District Court In California Denies Defendant’s Motion To Dismiss CWA Citizen Suit, Finding 60-Day Notice Letter Sufficient And Claims Adequately Alleged

In Coastal Envtl. Rights Found. v. Am. Recycling Int’l, Inc., 2017 U.S. Dist. LEXIS 202649 (SD CA, December 8, 2017), the District Court denied defendant’s Motion to Dismiss plaintiff’s claims brought under the citizen suit provision of the Clean Water Act. Defendant argued that plaintiff failed to comply with the jurisdictional prerequisite to bringing such a suit: a sufficient Notice of Intent To Sue pursuant to 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.3 (“60-Day Notice Letter”). In addition, defendant claimed that it had voluntarily stopped the conduct alleged to constitute certain of the Clean Water Act violations, rendering those claims moot. Finally, defendant sought dismissal of several of plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The District Court denied defendant’s motion to dismiss on all grounds.

In Am. Recycling, both plaintiff, a California non-profit, and defendant, a fourteen-acre automobile salvage business, were located in North San Diego County. Plaintiff alleged that defendant’s storm water discharges polluted the San Luis Rey River and impaired its members’ use and enjoyment of the river. Specifically, plaintiff alleged that defendant’s operations, management practices and pollution control protocols resulted in contaminated storm water entering the storm water conveyance system or discharging directly to the San Luis Rey River. In support, plaintiff alleged storm water sampling data from May 2016 showed levels of various parameters in excess of the relevant water quality criteria in violation of the Clean Water Act and requirements of California’s NPDES General Permit for Storm Water Discharges Associated with Industrial Activities (“Permit”).

The District Court first examined defendant’s motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1). As its initial ground, defendant argued that plaintiff’s 60-Day Notice Letter was inadequate for two reasons: failing to identify plaintiff’s contact information and failing to identify the industrial activities upon which plaintiff’s claims are based. The District Court rejected the first argument as the 60-Day Notice Letter did identify plaintiff by name, assert that plaintiff was represented by counsel, provide contact information for that counsel and request all communications be handled through counsel. Moreover, the District Court noted that, since plaintiff and its counsel shared the same contact information, the technical requirements of 40 C.F.R. § 135.3 were met. Regarding defendant’s second argument, the District Court found that it ran contrary to the Notice itself which did, in fact, identify the nature of defendant’s facility and relevant SIC code. Moreover, based on defendant’s knowledge of its own operations, it could not plausibly claim to be unaware of the relevant activities and responsible person or persons. Finally, the Court looked to defendant’s post-60-Day Notice Letter storm water sampling as evidence that defendant understood “at least some” of plaintiff’s allegations regarding its inadequate monitoring and reporting program.

The defendant’s second ground for its motion to dismiss for lack of subject matter jurisdiction –mootness — was based on its claim that its voluntary cessation of conduct rendered a portion of plaintiff’s action moot as wholly past violations. The District Court rejected this argument too, finding that plaintiff adequately pled these claims as “continuous or intermittent” Permit violations for this initial stage of proceedings. Moreover, defendant failed to meet its heavy burden to show that the behavior in question could not reasonably be expected to recur based simply on two post-60-Day Notice Letter storm water sampling events.

Lastly, the District Court turned to defendant’s motion to dismiss several of plaintiff’s Permit violation claims under FRCP 12(b)(6) for failure to state a claim. The District Court upheld each of plaintiff’s claims, finding plaintiff had adequately alleged the specific Permit violation at issue in each claim, including allegations of defendant’s failure to implement adequate Best Management Practices to comply with the Permit’s effluent limitations, failure to ensure its storm water discharges do not violate the Permit’s receiving water limitations, and failure to implement an adequate Storm Water Pollution Prevention Plan and Monitoring & Reporting Program.

Most notably, the District Court affirmed that plaintiff adequately alleged a violation of the Permit’s Level 1 Exceedance Response Action requirements for exceedances of copper and zinc despite the fact the Permit did not specifically require sampling for those constituents. However, the Permit did require defendant to sample additional parameters to determine parameters on a “facility-specific basis that serve as indicators of the presence of all industrial pollutants identified in the pollutant source assessment” which must include “the pollutants likely to be present in industrial storm water discharges.” Am. Recycling, *29. As plaintiff alleged that copper and zinc had been “historically found at the Facility” and were “common pollutants” found at industrial facilities, the District Court held it was reasonable to interpret the Permit as requiring defendant to sample, analyze and address exceedances of common pollutants in its storm water that defendant should reasonably be aware of, including copper and zinc. Am. Recycling, *30. In addition, the District Court pointed to the fact that the defendant actually did analyze its storm water for copper and zinc. Therefore, in light of the Permit terms and plaintiff’s allegations, plaintiff adequately pled that the defendant was required to compare its sampling results with the limitations set forth in the Permit and then take the required action to address the exceedances. As defendant allegedly failed to do this, plaintiff adequately alleged a Permit violation.

Based on the foregoing, the District Court denied defendant’s Motion to Dismiss in its entirety.