Californians for Alternatives to Toxics v. Schneider Dock & Intermodal Facility, Inc.

• Citation: 374 F.Supp.3d 897
• Decision Date: 19 March 2019
• Docket Number: Case No. 17-cv-05287-JST
• Court: U.S. District Court — Northern District of California
• Parties: CALIFORNIANS FOR ALTERNATIVES TO TOXICS, Plaintiff, v. SCHNEIDER DOCK & INTERMODAL FACILITY, INC., et al., Defendants.

374 F.Supp.3d 897

CALIFORNIANS FOR ALTERNATIVES TO TOXICS, Plaintiff,

v.SCHNEIDER DOCK & INTERMODAL FACILITY, INC., et al., Defendants.

Case No. 17-cv-05287-JST

United States District Court, N.D. California.

Signed March 19, 2019

William Nazar Carlon, Andrew L. Packard, Law Offices of Andrew L. Packard, Petaluma, CA, David Hutching Williams, Law Offices of David Williams, Walnut Creek, CA, William Leonard Verick, Klamath Environmental Law Center, Arcata, CA, for Plaintiff.

Therese Yvonne Cannata, Kimberly A. Almazan, Mark Philip Fickes, Qwalyne Elise Lawson, Cannata O'Toole Fickes & Olson LLP, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PARTIAL SUMMARY JUDGMENT

Re: ECF No. 67

JON S. TIGAR, United States District Judge

Before the Court is Plaintiff Californians for Alternatives to Toxics's ("CAT") motion for partial summary judgment. ECF No. 67. The Court will grant the motion in part and deny it in part.

I. BACKGROUND

A. Clean Water Act Permitting

This case concerns Defendants' compliance with the permitting requirements of the Clean Water Act ("CWA"). The Court therefore briefly reviews the CWA's permit scheme before describing the relevant facts and history of this litigation.

Congress enacted the CWA in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). "Section 301(a) of the CWA prohibits the ‘discharge of any pollutant’ from any ‘point source’ into ‘navigable waters’ unless the discharge complies with certain other sections of the CWA." Nat. Res. Def. Council, Inc. v. County of Los Angeles , 725 F.3d 1194, 1198 (9th Cir. 2013) (citing 33 U.S.C. § 1311(a) ). The National Pollution Discharge Elimination System ("NPDES"), 33 U.S.C. § 1342, functions as "[a] linchpin of the CWA's regulatory scheme," authorizing "certain discharges of pollutants only if in compliance with government-issued permits, and impos[ing] related monitoring and reporting requirements." Ecological Rights Found. v. Pac. Lumber Co. , 230 F.3d 1141, 1145 (9th Cir. 2000). An NPDES permit may take the form of an individual permit, which "authorizes a specific entity to discharge a pollutant in a specific place and is issued after an informal agency adjudication process," or a general permit, which "is issued for an entire class of hypothetical dischargers in a given geographical region and is issued pursuant to administrative rulemaking procedures." Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC , 765 F.3d 1169, 1171 (9th Cir. 2014) (citations omitted).

Recognizing that "[s]tormwater runoff is one of the most significant sources of water pollution in the nation," Envtl. Def. Ctr., Inc. v. U.S. E.P.A. , 344 F.3d 832, 840 (9th Cir. 2003), Congress amended the CWA in 1987 "to establish a framework for regulating storm water discharges through the NPDES system," Waterkeepers N. Cal. v. AG Indus. Mfg., Inc. , 375 F.3d 913, 915 (9th Cir. 2004) (citing Water Quality Act of 1987, Pub. L. 100-4, § 405, 101 Stat. 7, 69 (1987) ) (codified at 33 U.S.C. § 1342(p) ). As relevant here, the 1987 amendments subjected storm water "discharges associated with industrial activity"¹ to NPDES permitting requirements. See 33 U.S.C. § 1342(p)(3)(A).

Under the CWA, the Environmental Protection Agency ("EPA") may delegate to qualifying states the authority to oversee and implement their own NPDES programs. Id. § 1342(b). California is one such state. See Nat. Res. Def. Council , 725 F.3d at 1198 ; Cal. Water Code § 13160 (designating State Water Resources Control Board as implementing authority for the CWA). The EPA's regulations governing storm water discharges allow California to either "issue individual permits to industrial dischargers" or to "cover many dischargers under the terms of one general permit." Waterkeepers N. Cal. , 375 F.3d at 915 ; see also 40 C.F.R. § 122.26.

During the relevant timeframe, industrial storm water dischargers in California have been subject to a single, statewide general permit. See State Water Resources Control Board, Water Quality Order No. 97-03-DWQ: NPDES General Permit No. CAS000001 ("1997 General Permit"), ECF No. 68 at 214-92 ; State Water Resources Control Board, Water Quality Order No. 2014-0057-DWQ: NPDES General Permit No. CAS000001 ("2015 General Permit"), ECF No. 68 at 5-212.² The 1997 General Permit imposes "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.

S.F. Baykeeper v. Levin Enterprises, Inc. , 12 F.Supp.3d 1208, 1212 (N.D. Cal. 2013). As relevant here, the 2015 General Permit contains similar requirements, although the monitoring requirement terminology has shifted to Monitoring Implementation Plan ("MIP"). 2015 General Permit § X(I). (Like the parties, the Court uses MIP to describe the 1997 General Permit's corresponding requirement as well.) In order to obtain coverage under the General Permit, industrial discharges must file a Notice of Intent ("NOI") with the Board that includes, among other things, a SWPPP and MIP. 2015 General Permit § II(B)(1); see also 40 C.F.R. § 122.28(b) (general permit requirements applicable to state NPDES programs). Although the Regional Water Boards may reject or require revisions to deficient applications, affirmative state approval is not required for a permittee to begin operating under the General Permit. 2015 General Permit § XIX.

While the Water Boards have the authority to enforce the General Permit, a private party may also sue for violations of the General Permit's terms under the CWA's citizen suit provision. See Pac. Lumber Co. , 230 F.3d at 1145 (citing 33 U.S.C. §§ 1365, 1365(f)(6) ).³ Prior to commencing suit, the CWA requires citizen plaintiffs to provide at least 60 days notice to the alleged violator. 33 U.S.C. § 1365(b)(1)(A). The Ninth Circuit has concluded that compliance with this notice requirement "is a jurisdictional necessity." Ctr. for Biological Diversity v. Marina Point Dev. Co. , 566 F.3d 794, 800 (9th Cir. 2009).

B. Factual Background⁴

Defendant Schneider Dock Industrial Park, LLC ("SDIP" or "Schneider Park") owns a 16-acre parcel on the Humboldt Bay waterfront in Eureka, California. ECF No. 78-7 ¶¶ 4-6. ECF No. 78-23 ¶ 2. Schneider Park operates an industrial park on the property, leasing buildings to various industrial tenants. ECF No. 69-1 at 22. Defendant David Schneider manages Schneider Park, although the LLC's ownership is currently held in a trust with his grandchildren as the sole beneficiaries. Id. at 22-24; see also ECF No. 78-23 ¶ 1. Besides David Schneider, Schneider Park has no employees. ECF No. 69-1 at 23.

Defendant Schneider Dock & Intermodal Facility, Inc. ("SDIF") is a separate entity. ECF No. 78-23 ¶ 1. David⁵ and his son, Defendant Ryan Schneider, incorporated SDIF in 2011; when David retired in 2016, Ryan became the sole owner and operator of SDIF. ECF No. 78-7 ¶¶ 2, 6.

On January 16, 2001, SDIF filed an NOI to operate under the 1997 General Permit, including a SWPPP ("2001 SWPPP and MIP"). ECF No. 78-25. At the time, David Schneider's plan was to operate a marine cargo handling facility, as reflected in the 2001 SWPPP's description: "Cargo and freight delivered to the Intermodal Facility is unloaded and delivered either directly to the Facility for reloading or inventoried and stored until shipping is made.... The Intermodal Facility has the capabilities to accept and disseminate containers by rail, truck, or ocean-going vessels." Id. at 4; see also ECF No. 78-7 ¶ 6. There were no active agreements to ship cargo when the 2001 SWPPP was filed, ECF No. 69-1 at 35, and the anticipated shipping traffic never materialized, ECF No. 78-7 ¶ 6.

Around 2011, David and Ryan Schneider, operating as SDIF, began running a log handling business where they would "receive untreated logs, remove the bark, store the logs, and arrange for transport from the facility, usually by truck or by sea." ECF No. 78-7 ¶ 2. SDIF leases a portion of the Schneider Park property for these operations. Id. When the logs are transported by sea, they are transferred to Schneider Park's dock for shipment. Id. The removed bark is temporarily stored at the leased SDIF Facility until enough bark has accumulated for it to be cost efficient to pay for offsite transport and recycling. Id. ¶ 5. Since 2014, when Schneider Park acquired an additional five acres, ECF No. 69-1 at 29, the SDIF Facility has occupied roughly the same portion of the property.

On April 2, 2014, the Board adopted the 2015 General Permit, to take effect on July 1, 2015. 2015 General Permit at i. On January 26, 2015, SDIF filed an NOI to be covered under the 2015 General Permit, and a minor amendment to the 2001 SWPPP that reflected Ryan's "assumption of the role as the Operator of the SDIF Facility." Id. ¶ 6; see also ECF No. 78-8. SDIF filed another amended NOI on January 3, 2017, which specified for the first time that the SDIF Facility's operations fell within the category of "Sawmills and Planing Mills, General" and updated the Standard Industrial Classification ("SIC") code accordingly. ECF No. 78-9 at 2.⁶

On May 17, 2017, CAT sent SDIF a 60-day notice of intent to sue under the CWA. ECF No. 55 at 23-36. Apparently in response to the notice's allegations, SDIF filed an amended SWPPP and MIP on September 8, 2017 ("2017 Amended SWPPP and MIP"). ECF No. 78-11.

Four days later, on September 12, 2017...