District Court In California Denies Defendant’s Motion To Dismiss CWA Citizen Suit, Finding 60-Day Notice Letter Sufficient And Claims Adequately Alleged

Posted by in Clean Water Act, Environmental Litigation, Stormwater on January 22, 2018

In Coastal Envtl. Rights Found. v. Am. Recycling Int’l, Inc., 2017 U.S. Dist. LEXIS 202649 (SD CA, December 8, 2017), the District Court denied defendant’s Motion to Dismiss plaintiff’s claims brought under the citizen suit provision of the Clean Water Act.  Defendant argued that plaintiff failed to comply with the jurisdictional prerequisite to bringing such a suit:  a sufficient Notice of Intent To Sue pursuant to 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.3 (“60-Day Notice Letter”).  In addition, defendant claimed that it had voluntarily stopped the conduct alleged to constitute certain of the Clean Water Act violations, rendering those claims moot.  Finally, defendant sought dismissal of several of plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.  The District Court denied defendant’s motion to dismiss on all grounds.

In Am. Recycling, both plaintiff, a California non-profit, and defendant, a fourteen-acre automobile salvage business, were located in North San Diego County.  Plaintiff alleged that defendant’s storm water discharges polluted the San Luis Rey River and impaired its members’ use and enjoyment of the river.  Specifically, plaintiff alleged that defendant’s operations, management practices and pollution control protocols resulted in contaminated storm water entering the storm water conveyance system or discharging directly to the San Luis Rey River.  In support, plaintiff alleged storm water sampling data from May 2016 showed levels of various parameters in excess of the relevant water quality criteria in violation of the Clean Water Act and requirements of California’s NPDES General Permit for Storm Water Discharges Associated with Industrial Activities (“Permit”).

The District Court first examined defendant’s motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1).  As its initial ground, defendant argued that plaintiff’s 60-Day Notice Letter was inadequate for two reasons:  failing to identify plaintiff’s contact information and failing to identify the industrial activities upon which plaintiff’s claims are based.  The District Court rejected the first argument as the 60-Day Notice Letter did identify plaintiff by name, assert that plaintiff was represented by counsel, provide contact information for that counsel and request all communications be handled through counsel.  Moreover, the District Court noted that, since plaintiff and its counsel shared the same contact information, the technical requirements of 40 C.F.R. § 135.3 were met.  Regarding defendant’s second argument, the District Court found that it ran contrary to the Notice itself which did, in fact, identify the nature of defendant’s facility and relevant SIC code.  Moreover, based on defendant’s knowledge of its own operations, it could not plausibly claim to be unaware of the relevant activities and responsible person or persons.  Finally, the Court looked to defendant’s post-60-Day Notice Letter storm water sampling as evidence that defendant understood “at least some” of plaintiff’s allegations regarding its inadequate monitoring and reporting program.

The defendant’s second ground for its motion to dismiss for lack of subject matter jurisdiction –mootness — was based on its claim that its voluntary cessation of conduct rendered a portion of plaintiff’s action moot as wholly past violations.  The District Court rejected this argument too, finding that plaintiff adequately pled these claims as “continuous or intermittent” Permit violations for this initial stage of proceedings.  Moreover, defendant failed to meet its heavy burden to show that the behavior in question could not reasonably be expected to recur based simply on two post-60-Day Notice Letter storm water sampling events.

Lastly, the District Court turned to defendant’s motion to dismiss several of plaintiff’s Permit violation claims under FRCP 12(b)(6) for failure to state a claim.  The District Court upheld each of plaintiff’s claims, finding plaintiff had adequately alleged the specific Permit violation at issue in each claim, including allegations of defendant’s failure to implement adequate Best Management Practices to comply with the Permit’s effluent limitations, failure to ensure its storm water discharges do not violate the Permit’s receiving water limitations, and failure to implement an adequate Storm Water Pollution Prevention Plan and Monitoring & Reporting Program.

Most notably, the District Court affirmed that plaintiff adequately alleged a violation of the Permit’s Level 1 Exceedance Response Action requirements for exceedances of copper and zinc despite the fact the Permit did not specifically require sampling for those constituents.  However, the Permit did require defendant to sample additional parameters to determine parameters on a “facility-specific basis that serve as indicators of the presence of all industrial pollutants identified in the pollutant source assessment” which must include “the pollutants likely to be present in industrial storm water discharges.”  Am. Recycling, *29.  As plaintiff alleged that copper and zinc had been “historically found at the Facility” and were “common pollutants” found at industrial facilities, the District Court held it was reasonable to interpret the Permit as requiring defendant to sample, analyze and address exceedances of common pollutants in its storm water that defendant should reasonably be aware of, including copper and zinc.  Am. Recycling, *30.  In addition, the District Court pointed to the fact that the defendant actually did analyze its storm water for copper and zinc.  Therefore, in light of the Permit terms and plaintiff’s allegations, plaintiff adequately pled that the defendant was required to compare its sampling results with the limitations set forth in the Permit and then take the required action to address the exceedances.  As defendant allegedly failed to do this, plaintiff adequately alleged a Permit violation.

Based on the foregoing, the District Court denied defendant’s Motion to Dismiss in its entirety.

Ninth Circuit Court Holds that Clean Water Act does not Bar Citizen Suit where State had not Commenced an Action “to Require Compliance” with a NPDES Permit

Posted by in Administrative Law, Clean Water Act, Environmental Litigation, Stormwater on August 12, 2013

By Michael Einhorn and Nancy Wilms

In California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., Case No. 11-16959 (9th Cir. July 22, 2013), plaintiff California Sportfishing Protection Alliance (“Plaintiff”) alleged that defendants Chico Scrap Metal and its owners (“Defendants”) violated California’s Industrial Activities Storm Water General Permit, a National Pollutant Discharge Elimination System (“NPDES”) general permit governing industrial storm water discharges from Defendants’ facilities (the “Permit”).  A three-judge Ninth Circuit panel reversed the lower court dismissal of the suit, holding that the action was not prohibited by the “diligent prosecution” bars found in the Clean Water Act (“CWA”).

The CWA permits citizens to sue to enforce the CWA’s prohibition against discharging pollutants without a NPDES permit.  33 U.S.C. § 1365(a)(1).  However, the CWA provides that such citizen suits are barred where an agency or a State is “diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance” with a standard or limitation under the CWA, or related order issued by the governmental entity.  33 U.S.C. § 1365(b)(1)(B).  The CWA also provides that citizen suits are barred where a State “has commenced and is diligently prosecuting an action under a State law comparable to” the administrative penalty provisions of the CWA.  33 U.S.C. § 1319(g)(6)(A)(ii).

In this case, Defendants successfully argued to the district court that the CWA barred Plaintiff’s claims under 33 U.S.C. § 1365(b)(1)(B).  On appeal, Defendants argued that Plaintiff’s claims were barred as well under the 33 U.S.C. § 1319(g)(6)(A)(ii) bar.  The Ninth Circuit disagreed; it held that § 1365(b)(1)(B) does not apply because the state had not commenced an action in court “to require compliance” with the relevant NPDES permit, and that § 1319(g)(6)(A)(ii) does not apply because the state had commenced no administrative penalty action comparable to the one under the CWA.

The Defendants operate scrap metal recycling facilities in Butte County, California subject to the requirements of the Permit.   In 2007, the California Department of Toxic Substances Control (“DTSC”) began investigating Defendants’ facilities, and discovered hazardous contamination.  DTSC ordered Defendants to investigate and characterize the contamination.  After Defendants failed to comply with DTSC’s order, the Butte County district attorney filed civil and criminal actions in 2007 and 2008 against Defendants, alleging violations of state air quality, hazardous waste and occupational safety laws, among others.  Significantly, none of the criminal charges or civil causes of action related to the CWA or violations of the Permit.  These actions were resolved by a plea agreement in October 2008 which required, among other things, Defendants to clean up hazardous substances at their facilities and otherwise abide by consent orders issued by DTSC in 2008.

In January 2010, the United States Environmental Protection Agency (“EPA”) inspected Defendants’ facilities and determined they were not in compliance with the Permit.  Soon after, in March 2010, the Plaintiff sent notice to Defendants as well as state and federal agencies of its intent to sue Defendants under the CWA for violations of the Permit.  After receiving the notices, the agencies did not bring any enforcement proceedings under the CWA; consequently, in May 2010, Plaintiff filed its action.  Thereafter, in June 2010, the California Water Quality Control Board notified Defendants that they were in violation of the Permit, based on the EPA inspection.  Defendants then moved to dismiss the Plaintiff’s action, arguing that the CWA’s “diligent prosecution” bars applied.

First, Defendants argued that a government action “comparable” to one brought under the CWA is sufficient to trigger the § 1365(b)(1)(B) bar against private actions.   The Ninth Circuit disagreed, noting that while a different “diligent prosecution” bar found at § 1319(g)(6)(A)(ii) applies where state actions “comparable” to administrative penalty actions are being “diligently prosecuted,” there is no reference to “comparable” state actions found in the language of § 1365(b)(1)(B).  Accordingly, the court found that because the actions filed by the Butte County district attorney “aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action.”

Defendants also argued that the 2008 consent orders were broad enough to require compliance with the Permit and CWA, triggering the section 1365(b)(1)(B) bar.  Again the Ninth Circuit disagreed, holding that § 1365(b)(1)(B) did not apply because only an action that is “in a court” triggers the § 1365(b)(1)(B) bar against citizen suits, while administrative proceedings do not.  The court found that the 2008 consent orders by DTSC were not the result of an action “in a court,” and that they therefore did not trigger the private action bar.

Seeking then to apply the statutory bar under § 1319(g)(6)(A) (ii), Defendants argued both that they had been prosecuted under California statutes that provide for penalties and that they are exposed to administrative penalties in the event they violate the 2008 consent orders.  However, the Ninth Circuit noted that § 1319(g)(6)(A)(ii) only applies when a state has pursued an action “comparable to this subsection,” and that the relevant subsection, § 1319(g), provides only for the assessment of administrative penalties.  Therefore, the court held that the state actions in court did not constitute administrative proceedings and thus did not trigger the statutory bar “even if the state laws under which the penalties were assessed were ‘comparable’ to the Clean Water Act in a general sense.”

With regard to the 2008 consent orders, the Ninth Circuit cited authority holding that for the § 1319(g)(6)(A)(ii) bar to apply, “the comparable state law must contain penalty provisions and a penalty must actually have been assessed under the state law.”  Quoting Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514 (9th Cir. 1996).    The court found that here, the 2008 consent orders notified Defendants that they may be liable for penalties for failure to comply, but did not actually assess administrative penalties in the orders themselves.  The court held that even if the state statute cited in the 2008 consent orders were “comparable” to § 1319(g) of the CWA, “Defendants’ potential liability under the consent orders does not trigger the bar of § 1319(g)(6)(A)(ii).”  (Emphasis in original.)  Since the state had not commenced an administrative penalty proceeding comparable to one by the EPA under § 1319(g), the Ninth Circuit concluded that Plaintiff’s claims were not barred.

Ninth Circuit Holds Wood Preservative from Utility Poles Discharged into the Environment does not Violate the Clean Water Act or RCRA

Posted by in Clean Water Act, Emerging Issues, Resource Conservation and Recovery Act, Stormwater on July 1, 2013

Nancy Wilms and Michael Einhorn

In Ecological Rights Foundation v. Pacific Gas and Electric Company, 713 F.3d 502 (9th Cir. April 3, 2013), the Ninth Circuit panel affirmed the dismissal of a citizen suit alleging utility poles discharged wood preservative containing pentachlorophenol (“PCP”) into the environment in violation of the Resource Conservation and Recovery Act (“RCRA”) and the Clean Water Act (“CWA”).   Based on the allegations of the complaint, the court held PCP-based wood preservative that escapes the poles was not a “solid waste” under RCRA.  It also held stormwater runoff from the utility poles was neither a “point source discharge” nor “associated with industrial activity,” and therefore does not violate the CWA.

Preservative that escapes through “normal wear and tear” is not “solid waste” under RCRA

To establish an “imminent and substantial endangerment” citizen suit under RCRA, a plaintiff must establish three things:  (1) the defendant has been or is a generator or transporter of solid or hazardous waste, or is or has been an operator of a solid or hazardous waste treatment, storage or disposal facility; (2) the defendant has “contributed” or “is contributing to” the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and, (3) the solid or hazardous waste in question may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B).  In this case, which focused on the third prong, the Ecological Rights Foundation (“ERF”) did not allege the PCP-based wood preservative at issue is “hazardous waste.”  Therefore, the Ninth Circuit found the case turned on the issue of whether that preservative is “solid waste” within the meaning of RCRA.

The Ninth Circuit found RCRA’s statutory definitions of “solid waste” and “disposal” were too ambiguous to help decide whether “solid waste” includes wood preservative that escapes from utility poles.  42 U.S.C. §§ 6909(3) and (27); see also 42 U.S.C. § 6901(a)(2).  The court then turned to RCRA’s legislative history, and found “RCRA covers ‘waste by-products of the nation’s manufacturing processes,’ as well as manufactured products ‘themselves once they have served their intended purposes and are no longer wanted by the consumer.’” ERF v. PG&E, 713 F.3d at 515, citing H.R. Rep. No. 94-1491(I), at 2.

The court explained ERF was concerned not with wood preservative that is in or on the utility poles, because there the preservative is clearly being put to its intended use as a general biocide.  Instead, ERF was concerned with wood preservative that leaks from or otherwise escapes the utility poles.  The Ninth Circuit held such escaping preservative is neither a manufacturing waste by-product nor a material that the consumer (in this case defendants PG&E and Pacific Bell as owners of the utility poles) no longer wants and has disposed of or thrown away.  The Ninth Circuit concluded PCP-based wood preservative that escapes from treated utility poles through normal wear and tear, while the poles are in use, is not “automatically” a RCRA “solid waste.”[1]

The court supported its holding by citing a Second Circuit opinion which held pesticides are not being “discarded” when sprayed into the air consistent with their intended purpose.  ERF v. PG&E, 713 F.3d at 515-516, citing No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001).  The Ninth Circuit explained that, like the pesticide example, the application of wood preservative to utility poles furthers the intended purpose of those poles.  While ERF argued wood preservative that escapes from utility poles is no longer serving its intended use, the court disagreed, reasoning wood preservative that falls to the base of a utility pole still serves its intended purpose by inhibiting the growth of vegetation, fungi, and other organisms.  The court further supported its decision by noting EPA treats spent munitions under RCRA in the same way – as having served their intended purpose rather than being discarded, citing Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6,622, 6,630 (Feb. 12, 1997) (codified at 40 C.F.R. § 266.202).  In addition, the Ninth Circuit noted EPA approved the use of PCP as a wood preservative for utility poles, railroad ties and pilings under the Federal Insecticide, Fungicide, and Rodenticide Act while regulating certain categories of materials containing PCP, including “wastes” from PCP manufacturing processes and discarded unused formulations containing PCP.  ERF v. PG&E, 713 F.3d at 516-517, citing 7 U.S.C. §§ 131-136y; 40 C.F.R. § 261.31(a)(Table — F021, F027, F032), 261.32 (Table — K001).

Finally, the Ninth Circuit stated “common sense” compels its decision because accepting ERF’s argument would lead to untenable results.  The court noted that as of 2008, there were 36 million utility-owned wood poles in the United States treated with PCP, so requiring their replacement defies reason.  In fact, accepting the plaintiff’s argument might lead to extreme results as everything from railroad ties to lead paint that naturally chips away from houses could also qualify as “solid waste” and thus be potentially actionable under RCRA.

However, while the Ninth Circuit expressly decided “wood preservative that escapes from wooden utility poles as those poles age has not itself been ‘discarded’ and therefore is not a ‘solid waste,’ under RCRA” it also suggested different allegations could lead to a different result:  “we do not decide  whether or under what circumstances PCP, wood preservative, or another material becomes a RCRA ‘solid waste’ when it accumulates in the environment as a natural, expected consequence of the material’s intended use.” ERF v. PG&E, 713 F.3d at 518. 

Utility poles are not “point sources” or “associated with industrial activity” under CWA

Under the CWA, a “point source” is defined as any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, . . or vessel or other floating craft, from which pollutants are or may be discharged.”  33 U.S.C. § 1362(14).  The Ninth Circuit found the ERF allegations of generalized stormwater runoff were insufficient to establish that the utility poles were point sources and rejected ERF’s argument the utility poles are themselves “conveyances” as unsupported by case law.  The court noted ERF failed to allege the PCP-based preservative went directly into the waters of the United States or flowed into discrete conveyances and, from there, into the waters of the United States, and the court upheld the district court’s dismissal without leave to amend to add these allegations.  As a result, it is unknown what impact such allegations would have had on the Ninth Circuit’s ruling.

The Ninth Circuit also found dismissal of the CWA claim proper as stormwater runoff from the utility poles is not “associated with industrial activity” for four reasons.  First, a utility pole is not directly related to manufacturing, processing or raw materials storage at an industrial plant.  40 C.F.R. § 122.26(b)(14).  In reaching this holding, the Ninth Circuit applied Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct. 1326, 1330 (U.S. 2013), where the Supreme Court held discharges of channeled stormwater runoff from logging roads were not “associated with industrial activity.”

Second, the Standard Industrial Classification system used in the Code of Federal Regulations to define the industrial activities it covers does not include utility poles.  See 40 C.F.R. § 122.26(b)(14)(ii)–(iii), (vi), (viii), (xi).  Third, EPA included “steam electric power generating facilities” in the definition of “industrial activity,” but rejected including “major electrical powerline corridors” in the regulation. See 40 C.F.R. § 122.26(b)(14)(vii).  Based on this distinction, the Ninth Circuit found it reasonable to conclude EPA did not intend to include utility poles in the definition either.

Finally, the Ninth Circuit reasoned if runoff from utility poles were a discharge associated with industrial activity, many other commonplace things, such as playground equipment, bike racks, mailboxes, traffic lights, billboards and street signs would arguably require stormwater runoff regulation which could lead to an “absurd result.”


[1] The court emphasized its holdings turned on the particular allegations of ERF’s complaint and circumstances may exist wherein wood preservative released into the environment through normal wear and tear could be considered to be a “solid waste.”

SWRCB Releases Draft of New Storm Water Industrial General Permit

Posted by in Environmental Legislation and Regulation, Stormwater on February 17, 2011

The State Water Resources Control Board (the Board) has released its draft NPDES Industrial General Permit (draft Industrial General Permit).  Under the federal Clean Water Act (CWA), discharges to waters of the United States are prohibited unless in compliance with a national pollutant discharge elimination system (NPDES) permit.  CWA § 301(a).  Under the California Water Code, the Board is charged with protecting beneficial uses of California’s waters.  U.S. EPA has authorized the Board to implement the NPDES program for discharges regulated under the federal CWA.

The draft Industrial General Permit applies to most industrial facilities, including manufacturing, oil and gas, mining, hazardous waste treatment/storage/disposal, landfills, recycling, steam electric power, transportation, and sewage/wastewater treatment.  The Board asked a blue ribbon panel of experts to address whether it is technically feasible to establish numeric effluent limitations or some other quantifiable limit for inclusion in general storm water permits.  The draft Industrial General Permit reflects the findings of the panel, and incorporates elements of the U.S. EPA’s Multi-Sector General Permit (MSGP).


Washington State District Court Holds WDOT, the Designer and Manager of a Highway Stormwater Drainage System, Liable As An “Arranger” Under CERCLA

Posted by in Environmental Litigation, Stormwater on July 20, 2010


A District Court in Washington has held that the Washington State Department of Transportation (“WSDOT”) is liable as an arranger under CERCLA because it designed a drainage system with the purpose to discharge highway runoff to the environment, and at some point had knowledge that the runoff contained hazardous substances.  United States v. Washington State Department of Transportation, Case No. C08-5722RJB, 2010 U.S. Dist. LEXIS 58952, (W.D. Wash. June 7, 2010)(“WSDOT II”). 

Stormwater Liability

The litigation concerns the Commencement Bay-Nearshore Tideflats Superfund Site (“the CB-NT Site”) in Tacoma, Washington.  In 1989 the United States Environmental Protection Agency (EPA) contacted over 130 potentially responsible parties (PRPs), including WSDOT, regarding the CB-NT Site.  EPA entered into consent decrees to provide funding with over 80 PRPs in early 2003, but not WSDOT.  Consequently, the United States filed a complaint against WSDOT in late 2008.  WSDOT filed an answer and counterclaim alleging, among other things, that the United States was liable for contribution to WSDOT for response costs at the CB-NT Site due to activities of the United States Army Corps of Engineers.   


Recently Adopted California General Permit for Construction Storm Water Discharges Becomes Effective July 1, 2010

Posted by in Environmental Legislation and Regulation, Stormwater on June 2, 2010


On September 2, 2009, the California State Water Resources Control Board Division of Water Quality adopted Order 2009-0009-DWQ, the National Pollutant Discharge Elimination System (NPDES) General Permit For Storm Water Discharges Associated With Construction and Land Disturbance Activities (General Permit).  All discharges of storm water and non-storm water from construction sites are prohibited except those specifically authorized by the General Permit or another National Pollutant Discharge Elimination System (NPDES) permit.

The General Permit applies to a broad range of construction or demolition activities including, but not limited to, clearing, grading, grubbing, excavation, and any other activity that results in a land disturbance of equal to or greater than one acre.  It also applies to projects less than one acre if the construction activity is part of a larger common plan, and other construction activities related to particular projects, such as those associated with linear underground/overhead utility lines, oil and gas, agriculture that is considered “industrial,” and others.