Foundation v. Am. Recycling Int'l, Inc.
| Decision Date | 08 December 2017 |
| Docket Number | Case No. 17-cv-00425-BAS-JMA |
| Parties | COASTAL ENVIRONMENTAL RIGHTS FOUNDATION, Plaintiff, v. AMERICAN RECYCLING INTERNATIONAL, INC. dba LKQ PICK YOUR PART OCEANSIDE, Defendant. |
| Court | U.S. District Court — Southern District of California |
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Plaintiff Coastal Environmental Rights Foundation brings this lawsuit against Defendant American Recycling International, Inc., which is doing business as LKQ Pick Your Part Oceanside, for violations of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 ("Clean Water Act" or "CWA").
Presently before the Court is Defendant's motion to dismiss Plaintiff's action for lack of subject matter jurisdiction and for failure to state a claim. (ECF No. 7.) Defendant argues that dismissal is proper because (i) Plaintiff's sixty-day pre-suit notice does not meet the Clean Water Act's requirements and (ii) Plaintiff's legal theories rely on a misinterpretation of the permit that governs Defendant's storm water discharges. (Id.) Plaintiff opposes. (ECF No. 14.)
The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the reasons discussed below, the Court DENIES Defendant's motion to dismiss.
Plaintiff is a California non-profit public benefit corporation with its office in Encinitas, California. (Compl. ¶¶ 7-8, ECF No. 1.) The public and members of Plaintiff's organization use the San Luis Rey River—a river located in northern San Diego County—and the Pacific Ocean to "fish, sail, boat, kayak, surf, swim, scuba dive, birdwatch, view wildlife, and to engage in scientific studies." (Id. ¶¶ 10-11.) Plaintiff alleges that Defendant's storm water discharges from its industrial facility into the San Luis Rey River, and ultimately the Pacific Ocean, affect and impair each of these uses and thus pose a continuous threat to Plaintiff's members' interests. (Id. ¶¶ 5, 12.)
Defendant is a California corporation that operates an industrial facility in Oceanside, California. (Compl. ¶¶ 5, 14.) This facility is a fourteen-acre automobile salvage establishment that is classified under "standard industrial classifications (SIC) code . . . 5015," which applies to "establishments primarily engaged in dismantling used motor vehicles for the purpose of selling parts." (Id. ¶ 44.)
More specifically, Defendant's relevant industrial activities include "junk vehicle storage, vehicle loading and unloading, battery removal, dismantling, cutting and baling, and vehicle maintenance, fueling, and washing activities." (Compl. ¶ 45.) Potential pollutant sources involved in these activities include: "scrap metal outdoor storage areas; oil and lubricant storage; battery storage areas; equipment and container storage areas; loading and unloading areas; maintenance areas; hazardous waste storage areas; and the on-site material handling equipment such as forklifts."(Id. ¶ 64.) Particularly, Plaintiff describes "containers stored on-Site that are uncovered and/or uncontained" as potential sources of pollutants, (id. ¶ 67), and alleges that Defendant's pollution control protocols are inadequate to prevent contamination of storm water, (id. ¶ 72).
As a result of Defendant's industrial activities and alleged inadequate controls, Plaintiff contends that "particulates from operations, oil, grease, suspended solids, hazardous waste, phosphorous, and metals such as aluminum, iron, copper, lead, and zinc materials are exposed to storm water" at the facility. (Compl. ¶ 48.) Plaintiff further alleges that this contaminated storm water is then discharged "into the City of Oceanside's storm water conveyance systems or directly to the San Luis Rey River" from a single discharge point, (id. ¶ 49), where it causes or contributes "to the impairment of water quality in the San Luis Rey River," (id. ¶ 55). To support its allegations, Plaintiff presents Defendant's storm water sampling data from May 2016, which show measurements of various pollutants in excess of water quality criteria found in the Water Quality Control Plan for the San Diego Basin1 and promulgated by the U.S. Environmental Protection Agency ("EPA"). (Id. ¶¶ 57, 77-81.)
Based on this backdrop, Plaintiff alleges that since Defendant commenced its operations in July 2015, Defendant has discharged contaminated storm water in violation of the Clean Water Act and the requirements of California's National Pollution Discharge Elimination System ("NPDES") General Permit for Storm Water Discharges Associated with Industrial Activities ("Permit"). .) Likewise, Plaintiff alleges that Defendant has failed to develop and implement a Storm Water Pollution Prevention Plan ("Pollution Prevention Plan") that meets the requirements of the NPDES Permit.2 (Compl. ¶¶ 84, 122-29.)
More specifically, Plaintiff asserts that Defendant's industrial activities and corresponding Pollution Prevention Plan have violated the following substantive and procedural requirements of the Permit. First, Plaintiff contends that Defendant has failed to identify and implement site-specific Best Management Practices to reduce or prevent the discharge of pollutants. (Compl. ¶¶ 83, 86.) In addition, Plaintiff alleges a pattern of ongoing noncompliance with various storm water monitoring and reporting requirements. (Id. ¶¶ 98-101.) Plaintiff asserts that Defendant has failed to (i) implement an adequate Monitoring & Reporting Program3 as a component of the Pollution Prevention Plan, (ii) conduct required sampling of storm water for pollutants, and (iii) submit accurate reports of sampling data to the State Water Board. (Id. ¶¶ 98-101, 130-33, 140-42, 145-46.) Finally, Plaintiff alleges that Defendant has failed to meet certain remedial Permit requirements after its samplesshowed excessive discharges of pollutants.
Pursuant to the CWA, Plaintiff issued a sixty-day pre-suit notice ("Pre-Suit Notice") to Defendant on December 21, 2016, regarding its alleged violations of the CWA and Plaintiff's intention to file suit against Defendant. See 33 U.S.C. § 1365(b)(1)(A). 4 Plaintiff also submitted the Notice to the Administrator of the EPA, the Administrator of EPA Region IX, the Executive Director of the State Water Board, and the Executive Officer of the Regional Water Board. (Compl. ¶ 2.) Plaintiff then filed its Complaint against Defendant on March 1, 2017. Defendant now moves to dismiss the Complaint for lack of subject matter jurisdiction and several of Plaintiff's causes of action for failure to state a claim upon which relief may be granted.5
A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the court's jurisdiction over the subject matter of the complaint. "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "They possess only that power authorized by Constitution or a statute, which is not to be expanded by judicial decree." Id. (citations omitted). "It is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (citations omitted); see also Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006).
Federal district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A plaintiff invoking this jurisdiction must show "the existence of whatever is essential to federal jurisdiction," and if the plaintiff fails to do so, the court "must dismiss the case, unless the defect [can] be corrected by amendment." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam) (quoting Smith v. McCullough, 270 U.S. 456, 459 (1926)), abrogated on other grounds by Hertz Corp v. Friend, 559 U.S. 77 (2010).
Further, the doctrines of ripeness and mootness also relate to a federal court's subject matter jurisdiction, and so challenges to a claim on either ground are properly raised in a Rule 12(b)(1) motion. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
Defendant moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Defendant makes two jurisdictional challenges. At the threshold, Defendant argues that Plaintiff's Pre-Suit Notice is insufficient to confer jurisdiction over thiscitizen suit under the Clean Water Act. (Mot. 11:1-15:21.) Next, Defendant contends that it voluntarily ceased the conduct underlying several of the alleged Clean Water Act violations before Plaintiff commenced this action. (Id. 25:11-28:20.) Thus, Defendant argues three of Plaintiff's causes of action are moot. (Id.) As explained below, the Court rejects these challenges.
For a court to have jurisdiction over a CWA citizen suit, the plaintiff must have "given notice of the alleged violation (i) to the [EPA's] Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator" at least sixty days before commencing the action. 33 U.S.C. § 1365(b)(1)(A). Adequate notice must "include sufficient information to permit the recipient to identify": (1) "the specific standard, limitation, or order alleged to have been violated"; (2) "the activity alleged to constitute a violation"; (3) "the person or persons responsible for the alleged violation"; (4) "the location of the alleged violation"; (5) "the date or dates of...
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