Petition for Writ of Certiorari — Southwest Marine, Inc. v. San Diego Bay Keeper

(1) Supreme Court, U.S

FILE ®

001459 MAR 1 9 2001

OFFICE OF THE CLERK

No.

—

oansemeemaeilliantenemmanabianne ao

In the

Supreme Court of the Gnited States

SOUTHWEST MARINE, INC.,

PETITIONER,

a

SAN DIEGO BAYKEEPER, THE NATURAL RESOURCES

DEFENSE COUNCIL AND KENNETH J. MOSER,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAUREEN E. MAHONEY DAVID L. MULLIKEN*

LATHAM & WATKINS LATHAM & WATKINS

555 ELEVENTH ST., N.W. 701 B STREET

SUITE 1000 SUITE 2100

WASHINGTON, D.C. 20004 SAN DIEGO, CA 92101

(202) 637-2200 (619) 236-1234

*Counsel of Record

. - ‘ . : — — . ~ . PPT TEHENERNE HE

— ame ftom pee a LENO LEAT NL TR

QUESTIONS PRESENTED

1. Whether a Clean Water Act citizen suit notice letter

that does not identify the activity alleged to violate the

defendant’s NPDES permits satisfies the jurisdictional

prerequisites to suit established by 33 US.C.

§ 1365(b)(1)(A)?

2. Whether the Clean Water Act prohibits a federal

court from imposing more stringent requirements on

industrial operations by injunction and other remedies than

those imposed by permits that were lawfully issued by the

environmental agency responsible for implementing the

Act?

el A

ii

PARTIES TO THE PROCEEDING

The petitioner is Southwest Marine, Inc. The

respondents are the Natural Resources Defense Council,

San Diego BayKeeper and Kenneth J. Moser.

CORPORATE DISCLOSURE .

Southwest Marine, Inc. is a California corporation.

Southwest Marine, Inc. is a wholly-owned subsidiary of

United States Marine Repair, Inc., a privately held

company. No publicly held company owns ten percent or

more of Southwest Marine, Inc.’s stock.

TABLE OF CONTENTS ;

Page(s)

eg _: | ee i

PARTIES TO THE PROCEEDING ...0.000.......ccecccsssssesscesseees ii

CORPORATE DIBCLOBGURE. ...2ccosccocccsvscsesesessescocsessvccscocesees ii

SEE RS ne TT OE iii

ee , — vi

TTT iasicaitctaieeleactanledh biel tinbminetnenanenenaines 1

EES TY RON RENE Ca ee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

snceoovetecceebuseorsateenresevebvevesersrenweenssu4esssseeeess 1

STATEMENT OF THE CASE ........cccccccscscecssseseresescseseseososeee 2

I. REGULATORY BACKGROUND ............ccccccccsesesseees 2

Il. HISTORY OF THIS LITIGATION .....0000000.cecccsesees 3

REASONS FOR GRANTING THE PETITION ................. 7

I. THE NINTH CIRCUIT'S HOLDING

THAT THE NOTICE LETTER

PROVIDED IN THIS ACTION WAS

SUFFICIENT CANNOT BE

RECONCILED WITH THE CLEAN

WATER ACT OR THIS COURT’S

PRECEDENTS ......ncevesovevevesvsvssurssssssssssusvsssesssssasaseawawews 9

A. The Clean Water Act’s Citizen Suit

Notice Provisions Serve Important

Statutory Goals, And This Court Has

Held That They Should Be Strictly

Construed And Applied ................cccccsescssessecesseseeeee 9

iv

B. The Clean Water Act Requires Specific

Notice Of The Factual Circumstances.

Alleged To Constitute A Violation of An

Fe ee i ivciierviniscilsicitiaaleaianiieietsinnienibiienavnies 10

C. The Ninth Circuit’s Holding That The

Notice Given In This Case Was Sufficient

Cannot Be Reconciled With The

Governing Regulations, And Transforms

The Citizen Suit Notice Requirements Of

The Clean Water Act Into An Empty

D. The Ninth Circuit’s Holding That A

Vague Notice Letter Can Be Cured By

Extrinsic Evidence Of The Defendan*’s

Reaction Is Inconsistent With The

Congressional Policies Underlying The

Notice Requirement As Explained By

Te COREG on concstcaniccsnncnipiliaiaineiiiibassitnapetaiinnments 16

Il. THE STANDARD ADOPTED BY

THE NINTH CIRCUIT FOR

REVIEW OF DISTRICT COURT

INJUNCTIONS IN CLEAN WATER

ACT CASES IS CONTRARY TO

THIS COURT’S PRECEDENTS, AND

PERMITS THE FEDERAL COURTS

TO USURP THE POLICYMAKING

DISCRETION ENTRUSTED TO EPA

BY THE CLEAN WATER ACT...............-eccererseeeserer 19

A. This Court Has Held, Clearly And

Repeatedly, That The Clean Water Act

Vests Discretion To Strike The

Appropriate Cost-Benefit Balance For

Water Pollution Cases In EPA And Its

Designates, Not The Federal Courts................... 19

Vv

B. The District Court’s Injunction In This

Case Essentially Rewrote Petitioner’s

Governing NPDES Permits And Usurped

The Proper Role And Authority of the

San Diego Regional Water Quality

SN ia chatctatcenipttieaneharthtetintstnicvsncinssvicconn 22

The Deferential Standard Adopted By

The Ninth Circuit Permits District Courts

To Impose More Stringent Water Quality

Standards Than EPA And Its Designees,

In Direct Conflict With This Court’s

Decisions In City Of Milwaukee and

The District Court's Civil Penalty Award

Should Be Vacated Along With The

SETI TID ssnrreesscenisienentatininnaieinsbibtbdibesdidisbidnibiniaenaiaited 26

eee ctoctivectausanteisesciabessenssds Huamaaeaaae ae

APPENDIX

vi

TABLE OF AUTHORITIES

CASES

Atlantic States Legal Foundation, Inc. v. Stroh Die

Casting Co., 116 F.3d 814 (7th Cir. 1997) .............eecceee 15

Atlantic States Legal Foundation, Inc. v. United

Musical-Instruments, U.S.A., Inc., 61 F.3d 473

Se Be ieteeieensecicnaacinthliatenisceecinndieaeiiaientllerasainiaina 15

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687 (1995) ...........cssseccsscesseseeeeees 11

Chevron, U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)..........ccccsccscsescoesssesseses 10

City of Milwaukee v. Illinois and Michigan, 451 U.S.

SO COD enivsnciennitinitnsnteniansiinsinnianiiicteatiiiibiniiaianianigiaaaiiadl passim

Save Our Health Organization v. Recomp of

Minnesota, Inc., 37 F.3d 1334 (8th Cir. 1994)................. 14

Freytag v. Commissioner, 501 U.S. 868 (1991)...............2000 11

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987)... ecceeeee passim

Hallstrom v. Tillamook County, 493 U.S. 20 (1989)....passim

International Paper Co. v. Ouellette, 479 U.S. 481

vii

National Steel & Shipbuilding Co. v. California

State Water Resources Control Board, Case No.

TZAZ22 (Call. Oct. 18, 1999)....-..-.ccsccscvssesccsseecesseseeeceseeeeseess 23

Public Interest Research Group of New Jersey, Inc.

v. Hercules, Inc., 50 F.3d 1239 (3d Cir. BaD ctistinenticiniant 15

Weinberger v. Romero-Barcelo, 456 U.S. 305 (19GZ) ...covccsee 21

STATUTES AND REGULATIONS

California Water Code §§ 13160-13169.00..0.....ccccccccescscssesoecoseos 3

California Water Code §§ 13200-13260.0.........c.cccccceccsesssecoecose. 3

3 f S 5 | REASSURES OR RERNO eeee Meare passim

PP OE, Teg, BOGE (OG asvectsernsescevvvsnemvoventsansinetecszcee 3

et ie Be en RTC PRT TO TROND AT OTE 1

Se A SPIT bicntdrdituchlihidaacnechistnsibaiiaecii te ci 5

sian thenan tap oie, Fiance, EI RA 2

BB US.C_ § 1811) ssssssssassasssasacssavesassasacsoccacccrsavscusouswwwennnnnnncc 2

ses SORE ee passim

oak eg i EE ee CCE eee 2,9

I a WF dein inccescninceniencigmoaaiadinniaananiseacoaceneaae acs passim

BO EG, 6 BaD sccecsncesurncrnncssenve 20

Southwest Marine, Inc. (“Southwest Marine”)

respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-35a) is

reported at 236 F.3d 985. The order of the district court

lifting the stay of the injunction against Southwest Marine

(td. at 36a-39a) is unreported. The order of the district court

entering a limited stay of several provisions of the-

injunction against Southwest Marine (id. at 40a-44a) is

unreported. The judgment of the district court ordering

injunctive relief, a civil penalty and attorneys’ fees against

Southwest Marine (id. at 45a-46a) is unreported. The

findings of fact and conclusions of law of the district court

(td. at 47a-63a) is unreported. The order of the district court

first awarding injunctive relief and a civil penalty against

Southwest Marine (id. at 64a-76a) is unreported. The order

of the district court denying Southwest Marine’s motion for

summary judgment (id. at 77a-98a) is unreported. The

order of the district court denying Southwest Marine’s

motion to dismiss for lack of subject matter jurisdiction (id.

at 99a-107a) is reported at 945 F. Supp. 1330.

JURISDICTION

The judgment of the court of appeals was entered on

December 19, 2000. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

33 U.S.C. § 1365.

33 U.S.C. § 1319(d).

40 C.F.R. § 135.3.

(The full text of these provisions appears in Pet. App.

108a-113a.)

2

STATEMENT OF THE CASE

I. REGULATORY BACKGROUND

Congress enacted a series of amendments, now

commonly known as the Clean Water Act (“CWA”), to the

Federal Water Pollution Control and Prevention Act in

1972. 33 U.S.C. §§ 1251-1386. Section 301 of the Clean

Water Act prohibits all discharges of pollutants into the

nation’s waters except as authorized by the Act. 33 U.S.C. §

1311(a). Congress then expressly delegated responsibility

for determining what discharges to permit, and under what

circumstances, to the Administrator of the Environmental

- Protection Agency (“EPA”). 33 U.S.C. § 1342(a). The

process by which EPA issues such permits is called the

National Pollutant Discharge [Elimination System

(“NPDES”). EPA may in turn delegate the authority to

issue NPDES permits to an approved State agency or

program that conforms to federal guidelines. 33 U.S.C. §

1342(b). The NPDES process initially governed only “point

source” discharges, but was expanded in 1987 to cover

pollutants carried into surface waters by storm water runoff

as well. See 33 U.S.C. § 1342(p).

The holder of a federal or State NPDES permit is

subject to enforcement actions by the Administrator of the

EPA and any appropriate State officials for failure to

comply with the terms of the permit. 33 U.S.C. §§ 1319,

1342(b)(7). The Act also has a “citizen suit” provision

allowing private citizens to bring a civil action against any

person “alleged to be in violation of’ the terms of a federal

or state NPDES permit. 33 U.S.C. § 1365(a)(1).

Before initiating such an action, however, a potential

citizen plaintiff must provide at least sixty days notice “of

the alleged violation (i) to the Administrator, (ii) to the

State in which the alleged violation occurs, and (iii) to any

alleged violator of the standard, limitation or order... .” 33

U.S.C. § 1365(b)(1)(A). EPA has established by regulation

3

that the notice letter must include “sufficient information to

permit the recipient to identify the specific standard,

limitation, or order alleged to have been violated, the

activity alleged to constitute a violation, the person or

persons responsible for the alleged violation, the location of

the alleged violation, the date or dates of such violation, and

the full name, address, and telephone number of the person

giving notice.” 40 C.F.R. § 135.3(a). This Court has heid

that citizen suit notice provisions like this one must be

strictly construed and applied in order to protect Congress’s

decision to vest primary enforcement responsibility in the

appropriate administrative agencies, and in order to give

the recipient an opportunity to comply voluntarily with the

law. See, e.g., Hallstrom v. Tillamook County, 493 U.S. 20,

29 (1989) (interpreting identical provision in the Resource

Conservation and Recovery Act).

The State of California has developed an EPA-

authorized NPDES permit program. See 39 Fed. Reg. 26061

(1974); California Water Code §§ 13160-13169 and 13200-

13260. Point source discharges into California waters are

governed by permits issued by nine Regional Water Quality

Control Boards (“RWQCB”) across the State. California

Water Code § 13200. California elected to issue a single.

statewide “General Industrial Permit” in 1991 for ail

industrial storm water discharges requiring a permit

(except discharges relating to construction activity). Pet.

App. 3a.

II. HISTORY OF THIS LITIGATION

Petitioner Southwest Marine is a shipyard operator in

San Diego, California. It applied for and received an

NPDES point source permit from the RWQCB in 1983, and

storm water coverage under the General Industrial Permit

in 1992. Pet. App. 2a-3a. California’s General Industrial

Permit also required petitioner to develop and implement a

“Storm Water Pollution Prevention Plan” and “Storm Water

4

Monitoring and Reporting Plan.” Pet. App. 4a. Petitioner

submitted its storm water plan to the RWQCB in

December, 1992. Pet. App. 5a. The General Industrial

Permit governing storm water discharges in California was

amended several times after 1991, and eventually was

. superseded in the area relevant to this litigation by specific

storm water requirements adopted by the San Diego

RWQCB in May 1997. Pet. App. 7a. Petitioner’s operations

are currently governed by a comprehensive permit designed

specifically for shipyards and adopted by the San Diego

RWQCB in October 1997. See id; see also Appellant’s

Excerpt of Record (“ER”) 249-428.

On April 30, 1996, respondents San Diego BayKeeper

and the Natural Resources Defense Council sent a letter to

petitioner captioned “Notice of Intent to Sue for Violations

of the Clean Water Act.” Pet. App. 28a. That letter

referenced both of petitioner’s then-current permits, and

stated that the “[permit] requirements “with which we

believe Southwest Marine . . . ha[s] failed to comply are set

forth in [Attachments 1 and 2] of this letter.” Pet. App. 29a.

Those attachments, in turn, listed several specific provisions

of petitioners point source permit and the General

Industrial Permit and recited (essentially verbatim) what

those provisions prohibited or required. Pet. App. 33a; ER

118-20. One of the General Industrial Permit provisions

listed in Attachment 2 required the “development and

implementation” of a storm water plan “describing the

storm water management controls appropriate for the

facility (for example, storm water pollution prevention

personnel, preventive maintenance, good housekeeping,

spill prevention and response, storm water management

practices, erosion and sediment controls, employee training,

and inspections).” Pet. App. 33a. The letter and its

attachments contained no factual information about what

specific actions or activities of petitioner were alleged to

violate the listed provisions.

5

Respondents filed this lawsuit on August 27, 1996. Pet.

App. 6a. The district court generally had jurisdiction over

the action pursuant to 28 U.S.C. § 1331, although (as

explained below) it did not have jurisdiction to entertain

particular allegaticns of Clean Water Act violations about

which petitioner did not receive adequate notice.

Petitioners moved to dismiss the complaint for failure to

comply with the Clean Water Act’s citizen suit notice

requirements. Citing Hallstrom, the district court

acknowledged that adequate notice was a jurisdictional

prerequisite to filing suit, and that the purpose of the notice

letter was “(1) to allow the alleged violator time to come into

compliance with the CWA, (2) to give the alleged violator an

opportunity to negotiate a resolution to the dispute, and (3)

to give state and federal environmental regulatory agencies

an opportunity to enforce their laws and regulations.” Pet.

App. 102a-103a (citing Hallstrom, 493 U.S. at 29). The

district court nonetheless held that the notice letter was

sufficient because the court interpreted that letter as

alleging only that petitioner had failed to develop and

implement a storm water plan that was facially adequate

under the terms of petitioner’s permits. Id. at 104a. The

court concluded, for example, that “[tJhe defendant’s failure

to prepare and implement legally sufficient environmental

compliance plans is the activity that constitutes the

violation” and that “the letter adequately describes the

location of the alleged violations because the violations are

within the [plans] themselves.” Jd. at 104a-105a.

Believing that respondents’ claims were therefore

limited to the legal sufficiency of its storm water plans,

petitioner moved for summary judgment. Pet. App. 77a-

98a. Contradicting its earlier holding that the only alleged

violations were “within the [plans] themselves,” however,

the district court held that there were disputed issues of

material fact concerning both the facial sufficiency of

6

petitioner’s stcrm water plans and whether petitioner was

adequately implementing those plans. Pet. App. 87a- 98a.

The district court then conducted a month-long trial at

which the respondents presented wide-ranging evidence

about numerous perceived deficiencies in petitioner’s efforts

to prevent storm water pollution, and about the overall

environmental condition of petitioner’s property and the San

Diego Bay in general. After trial, the district court held

that the terms of petitioners’ storm water plans were

adequate, but that petitioner had violated its permits and

the Clean Water Act by failing to implement those plans

adequately.! The district court then imposed elaborate

injunctive relief, ordering petitioner (among other things)

to: (1) test storm water for pollutants before releasing them

into the Bay, (2) sweep open areas after every shift, (3)

conduct testing of the water column beneath each vessel on

which blasting or painting operations are being conducted,

(4) capture all storm water runoff from its piers and (5)

replace its existing asphalt berms for capturing storm water

runoff with concrete berms. Pet. App. 9a; 23a-24a.

Petitioner’s current storm water permit does not require

any of these measures. The district court also imposed a

civil penalty of $799,000, which it allowed petitioner to set

off against the expenses of complying with the injunction.

Pet. App. 26a.

On appeal, petitioner challenged both the sufficiency of

the original notice letter and the propriety of the district

eourt’s injunction and penalty assessment. The Ninth

1 The district court found no violation of petitioner’s point source

permit. See, e.g., Pet. App. 65a (“{Tjhis Court finds that Defendant’s

implementation/enforcement of its storm water prevention plans has

been inadequate.”); Pet. App. 62a (“The question presented at trial was

whether the storm water coming from Defendant’s leasehold facility had

a causal connection to the environmental condition of that offshore

habitat.”); see also Pet. App. 47a-63a (listing the district court’s findings

of fact and conclusions of law).

7

Circuit affirmed. The court reasoned that respondents’

notice letter was sufficient because it “alleges that

defendant failed to implement an adequate [storm water

plan], including a ‘good housekeeping’ provision,” and that

respondents’ eventual allegations at trial could be captured

by a broad understanding of the phrase “good

housekeeping.” Pet. App. 15a-16a. The Ninth Circuit also

pointed to the fact that petitioner revised its plan and some

of its operating procedures during the course of this

litigation as evidence that it “obviously understood at least

some of the alleged violations.” Pet. App. 16a.

Considering the propriety of the district court’s

injunction, tke Ninth Circuit acknowledged that “a district

court’s equitable powers under the CWA are limited to

enforcing standards, limitations and orders that have been

violated” and that a district court may not “exercise its

general equitable authority to override the terms of a

properly issued permit.” Pet. App. 22a (citing 33 U.S.C.

§ 1365(a) and City of Milwaukee v. Illinois and Michigan,

451 U.S. 304, 320 (1981)). Nonetheless, the court concluded

that the district court could impose more stringent

requirements than petitioner’s existing, duly authorized

NPDES permits as long as those additional requirements

were “reasonably calculated to ‘remedy an established

wrong” and “consistent with, and complementary to,

existing permit requirements.” Pet. App. 22a -23a (citation

omitted).

REASONS FOR GRANTING THE PETITION

The Ninth Circuit decided two issues of national

significance in a manner that conflicts with this Court’s

established precedents. If left uncorrected, these serious

errors will transform the administration of the Clean Water

Act in the Ninth Circuit, upsetting the delicate balance

struck by Congress between public and private enforcement

of that Act and permitting the federal courts to usurp the

policymaking discretion that Congress specifically entrusted

8

to the Environmental Protection Agency and its delegated

State agencies.

First, the Ninth Circuit adopted an interpretation of the

Clean Water <Act’s citizen suit notice provisions that

eliminates all meaningful judicial scrutiny of the adequacy of

that notice. The Ninth Circuit’s reasoning renders the

notice requirement an empty formality, and cannot be

reconciled with this Court’s instructions in Hallstrom and

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987), that the citizen suit

notice requirements in federal environmental statutes serve

important statutory purposes and must be strictly construed

and applied.

Second, the Ninth Circuit held that a district court may

impose different and more stringent requirements on a

Clean Water Act defendant by injunction than are imposed

by the defendant’s existing NPDES permits, so long as the

injunction’s additional requirements are “consistent with”

and “complementary to” the permit. That reasoning

conflicts with this Court’s clear and repeated holdings in

City of Milwaukee v. Illinois and Michigan, 451 U.S. 304

(1981), and International Paper Co. v. Ouellette, 479 US.

481 (1987), that the Clean Water Act’s elaborate regulatory

scheme completely occupies the field - and that, therefore,

“(federal courts lack authority to impose more stringent

‘effluent limitations under federal common law than those

imposed by the agency charged by Congress with

administering this comprehensive scheme.” City of

Milwaukee, 451 U.S. at 320.

Petitioner respectfully suggests that both of these

holdings merit the exercise of this Court’s certiorari

jurisdiction.

9

I. THE NINTH CIRCUIT’S HOLDING THAT THE

NOTICE LETTER PROVIDED IN THIS

ACTION WAS SUFFICIENT CANNOT BE

RECONCILED WITH THE CLEAN WATER

ACT OR THIS COURT’S PRECEDENTS

A. The Clean Water Act’s Citizen Suit Notice

Provisions Serve Important Statutory Goals,

And This Court Has Held That They Should

Be Strictly Construed And Applied

Congress provided that the primary enforcement

mechanism for the Clean Water Act would be the NPDES

permitting process and enforcement actions brought by

EPA and corresponding State agencies. See 33 U.S.C.

§§ 1319, 1342(b)(7). In the absence of agency enforcement,

the Act does permit citizen suits. 33 U.S.C. § 1365(a)(1).

But the Act and its implementing regulations require that

any prospective citizen suit plaintiff first provide specific

notice of its allegations 60 days in advance to the defendant

and to regulators. 33 U.S.C. § 1365(b)(1)(A); 40 C.F.R.

§ 135.3(a).

As this Court has recognized, the citizen suit notice

provision in the Clean Water Act mirrors identical

provisions in many federal environmental statutes,

Hallstrom, 493 U.S. at 23 & n.1, and serves several

important goals. “First, notice allows Government agencies

to take responsibility for enforcing environmental

regulations, thus obviating the need for citizen suits.” Id. at

29. Without an effective notice requirement, the primary

enforcement role that Congress intended to confer on EPA

and its delegates would be compromised. See Gwaltney, 484

U.S. at 60 (“The bar on citizen suits when governmental

enforcement action is under way suggests that the citizen

suit is meant to supplement rather than to supplant

governmental action.”). Agency enforcement is also more

efficient because “an agency may be able to compel

10

compliance through administrative action, thus eliminating

the need for any access to the courts.” Hallstrom, 493 U.S.

at 29.

Second, the notice requirement. “gives the alleged

violator ‘an opportunity to bring itself into complete

compliance with the Act and thus likewise render

unnecessary a citizen suit.”” Id. (quoting Gwaltney, 484 US.

at 60). Consensual resolution of a potential citizen suit

serves the twin statutory goals of ending or remedying the

alleged environmental damage more quickly than could be

achieved by litigation, and avoiding the burden that

constant litigation would place on both NPDES permit

holders and the courts.

In recognition of these important policies, this Court

held in Hallstrom that citizen suit notice requirements

should be strictly construed and applied. This Court even

went so far as to dismiss an action that “consumed the time

and energy of the District Court and the parties for nearly

four years” because the plaintiff had not notified EPA and

the State regulators until the action was already underway.

Id. at 32.

B. The Clean Water Act Requires Specific

Notice Of The Factual Circumstances

Alleged To Constitute A Violation of An

NPDES Permit

EPA is the administrative agency charged by Congress

with enforcing the Clean Water Act, and its interpretations

of that Act’s requirements are therefore entitled to

deference. Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 845 (1984). EPA has

promulgated a regulation that explains in detail the

information that prospective citizen suit plaintiffs must

supply in the notice letter required by 33 U-S.C.

§ 1365(b)(1)(A). That regulation provides that the notice

letter must include, among other things, “sufficient

information to permit the recipient to identify” both “the

11

specific standard, limitation, or order alleged to have been

violated” and “the activity alleged to constitute a violation.”

40 C.F.R. § 135.3(a).

That distinction is both intentional and important. See

Babbitt v. Sweet Home Chapter of Communities for a Great

Oregon, 515 U.S. 687, 697-98 & n.11 (1995) (construing terms

in list so that they “retain independent meanings” in light of

Court’s “reluctance to treat statutory terms as surplusage”);

Freytag v. Commissioner, 501 U.S. 868, 877 (1991) (“Our

cases consistently have expressed ‘a deep reluctance to

interpret a statutory provision so as to render superfluous

other provisions in the same enactment.”’) (citations

omitted). Obviously, notice of the NPDES permit condition

alleged to be violated is not the same thing as notice of the

substantive activity alleged to violate that condition. And,

just as obviously, the statutory purposes underlying the

citizen suit notice provision cannot be effectuated unless the

relevant administrative agencies and the prospective

defendant all receive notice of both.

C. The Ninth Circuit’s Holding That The Notice

Given In This Case Was Sufficient Cannot

Be Reconciled With The Governing

Regulations, And Transforms The Citizen

Suit Notice Requirements Of The Clean

Water Act Into An Empty Formality

As the Ninth Circuit’s discussion makes clear, however,

the notice letter sent by respondents in this case was

completely devoid of any information about the actual

activities that respondents believed to constitute a violation

of petitioner's NPDES permits. See Pet. App. 14a-15a; Pet.

App. 28a-35a Instead, that letter simply made the

conclusory allegation that “the information currently

available to us indicates that Southwest Marine and the

Port District have violated NPDES General Permit No.

CA5000001 governing storm water discharges associated

with industrial activities in California.” Pet. App. 29a. The

letter then stated that “[tJhe General Industrial Permit

12

requirements with which we believe Southwest Marine and

the Port District have failed to comply are set forth in

Attachment 2 to this letter.” Jd. Attachment 2, in turn, is

nothing more than a list of six sections of the General

Industrial Permit and a nearly verbatim recitation of what

they require (i.e., that petitioner “develop{] and

- implement[]’ a storm water plan pursuant to certain

guidelines). Jd. at 32a-33a.

That notice letter may have identified “the specific

standard, limitation, or order alleged to have been violated,”

but it did not even attempt to further identify “the activity

alleged to constitute a violation.” 40 C.F.R. § 135.3(a). As

the district court initially seemed to understand, that patent

deficiency should have been fatal to all of respondents’

claims - other, perhaps, than claims alleging nothing more

than petitioner's complete failure to adopt a storm water

plan that facially complied with the law (in which case the

activity alleged to violate the condition would be contained

“within the [plans] themselves.” Pet. App. 104a-105a.

To support its holding that the notice letter provided by

respondents was nonetheless sufficient to support the wide-

ranging allegations ultimately litigated in this case, the

Ninth Circuit focused on one isolated phrase in Attachment

2 to the notice letter. One of the General Industrial Permit

sections listed in that Attachment was the provision

requiring “development and implementation” of a storm

water plan “describing the storm water management

controls appropriate for the facility (for example, storm

water pollution prevention personnel, preventive

maintenance, good housekeeping, spill prevention and

response, storm water management practices, erosion and

sediment controls, employee training, and inspections).”

Pet. App. 32a (emphasis added). The Ninth Circuit

reasoned that, because the notice letter alleged that

petitioner had failed to “implement([]’ a storm water plan

containing a “good housekeeping” provision, the petitioners

had therefore received adequate notice of any later

13

allegations that could plausibly be subsumed in an

expansive reading of the phrase “good housekeeping.” Pet.

App. 15a.

The Ninth Circuit’s reasoning completely nullifies the

distinction, carefully expressed by EPA in the applicable

and binding regulations, between notice of the permit

provision alleged to be violated and notice of the actual

activities alleged to constitute such a violation.2 A careful

reading of the notice letter reveals that it did not even

purport to convey any information other than a list of the

permit provisions allegedly violated by petitioner. The text

of the letter stated that Attachment 2 is a list of the permit

provisions “with which we believe Southwest Marine .. .

ha[s] failed to comply.” Pet. App. 29a. One of those listed

provisions required petitioner to “implement([]’ a plan

containing a “good housekeeping” provision. Jd. But even if

that permit provision is fairly read as a roundabout way of

saying that petitioner must engage in “good housekeeping,”

the notice letter provided no further information beyond the

reference to the permit provision itself and the naked

allegation that it was violated.

The Ninth Circuit also compounded its error by

permitting the phrase “good housekeeping” to encompass

such a broad array of allegations and evidence that the

contents of the notice letter clearly did not constrain

respondents’ trial presentation in any way. At trial,

respondents presented testimony about a hodge-podge of

perceived environmental problems at petitioner’s facility

that ranged from the existence of contaminated sediment

around an abandoned marine railway to inadequacies in

2 The Ninth Circuit’s elaborate justification of the fact that the notice

letter failed to reference the terms of petitioner’s later-revised storm

water plan, Pet. App. 15a, while fair, is a red herring. The point is not

that the letter failed to accurately identify the plan (or permit)

provisions alleged to be violated, but that it utterly failed to provide any

information about the factual activities alleged to constitute such a

violation.

14

petitioner's berms and other structural systems for

containing storm water runoff. See, e.g., Pet. App. 91a-98a;

Plaintiffs-Appellees’ Answering Brief at 15-22, Natural

Resources Defense Council v. Southwest Maine, Inc., 236

F.3d 985 (9th Cir. 2000) (Nos. 99-56532, 99-56545). If a notice

letter generally alleging that the recipient has failed to ~

engage in “good housekeeping” will support the range of

allegations pursued by the respondents in this case at trial, -

then it is hard to imagine what plausible Clean Water Act

allegations it would not support.

And that, of course, is precisely why the Ninth Circuit’s

holding in this case cannot be reconciled with this Court’s

decisions in Hallstrom and Gwaltney. If the citizen suit

notice requirements in the Clean Water Act (and so many

other federal statutes) are to play their proper and

important role in the statutory structure - the role

repeatedly described by this Court — then the notice letter

must give EPA and the prospective defendant fair warning

of what the case will be about. Otherwise, the appropriate

regulatory authorities cannot “take responsibility for

enforcing environmental regulations,” Hallstrom, 493 U.S.

at 29, and the prospective defendant will have no

“opportunity to bring itself into complete compliance with

the Act,” Gwaltney, 484 U.S. at 60. A naked al!- gation that

the defendant violated the terms of its governing NPDES

permit provides literally no information at all. Every Clean

Water Act case necessarily involves an allegation that the

defendant violated the terms of its permit, yet such an

allegation without more has never been deemed sufficient

notice.3

3 Although there is disagreement among circuit courts as to whether a

plaintiff must provide notice of each “activity alleged to constitute a

violation” when the activities at issue are of the “same type” or “directly

related” to one another, until the Ninth Circuit’s decision in this case, no

circuit court after Hallstrom has dared to eliminate the “activity

alleged” requirement altogether. Contrast Save Our Health

Organization v. Recomp of Minnesota, Inc., 37 F.3d 1334, 1337-38 (8th

15

By holding that a mere generic recitation of the terms of

the defendant’s permit is sufficient notice, the Ninth Circuit

transformed the citizen suit notice requirement into an

empty formality and exposed NPDES permit holders to a

potential flood of citizen suits. Any prospective citizen

plaintiff can send such a letter, whether they have any

factual information indicating a violation of the recipient's ©

_ permits or not. After waiting sixty days, the citizen plaintiff

can file a lawsuit that -— if the Ninth Circuit’s holding stands

— will always survive a motion to dismiss. Acting as a self-

appointed investigative watchdog, the citizen plaintiff may

then initiate an open-ended, costly and disruptive discovery

fishing expedition (including, if this case is any guide,

frequent on-site inspections of the defendant’s facilities).

Those efforts will inevitably produce disputed factual issues,

allowing the citizen plaintiff to survive summary judgment

and subject the defendant to the expense of a trial. That is

not the carefully circumscribed role that Congress

Cir. 1994) (holding that district court lacked jurisdiction under Clean Air

Act over three particular odor concentration violations where plaintiffs

gave notice of other odor violations but failed to include allegations of

these particular odor violations in notice letter) and Atlantic States

Legal Foundation, Inc. v. United Musical Instruments, U.S.A, Inc., 61

F.3d 473, 478 (6th Cir. 1995) (holding that district court lacked

jurisdiction under Emergency Planning and Community Right-to-Know

Act over alleged 1991 violations where plaintiffs gave notice of alleged

violations from 1987-1990 but failed to specifically mention any violation

in 1991) with Public Interest Research Group of New Jersey, Inc. v.

Hercules, Inc., 50 F.3d 1239, 1248-1250, 1252 (3d Cir. 1995) (holding that

under the CWA, a citizen plaintiff's initial notice of discharge violations

was sufficient to encompass additional “directly related” discharge

violations of the “same type (same parameter, same outfall)” and

“directly related” Violations of “monitoring, reporting, and

recordkeeping requirements for that same parameter at that outfall”)

(emphasis added) and Atlantic States Legal Foundation, Inc. v. Stroh

Die Casting Co., 116 F.3d 814 (7th Cir. 1997) (holding that under CWA

notice letter which specifically alleged that on several occasions

defendant had exceeded the daily maximum discharge limits for specific

pollutants from a certain outfall was sufficient to include later discharges

rerouted from that point source to a newly-created outfall).

16

envisioned for citizen suits under the Clean Water Act, and

that this-Court described in Hallstrom and Gwaltney.

D. The Ninth Circuit’s Holding That A Vague

Notice Letter Can Be Cured By Extrinsic

Evidence Of The Defendant’s Reaction Is

Inconsistent - With The Congressional

Policies Underlying The Notice Requirement

As Explained By This Court

The Ninth Circuit also held, in effect, that the content of

the notice letter could be supplemented (retroactively) by

reference to any later steps that petitioner took to improve

its environmental compliance systems. Pet. App. 16a. The

court reasoned that petitioner “obviously understood at

least some of the alleged violations” because it “completely

revised its [storm water plans] within four months, adding

sections that specifically made reference to the

requirements that Plaintiffs had identified,” and because it

“made substantial changes to its facility and operations

during the pendency of this litigation.” Id.

As an initial matter, the Ninth Circuit’s reference to the

“substantial changes to [petitioner’s] facility and operations

during the pendency of this litigation” perfectly illustrates

the court’s dismissive attitude toward the citizen suit notice

requirement. Jd. (emphasis added). Even if those structural

and operational changes were in fact inspired or provoked

by this litigation, they did not occur until after the

respondents elaborated upon their “implementation”

allegations in the complaint and at trial. The only changes

that petitioner made between receipt of the notice letter and

the filing of the complaint were to the facial terms of its

storm water plans, which the district court ultimately found

to be in compliance with petitioner’s permits and the Clean

Water Act.4 The Ninth Circuit’s reliance on changes in

4 Petitioner's amendment of its existing storm water pians between

the notice letter and the filing of the complaint illustrates how the citizen

suit process is supposed to work, and why the notice provision is

17

petitioner’s implementation policies after the complaint was

filed (and respondents’ allegations were greatly elaborated)

to show that petitioner “understood” the original notice

letter to cover those matters is simply absurd, and

transforms the notice letter into little more than a

placeholder for the evidence eventually adduced at trial.

In any event, the Ninth Circuit’s inference that any

subsequent changes by petitioner must have been “in

response to” the notice letter, and that they therefore

demonstrat. that petitioner “obviously understood at least

some o* he alleged violations,” is flawed on many levels.

Pet. App. 15a. First, NPDES permit holders like petitioner

have complex environmental systems in place and are

constantly reevaluating and seeking to improve them.

Petitioner’s efforts to comply with the San Diego RWQCB’s

first permit that specifically dealt with storm water

discharges (adopted after the filing of this lawsuit) obviously

occasioned many of the changes implicitly referenced by the

Ninth Circuit. Pet. App. 50a. Second, even if receiving a

notice letter does provoke the recipient to reexamine and

improve its environmental practices, that certainly does not

establish that any problems identified and corrected by that

review were fairly identified by the notice letter itself. The

Ninth Circuit’s inference that all changes made after

litigation has been threatened necessarily demonstrate that

the defendant must have “understood” the notice letter is

therefore factually implausible, even if it does not

va at

important. As the district court initially recognized, the only thing that

respondents’ notice letter gave petitioner fair notice of was an allegation

that the facial terms of its storm water plans might not any with the

requirements of the applicable permits. See supra at 5. Petitioner

successfully corrected that perceived defect before the initiation of this

lawsuit. Had respondents provided intelligible notice about the

substance of their eventual “implementation” allegations in the letter,

petitioner might have been able to correct them as well and spare

everyone the expense of this litigation. As this Court has recognized,

that is exactly the peint of the notice requirement. Gwaltney, 484 U.S. at

60; Hallstrom, 493 U.S. at 29.

18

technically violate the ban on evidence of subsequent

remedial measures found in Rule 407 of the Federal Rules of

Evidence.

More importantly, however, the Clean Water Act

requires that citizen plaintiffs deliver effective notice not

only to the potential defendant but also to EPA and the

appropriate State regulatory authorities. Even if the

defendant “understood” a vague (or, as in this case, entirely

vacuous) notice letter because of extrinsic information in its

possession, that private knowledge obviously cannot cure

the defect in the notice given to EPA and the State. And

this Court’s holding in Hallstrom was, precisely, that a

deficient notice to the regulators is fatal to any citizen suit,

even if the defendant itself has been adequately notified.

Considered as a whole, the Ninth Circuit’s analysis of

the notice provided in this case eviscerates the citizen suit

notice requirement and upsets the balance carefully struck

by Congress between public and private enforcement of the

Clean Water Act. The Ninth Circuit’s reasoning cannot be

reconciled with this Court’s decisions in Hallstrom and

Gwaltney, and the matter is so essential to the proper

administration of the Clean Water Act that it merits review

and correction by this Court.

19

II. THE STANDARD ADOPTED BY THE NINTH

CIRCUIT FOR REVIEW OF DISTRICT COURT

INJUNCTIONS IN CLEAN WATER ACT CASES

IS CONTRARY TO THIS COURT’S PRE-

CEDENTS, AND PERMITS THE FEDERAL

COURTS TO USURP THE POLICYMAKING

DISCRETION ENTRUSTED TO EPA BY THE

CLEAN WATER ACT

A. This Court Has Held, Clearly And

Repeatedly, That The Clean Water Act

Vests Discretion To Strike The Appropriate

Cost-Benefit Balance For Water Pollution

Cases In EPA And Its Designates, Not The

Federal Courts

This Court has repeatedly recognized that the Clean

Water Act is a careful and comprehensive effort by

Congress to balance the various interests and values

associated with the regulation of industrial water pollution,

and that courts cannot be permitted to interfere with that

regulatory structure under the guise of common law

rulemaking or the exercise of equitable discretion.

In City of Milwaukee, this Court held that the Clean

Water Act entirely preempts the federal common law of

nuisance as it relates to water pollution. This Court

explained that the Act was plainly designed by Congress to

be “an all-encompassing program of water pollution

regulation” and stated that “Congress has not left the

formulation of appropriate federal standards to the courts

through application of often vague and indeterminate

nuisance concepts and maxims of equity jurisprudence, but

rather has occupied the field through the establishment of a

comprehensive regulatory program supervised by an expert

administrative agency.” City of Milwaukee, 451 U.S. at 317-

18. This Court concluded that “[fJederal courts lack

authority to impose more stringent effluent limitations

20

under federal common law than those imposed by the

agency charged by Congress with administering this

comprehensive scheme.” Jd. at 320.

In International Paper Co. v. Ouellette, this Court held

that the Clean Water Act also preempts State nuisance law

to the extent that it attempts to impose liability on an out-

of-state source.5 This Court recognized that the application

of “vague” and “indeterminate” nuisance law standards

would “undermine the important goals of efficiency and

predictability in the permit system.” Ouellette, 479 U.S. at

496. “It would be extraordinary for Congress,” this Court

concluded, “after devising an elaborate permit system that

sets clear standards, to tolerate common-law suits that have

the potential to undermine this regulatory structure.” Id. at

497.

At the heart of this Court’s decisions in City of

Milwaukee and Ouellette is a recognition that the Clean

Water Act entrusts a critical balancing of costs and benefits

to the discretion of EPA and designated state permitting

authorities. “By establishing a permit system for effluent

discharges,” this Court held, “Congress implicitly has

recognized that the goal of the CWA - elimination of water

pollution — cannot be achieved immediately, and that it

cannot be realized without incurring costs.” Ovellette, 479

US. at 494. EPA and its designates “issue[] permits

according to established effluent standards and water

quality standards, that in turn are based upon available

technology, 33 U.S.C. § 1314, and competing public and

industrial uses, § 1312(a).” Jd. And those permits will,

inevitably, sometimes reflect policy choices that a particular

citizen plaintiff (and even a particular federal court) might

consider insufficiently protective of the environment. But

5 The Act contains a savings clause that permits States to impose

more stringent limitations on in-state dischargers as a matter of State

law. See 33 U.S.C. §§ 1370, 1365(e).

21

this Court has made it clear that, “[aJlthough a federal court

may disagree with the regulatory approach taken by the

agency with responsibility for issuing permits under the

Act,” that court may not substitute its judgment for that of

the agency by fashioning a supplemental common law

remedy. City of Milwaukee, 451 U.S. at 323.

That division of responsibility is also clearly reflected in

the Clean Water Act’s enforcement provisions. When a

plaintiff prevails in a citizen suit to enforce compliance with

an effluent standard (including a permit condition) or a

governmental order with respect to such a standard, Section

505(a) of the Act authorizes a district court “to enforce such

an effluent standard or limitation, or such an order.” 33

U.S.C. § 1365(a) (emphasis added). The Act does not give

the court jurisdiction to modify, rewrite, or supplement the

standards and limitations promulgated by EPA and its

designates; it merely grants jurisdiction to enforce them.

And, unlike so many other comparable federal statutes, the

Act pointedly does not give the district court jurisdiction to

grant “other appropriate relief” or the like.®

6 There is, in fact, only one area in which this Court has allowed

federal courts enforcing the Clean Water Act to exercise their traditional

equitable discretion. In Weinberger v. Romero-Barcelo, 456 U.S. 305

(1982), a district court held that the U.S. Navy’s use of a bombing range

off the coast of Puerto Rico required an NPDES permit. The district

court did not, however, enjoin the Navy from using that range until the

necessary permit had been obtained. This Court held that the district

court retained the equitable discretion to decline to issue an injunction,

in part because the Clean Water Act provides for other “means of

ensuring compliance,” such as “fines and criminal penalties.” Romero-

Barcelo, 456 U.S. at 314. But allowing a federal court to abstain from

using its equitable powers to enforce the NPDES permitting process

when necessary to ensure military preparedness is obviously a far cry

from allowing the court to issue an injunction that actively interferes

with that process, as the Ninth Circuit did in this case.

22

B. The District Court’s Injunction In This Case

Essentially Rewrote Petitioner's Governing

NPDES Permits And Usurped The Proper

Role And Authority of the San Diego

Regional Water Quality Control Board

The injunction entered by the district court in this case

accomplished precisely what this Court warned against in

City of Milwaukee and Ouellette: it required more stringent

water pollution prevention requirements than were imposed

after careful consideration by EPA’s designee, the San

Diego Regional Water Quality Control Board — and thereby

substituted the district court’s judgment for that of the

expert administrative agency charged by Congress with

administering the Clean Water Act. None of the “improved

practices,” Pet. App. 65a, ordered by the district court have

anything to do with petitioner’s governing NPDES permits,

and several are actively inconsistent with those permits in

exactly the same way as the common law nuisance

judgments invalidated by this Court in City of Milwaukee

and Ouellette.

The most glaring example is the district court’s

requirement that petitioner adopt a storm water diversion

system that captures 100% of the storm water flowing off all

of petitioner's piers. See Pet. App. 58a, 70a. At the time the

district court issued its injunction, petitioners NPDES

permit did not require it to capture any storm water. Trial

Exhibit (“TE”) 729 (ER 249); TE 945 (ER 1661). A more

stringent revised permit adopted in May 1997 now requires

petitioner to capture only the first quarter-inch of storm

water from “high risk” areas. The San Diego RWQCB

arrived at that quarter-inch requirement (and the limitation

to “high risk” areas) after public hearings in which

respondents participated, and a San Diego Superior Court

judge later upheld it as a “reasoned compromise between

the most conservative and expensive measure (one-half

inch), and an inadequate measure which would allow a

23

greater amount of polluted runoff into the Bay (one-tenth

inch).” Id.; National Steel & Shipbuilding Co. v. California

State Water Resources Control Bd., Case No. 724222 (Cal.

Oct. 18, 1999). Petitioner in fact has a state-of-the-art

drainage system that does capture a full half-inch of storm

water runoff from “high risk” areas of its facility, including

one of the piers. By requiring petitioner to capture 100% of

the runoff, and to extend the system to all piers (whether

they or not they are “high risk” areas), the district court did

not merely substitute its opinion for the considered

judgment of the agency; it imposed a requirement that the

agency found to be so burdensome that it was not even

within the appropriate range of consideration. See Pet. App.

42a-43a (“The Court acknowledges that Defendant’s existing

stormwater containment system exceeds current regulatory

requirements.”).

Other requirements imposed by the district court

similarly “ratchet up” the requirements found in petitioner’s

NPDES permits. For example, those permits require

petitioner to capture storm water from two storm events

per year, and test it for significant pollutants. Clerk’s

Record (“CR”) 23 (ER 123). The district court ordered

petitioner to capture and test the runoff from every storm

and test it before releasing it into the bay. Pet. App. 55a.

The district court required petitioner to test the

surrounding water column in four different locations and at

multiple depth intervals whenever conducting sandblasting

or painting operations on any vessel, even though such

measures are not required by petitioner’s permits — and self-

evidently have absolutely nothing to do with storm water

pollution at all. Pet. App. 56a-57a. And the court also

ordered petitioner to replace all the existing asphalt berms

in its facility with concrete ones, even though the use of

asphalt berms is not prohibited by petitioner’s permits (and

petitioner’s storm water diversion and capture system is, in

24

fact, already substantially more elaborate and effective than

required by the RWQCB). Pet. App. 70a-71a.

As petitioner explained to the Ninth Circuit, the

inherent inconsistency of the district court’s holding further

illustrates that the district court was not interpreting or

“enforcing” the requirements of petitioner’s existing permits

but rather creating new ones out of whole cloth. The

district court held that petitioner’s existing storm water

plans were already adequate to conform to the

requirements of its NPDES permits. Pet. App. 65a. The

district court’s decision to impose additional elaborate

additional requirements can therefore be understood only as

a determination that the terms of petitioner’s permits are

not stringent enough to adequately protect the

environment, in the district court’s own personal judgment.

And that is precisely the import of the district court’s

forthright response when petitioner protested that the

court’s injunction was impermissibly modifying the terms of

petitioner’s permits:

THE COURT: All I got from the Defendants was,

number one, I don’t have the power to do anything I

want to do because I’m bound by the NPDES

permit. And that’s on appeal, and my present

position is that’s not the law, and I don’t consider

myself bound by the NPDES permit... . J don’t

think the NPDES permit, which is the product of a

state agency, is the Supreme Court of the United

States on the Clean Water Act. And this is an Article

3 court, a District Court, and I'll take my reversals

from the Ninth [Circuit] and from the Supreme

Court but not by the NPDES.

25

I don’t recognize that this Court is limited by your

NPDES permit. I reject that position. I believe

that this Court under the Clean Water Act has the

power to order corrective action necessary to

reasonably protect the environment, and that’s what

I’ve done.

Reporter's Transcript (“RT”) 3/6/00 at 7-8, 66 (Appellees’

Supplemental Excerpts of Record (“SER”) 1319-1320, 1355)

(emphasis added).

With due respect to the district court, that approach to

injunctive relief under the Clean Water Act cannot be

reconciled with this Court’s decisions in City of Milwaukee

and Ouellette.

C. The Deferential Standard Adopted By The

Ninth Circuit Permits District Courts To

Impose More Stringent Water Quality

Standards Than EPA And Its Designees, In

Direct Conflict With This Court’s Decisions

In City Of Milwaukee and Ouellette

The Ninth Circuit nonetheless affirmed the district

court’s injunction on the novel theory that federal courts

could impose additional requirements or limitations on

NPDES permit holders as long as those requirements were

“reasonably calculated to ‘remedy an established wrong”

and “consistent with, and complementary to, existing permit

requirements.” Pet. App. 22a-23a. (citations omitted). That

standard reflects a serious misunderstanding of the

statutory structure, and of this Court’s decisions in City of

Milwaukee and Ouellette.

The Ninth Circuit appears to have believed that the

district court’s additional requirements were “consistent

with, and complementary to, existing permit requirements”

as long as it was possible for petitioner to comply with both

its existing permits and the injunction simultaneously. But

this Court recognized in City of Milwaukee and Ouellette

- that the Clean Water Act preempts all other legal authority

26

(unless specifically excepted in the Act’s “savings” clause) to

the extent that it imposes requirements that are more :

stringent than, or in addition to, what the NPDES permit

itself requires. The scope of that preemption rules out any

possibility that a district court could “supplement” the

requirements of an NPDES permit by injunction without

substituting its own judgment for that of the agency.

“In imposing stricter effluent limitations,” this Court

wrote in City of Milwaukee, “the District Court was not

‘filling a gap’ in the regulatory scheme, it was simply

providing a different regulatory scheme.” 451 U.S. at 324

n.18 The same is true of the district court’s injunction in

this case. The district court’s command that petitioner

capture all of the storm water running off its piers is not

“consistent with” or “complementary to” the San Diego

RWQCB’s requirement that it capture the top quarter inch

of such storm water, for example, in any relevant sense. It

is simply different, and more stringent. The Ninth Circuit’s

conclusion to the contrary is inconsistent with this Court’s

holdings in City of Milwaukee and Ouellette that the Clean

Water Act and the NPDES permitting process occupy the

entire field.

In an ironic twist, the Ninth Circuit’s holding in this case

actually appears to be that, although the Clean Water Act

protects the expert judgment of EPA from interference by

judges seeking to impose more stringent requirements

under other state or federal law, it somehow permits such

interference by judges purporting to enforce the Clean

Water Act itself. That cannot be, and is not, the law.

-D. The District Court’s Civil Penalty Award

Should Be Vacated Along With The

Injunction

In addition to the injunction described above, the

district court imposed a civil penalty on petitioner in the

amount of $799,000. The district court based that calculation

- On a judgment that petitioner should pay $1000 of penalties

per day that it was violating its permits, and the conclusion

27

that petitioner had failed to implement its permit

requirements adequately for 799 consecutive days, from the

date plaintiffs filed their lawsuit (August 27, 1996) until the

day before trial (November 3, 1998). Pet. App. 73a.

As petitioner explained to the Ninth Circuit, that

conclusion lacks any evidentiary foundation in the record,

and is clearly erroneous. The district court explicitly held

that petitioner’s storm water plans are themselves adequate

to satisfy the requirements of petitioner's permits. Pet.

App. 65a. And respondents did not even introduce evidence

of “implementation” violations occurring on each of the 799

days between the date the respondents filed their lawsuit

and the beginning of trial. Even if every implementation

defect alleged by respondents is credited, they would still

not add up to any number approaching 799 independent

days of violation.

Furthermore, the civil penalty statute requires the

district court to consider “the seriousness of the violation or

violations, the economic benefit (Gif any) resulting from the

violation, any history of such violations, any good-faith

efforts to comply with the applicable requirements, the

economic impact of the penalty or the violator, and such

other matters as justice may require.” 33 U.S.C. § 1319(d).

But, as the district court itself conceded, whatever post-

complaint violations the court found to exist are not severe.

Pet. App. 72a. The district court’s opinion also repeatedly

acknowledged petitioner’s good-faith efforts to comply with

its permit obligations. Pet. App. 65a, 72a. Especially when

compared to the amount of civil penalties awarded in other

cases, the district court’s imposition of a $799,000 amount is

an excessive and unjustified abuse of discretion. Indeed,

petitioner is unaware of a single case in which civil penalties

were imposed in the absence of multiple, documented

violations of numeric effluent standards - a showing that

respondents utterly failed to make.

28

The Ninth Circuit held that petitioner’s challenges to the

penalty calculation were essentially moot, because the

district court allowed petitioner to set. off the penalty

against the multi-million dollar cost of complying with its

injunction. Pet. App. 26a. “Accordingly, anticipated

alterations, when offset against the $799,000 civil penalty,

will reduce the penalty to zero.” Jd. Because the injunction

exceeded the district court’s authority, however, the offset

relied upon by the Ninth Circuit is illusory. Petitioner

respectfully submits that this Court should, after vacating

that injunction, therefore set aside the district court’s

penalty award as well - or, at a minimum, vacate and

remand it for reconsideration in light of this Court’s opinion.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

MAUREEN E. MAHONEY DAVID L. MULLIKEN*

LATHAM & WATKINS LATHAM & WATKINS

555 Eleventh Street, N.W. 701 B STREET

SUITE 1300 SUITE 2100

WASHINGTON, D.C. 20004 SANDIEGO, CA 92101

(202) 637-2200 (619) 236-1234

*Counsel of Record