California Sportfishing Prot. Alliance v. Shamrock Materials, Inc.
| Decision Date | 02 November 2011 |
| Docket Number | No. C11-2565 MEJ,C11-2565 MEJ |
| Parties | CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, et al., Plaintiffs, v. SHAMROCK MATERIALS, INC., et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Plaintiffs California Sportfishing Protection Alliance and Petaluma River Council (collectively, "Plaintiffs") bring this action under the citizen suit enforcement provisions of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 ("the Clean Water Act" or "the Act"). Defendants Shamrock Materials, Inc., Corto Meno Sand and Gravel, LLC, and Corto Meno Sand and Gravel II, LLC (collectively, "Defendants") have now moved to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6). Dkt. No. 18. Because the Court finds this matter suitable for resolution based on the parties' written submissions, the Court VACATES the hearing set for November 3, 2011. See Civil L.R. 7-1(b). After careful consideration of the parties' arguments, the Court DENIES Defendants' motion for the reasons set forth below.
Plaintiff California Sportfishing Protection Alliance is a 501(c)(3) non-profit public benefit corporation dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of the San Francisco Bay and other California waters, including the PetalumaRiver. Compl. at 3, Dkt. No. 1. Plaintiff Petaluma River Council is an unincorporated organization of citizens who reside in and around Petaluma and are committed to protecting and improving the health and character of the Petaluma River and the San Francisco Bay. Id.
Defendants operate a facility located at 210-222 Landing Way, Petaluma, California ("the Facility"), and are engaged in off-loading, storage, distribution, and transportation of gravel and sand at the Facility. Id. at 4. Sand, gravel, and aggregate materials at the Facility are unloaded from barges along the Petaluma River and subsequently stored in large, uncovered piles in two areas, and then loaded and distributed via diesel-fueled trucks. Id. The sand, gravel, and aggregate materials are transported from the Facility and delivered off-site to several ready mix concrete plants operated by Defendants throughout the areas of Petaluma, Novato, Napa, and San Rafael, California. Id. at 6. The Facility primarily provides support services to these ready-mix concrete plants. Id. at 6-7.
The Clean Water Act is intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In pursuit of this goal, section 301(a) of the Act prohibits the "discharge of any pollutant" into navigable waters from any "point source" without a permit. 33 U.S.C. § 1311(a) (). "Discharge of a pollutant" is defined broadly to include "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12)(A); Rapanos v. United States, 547 U.S. 715, 723 (2006). And "navigable waters" means "Waters of the United States." 33 U.S.C. § 1362(7). "The phrase 'the waters of the United States' includes only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] . . . oceans, rivers, [and] lakes.'" Rapanos, 547 U.S. at 739.
Under the Act, the United States Environmental Protection Agency ("EPA") is required to regulate storm water discharges "to protect water quality." 33 U.S.C. § 1342(p)(6). The Administrator of the EPA has promulgated regulations defining the term "storm water discharge associated with industrial activity," which includes "the discharge from any conveyance which isused for collecting and conveying storm water and which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 C.F.R. § 122.26(b)(14).
Section 402 of the Act provides for the issuance of a permit under the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C § 1342(a). A NPDES permit allows the holder to discharge pollutants notwithstanding the general prohibition imposed by § 301(a). Id. The NPDES permitting program is the "centerpiece" of the CWA and the primary method for enforcing the effluent and water-quality standards established by the EPA and state governments. Natural Res. Def. Council, Inc. v. Cnty. of Los Angeles, 636 F.3d 1235, 1245 (9th Cir. 2011) (citations omitted). NPDES permits may be issued by the EPA or by state agencies that have been duly authorized by the EPA. 33 U.S.C. § 1342(a)-(b). In California, the NPDES program is administered by the State Water Resources Control Board ("the State Board"). Cal. Water Code § 13267(b)(1); Pl.'s Req. for Judicial Notice ("Pl.'s RJN") Ex. B, Dkt. No. 20.
In 1991, the State Board elected to issue a statewide General Permit for industrial discharges, which was subsequently modified in 1992 and reissued in 1997. Compl. at 5; Pl.'s RJN, Ex. C. In order to discharge storm water lawfully in California, industrial discharges must comply with the terms of the General Permit or have obtained and complied with an individual NPDES permit. 33 U.S.C. § 1311(a).
Sections 505(a)(1) and 505(f) of the Act provide for citizen enforcement actions against any "person," including individuals, corporations, or partnerships, for violations of the NPDES permit requirements and for un-permitted discharges of pollutants. 33 U.S.C. §§ 1365(a)(1) & (f), § 1362(5). As membership organizations, Plaintiffs have standing to bring suit on behalf of their members when they "would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). Defendants have not contested Plaintiffs' general standing to bring suit on behalf of their members.
In their Complaint, Plaintiffs allege that storm water falling on the Facility percolates through and flows over the sand, gravel, and aggregate materials and runs freely over the surfaces of the sand and gravel storage and processing areas. Compl. at 7. Plaintiffs allege that the storm water picks up sediments, oil and grease, fine materials, and other pollutants, and has its pH, specific conductivity, and clarity altered by the materials with which it comes into contact at the Facility. Id. Plaintiffs further allege that numerous activities at the Facility take place outside and are exposed to rainfall, including the storage and movement of aggregate materials, vehicles and other machines, maintenance and repair work on vehicles and machines, and vehicle fueling. Id. Plaintiffs allege that the machinery and other equipment leak contaminants such as oil, grease, diesel fuel, anti-freeze, and hydraulic fluids which are exposed to storm water flows. Id. Plaintiffs maintain that the management practices at the Facility are wholly inadequate to prevent these sources of contamination from causing the discharge of pollutants to waters of the United States. Id at 8. As the Facility is located adjacent to the Petaluma River, Plaintiffs allege that storm water from the Facility is discharged from the site into channels or other conveyances and subsequently discharged into the Petaluma River. Id.
Based on these allegations, Plaintiffs bring one cause of action - Discharges of Pollutants or Storm Water Associated with Industrial Activity Without a NPDES Permit in violation of 33 U.S.C. § 1311(a). Id. at 9-10. Specifically, Plaintiffs allege that Defendants discharge storm water associated with industrial activity from one or more point sources at the Facility to the Petaluma River, that Defendants have not obtained a NPDES permit for these discharges, and that the discharges from the Facility are therefore unlawful discharges of pollutants or storm water associated with industrial activity from point sources into waters of the United States. Id. Plaintiffs request that the Court declare Defendants to have violated and to be in violation of the Act, enjoin Defendants from discharging pollutants from the Facility, order Defendants to take appropriate actions to restore the quality of navigable waters impaired by their activities, and to award civil penalties, attorney's fees and costs as authorized under the Act. Id. at 10.
On October 10, 2011, Defendants filed the present Motion to Dismiss. Dkt. No. 18. Defendants seeks dismissal for lack of jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6). Id.
In their motion, Defendants argue that subject matter jurisdiction is absent because the Clean Water Act does not include facilities with the Standard Industrial Classification code of the type they operate. Defs.' Mot. at 2, Dkt. No. 18. Defendants further argue that Plaintiffs' cause of action for violations of 33 U.S.C. § 1311(a) fails to state a claim for relief because the Act does not require a permit for the alleged storm water discharges. Id. at 2.
As a preliminary matter, both parties have filed Requests for Judicial Notice. Dkt. Nos. 18-1 (Defs.'s RJN); Dkt. No. 20 (Pl.'s RJN). Defendants request that the Court take judicial notice of the following documents: (1) United States Department of Labor, Occupational Safety & Health Administration ("OSHA") Standard Industrial Codes ("SIC") Division D: Manufacturing, Industry...
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