Baykeeper v. Levin Enters., Inc.
| Decision Date | 18 December 2013 |
| Docket Number | No. C–12–04338(EDL),C–12–04338(EDL) |
| Parties | San Francisco Baykeeper, Plaintiff, v. Levin Enterprises, Inc. et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
OPINION TEXT STARTS HERE
Ordered accordingly. Daniel Cooper, Caroline Ann Koch, Lawyers for Clean Water, Inc., Jayni Foley Hein, George Matthew Torgun, Jason Robert Flanders, Sejal Choksi–Chugh, San Francisco Baykeeper, San Francisco, CA, Amanda Rosemary Garcia, Nashville, TN, for Plaintiff.
Catherine W. Johnson, Hanson Bridgett LLP, Oakland, CA, Lawrence M. Cirelli, Nathan Andrew Metcalf, Sophia B. Belloli, Timothy Devon Findley, Hanson Bridgett LLP, San Francisco, CA, for Defendants.
I. Introduction
This case arises under the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq. Plaintiff San Francisco Baykeeper, an environmental advocacy group, alleges that Defendants Levin Enterprises, Inc. (“LEI”), and Levin–Richmond Terminal Corporation (“LRTC”), which operate a marine bulk terminal (“the Levin Facility”) on the Lauritzen Canal and the Santa Fe Channel of San Francisco Bay, have violated the CWA and their permit to discharge storm water under the National Pollutant Discharge Elimination System (“NPDES”). Plaintiff has moved for partial summary judgment on two of Defendants' affirmative defenses. Plaintiff argues that its notice-of-intent-to-sue letter was adequate, and that Defendants must have—and do have—permit coverage for all their activities at the terminal. Defendants filed a cross-motion for summary judgment as to all of Plaintiff's claims based on the inadequacy of the notice of intent to sue, and for summary judgment as to most of Plaintiff's claims based on their contention that no permit is required for most of the activities at the Levin Facility. The Court grants in part and denies in part both motions for summary judgment.
II. BackgroundA. Regulatory Background
The goal of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Section 310(a) of the CWA prohibits the discharge of pollutants from any point source into waterways without an NPDES permit. 33 U.S.C. § 1311(a). The CWA defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
Congress established the permitting process for storm water discharge in 1987. Most discharges composed entirely of storm water are exempt from the CWA's permitting requirements, but permits are required for discharges associated with “industrial activity.” See 33 U.S.C. § 1342(p)(1) and (2); Natural Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1304–05 (9th Cir.1992) (). EPA's implementing regulations at 40 C.F.R. § 122.26 require NPDES permit authorization for facilities engaged in industrial activity to discharge to United States waters.
There are eleven categories of facilities engaged in industrial activity, grouped according to Standard Industrial Classification (“SIC”) codes. See 40 C.F.R. § 122.26.(b)(14). Marine transportation facilities, such as the one at issue in this case, are SIC code 4491; industrial activities at transportation facilities are defined as the portions of the facility involved in vehicle maintenance, equipment cleaning, or airport deicing operations. Id.
In 1973, the EPA delegated its authority to operate the NPDES program to the State of California. See 57 Fed.Reg. 43,733, 43–743–35 (). The State Water Board is a delegated agency and is authorized to issue, implement, and enforce NPDES permits. See Cal. Water Code § 13160. This authority includes implementation and enforcement of the Permit and exercise of residual authority pursuant to 33 U.S.C. § 1342(p)(2)(E), which provides that a delegated state may determine that a storm water discharge contributing to a violation of a water quality standard, or that is a significant contributor of pollutants to United States waters, requires an NPDES permit. See 57 Fed.Reg. 43,733, 43–743–35.
The State Board issued a single statewide permit (“Permit” or “General Permit”) for industrial discharges in 1991. See Declaration of Caroline Koch ISO Pl.'s MSJ (“Koch Decl.”) Ex. E at II. The Permit was modified in 1992 and reissued in 1997. Id. To lawfully discharge storm water in California, facilities engaged in certain industrial activity must comply with the terms of the Permit. 33 U.S.C. § 1342(p)(2)(B); see also Koch Decl. 1 Ex. E at 1 (listing regulated discharges). Facilities seeking coverage under the General Permit must submit a Notice of Intent to Comply with the General Permit (“NOI”). Id. Ex. E at 6. The NOI embodies the discharger's agreement to abide by the terms of the permit. Envt'l Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir.2003).
The Permit has four basic requirements. First, permittees must implement best management practices (“BMPs”) to reduce or prevent pollutants in storm water discharges. Second, the Permit forbids discharges of storm water that cause or contribute to an exceedance of applicable Water Quality Standards in the applicable water quality or basin plan. Third, permittees must develop and implement a Storm Water Pollution Prevention Plan (“SWPPP”). Fourth, permittees must develop and implement a Monitoring and Reporting Program (“M & RP”) in compliance with Section B of the Permit, which includes filing annual reports with the Regional Water Quality Control Board. Koch Decl. 1 Ex. E at 4, 11–23, 24–45.
B. Factual and Procedural History of Defendants' Permits
Defendant LRTC owns the Levin Facility, a dry bulk cargo marine terminal in Richmond, California, on the Inner Harbor of San Pablo Bay. Defs.' MSJ Br. at 8. (Plaintiff states that Defendant Levin Enterprises, Inc., is the owner of the Main Terminal and the North Parr Yard portions of the Levin Facility, and that the South Parr yard is owned by the 799 Wright Avenue LLC, whose sole owner is Defendant Levin Enterprises, Inc. Koch Decl. 1 ¶ 25, Ex. U (Excerpts from Defendants' Responses to Requests for Admission) at 5–10.) It accepts dry bulk cargo from customers via truck or rail and loads the cargo into ships. There are facilities to temporarily store cargo before loading and two berths for cargo ships. Most of the cargo is stored outside. Defs.' Br. at 8; Declaration of James Holland ISO Defs.' Cross–Motion for Summary Judgment (“Holland Decl.”) ¶¶ 6–8. Defendant LRTC has an air permit from the Bay Area Air Quality Management District (“BAAQMD”) for the storage and handing of dry bulk cargo and its associated equipment (e.g., the bulk transport system). Holland Decl. Ex. B.
In 1992, Defendants submitted a “Notice of Intent for General Permit to Discharge Stormwater Associated with Industrial Activity” to the State Board. Koch Decl. 1 Ex. G at 2. Levin Enterprises is listed as the Owner/Operator, and the Levin Facility is described as a marine bulk terminal with an SIC code of 4491. Id. Under “Industrial Activities at Facility,” three activities are checked: material storage, vehicle maintenance, and material handling. Id. Under “Types of materials handled and/or stored outdoors,” scrap metal and “Other: Materials loaded/unloaded ie: Bauxite, Coal, Green Coke, Hog Fuel, Aggregate, etc.” are checked. Id. at 3. The Facility is listed as approximately 43 acres. Id.
In 1997, the General Permit expired. Those facilities enrolled under the prior Permit were sent NOI certifications and instructed that to enroll under the new General Permit, they should sign the certification and return it to the State Board. Koch Decl. 1 Ex. H at 2. Defendant signed the certification and dated it May 25, 1998. Id. at 3. The certification states that “I certify that the provisions of the permit, including the development of and implementation of a Storm Water Pollution Prevention Plan and a Monitoring Program Plan, will be complied with.” Id.
Defendants submitted their first SWPPP and M & RP for the Levin Facility in June of 2003. Koch Decl. 1 Exs. I, J. They submitted further SWPPPs and M & RPs dated 2006–2007 and 2011–2012. Id. Exs. O, P, Q. The current SWPPP, from 2013, states that Defendants “elected to manage all of the stormwater runoff” at the Facility. Id. Ex. S at 6.
On June 5, 2012, Plaintiff wrote Defendants a letter (“Notice Letter”) notifying them of Plaintiff's intent to file suit under the Clean Water Act. First Amended Compl. (“FAC”), Docket No. 12, Ex. A. The letter will be discussed in more detail below, but it is approximately 20 pages long, plus attachments, and describes Plaintiff's role as an advocacy organization, Defendants' operation, how storm water pollutes the San Francisco Bay watershed, how the Regional Board administers the General Permit, how Defendants' industrial activities pollute the Bay, and the specific alleged violations of the Clean Water Act.
On March 18, 2013, the Chief of the Regional Board's Watershed Division, Shin–Roei Lee, sent Defendants a letter stating that the Levin Facility “has had permit coverage” under the General Permit since 1992, and is required to maintain and implement a SWPPP. Having reviewed Defendants' 2013 SWPPP and 2011–12 Annual Monitoring Report, Ms. Lee wrote:
[W]e determine that the Terminal has been and must continue to be covered by the...
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