Natural Resource Defense Council v. S.W. Marine

• Decision Date: 19 December 2000
• Docket Number: 99-56545,Nos. 99-56532,s. 99-56532
• Citation: 236 F.3d 985
• Parties: (9th Cir. 2000) NATURAL RESOURCES DEFENSE COUNCIL; SAN DIEGO BAYKEEPER, KENNETH J. MOSER, Plaintiffs-Appellees, v. SOUTHWEST MARINE, INC.,Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 985

236 F.3d 985 (9th Cir. 2000)

NATURAL RESOURCES DEFENSE COUNCIL; SAN DIEGO BAYKEEPER, KENNETH J. MOSER, Plaintiffs-Appellees, v. SOUTHWEST MARINE, INC.,Defendant-Appellant.

Nos. 99-56532, 99-56545.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 10, 2000

Filed December 19, 2000

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David L. Mulliken and Dorn G. Bishop, Latham & Watkins, San Diego, California, for the defendant-appellant.

Charles S. Crandall, San Luis Obispo, California, Everett L. DeLano III, Law Offices of Everett L.III, San Marcos, California, John M. Barth, Attorney at Law, Hygiene, Colorade, Scott H. Peters, Peters & Varco, LLP, San Diego, California, Joel R. Reynolds, Natural Resources Defense Council, Los Angeles, California, for the plaintiffs-appellees.

Eric L. Garner, Best Best & Krieger LLP, Riverside, California, for amicus curiae.

Appeal from the United States District Court for the Southern District of California Rudi M. Brewster, District Judge, Presiding. D.C. No. CV-96-01492-RMB

Before: Alex Kozinski, Susan P. Graber, and Raymond C. Fisher, Circuit Judges.

GRABER, Circuit Judge:

Defendant Southwest Marine, Inc., appeals from the district court's judgment for Plaintiffs Natural Resources Defense Council (NRDC), San Diego Baykeeper, and Kenneth J. Moser, in their citizen enforcement action underS 505(a) of the Clean Water Act (CWA), 33 U.S.C. 1365(a). In response to Defendant's challenge, we hold: Plaintiffs have standing to bring this action, Plaintiffs' notice letter was adequate, Defendant's violations were ongoing, the district court's injunctive measures were not an abuse of discretion, and the district court's civil penalty was not an abuse of discretion. Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Defendant operates a large shipyard on San Diego Bay. Its principal business is repairing and maintaining marine vessels. Among other things, Defendant's shipyard removes old paint from ships and then repaints them. Defendant commonly removes old paint by blasting the ships' hulls with abrasive grit, composed primarily of particles of copper, that is conveyed on streams of compressed air. Defendant uses about 4 million pounds of copper grit per year for blasting old paint from ships and generates about 4,800 pounds of paint waste per year.

Defendant repaints ships with "antifouling paints," which are paints that are formulated to prevent the growth of aquatic organisms, such as barnacles and algae, on the bottoms of ships. Those paints contain compounds that are toxic to aquatic life.

Defendant's shipyard contains five piers, at which ships are moored while they are being repaired, and two floating dry docks, on which ships rest, out of the water, to allow repair, blasting, and repainting of parts that are normally underwater. When Plaintiffs filed their complaint, Defendant also was operating a marine railway which is a device that is used to pull ships onto the shore for repair.

Shipyards like Defendant's generate large amounts of wastes and pollutants, including paint chips and abrasive grit. Those wastes and pollutants are discharged into adjacent waters through -among other means -storm water runoff, tidal action, leaks, spills, and over spray. A 1993 report by the California Regional Water Quality Control Board showed elevated concentrations of copper, tributyltin, and zinc -all of which are present in the materials used and the wastes generated at Defendant's shipyard -in the sediments adjacent to the shipyard. The report concluded that Defendant appeared to have discharged copper, tributyltin, and zinc into San Diego Bay, that Defendant's management practices appeared to be inadequate to prevent such discharges, and that the discharges might have long-term negative effects on the water quality of the Bay and on its suitability for human use.

Defendant had applied for and received a National Pollutant Discharge Elimination System (NPDES) permit from the California Regional Water Quality Control Board in 1983. In 1992, Defendant had obtained coverage under the State Water Resources Control Board's 1991 General Industrial Permit for storm water discharges. That permit supplemented Defendant's NPDES permit; the storm water permit applied to discharges of pollutants through storm water, and the NPDES permit applied to other discharges.

Both permits required Defendant to develop and implement plans to limit its discharges of pollutants into the Bay. Rather than relying on specific numerical effluent limitations, the permits required Defendant to create and follow "Best Management Practices" (BMPs).¹ Defendant adopted a written BMP plan on January 15, 1992.

The storm water permit also required Defendant to develop and implement a Storm Water Pollution Prevention Plan (SWPPP) and a Storm Water Pollution Monitoring Plan (SWPMP). The permit specified that the SWPPP was required to include, among other things:

* a description of sources that might add significant quantities of pollutants to storm water discharges;

* a detailed site map;

* a description of materials that had been treated, stored, spilled, disposed of, or leaked into storm water discharges since November 1988;

* a description of the management practices that Defendant employed to minimize contact between storm water and pollutants from vehicles, equipment, and materials;

* a description of existing structural and non structural measures to reduce pollutants in storm water discharges;

* a description of methods of on-site storage and disposal of significant materials;

* a description of outdoor storage, manufacturing, and processing activities;

* a list of pollutants likely to be present in significant quantities in storm water discharges and an estimate of the annual amounts of those pollutants in storm water discharge * a record of significant leaks or spills of toxic or hazardous pollutants to storm water;

* a summary of existing data describing pollutants in storm water discharge;

* a description of Defendant's storm water management controls, including good housekeeping procedures, preventive maintenance, and measures to control and treat polluted storm water; and

* a list of the specific individuals responsible for developing and implementing the SWPPP.

Defendant submitted its SWPPP in December 1992. The SWPPP required Defendant, among other things, (1) to perform daily inspections to ensure that its shipyard was complying with the requirements of its BMP plan, and (2) to maintain records of those inspections.

On April 30, 1996, Plaintiffs sent Defendant a notice letter, as required by 33 U.S.C. 1365(b)(1)(A), advising Defendant that it was violating the CWA and that Plaintiffs intended to sue under the CWA's citizen enforcement provisions. A copy of the notice letter and its attachments appears as an Appendix at the end of this opinion.

As discussed below, a party who wishes to sue under the CWA's citizen enforcement provisions may not commence an action until at least 60 days after giving notice of intent to sue. On August 27, 1996, more than 60 days after sending their notice letter, Plaintiffs filed this action. Four days earlier, on August 23, 1996, Defendant had submitted a revised SWPPP and SWPMP. Those revised plans addressed, and attempted to correct, many of the shortcomings described in Plaintiffs' notice letter.

In September 1996, Defendant moved to dismiss this action, arguing that Plaintiffs' notice letter did not comply with the CWA's requirements and, in particular, that the letter was not specific enough to inform Defendant of what standards it allegedly had violated. The district court denied Defendant's motion in a published opinion. Natural Res. Def. Council, Inc. v. Southwest Marine, Inc., 945 F. Supp. 1330 (S.D. Cal. 1996).

Defendant then moved for summary judgment, arguing (1) that the district court lacked subject matter jurisdiction because Plaintiffs' allegations of ongoing violations were neither made in good faith nor based on reasonable investigation; (2) that, even if the district court had subject matter jurisdiction, summary judgment was appropriate because Plaintiffs could not prove ongoing violations at trial; and (3) that Plaintiffs' claims were moot.

After continuing the motion to allow more time for discovery, the district court denied summary judgment in an unpublished order. In denying Defendant's motion, the court concluded (1) that it had subject matter jurisdiction because Plaintiffs had alleged continuing violations in good faith; (2) that there were disputed issues of material fact as to whether Defendant (a) had developed an adequate SWPPP and monitoring plan, as required by its storm water permit, and (b) had adequately implemented or was adequately implementing such plans; and (3) that Plaintiffs' action was not moot.

While district court proceedings were pending, Defendant's permits were revised twice. First, Defendant's storm water permit was superseded by a new storm water permit, which took effect May 1, 1997. Second, both the storm water permit and Defendant's NPDES permit were superseded by a new NPDES permit. That permit was issued on October 15, 1997, but was stayed on March 27, 1998, by the Superior Court of the County of San Diego. The superior court lifted that stay later in 1998, and the revised permit became effective at that time.²

Defendant also revised a number of its practices related to storm water while this matter was before the district court. Among other things, Defendant revised its BMP plan, as required by its most recent NPDES permit; installed a storm water diversion system covering most (but not all) of its facility; hired a new environmental compliance manager; installed a roof to prevent storm water from reaching hazardous materials; and removed polluted sediments from the...