Mot. 16:12–21:12; Opp’n 15:18–22:19; see also Permit § I.E.36; but see 40 C.F.R. § 131.38(c)(2)(i).) This issue is relevant because it affects what evidence Plaintiff may rely upon to prove its contention that Defendant’s discharges are contributing to exceedances of Water Quality Standards in the receiving waters. For example, if the Water Quality Standards apply directly at the point of discharge from Defendant’s facility, Plaintiff may be able to use Defendant’s storm water sampling results, which show pollutants in excess of these criteria, to prove this allegation as a matter of law. See Baykeeper, 619 F. Supp. 2d at 949–50 (construing prior version of the Permit). Regardless, however, whether Defendant’s discharges are contributing to exceedances of Water Quality Standards is ultimately a factual issue. And, given that the Court is considering a motion to dismiss, it must accept as true Plaintiff’s allegation that Defendant’s polluted discharges are indeed doing so. The Court therefore declines to determine—at this point— what exact evidence Plaintiff will need to introduce to prove this allegation, including potentially sampling results and expert testimony. See id. at 947–50 (resolving a similar dispute at the motion for summary judgment phase and concluding the defendant’s sampling results supported partial grant of summary judgment in favor of the plaintiff on its claim that the defendant was violating the prior Permit’s Receiving Water Limitations). – 26 – 17cv0425 1 “harmful to fish, plant, bird life, and human health” and “threaten to cause pollution, 2 contamination, and/or nuisance” to these waters. (Id. ¶¶ 104–05.) 3 Finally, based on Plaintiff’s separate claim discussed above, this case is 4 allegedly not one where the discharger has complied with the Permit’s Effluent 5 Limitations, which “typically” results in compliance with the Permit’s Receiving 6 Water Limitations as well. (See Permit Factsheet § II.E.) When combined with 7 Plaintiff’s other allegations, Defendant’s alleged lack of compliance with the 8 Permit’s Effluent Limitations supports—although it does not establish—the 9 conclusion that Defendant is also violating the Permit’s Receiving Water Limitations. 10 In other words, Defendant’s alleged failure to implement even the Permit’s minimum 11 Best Management Practices may explain why its discharges are supposedly 12 contributing to exceedances of Water Quality Standards in the receiving waters. 13 Overall, when the Court accepts Plaintiff’s factual allegations as true and 14 draws all reasonable inferences from them in favor of Plaintiff, the Court concludes 15 Plaintiff plausibly states Defendant is in violation of the Permit’s Receiving Water 16 Limitations. That is, Plaintiff pleads sufficient facts to sate a claim that Defendant is 17 failing to “ensure that [its] industrial storm water discharges”: (A) “do not cause or 18 contribute to an exceedance of any applicable water quality standards in any affected 19 receiving water”; (B) “do not adversely affect human health or the environment”; or 20 (C) “do not contain pollutants in quantities that threaten to cause pollution or a public 21 nuisance.” (See Permit § VI.A–C.) The Court therefore denies Defendant’s motion 22 to dismiss to dismiss Plaintiff’s second claim. 23 24 Pollution Prevention Plan and Corresponding Monitoring & 25 Reporting Program 26 Beyond complying with the Permit’s Effluent Limitations and Receiving 27 Water Limitations, Dischargers are required to develop and implement a site-specific 28 Pollution Prevention Plan. (See generally Permit § X.) The requirements for the Plan – 27 – 17cv0425 1 include descriptions and assessments of potential pollutant sources, minimum BMPs, 2 any applicable advanced BMPs, and a Monitoring & Reporting Program. (Id. § X.A.) 3 As indicated above, the Permit’s Monitoring & Reporting Program requirement 4 involves (i) monthly visual observations and (ii) storm water sampling and analysis 5 of QSEs. (Id. § XI.A–B.) Further, within thirty days of obtaining sampling results, 6 dischargers must upload them to the State Water Board’s Storm Water Multiple 7 Application and Report Tracking System (“SMARTS”) website. (Id. § XI.B.11.a.) 8 To remain in compliance with the Permit, dischargers must also “electronically self- 9 report any violations via SMARTS.” (Id. § I.J.56.) 10 Inadequate Pollution Prevention Plan 11 12 Plaintiff’s third cause of action charges that Defendant has failed to implement 13 an adequate Pollution Prevention Plan. (Compl. ¶¶ 122–29.) Defendant argues 14 Plaintiff’s claim should be dismissed because it “consists of nothing but a conclusory 15 label” that Defendant has failed to implement an adequate Plan under Permit § X. 16 (Mot. 25:7–8.) 17 The Court disagrees. Plaintiff has furnished “enough facts to state a claim to 18 relief that is plausible on its face.” See Twombly, 550 U.S. at 570. Plaintiff alleges 19 numerous specific deficiencies in Defendant’s Plan, both in terms of its development 20 and its implementation. Citing Permit § X.E’s Pollution Prevention Plan map 21 requirements, Plaintiff alleges that Defendant’s map of its facility “fails to include 22 the discharge and sampling locations, identify San Luis Rey as the ‘nearby water 23 body’ and adjacent receiving water, and identify locations where materials are 24 exposed to precipitation, areas of industrial activity subject to the Permit, including 25 storage areas, shipping and receiving areas, vehicle and equipment storage and 26 maintenance areas, or material handling and processing areas.” (Pre-Suit Notice 6; 27 see also Compl. ¶ 2.) Additionally, Plaintiff alleges that Defendant failed to 28 adequately account for “its scrap metal and recycling activities under SIC code 5093” – 28 – 17cv0425 1 in the Plan. (Pre-Suit Notice 6.) Likewise, given Defendant’s sampling results and 2 Plaintiff’s other claims, Plaintiff plausibly alleges that the Permit requires Defendant 3 to revise its Pollution Prevention Plan, but Defendant has failed to do so. (See id. 4 (alleging Defendant’s Plan has not been updated to address the purported “numerous 5 and egregious water quality violations”); see also Permit § X.B.1 (“The Discharger 6 shall . . . [r]evise their on-site SWPPP whenever necessary[.]”).) Hence, the Court 7 denies Defendant’s motion to dismiss Plaintiff’s third cause of action for failure to 8 state a claim. 9 10 Failure to Implement an Adequate Monitoring & 11 Reporting Program 12 Plaintiff’s fourth cause of action alleges that Defendant has not implemented 13 an adequate Monitoring & Reporting Program. (Compl. ¶¶ 130–39.) Defendant 14 challenges this claim, arguing it should “be dismissed for incorrectly alleging 15 [Defendant] is required to sample for phosphorous.” (Mot. 25:14–16; see also id. 16 28:21–29:9.) 17 The Court rejects this challenge for two reasons. First, the argument does not 18 address the other allegations supporting Plaintiff’s fourth cause of action. Thus, even 19 if Defendant’s challenge had merit, the Court would not grant Defendant’s request to 20 dismiss Plaintiff’s fourth claim. Second, the Court finds Defendant’s partial 21 challenge lacks merit. As mentioned above, Defendant must sample “[a]dditional 22 parameters identified by [Defendant] on a facility-specific basis that serve as 23 indicators of the presence of all industrial pollutants identified in the pollutant source 24 assessment (Section X.G.2).” (See Permit § XI.B.6.c.) Defendant’s pollutant source 25 assessment must include “the industrial pollutants related to the receiving waters with 26 [CWA §] 303(d) listed impairments identified in Appendix 3” of the Permit. (See id. 27 § X.G.2.a.ix.) 28 – 29 – 17cv0425 1 Appendix 3 identifies the San Luis Rey River as impaired for phosphorous. 2 (Permit App’x 3.) Further, the Court accepts as true Plaintiff’s assertions that 3 phosphorus is an industrial pollutant associated with Defendant’s activities. (Compl. 4 ¶¶ 48, 55, 65, 96.) Accordingly, Defendant’s assessment of potential pollutant 5 sources should have also identified phosphorus as an “industrial pollutant[] related 6 to the receiving waters with [CWA §] 303(d) listed impairments,” (see Permit 7 § X.G.2.a.ix), triggering Defendant’s corresponding obligation to sample for this 8 pollutant, (see id. § XI.B.6.c). Thus, Plaintiff plausibly pleads that the Permit requires 9 Defendant to address phosphorous in its Monitoring & Reporting Program, but that 10 it has failed to do so. The Court therefore denies Defendant’s request to dismiss 11 Plaintiff’s fourth cause of action. 12 13 CONCLUSION 14 In light of the foregoing, dismissing this action under Rule 12(b)(1) and (b)(6) 15 is not appropriate. Defendant attacks the sufficiency of Plaintiff’s Pre-Suit Notice 16 under the Clean Water Act, but because the notice: (i) made clear with whom 17 Defendant needed to conduct negotiations, and (ii) included sufficient information to 18 permit Defendant to identify the alleged violations and bring itself into compliance, 19 the Court finds that Plaintiff’s Pre-Suit Notice was adequate. Hence, the Clean Water 20 Act confers jurisdiction over this citizen suit. The Court is also unpersuaded by 21 Defendant’s argument that it has mooted several of Plaintiff’s causes of action in 22 their entirety. 23 Furthermore, Plaintiff states cognizable claims for violations of the Clean 24 Water Act. Plaintiff plausibly alleges that Defendant is failing to: (1) implement 25 adequate Best Management Practices to comply with the Permit’s Effluent 26 Limitations; (2) adhere to the requirements of the Permit’s performance measurement 27 system that involves Exceedance Response Actions; (3) ensure that the company’s 28 storm water discharges do not violate the Permit’s Receiving Water Limitations; (4) – 30 – 17cv0425 1 revise and execute its Storm Water Pollution Plan as required by the Permit; and (5) 2 implement an adequate Monitoring & Reporting Program. Accordingly, the Court 3 DENIES Defendant’s motion to dismiss for lack of subject matter jurisdiction and 4 for failure to state a claim (ECF No. 7). 5 IT IS SO ORDERED. 6 7 DATED: December 8, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 31 – 17cv0425
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