Clarke v. Pacific Gas & Electric Company

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 DAN CLARKE, Case No. 20-cv-04629-WHO

8 Plaintiff,

ORDER DENYING MOTION TO

9 v. DISMISS CLEAN WATER ACT

CLAIM

10 PACIFIC GAS & ELECTRIC COMPANY,

et al., Re: Dkt. No. 38

11

Defendants.

12

13 Defendants Pacific Gas and Electric Company and PG&E Corporation (collectively

14 “PG&E”) move to dismiss plaintiff Dan Clarke’s Clean Water Act (“CWA”) cause of action on

15 the grounds that it is barred by the statute of limitations and is insufficiently pleaded to establish

16 subject matter jurisdiction. But in Clarke’s First Amended Complaint (“FAC”) [Dkt. No. 28], he

17 sufficiently alleges the mechanisms by which repeated and discrete discharges from the Cannery

18 manufactured gas plant (“Cannery MGP”) have occurred and will likely occur periodically in the

19 future. Although PG&E argues that the series of discharges amount to one CWA violation that

20 first accrued decades ago while the Cannery MGP was operational, given the allegations in the

21 FAC it is plausible that each unpermitted discharge constitutes a separate CWA violation that

22 begins a new statutory clock. Clarke also alleges that the discharges were by a “person” (PG&E)

23 from a “point source” (Cannery MGP Site and its component parts), and that he provided adequate

24 notice of the CWA claim in his Notice of Intent to Sue (“NOI”). Accordingly, this Order DENIES

25 PG&E’s motion to dismiss.

26 BACKGROUND

27 I detailed Clarke’s allegations in my order on PG&E’s first motion to dismiss. See Order

1 Order”) [Dkt. No. 26] 2–3. I incorporate that discussion by reference here. In sum, Clarke alleges

2 that PG&E and its predecessors left behind hazardous waste created by the Cannery MGP along

3 the northern waterfront of San Francisco. FAC ¶ 1. The Cannery MGP was in operation from on

4 or around 1898 until at least 1906, when it was damaged in the Great Earthquake, and has long

5 since been abandoned. Id. ¶ 48. The site is currently owned by the National Park Service

6 (“NPS”). Id. ¶ 71. Soil samples taken in 1985 by the NPS and later in 1986 by PG&E “indicate

7 significant MGP contamination of soil and groundwater [in] the site and its vicinity”; Clarke

8 alleges that PG&E never performed any further testing or remediation. Id. ¶¶ 71–74.

9 On November 20, 2020, I granted in part and denied in part PG&E’s motion to dismiss,

10 finding that Clarke’s claim under the Resource Conservation and Recovery Act (“RCRA”) was

11 sufficiently pleaded and dismissing the CWA claim as untimely under the five-year statute of

12 limitations and the concurrent remedy doctrine. November 2020 Order at 1–2. I also dismissed

13 the strict liability and negligence claims for failure to allege cognizable damages and an

14 ultrahazardous activity. Id. at 2. I gave Clarke leave to amend.

15 On December 10, 2020, Clarke filed the FAC, retaining the RCRA claim, omitting the

16 state law claims, and amending the CWA claim to allege a series of discrete discharges to the Bay,

17 including discharges within the five years preceding the filing of this action that make his claim

18 timely. See FAC ¶¶ 109–25, 211. PG&E then moved to dismiss the CWA claim. See Pacific Gas

19 and Electric Company and PG&E Corporation’s Notice of Motion and Partial Motion to Dismiss

20 the First Amended Complaint (“MTD”) [Dkt. No. 38].

21 LEGAL STANDARD

22 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss if a claim

23 fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

24 dismiss, the claimant must allege “enough facts to state a claim to relief that is plausible on its

25 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when

26 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant

27 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

1 While courts do not require “heightened fact pleading of specifics,” a claim must be supported by

2 facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555,

3 570.

4 A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d

5 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the

6 allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

7 The challenger asserts that the allegations in the complaint are insufficient “on their face” to

8 invoke federal jurisdiction. See Safe Air Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

9 Cir. 2004). To resolve this challenge, the court assumes that the allegations in the complaint are

10 true and draws all reasonable inference in favor of the party opposing dismissal. See Wolfe, 392

11 F.3d at 362.

12 DISCUSSION

13 To state a claim under the CWA, a plaintiff must allege “(1) the ongoing addition of (2) a

14 pollutant (3) to the navigable waters of the United States (4) from a point source (5) without a

15 permit (or in violation of a permit).” Woodward v. Goodwin, No. C 99-1103 MJJ, 2000 WL

16 694102, at *5 (N.D. Cal. May 12, 2000). In his original Complaint, Clarke alleged that PG&E

17 “continues to violate” the CWA due to repeated unpermitted discharges of pollutants into the San

18 Francisco Bay from the remains of the Cannery MGP Site, as well as through its illegal failure to

19 do anything to stop those discharges. I found those allegations sufficient for the purposes of

20 alleging an “ongoing” discharge under the CWA, satisfying the jurisdictional requirement

21 prescribed in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59

22 (1987). See November 2020 Order at 11–12.

23 However, the allegations in the Complaint did not amount to a set of discrete unlawful acts

24 within the last five years and were thus time-barred by the statute of limitations under 28 U.S.C. §

25 2462, a “separate question” from the Gwaltney jurisdictional requirement. Id. at 12–15. The

26 allegations “amount[ed] to a single violation that first accrued decades ago, during the operation or

27 demolition of the Cannery MGP, but continues and remains un-remedied till this day.” Id. at 16.

1 claim was dismissed with leave to adequately allege a set of discrete unlawful acts within the last

2 five years that would not be time-barred by section 2462. Id.

3 PG&E argues that Clarke’s amended CWA claim remains untimely. MTD 5–11. It

4 additionally moves to dismiss the claim for lack of subject matter jurisdiction on grounds that

5 Clarke (i) fails to allege an ongoing discharge by a “person”; (ii) fails to allege on ongoing

6 discharge from a “point source”; and (iii) did not provide adequate notice of the claim in his NOI.

7 Id. at 11–22.

8 I. STATUTE OF LIMITATIONS

9 Clarke adds allegations in the FAC that better describe how contaminants from the

10 Cannery MGP Site are repeatedly and intermittently discharged by groundwater passing through

11 the Cannery MGP Site. The waste disposed by PG&E at the Cannery MGP Site includes

12 polyaromatic hydrocarbons (“PAHs”), which are known human carcinogens and are highly toxic

13 to marine life. FAC ¶ 44. When groundwater passes through the demolished Cannery MGP Site,

14 PAHs separate from the MGP waste. Id. ¶¶ 113, 120, 195. Those pollutants are then transported

15 via groundwater that flows towards and into the Bay, whose elevation is approximately 240 feet

16 lower than the Cannery MGP Site. Id. ¶¶ 109– 25, 210.

17 The process by which MGP waste is periodically transported by groundwater from the

18 Cannery MGP Site and discharged into the Bay “is highly complex” and “influenced by a variety

19 of factors,” including “seasonal, tidal, and other factors.” Id. ¶¶ 109, 111, 113. “These conditions

20 interact with one another and cause the intermittent (rather than constant) release of groundwater

21 from upland areas, including the MGP Site, to tidal surface water of the Bay.” Id. ¶ 113. For

22 instance, “[d]uring periods with high precipitation, the flow rate of groundwater increases and

23 contaminants are partitioned from MGP Wastes and transported into the Bay,” amounting to a

24 “functional equivalent of a direct discharge in violation of the CWA.” Id. ¶ 121. On the other

25 hand, “the lack of precipitation during the dry season slows or altogether stops contaminated

26 groundwater from reaching the Bay for longer periods of time.” Id. ¶ 122. During this time “the

27 partitioning of contaminants into groundwater temporarily pauses or decreases, resulting in

1 occur or no discharges of related contaminants to the Bay occur at all,” and thus no CWA

2 violations. Id. Accordingly, Clarke alleges, “periods of CWA violations and non-violations

3 continuously alternate, resulting in multiple, discrete CWA violations.” Id. ¶ 124. That is, “the

4 complex interactions of factors cause repeated and discrete discharges of contaminants from the

5 Cannery MGP Site into the Bay, each of which is a separate violation of the CWA.” Id. ¶ 125;

6 Plaintiff’s Opposition to Defendant’s Partial Motion to Dismiss First Amended Complaint

7 (“Oppo.”) [Dkt. No. 40] 6.1 Clarke contends that this process repeats itself to cause the ongoing

8 and intermittent discharge of toxic pollutants into the Bay, including within the five years

9 preceding the filing of this action. FAC ¶ 211.

10 These allegations sufficiently describe a series of discharges. The question, for statute of

11 limitations purposes, is whether a series of separate discharges constitutes a single CWA violation

12 that first accrued decades ago at the time of the first discharge or whether each discharge in the

13 series constitutes a separate CWA violation. Clarke failed to adequately answer that question in

14 the prior motion to dismiss round.

15 It is difficult to find persuasive precedent that is on point for this question. As I noted in

16 the prior order, the parties relied on cases from the Tenth Circuit because the Ninth Circuit has not

17 provided guidance on the difference between a “single, continuing violation” and “repeated,

18 discrete violations” of the CWA that would reset the statutory clock. November 2020 Order at 16;

19 see Sierra Club v. Oklahoma Gas & Elec. Co., 816 F.3d 666 (10th Cir. 2016); HEAL Utah v.

20 PacificCorp., 375 F. Supp. 3d 1231 (D. Utah 2019). Then and now, Clarke distinguishes

21 Oklahoma Gas and HEAL because those cases addressed singular events—the construction of a

22

23

1 In his opposition, Clarke concedes that he “does not ‘rely’” on his alternative “failure to act”

theory to plead a timely CWA claim. Oppo. 10–11. He nevertheless argues that my previous

24

order in the related Marina MGP case acknowledged that allegations regarding PG&E’s

affirmative refusals to investigate supported the timeliness of his CWA claims in that case. See

25

San Francisco Herring Ass’n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847, 861 (N.D. Cal. 2015)

(“[T]he complaint also alleges that PG&E’s current behavior,” including its refusal to test for

26

contaminants in groundwater, “contributes to ongoing violations relating to the MGP discharges”).

My order did not address the timeliness of Clarke’s CWA claims in the Marina MGP case because

27

PG&E did not raise a statute of limitations challenge in that case. Rather, I found that Clarke

1 facility in Oklahoma Gas and the placement of fill in a waterway in HEAL—as opposed to the

2 multiple discrete discharges into the Bay that have occurred within the limitations periods and

3 continue to periodically occur. Oppo. 7–8. But that alone does not explain why “PG&E’s and its

4 predecessors’ handling, storage, treatment, disposal and/or transportation of solid and/or

5 hazardous MGP wastes at the Cannery MGP Sites and/or the vicinity thereof,” which allegedly

6 “resulted in the contamination of the soil and groundwater of the terrestrial portions of those

7 locations,” is not a similarly singular event that led to a single CWA violation first accrued

8 decades ago. See FAC ¶ 103.

9 PG&E analogizes to the securities and employment cases discussed in Oklahoma Gas to

10 draw the distinction between discrete violations and a single, ongoing violation. MTD 8; see

11 Oklahoma Gas, 816 F.3d at 672 (“[O]ne violation continues when ‘the conduct as a whole can be

12 considered as a single course of conduct.’” (quoting Birkelbach v. SEC, 751 F.3d 472, 479 n.7 (7th

13 Cir. 2014) (securities violations)); see id. at 673 (citing Nat’l R.R. Passenger Corp. v. Morgan,

14 536 U.S. 101, 117 (2002) (hostile work environment)). It argues that Clarke’s CWA claim ignores

15 the central holding of those case—single, ongoing violations are not discrete acts just because

16 “[t]heir very nature involves repeated conduct.” Joseph v. J.J. Mac Intyre Companies, L.L.C., 281

17 F. Supp. 2d 1156, 1161 (N.D. Cal. 2003) (quoting Morgan, 536 U.S. at 115). As PG&E interprets

18 Clarke’s allegations, the recurring pattern of groundwater allegedly interacting with tides, by its

19 very nature, involves repeated conduct, not discrete acts by PG&E itself.

20 PG&E also cites cases construing other statutes of limitations that are triggered when a

21 claim “first accrues.” MTD 8. In Kosmo v. United States, 72 Fed. Cl. 46, 53 (2006), the Court of

22 Federal Claims found that under 28 U.S.C. § 2501’s six-year statute of limitations for claims

23 against the government, a claim first accrues “when all the events have occurred which fix the

24 liability of the Government and entitle the [plaintiff] to institute an action.” (citation omitted). In

25 the context of claims for military back pay and benefits, the single event that fixes the

26 government’s liability is the reassignment or discharge of the plaintiff, which does “not involve a

27 series of independent, distinct wrongs,” because it is the initial improper reassignment or

1 v. United States, 127 F.3d 1449, 1457 (Fed. Cir. 1997)). Similarly, Brown Park distinguished

2 claims that “could be broken down into a series of independent and distinct wrongs or events, each

3 such wrong or event having its own associated damages,” and “one alleged wrong by the

4 government, which accrued all at once at one point in time, even though it may have had later

5 adverse effects.” Brown Park, 127 F.3d at 1457.

6 The securities, employment, and military benefit cases that PG&E relies on are not

7 particularly useful in the CWA context. The single CWA case it cites, Cmty. Ass’n for

8 Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943 (9th Cir. 2002), is not helpful either.

9 Bosma Dairy addressed whether the plaintiff’s pre-suit notice was sufficient to satisfy the statutory

10 notice requirement, not whether plaintiff’s claims were time-barred under the five-year statute of

11 limitations. See id. at 952 (plaintiff’s NOI, which did not list all of the CWA violations alleged in

12 the subsequent complaint, satisfied the CWA’s notice requirement because the “violations

13 originated from the same source…[and] deposited the same waste material” into the same waters,

14 and “[t]hus in essence all of the alleged violations are a single violation that repeated over a span

15 of time”).

16 Clarke argues that the text of section 301 of the CWA makes clear that it is each

17 “discharge” of pollutants that is unlawful and not, as PG&E suggests, the beginning of the chain

18 of events that contributed to the recurring discrete discharges. Oppo. 10. Although his case

19 citations do not straightforwardly address the point, there is case law that supports this reading of

20 section 301.2

21 For example, in Cox v. Bd. of Cty. Commissioners of Franklin Cty., 436 F. Supp. 3d 1070,

22 1085 (S.D. Ohio 2020), the defendants moved to dismiss some of the dry weather screenings listed

23

24

2 Clarke’s cites the Supreme Court’s recent opinion in Cty. of Maui, Hawaii v. Hawaii Wildlife

Fund, 140 S. Ct. 1462 (2020). Maui addressed the parameters of what is considered “from a point

25

source” and when that constitutes a CWA violation. After considering “the statute’s language,

structure, and purposes,” the Court held that the CWA “requires a permit when there is a direct

26

discharge from a point source into navigable waters or when there is the functional equivalent of a

direct discharge” from the point source into navigable waters. Id. at 1476 (emphasis in original).

27

Maui does not squarely address the issue raised here, i.e., whether each “direct discharge” or

1 in the complaint on grounds that they took place outside of the five-year statute of limitations.

2 The court denied dismissal, finding that the CWA makes clear that “each day upon which an

3 unpermitted discharge occurs results in a separate and distinct violation of [section] 301(a).” Id.

4 (quoting Wisconsin Res. Prot. Council, Ctr. for Biological Diversity v. Flambeau Min. Co., 903 F.

5 Supp. 2d 690, 721 (W.D. Wis. 2012), rev’d on other grounds, 727 F.3d 700 (7th Cir. 2013)). The

6 plaintiff “sufficiently allege[d] that the illicit discharges detected by the dry weather screenings are

7 the types of violations which occur every day and continue to the present,” and although “[t]he

8 upshot of the [defendant’s] argument [was] that the dry weather screenings were one-time events

9 which reflect wholly past violations,” the court found that the plaintiff sufficiently “allege[d]

10 continuous violations.” Id. “Though the dry weather screenings may have occurred over five

11 years before the Notice Letter, the illicit discharges have allegedly occurred every day within the

12 limitations period.” Id.

13 In Flambeau, 903 F. Supp. 2d at 721, defendants moved for summary judgment on the

14 statute of limitations issue, arguing that one of the events giving rise to the suit (a 1998 permit

15 modification approved by the Wisconsin Department of Natural Resources) occurred more than

16 five years before the suit was filed. The court rejected that argument, finding that the plaintiffs

17 “[did] not seek relief for the 1998 permit modification, construction of the biofilter or even the

18 first discharges from the biofilter in 1999”; “[r]ather, plaintiffs’ claims [were] for those discharges

19 from the biofilter that occurred within the statute of limitations period, and “[a]s the Clean Water

20 Act makes clear, each day upon which an unpermitted discharge occurs results in a separate and

21 distinct violation of [section] 301(a).” Id. (citing cases). Thus, the plaintiffs could “seek civil

22 penalties for each violation that accrued within the five years preceding the notice letter.” Id.

23 One of the cases on which Flambeau relied was a Ninth Circuit case, Borden Ranch P’ship

24 v. U.S. Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001), aff’d, 537 U.S. 99, (2002).

25 Defendants there appealed the district court’s ruling that each individual pass of a ripper (metal

26 prongs dragged through the soil behind a tractor or a bulldozer) through a protected wetland was a

27 separate CWA violation for which penalty could be assessed. Id. at 816–17. The Ninth Circuit

1 is “more consistent with the statutory language, with prior judicial interpretations of the statute,

2 and with the general policy goal of discouraging pollution.” Id. at 818.

3 At this stage, I conclude that Clarke’s CWA claim, as pleaded, is sufficient for statute of

4 limitations purposes. As other courts have noted, “[t]he application of the statute of limitations to

5 the circumstances of the case often must be done at the summary judgment stage and may require

6 expert testimony as to the cause or source of the violation(s).” Cox, 436 F. Supp. 3d at 1086 n.4.

7 Whether the alleged violations are in fact within the statute of limitations is better determined on a

8 full factual record. PG&E’s motion to dismiss the CWA claim as time-barred is DENIED.

9 II. DISCHARGE BY A “PERSON”

10 To the extent that Clarke alleges the groundwater pathway is only intermittent, causing

11 discrete “discharges,” PG&E argues that those discharges are not discharges by a “person,” as

12 required in order to constitute a violation of 33 U.S.C. § 1311(a), but are discharges by the

13 confluence of a number of natural atmospheric and geological processes. MTD 12; see 33 U.S.C.

14 § 1311(a) (“[T]he discharge of any pollutant by any person shall be unlawful.”); see also 33

15 U.S.C. § 1365(a)(1) (“[A]ny citizen may commence a civil action on his own behalf . . . against

16 any person . . .”). It interprets the FAC as alleging that several natural factors cause the

17 discharges, not any activity by PG&E itself. It argues that such “passive migration” of pollutants

18 on a defendant’s property is not subject to CWA permitting requirements. See Cal. Sportfishing

19 Prot. Alliance v. Diablo Grande, Inc., 209 F. Supp. 2d 1059, 1077 (E.D. Cal. 2002) (citing

20 Froebel v. Meyer, 217 F.3d 928, 938–39 (7th Cir. 2000)); see also N. Carolina Shellfish Growers

21 Ass’n v. Holly Ridge Assocs., LLC, 278 F. Supp. 2d 654, 680 (E.D.N.C. 2003) (citing Cal.

22 Sportfishing and Froebel).

23 Clarke responds that the natural processes contributing to PG&E’s repeated discharge of

24 pollutants into the Bay do not change the substance of his allegations that, but for PG&E’s actions,

25 no pollutant discharges would occur from the Cannery MGP. Oppo. 12. He notes that I rejected

26 PG&E’s argument that dismissal is warranted because the alleged violations are “wholly past” and

27 the mere “migration of residual contamination” in the Marina MGP case. See San Francisco

1 in the Marina MGP case, Clarke contends that the allegations are sufficient to establish that PG&E

2 caused, and thus is liable for, the ongoing intermittent discharges from the Cannery MGP.

3 PG&E clarifies that it is not seeking dismissal based on “wholly past” violations. Instead,

4 it states that to the extent any discharges occurred within the last five years, those discharges were

5 caused by an interplay of natural processes and not by its own action. Pacific Gas and Electric

6 Company and PG&E Corporation’s Reply in Support of Partial Motion to Dismiss First Amended

7 Complaint (“Reply”) [Dkt. No. 43] 6.

8 None of the “passive migration” cases cited by PG&E support dismissal at the pleadings

9 stage. Most of the cases PG&E cites were decided on the summary judgment with the benefit of a

10 full evidentiary record. See Cal. Sportfishing, 209 F. Supp. 2d at 1077; N. Carolina Shellfish

11 Growers, 278 F. Supp. 2d at 680. The one that was not is easily distinguished. In Froebel, a

12 Wisconsin citizen sued a set of state defendants, arguing that their removal of a dam led to a

13 discharge of fill materials for which they should have sought a permit pursuant to section 404 of

14 the CWA. Froebel, 217 F.3d at 932. He also sued Waukesha County, which was not involved in

15 the removal of the dam but owned the property on which the dam was located at the time he

16 brought his suit. Id. The Seventh Circuit affirmed the court’s dismissal of Frobel’s CWA claim

17 against Waukesha County because the claim “would essentially require Waukesha County to seek

18 a permit to do nothing but continue to own the land,” suggesting that CWA violations cannot

19 result for “purely passive activity.” Id. at 938–39. PG&E is alleged to have been responsible for

20 the operation of the Cannery MGP, and even though the alleged pollution first occurred more than

21 a century ago, it cannot be said to have been “purely passive.”

22 Factual disputes about what or who caused the discharges and whether the discharges

23 amount to merely “passive migration” of pollutants not subject to CWA permitting requirements

24 cannot be resolved on the pleadings. PG&E’s motion to dismiss Clarke’s CWA claim for failure

25 to allege discharges by a “person” is DENIED.

26 III. DISCHARGE FROM A “POINT SOURCE”

27 PG&E argues that Clarke has not sufficiently alleged discharge of pollutants from a “point

1 MGP Site and its vicinity, and PG&E contends that the alleged site-wide releases amount to

2 discharges from a “nonpoint source.” MTD 14–18.

3 The CWA defines a “point source” as “any discernible, confined and discrete conveyance,

4 including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or]

5 container . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The

6 statutory definition of a point source is meant to be “extremely broad.” Borden Ranch, 261 F.3d

7 at 815. A “source” may be “[a]ny building, structure, facility, or installation from which there is

8 or may be the discharge of pollutants.” 33 U.S.C. § 1316(a)(3). All other sources of pollution are

9 characterized as “nonpoint sources.” Oregon Nat. Desert Ass’n v. U.S. Forest Serv., 550 F.3d

10 778, 780 (9th Cir. 2008); see Oregon Nat. Res. Council v. U.S. Forest Serv., 834 F.2d 842, 849 n.9

11 (9th Cir. 1987) (“Nonpoint source pollution is not specifically defined in the Act, but is pollution

12 that does not result from the ‘discharge’ or ‘addition’ of pollutants from a point source.”). The

13 CWA requires a permit “when there is a discharge from a point source directly into navigable

14 waters or when there is the functional equivalent of a direct discharge.” Maui, 140 S. Ct. at 1465

15 (emphasis in original).

16 In the Marina MGP case, I found Clarke’s point source allegations sufficient and

17 “decline[d] to hold as a matter of law that an entire factory or plant cannot be considered a ‘point

18 source’ under the CWA.” SFHA, 81 F. Supp. 3d at 862. At the hearing, PG&E argued that

19 Clarke does not allege here, as he did in the Marina MGP case, that the plant itself is the point

20 source; rather, he alleges that the Cannery MGP Site is the point source. See FAC ¶ 209 (“The

21 Cannery MGP Site on which PG&E disposed MGP Wastes qualifies as a point source of these

22 pollutants.”). He defines the Cannery MGP Site as an entire city block, but, PG&E asserts, fails to

23 cite any authority to support such a broad interpretation of “point source.”

24 The point source allegations in the Marina MGP case and this case are not as different as

25 PG&E claims. In the Marina MGP case, I rejected PG&E’s arguments that “the plaintiffs

26 inappropriately identified the three subject MGP sites as ‘point sources’ under the CWA,” and

27 “that the designation of an entire MGP site is overly broad and does not specify a ‘conveyance’ by

1 in the Marina MGP case sufficiently described “in detail the activities of the MGPs, how they

2 emitted various pollutants into the soil and directly into the Bay, and several conduits by which the

3 pollutants travel from the MGPs into the Bay,” including “via direct disposal into the San

4 Francisco Bay waters, through groundwater, and through the T/S system,” a network of combined

5 transportation and storage boxes. Id.

6 The FAC describes the alleged point source with similar specificity. Clarke alleges that

7 PG&E’s discharges occur from groundwater passing through a “discernable, confined and discrete

8 conveyance”—the demolished MGP facility on the Cannery MGP Site. He contends that the

9 demolished facility consists of multiple different components that are themselves identified

10 conveyances and sources of contaminants that enter the groundwater, and that the groundwater is

11 then conveyed into the Bay, which constitutes a “discharge.” FAC ¶ 195. He provides detailed

12 descriptions of the component parts that PG&E left in place, including pipes, storage vats, and

13 drainage flumes, and claims that each of these parts, and the demolished facility as a whole, are

14 the alleged point sources of pollution. Id. ¶¶ 36, 41–43, 59, 114, 209.

15 For example, he describes that “a coal wharf existed along [the] northern edge” of the

16 Cannery MGP, and “similar wharfs of the [Marina MGPs] . . . are locations of large quantities of

17 MGP Wastes.” Id. ¶ 52. “In addition, a 47,000-gallon crude oil tank was located on the wharf,”

18 and a similar crude oil take in one of the Marina MGPs was found to be “highly contaminated

19 with a very large deposit of MGP tar, which, in turn, has contaminated the groundwater in the

20 area.” Id. ¶¶ 53–54. On the “western edge of the Cannery MGP Site, two gas holders existed

21 immediately south of the oil tank,” and similar former gas holders of the Marina MGPs were

22 found to be “highly contaminated,” and at the location of one of those gas holders, “a very large

23 deposit of MGP tar was discovered.” Id. ¶¶ 55–56. “Based on the known operations of the

24 Cannery MGP, the limited investigation performed in the 1980s, and the contamination patterns

25 that exist at the other MGPs,” Clarke alleges that the “contamination existing at the Cannery MGP

26 Site and areas offshore thereof most certainly include, without limitation” identifiable points of

27 contamination such as : (i) “MGP tar deposits” and “[g]roundwater contamination” from “two

1 of tar wells”; (ii) solid MGP wastes, “including high levels of PAH,” as a result of “on-site waste

2 disposal . . . in the eastern portion of the Cannery MGP Site where MGP Waste was used as fill”;

3 and (iii) solid MGP wastes and MGP tar deposits “in the sediment of Fisherman’s Wharf, Aquatic

4 Park, and other offshore areas, as a result of direct disposal therein and redistribution from such

5 direct disposal sites and onshore locations.” Id. ¶¶ 195(a)–(i).

6 This level of specificity is sufficient at the pleadings stage, particularly in light of the

7 “extremely broad” statutory definition of a “point source.” Borden Ranch, 261 F.3d at 815.

8 Whether a particular part of the demolished facility or the demolished facility as a whole is in fact

9 a point source will be determined on a full factual record.

10 PG&E’s motion to dismiss Clarke’s CWA claim for failure to allege discharges from a

11 “point source” is DENIED.

12 IV. NOTICE REQUIREMENTS

13 PG&E separately argues that Clarke’s NOI failed to provide adequate notice of his theory

14 of discrete discharges. In particular, it contends that the NOI failed to identify the activities

15 alleged to violate the CWA, the location of the violations, and the dates of the violations. MTD

16 18.

17 CWA notice requirements are mandatory and must be strictly construed. Hallstrom v.

18 Tillamook Cnty., 493 U.S. 20, 31 (1989). The Ninth Circuit requires notice to inform the targeted

19 party “precisely what it allegedly did wrong, and when.” Ctr. for Biological Diversity v. Marina

20 Point Dev. Co., 566 F.3d 794, 801 (9th Cir. 2008). But as long as the information in the notice

21 letter is “reasonably specific” as to the nature and time of the alleged violation, the CWA notice

22 requirement is fulfilled. San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th

23 Cir. 2002). The NOI “does not need to describe every detail of every violation”; “it need only

24 provide enough information that the defendant can identify and correct the problem.” Id.

25 The Ninth Circuit recognizes that precise dates of violations may not always be available

26 to a plaintiff, and, thus, a notice that describes the conditions giving rise to a violation are adequate

27 when “specific enough to give [the violator] an ‘opportunity to correct the problem.’” Tosco

1 Tosco Corp. “did not provide any specific dates other than the general date range covered by its

2 notice letter,” but the “notice did, however, clearly identify the alleged violation—namely, that

3 during the time when the [petroleum] coke piles remained uncovered, wind blew coke into the

4 slough”—and that was sufficient. Id. Similarly, while Clarke’s NOI broadly stated that the “[t]he

5 violations that are the subject of this notice began sometime during or prior to the year 1903 and

6 are ongoing,” it nonetheless explained that violations occur when groundwater “flows through the

7 terrestrial portions of the [Cannery] MGP Site . . .” MTD, Ex. A (October 23, 2018 NOI) at 2, 6.

8 Like the notice in Tosco Corp., Clarke’s NOI provided a description of the conditions under which

9 discharges occur that are sufficient to allow PG&E the “opportunity to correct the problem.” See

10 Tosco Corp., 309 F.3d at 1159.

11 The NOI sufficiently informed PG&E of its activities alleged to violate the CWA—

12 PG&E’s intermittent and repeated discharges via groundwater flows through the polluted Cannery

13 MGP and into the Bay. See October 23, 2018 NOI at 6 (PG&E “discharged [pollutants] via the

14 groundwater that flows through the terrestrial portions of the [Cannery] MGP Site and via

15 seawater that flows as a result of tidal action in and out of the terrestrial portions of the [Cannery]

16 MGP Site”). In the FAC, Clarke likewise alleges that “the multiple factors affecting groundwater

17 flows from and through the Cannery MGP Site determine whether and when the functional

18 equivalent of a direct discharge occurs from the Cannery MGP Site . . . includ[ing] groundwater

19 density gradients due to the salinity difference between seawater and fresh groundwater; tidal

20 oscillations, wave action, and storm surges; seasonal variations in precipitation; and other factors.”

21 FAC ¶ 119. Clarke’s description of discharge mechanisms is adequately reflected in the NOI and

22 is “reasonably specific” as to the nature of the alleged violations. See Tosco Corp., 309 F.3d at

23 1155. Both identify tidally influenced groundwater flowing through the Cannery MGP Site as the

24 central discharge mechanism causing PG&E’s CWA violations. Clarke’s NOI need not “describe

25 every detail of every violation,” it needs “only provide enough information that the [PG&E] can

26 identify and correct the problem.” Tosco Corp., 309 F.3d at 1155.

27 Finally, Clarke’s NOI sufficiently identified the location of PG&E’s discharges. The NOI

1 the [Cannery] MGP, which is located on the western portion of the square block bounded by

2 Leavenworth St., Hyde St., Jefferson St., and Beach St., within the Fisherman’s Wharf

3 Neighborhood in San Francisco, CA, as well as in areas in the terrestrial vicinity and immediately

4 offshore of the former location of the [Cannery] MGP.” October 23, 2018 NOI at 2; see FAC J

5 |] 51.

6 In sum, PG&E’s motion to dismiss for failure to provide adequate notice is DENIED.

7 CONCLUSION

8 For the foregoing reasons, PG&E’s motion to dismiss Clarke’s CWA cause of action is

9 || DENIED.

10 IT IS SO ORDERED.

11 Dated: April 22, 2021

William H. Orrick

United States District Judge

2 16

18

19

20

21

22

23

24

25

26

27

28