Appendix — Southwest Marine, Inc. v. San Diego Bay Keeper
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
la
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 99-56532, 99-56545
D.C. No. CV-96-01492-RMB
Natural Resources Defense Council; San Diego Baykeeper,
Kenneth J. Moser,
Plaintiff-Appellees,
V.
Southwest Marine, Inc.,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, District Judge, Presiding
Argued and Submitted
August 10, 2000—Pasadena, California
Filed December 19, 2000
Before: KOZINSKI, GRABER, and FISHER, Circuit
Judges.
GRABER, Circuit Judge:
Defendant Southwest Marine, Inc., appeals from the
district court’s judgment for Plaintiffs Natural Resources
Defense Council (NRDC), San Diego Baykeeper, and
2a
Kenneth J. Moser, in their citizen enforcement action under
§ 505(a) of the Clean Water Act (CWA), 33 U.S.C. § 1365(a).
In response to Defendant’s challenge, we hold: Plaintiffs
have standing to bring this action, Plaintiffs’ notice letter
was adequate, Defendant’s. violations were ongoing, the
district court’s injunctive measures were not an abuse of
discretion, and the district court’s civil penalty was not an
abuse of discretion. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Defendant operates a large shipyard on San Diego Bay.
Its principal business is repairing and maintaining marine
vessels. Among other things, Defendant’s shipyard removes
old paint from ships and then repaints them. Defendant
commonly removes old paint by blasting the ships’ hulls
with abrasive grit, composed primarily of particles of
copper, that is conveyed on streams of compressed air.
Defendant uses about 4 million pounds of copper grit per
year for blasting old paint from ships and generates about
4,800 pounds of paint waste per year.
Defendant repaints ships with “antifouling paints,”
which are paints that are formulated to prevent the growth
of aquatic organisms, such as barnacles and algae, on the
bottoms of ships. Those paints contain compounds that are
toxic to aquatic life.
Defendant’s shipyard contains five piers, at which ships
are moored while they are being repaired, and two floating
drydocks, on which ships rest, out of the water, to allow
repair, blasting, and repainting of parts that are normally
underwater. When Plaintiffs filed their complaint,
Defendant also was operating a marine railway, which is a
device that is used to pull ships onto the shore for repair.
Shipyards like Defendant’s generate large amounts of
wastes and pollutants, including paint chips and abrasive
grit. Those wastes and pollutants are discharged into
adjacent waters through - among other means -- storm
3a
water runoff, tidal action, leaks, spills, and overspray. A
1993 report by the California Regional Water Quality
Control Board showed elevated concentrations of copper,
tributyltin, and zinc — all of which are present in the
materials used and the wastes generated at Defendant's
shipyard -- in the sediments adjacent to the shipyard. The
report concluded that Defendant appeared to have
discharged copper, tributyltin, and zinc into San Diego Bay,
that Defendant’s management practices appeared to be
inadequate to prevent such discharges, and that the
discharges might have long-term negative effects on the
water quality of the Bay and on its suitability for human
use.
Defendant had applied for and received a National
Pollutant Discharge Elimination System (NPDES) permit
from the California Regional Water Quality Control Board
in 1983. In 1992, Defendant had obtained coverage under
the State Water Resources Control Board’s 1991 General
Industrial Permit for storm water discharges. That permit
supplemented Defendant’s NPDES permit; the storm water
permit- applied to discharges of pollutants through storm
water, and the NPDES permit applied to other discharges.
Both permits required Defendant to develop and
implement plans to limit its discharges of pollutants into the
Bay. Rather than relying on specific numerical effluent
limitations, the permits required Defendant to create and
follow “Best Management Practices” (BMPs).! Defendant
adopted a written BMP plan on January 15, 1992.
1 BMPs are
schedules of activities, prohibitions of practices, maintenance
procedures, and other management practices to prevent or
reduce the pollution of “waters of the United States.” BMPs
also include treatment requirements, operating procedures,
and practices to control plant site runoff, spillage or leaks,
sludge or waste disposal, or drainage from raw material
storage.
4a
The storm water permit also required Defendant to
develop and implement a Storm Water Pollution Prevention
Plan (SWPPP) and a Storm Water Pollution Monitoring
Plan (SWPMP). The permit specified that the SWPPP was
required to include, among other things:
e a description of sources that might add significant
quantities of pollutants to storm water discharges;
e adetailed site map;
e a description of materials that had been treated,
stored, spilled, disposed of, or leaked into storm
water discharges since November 1988;
e a description of the management practices that
Defendant employed to minimize contact between
storm water and pollutants from vehicles,
equipment, and materials;
e a description of existing structural and
nonstructural measures to reduce pollutants in
storm water discharges;
e a description of methods of on-site storage and
disposal of significant materials;
40 C.F.R. § 122.2. As described in Defendant’s current NPDES permit,
BMPs may be “structural” (e.g., tarpaulins and shrouds to enclose work
areas, retention ponds, devices such as berms to channel water away
from pollutant sources, and treatment facilities) or “non-structural” (e.g.,
good housekeeping, preventive maintenance, personnel training,
inspections, and record-keeping).
5a
a description of outdoor storage, manufacturing, and
processing activities;
a list of pollutants likely to be present in significant
quantities in storm water discharges and an
estimate of the annual amounts of those pollutants
in storm water discharge;
a record of significant leaks or spills of toxic or
hazardous pollutants to storm water;
a summary of existing data describing pollutants in
storm water discharge;
a description of Defendant’s storm water
management controls, including good housekeeping
procedures, preventive maintenance, and measures
to control and treat polluted storm water; and
a list of the specific individuals responsible for
developing and implementing the SWPPP.
Defendant submitted its SWPPP in December 1992.
The SWPPP required Defendant, among other things, (1) to
perform daily inspections to ensure that its shipyard was
complying with the requirements of its BMP plan, and (2) to
maintain records of those inspections.
On April 30, 1996, Plaintiffs sent Defendant a notice
letter, as required by 33 U.S.C. § 1365(b)(1)(A), advising
Defendant that it was violating the CWA and that Plaintiffs
intended to sue under the CWA’s citizen enforcement
provisions. A copy of the notice letter and its attachments
appears as an Appendix at the end of this opinion.
6a
As discussed below, a party who wishes to sue under the
CWA’s citizen enforcement provisions may not commence an
action until at least 60 days after giving notice of intent to
sue. On August 27, 1996, more than 60 days after sending
their notice letter, Plaintiffs filed this action. Four days
earlier, on August 23, 1996, Defendant had submitted a
revised SWPPP and SWPMP. Those revised plans
_ addressed, and attempted to correct, many of the
shortcomings described in Plaintiffs’ notice letter.
In September 1996, Defendant moved to dismiss this
action, arguing that Plaintiffs’ notice letter did not comply
with the CWA’s requirements and, in particular, that the
letter was not specific enough to inform Defendant of what
standards it allegedly had violated. The district court
denied Defendant’s motion in a published opinion. Natural
Res. Def. Council, Inc. v. Southwest Marine, Inc., 945 F.
Supp. 1330 (S.D. Cal. 1996).
Defendant then moved for summary judgment, arguing
(1) that the district court lacked subject matter jurisdiction
because Plaintiffs’ allegations of ongoing violations were
neither made in good faith nor based on reasonable
investigation; (2) that, even if the district court had subject
matter jurisdiction, summary judgment was appropriate
because Plaintiffs could not prove ongoing violations at trial;
and (3) that Plaintiffs’ claims were moot.
After continuing the motion to allow more time for
discovery, the district court denied summary judgment in an
unpublished order. In denying Defendant’s motion, the
court concluded (1) that it had subject matter jurisdiction
because Plaintiffs had alleged continuing violations in good
faith; (2) that there were disputed issues of material fact as
to whether Defendant (a) had developed an adequate
SWPPP and monitoring plan, as required by its storm water
permit, and (b) had adequately implemented or was
adequately implementing such plans; and (3) that Plaintiffs’
action was not moot.
Ta
While district court proceedings were pending,
Defendant’s permits were revised twice. First, Defendant’s
storm water permit was superseded by a new storm water
permit, which took effect May 1, 1997. Second, both the
storm water permit and Defendant’s NPDES permit were
superseded by a new NPDES permit. That permit was
issued on October 15, 1997, but was stayed on March 27,
1998, by the Superior Court of the County of San Diego.
The superior court lifted that stay later in 1998, and the
revised permit became effective at that time.”
Defendant also revised a number of its practices related
to storm water while this matter was before the district
court. Among other things, Defendant revised its BMP
plan, as required by its most recent NPDES permit;
installed a storm water diversion system covering most (but
not all) of its facility; hired a new environmental compliance
manager; installed a roof to prevent storm water from
reaching hazardous materials; and removed polluted
sediments from the area of its marine railways.
This action was tried to the court between November 2
and December 3, 1998. Both sides presented evidence and
expert testimony about conditions at Defendant’s facility,
and the district court made three visits to the facility.
On March 2, 1999, the district court found in Plaintiffs’
favor in an unpublished order. After reaffirming its earlier
rulings that Plaintiffs had standing and that the notice letter
was adequate, the court concluded (1) that Defendant’s
SWPPP and monitoring plan, as revised in August 1996,
were adequate; but (2) that Defendant had failed to
implement those plans adequately, thereby violating its
< Defendant has operated under three storm water permits during the
pendency of this litigation. The provisions of those permits that
Defendant was found to have violated, and to which we refer in this
opinion, have remained essentially consistent in all three permits.
va hatin Soa iia ial
eee ee ee th i
8a
permit and the CWA. The court imposed injunctive relief
and a civil penalty of $799,000.
The district court then asked Plaintiffs to prepare
proposed findings of fact and conclusions of law. Plaintiffs
submitted proposed findings on May 7, 1999, and
Defendants filed objections thereto. The district court held
hearings on July 13 and August 19, 1999, to consider
Defendant’s objections. Defendant argued, among other
things, that the district court’s proposed injunction was too
broad and too costly. To address those arguments, the
district court asked the parties to submit additional
evidence concerning the proposed injunction.
On September 7, 1999, the district court issued its
findings of fact and conclusions of law. The court found: (1)
that Plaintiffs had presented “convincing evidence” that
Defendant had not made the required inspections that it
claimed to have made; (2) that, even accepting Defendant’s
statement that it had made the required inspections,
Defendant had not maintained adequate records of those
inspections, with the result that a large number of
inspection reports were missing; (3) that the reports that
Defendant had provided demonstrated a pattern of poor
housekeeping at Defendant’s facility and showed that
violations, when reported, were not always remedied in a
timely manner; (4) that Defendant’s inadequate
implementation of its plans had led to “significant
contributions of pollutants to Defendant’s leasehold”; (5)
that Defendant’s leasehold within the Bay was “devoid of
life”; (6) that the evidence conclusively demonstrated that
substantial quantities of pollutants from Defendant’s
paint-blasting operations had entered San Diego Bay in
Defendant’s storm water discharges; (7) that Defendant’s
failure to implement its storm water plans adequately was
contributing to and perpetuating the contamination of its
marine leasehold; and (8) that the harm to Defendant’s
leasehold “could be remedied by Defendant with improved
:
Fe
‘A -
-
aS
$
i
+
9a
practices.” Based on those findings, the court concluded: (1)
that it had subject matter jurisdiction over the action; (2)
that Plaintiffs had standing; (3) that Defendant had violated,
and was continuing to violate, the relevant permits and
plans; and (4) that Defendant’s failure to implement its plans
adequately was the result of “systemic problems” and
“overall inadequacies” in implementation, rather than mere
“snapshots” of isolated violations.
The district court’s findings of fact and conclusions of law
also reiterated the injunctive relief and civil penalties that
the court had imposed in its earlier order. In response to
Defendant’s objections, the court entered a limited stay
governing several provisions of the injunction, to allow the
parties to submit further studies and evidence. On March 6,
2000, the district court heid its final hearing regarding the
limited stay. After making minor changes to the injunction,
the court lifted the stay in an unpublished order dated
March 7, 2000.
In its injunction, the court ordered Defendant (1) to test
its storm water discharges for significant pollutants before
releasing them into the Bay; (2) to sweep, after every shift,
uncontained areas in which operations may have caused
deposits of debris and to provide mats and air hoses so that
workers could clean their shoes after leaving such areas; (3)
to make daily inspections of its facilities (except when the
shipyard is not operating) and keep records of those
inspections; (4) to test the water column around each vessel
that is being blasted or painted to determine if those
operations are contributing to pollution in the Bay; (5) to
correct conditions that might allow pollutants to enter the
Bay, within four hours if feasible; (6) to repair or replace
shrouds that are in poor repair; (7) to capture all storm
water coming off its piers (the district court allowed
Defendant 18 months to comply with this condition); and (8)
to erect and maintain concrete berms in areas of the facility
from which runoff might enter the Bay. The court rejected
10a
Plaintiffs’ argument that Defendant should be required to
remediate the contamination of the sediments ‘n its marine
leasehold.
This timely appeal followed.
DISCUSSION
Defendant challenges the district court’s rulings on (1)
standing, (2) the adequacy of Plaintiffs’ notice letter, (3)
ongoing violations, (4) the terms of the injunction, and (5)
the civil penalty. We will address each of those issues in
turn.
I. Standing
_ First, Defendant argues that the district court erred in
holding that Plaintiffs had standing to bring this action. We
review de novo the question whether a party has standing
to bring an action. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152
(9th Cir. 2000).
In order to satisfy Article III’s standing requirements in
a CWA citizen enforcement action, “a plaintiff must show (1)
it has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely... that
the injury will be redressed by a favorable decision.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120
S. Ct. 693, 704 (2000). An association like NRDC “has
standing to bring suit on behalf of its members when its
members would otherwise have standing to sue in their own
right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.” Id.
Defendant argues that Plaintiffs cannot satisfy any of
the three requirements for Article III standing. We
disagree.
bs
s
.*
2
&
=
@
s
=
oe
lla
First, Plaintiffs showed “injury in fact.” The Supreme
Court has held that “environmental plaintiffs adequately
allege injury in fact when they aver that they use the
affected area and are persons ‘for whom the aesthetic and
recreational values of the area will be lessened’ by the
challenged activity.” Id. at 705 (quoting Sierra Club v.
Morton, 405 U.S. 727, 735 (1972)). Here, members of the
plaintiff organizations, and individual plaintiff Kenneth
Moser, testified that they have derived recreational and
aesthetic benefit from their use of the Bay (including areas
of the Bay next to Defendant’s shipyard), but that their use
has been curtailed because of their concerns about pollution,
contaminated fish, and the like. Those averments are
sufficient to satisfy the “injury in fact” component of Article
III standing.
Second, the injury is “fairly traceable” to the challenged
activity. This requirement,-more precisely, is that there
must be “a causal connection between the injury and the
conduct complained of -- the injury has to be ‘fairly ...
trace[able] to the challenged action of the defendant, and not
... th{e] result [of] the independent action of some third
party not before the court.’” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (quoting Simon v. Eastern Ky.
Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Plaintiffs
presented evidence that the sediments in Defendant’s
marine leasehold contained elevated concentrations of
pollutants, that Defendant had discharged the same
pollutants, and that Defendant’s marine leasehold was
“devoid of life.” That evidence was sufficient- to
demonstrate that Plaintiffs’ injury was “fairly traceable” to
Defendant’s conduct. As the Fourth Circuit has noted, the
threshold requirement of “traceability does not mean that
plaintiffs must show to a scientific certainty that defendant’s
effluent ... caused the precise harm suffered by the
plaintiffs” in order to establish standing. Friends of the
Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149,
12a
161 (4th Cir. 2000) (en banc) (citations and internal quotation
marks omitted). To satisfy this requirement, “(rjather than
pinpointing the origins of particular molecules, a plaintiff
must merely show that a defendant discharges a pollutant
that causes or contributes to the kinds of injuries alleged in
the specific geographic area of concern.” Id. (citation and
internal quotation marks omitted); see also Sierra Club v.
Cedar Point Oil Co., 73 F.3d 546, 558 (5th Cir. 1996) (to the
same effect); Public Interest Research Group of New Jersey,
Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d
Cir. 1990) (same). Plaintiffs made that showing in this case.
Third, Plaintiffs demonstrated that a favorable decision
would redress their injuries. A plaintiff who seeks
injunctive relief satisfies the requirement of redressability
by alleging a continuing violation or the imminence of a
future violation of an applicable statute or standard. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 108
(1998). Plaintiffs alleged that Defendant was continuing to
violate its permits; what is more, as discussed below, they
proved continuing violations at trial. Because they sought
an injunction to halt those continuing violations, Plaintiffs
satisfied the requirement of redressability.
In sum, the district court did not err in holding that
Plaintiffs had standing to bring this action.
II. Netice--Subject Matter Jurisdiction
Next, Defendant argues that Plaintiffs’ notice letter was
insufficient. Under the CWA,
No action may be commenced-
(1) under subsection (a)(1) of this section --
(A) prior to sixty days after the plaintiff has given
notice of the alleged violation (i) to the
Administrator, (ii) to the State in which the alleged
vioiation occurs, and (iii) to any alleged violator of
the standard, limitation, or order...
i
s
2
*
va
k¢
=
13a
33 U.S.C. § 1365(b). The applicable regulation provides that
the notice
shall 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).
If a party seeking to bring a citizen enforcement action
has not complied with the CWA’s notice requirement, then
the district court in which that action is brought lacks
subject matter jurisdiction and must dismiss the action.
Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354
(9th Cir. 1995); see also Hallstrom v. Tillamook County, 493
U.S. 20, 26 (1989) (requiring strict compliance with notice
requirement for citizen enforcement action under the
Resource Conservation and Recovery Act). “In practical
terms, the notice must be sufficiently specific to inform the
alleged violator about what it is doing wrong, so that it will
know what corrective actions will avert a lawsuit.” Atlantic
States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d
814, 819 (7th Cir. 1907). We review de novo the district
court’s conclusion that Plaintiffs’ notice was adequate. See
Washington Trout, 45 F.3d at 1353.
The district court treated Plaintiffs’ notice letter as
alleging two separate, but related, violations concerning the
pollution prevention plans required by its permits and the
CWA. The first was Defendant’s failure to prepare
adequate plans; the second was Defendant’s failure to
implement adequate plans.
With regard to those issues, Plaintiffs’ notice letter
clearly satisfies some of the requirements of notice. The
14a
letter was mailed to the appropriate entities. See 40 C.F.R.
§ 135.3(a). It identified the persons giving notice and the
persons responsible for the alleged violation. Although the
letter did not identify a specific date, or a specific location
within Southwest Marine’s facility, it nevertheless satisfied
those requirements as well. See id. Plaintiffs were not
alleging that a particular discharge from a particular pipe on
a particular day had violated the CWA. Rather, they were
alleging that Defendant had failed to prepare and
implement plans that were required by its permit. As the
district court correctly noted, the failure to develop and
implement pollution prevention plans are violations
“occurring at the facility in general.” Southwest Marine, 945
F.. Supp. at 1333. Moreover, “the deficiencies in these plans
are ongoing, so there is no specific date that can be alleged
‘as the date of the violation.” Id.
The parties’ dispute before us centers on the specificity
of the notice letter. See 40 C.F.R. 135.3(a) (requiring that a
notice letter “include sufficient information to permit the
recipient to identify the specific standard, limitation, or
order alleged to have been violated, [and] the activity
alleged to constitute a violation”). The notice letter
generally raises the issues of the preparation and
implementation of an adequate SWPPP. Our first question
is whether the notice letter raised those issues adequately
to satisfy the requirements of the CWA.
As to the alleged failure to prepare an adequate plan, the
notice. letter was clearly adequate, and we do not
understand Defendant to argue otherwise. The letter
charged, among other things, that Defendant had failed to
prepare an SWPPP that complied with the specific
requirements of Defendant’s storm water permit; identified
the source of the requirement that Defendant prepare an
adequate SWPPP; and explained the ways in which
Defendant’s then-existing SWPPP did not comply with the
storm water permit.
152
Defendant argues, however, that the notice letter was
not sufficient with regard to Plaintiffs’ allegation that it
failed to implement an adequate plan. Specifically,
Defendant asserts that the district court lacked jurisdiction
to consider Plaintiffs’ allegations of “poor housekeeping.”
The notice letter alleges that Defendant failed to implement
an adequate SWPPP, including a “good housekeeping”
provision. “Good housekeeping’ was required under
Defendant’s storm water permits. Defendant acknowledges
that the court’s reference to “poor housekeeping” does
“arguably correspond” to Plaintiffs’ reference to storm
water controls and good housekeeping in Attachment 2 of
the notice letter. See Appendix A at Attachment 2, page 1.
Nevertheless, Defendant argues that Plaintiffs failed to
refer to, or identify, the “good housekeeping” provision of its
revised SWPPP and, thus, failed to provide any information
about how Defendant had violated that specific plan
provision. The difficulty with that argument is that the
notice letter predates the plan provisions to which
Defendant refers. Plaintiffs mailed their notice letter in
April 1996. The “good housekeeping” provision to which
Defendant refers, and which Defendant cites in its brief, is
contained in Defendant’s revised SWPPP, which was filed in
August 1996. Although we require strict compliance with
the CWA’s notice requirement, we do not require
citizen-plaintiffs to refer to provisions of plans that do not
exist.
We hold that the notice letter was sufficient, on the date
it was mailed, to allow the district court to exercise
jurisdiction over Plaintiffs’ “good housekeeping” claims.
Defendant was operating under a storm water permit that
was designed to prevent discharges of toxic pollutants
through storm water. That permit required Defendant to
prepare and implement an SWPPP that included a “good
housekeeping” provision. The permit expiained that “[gjood
housekeeping requires the maintenance of clean, orderly
16a
facility areas that discharge storm water. Material handling
areas shall be inspected and cleaned to reduce the potential
for pollutants to enter the storm water conveyance system.”
Plaintiffs’ notice letter sufficiently alleged that Defendant
had failed to prepare and implement such a plan.
And Defendant obviously understood at least some of
the alleged violations. In response to Plaintiffs’ letter,
Defendant completely revised its SWPPP and SWPMP
within four months, adding sections that specifically made
reference to the requirements that Plaintiffs had identified.
See Atlantic States, 116 F.3d at 820 (concluding that notice
was sufficiently specific where the defendant, after
receiving notice, took immediate steps to cure the problems
identified in the notice letter). And, as noted, Defendant
made substantial changes to its facility and operations
during the pendency of this litigation, concededly in an
attempt to remedy some of the inadequacies of which
Plaintiffs had complained.
The second and more theoretical question that
Defendant’s argument raises is what, if any, effect
Defendant’s post-notice alterations of its plans and facilities
had on the adequacy of the notice letter. If a defendant
receives a proper notice letter alleging that it has failed to
prepare and implement an adequate plan and, in response,
prepares a new plan and begins to implement it before the
complaint is filed, is the otherwise proper notice letter
defective for failing to identify and discuss the new plan and
its implementation? In those circumstances, must a
citizen-plaintiff send a new notice letter? We think not.
Subject matter jurisdiction is established by providing a
notice that is adequate on the date it is given to the
defendant. The defendant’s later changes to its operations
and plans may affect standing, see Steel Co., 523 US. at
105-06; the question of ongoing violations or remedies, see
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,
Inc., 484 U.S. 49, 64 (1987); or mootness, see Laidlaw, 120 S.
17a
Ct. at 708.3 But such changes do not retroactively divest a
district court of jurisdiction under 33 U.S. C. § 1365 (b).
Defendant also cites Washington Trout and Hallstrom in
support of its argument that notice was inadequate. Those
cases are distinguishable from this one. In Washington
Trout and Hallstrom, the plaintiffs had failed to comply with
the facial requirements for notice set out in the applicable
statutes and regulations.
In Washington Trout, the plaintiffs mailed the defendant
a letter alleging improper discharges of p«{lutants; however,
“the letter did not provide the address and phone number of
the named plaintiff, nor did it furnish the identity, address,
and phone number of [the other plaintiffs].” 45 F.3d at 1352.
Further, “the notice failed to specifically identify the dates”
of the allegedly unlawful discharges. Jd. This court held
that those failures to comply with 40 C.F.R. § 135.3(a)
precluded the district court from assuming jurisdiction over
any part of the plaintiffs’ action. Jd. at 1354-55.
In Hallstrom, the plaintiffs filed a citizen enforcement
action under the Resource Conservation and Recovery Act,
which contains a notice provision that is substantively
identical to the CWA’s notice provision. See 42 U.S.C.
§ 6972(b). The Supreme Court held that the district court
lacked subject matter jurisdiction over the plaintiffs’ action
because the plaintiffs had failed to give any notice to the
EPA or to the appropriate state agency as § 6972(b)
requires. See Hallstrom, 493 U.S. at 33.
Those cases establish that the CWA’s notice
requirement is strictly construed and that compliance with
3 Using Defendant’s corrective actions as evidence of its
understanding of Plaintiffs’ letter might seem to suggest a strategy of
avoiding remedial measures so as not to create unfavorable evidence.
Such corrective actions, however, would benefit a defendant on issues of
standing, mootness, and remedy, as illustrated by the cases cited in the
text.
18a
the notice requirement is a prerequisite to a citizen
enforcement action. But this case presents a different
problem. Unlike in Washington Trout and Hallstrom, the
question in this case is not whether the district court had
subject matter jurisdiction over any part of Plaintiffs’
action; Defendant does not contest that the notice was
adequate as to the allegation that it had failed to prepare an
adequate SWPPP. Rather, the question is whether the
district court exercised jurisdiction over particular issues
that were not raised in the notice letter and, thus, were
beyond the scope of the court’s jurisdiction.
We have resolved that question in Plaintiffs’ favor. As
discussed above, we hold that Plaintiffs, letter gave
Defendant adequate notice of all the claims over which the
district court exercised jurisdiction. Accordingly, the
district court did not err in concluding that Plaintiffs’ notice
letter satisfied the requirements of 33 U.S.C. § 1365(b).
III. Evidence of Ongoing Violations
Next, Defendant argues that the district court erred in
concluding that it had committed “ongoing violations” of
requirements in its storm water permit. We review findings
of fact for clear error and conclusions of law de novo.
Russian River Watershed Prot. Comm. v. City of Santa
Rosa, 142 F.3d 1136, 1140 (9th Cir. 1998). We review de
novo a district court’s interpretation of an NPDES permit
when its terms are unambiguous. Jd. at 1141.
The CWA “does not permit citizen suits for wholly past
violations”; rather, the statute “confers jurisdiction over
citizen suits when the citizen-plaintiffs make a good-faith
allegation of continuous or intermittent violation.”
Gwaltney, 484 U.S. at 64. Here, the district court properly
concluded that Plaintiffs had made such good-faith
allegations and thereby had satisfied Gwaltney’s threshold
requirement for jurisdiction.
19a
To prevail at trial, a citizen-plaintiff must prove that
ongoing violations actually have occurred. “[A] citizen
plaintiff may prove ongoing violations ‘either (1) by proving
violations that continue on or after the date the complaint is
filed, or (2) by adducing evidence from which a reasonable
trier of fact could find a continuing likelihood of a recurrence
in intermittent or sporadic violations.’ ” Sierra Club v.
Union Oil Co., 853 F.2d 667, 671 (9th Cir. 1988) (quoting
Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield,
Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988)). This court also
has adopted the Fourth, Circuit’s conclusion that
“fijntermittent or sporadic violations do not cease to be
ongoing until the date when there is no real likelihood of
repetition.’ [Chesapeake Bay Found., 844 F.2d] at 172
(emphasis added).” Id.
Defendant groups three arguments under this heading.
First, Defendant argues that the district court erred in
holding that it had violated any condition of its storm water
permit. We disagree. As noted, the district court found
that Defendant had failed to make -- or had failed to keep
records of -- numerous daily inspections of its facility. Those
daily inspections — and records of the inspections — were
required by Defendant’s 1992 and 1996 SWPPPs. The
SWPPPs, in turn, were required by Defendant’s storm
water permit, which contemplated that Defendant would
inspect its facility and keep records of its inspections. The
district court also found that the inspection reports that
Defendant did produce revealed “a pattern of poor
housekeeping.” Defendant’s own inspection reports showed
that the “good housekeeping” standard was not met
uniformly and that violations were not always remedied
quickly.
Moreover, the district court found that Defendant’s
failure adequately to implement its SWPPP “led to
significant contributions of pollutants” to the Bay from
Defendant’s discharges. The court further found that those
20a
discharges contributed to the contamination of Defendant’s
marine leasehold and that the leasehold is “devoid of life.”
Those findings are supported by evidence and, accordingly,
are not clearly erroneous. Each of Defendant’s successive
storm water permits has specifically prohibited discharges
that cause adverse effects on the environment. For
example, Defendant’s current storm water permit prohibits
discharges that degrade marine communities, cause adverse
effects on the environment, or result in harmful
concentrations of pollutants in marine sediments. Because
the district court found that Defendant’s failure to
implement its storm water plans led to discharges that
violated those standards, the court’s conclusion that
Defendant violated its storm water permit was not error.
Second, Defendant argues, “[eJlven assuming arguendo
that Southwest Marine did not, at some point in time,
implement its stormwater plans adequately, it was legal
error for the district court to find an ongoing violation of
that permit requirement.” (Emphasis in original.) As a
threshold matter, we reject Defendant’s argument that we
review this question for legal error. The district court’s
conclusion that Defendant’s violations were ongoing was a
finding of fact, which we must affirm unless clearly
erroneous. See Union Oil, 853 F.2d at 671 (stating that a
plaintiff could prove a continuing violation “by adducing
evidence from which a reasonable trier of fact could find a
continuing likelihood of a recurrence in intermittent or
sporadic violations”).
Here, the district court found that Defendant had failed
to implement its plans adequately even after Plaintiffs filed
their complaint. As the district court noted, there is
evidence of incidents of poor housekeeping during the
pendency of this action. Defendant argues that the district
court’s finding of an ongoing violation “improperly combines
several discrete and unrelated workplace incidents.” But
the district court found that the ongoing violations
2la
“present[ed] a picture of overall inadequacies,” not mere
“snapshots.” Notwithstanding Defendant’s argument, we
may not disturb that finding if it is supported by evidence.
And it is; the evidence on which the district court relied was
sufficient to permit a reasonable trier of fact to find “a
continuing likelihood of a recurrence in intermittent or
sporadic violations.” Union Oi, 853 F.2d at 671.
Accordingly, the district court’s finding of a continuing
violation was not clearly erroneous.
Third, Defendant argues that, even if there is sufficient
evidence in the record to establish an ongoing violation of
the permit, we should nevertheless remand for the distric*
court to explain further the factual and legal basis for its
decision. Because we conclude that the district court has
provided sufficient factual and legal support for its decision,
we do not agree that remand is necessary or appropriate.
IV. The Injunction
Next, Defendant argues that the injunction was
improper. District courts have “broad latitude in fashioning
equitable relief when necessary to remedy an established
wrong.” Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981,
986 (9th Cir.1994). We review a district court’s decision to
issue an injunction under the CWA, and its determination of
the scope of that injunction, for abuse of discretion. See
Natural Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc.,
906 F.2d 934, 937 (8d Cir. 1990) (so holding); see also
Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982)
(describing decision to award or deny injunction as an
exercise of a district court’s equitable discretion).
Defendant contends that the district court abused its
discretion by imposing requirements that are not contained
in Defendant’s permits or plans. By so doing, Defendant
argues, the district court essentially overrode the existing
permits. According to Defendant, that was improper for
two reasons: (1) it was an abuse of discretion, and (2) it
22a
violated principles of separation of powers by usurping the
authority of the executive-branch agencies that issued the
permits. Because those arguments both turn on the
underlying question whether the district court overrode
Defendant’s existing permits, we address the arguments
together.
Defendant is correct that a district court’s equitable
powers under the CWA are limited to enforcing standards,
limitations, and orders that have been violated. 33 U.S.C. §
1365(a). That enforcement authority does not allow
equitable measures that are wholly unrelated to a violation
of an existing standard, limitation, or order. Nor may a
district court exercise its general equitable authority to
override the terms of a properly issued permit. See City of
Milwaukee v. States of Illinois & Michigan, 451 U.S. 304,
320 (1981) (“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.”).
But here the district court permissibly found violations
of extant permits. The key question is what a district court
may do, pursuant to its equitable powers, in aid of enforcing
standards, limitations, and orders that have been violated.
According to Defendant, a court may do little more than
tell the violator to comply with the applicable requirements.
Thus, Defendant says, the district court in this case should
have “simply order[ed] Southwest Marine to comply with
specifically-identified pollution plan provisions.”
We do not agree that a district court’s equitable
authority is so cramped. The authority to “enforce” an
existing requirement is more than the authority to declare
that the requirement exists and repeat that it must be
followed. So long as the district court’s equitable measures
are reasonably calculated to “remedy an established wrong,”
23a
they are not an abuse of discretion. Alaska Ctr., 20 F.3d at
986
We conclude that the injunctive measures satisfy that
standard. Those measures all are consistent with, and
complementary to, existing permit requirements. The
requirement that Defendant’s employees sweep open areas
where debris may have accumulated (or certify that there
was no debris to sweep) and wipe their feet on mats after
leaving such areas is a good housekeeping measure designed
to remove pollutants from areas where storm water
accumulates, as contemplated in Defendant’s permits; the
requirement that Defendant fix and maintain its shrouds is
consistent with the permit requirement for structural
BMPs, such as shrouds, that provide overhead coverage; the
requirement that Defendant install concrete berms is
consistent with the requirement for structural BMPs, such
as berms, that channel or route storm water away from
sources of pollutants; the requirement that Defendant
conduct water-column testing around each vessel that is
being blasted or painted is consistent with the permit
requirements for storm-water monitoring; the requirement
that Defendant make daily inspections and keep records of
those inspections is consistent with numerous permit
requirements requiring monitoring and recordkeeping (and,
further, is almost identical to a provision in Defendant’s
original BMP plan); the requirement that Defendant correct
potentially dangerous conditions within four hours, if
feasible, is consistent with permit requirements for prompt
response in cases of leaks and spills; and the requirements
that Defendant capture storm water coming off piers and
test storm water discharges before releasing them into the
Bay are consistent with the requirement that Defendant not
discharge storm water that adversely affects the
environment or degrades marine communities on
Defendant’s leasehold, which the district court found had
24a
been rendered devoid of life by (among other things)
Defendant’s discharges.
The injunctive measures are consistent with the terms of
Defendant’s storm water permits and seek to enforce the
requirements of those permits and the relevant plans. They
are not identical to the requirements of the plans and
permits, but complement those requirements. In imposing
those injunctive measures, the district court did not
override agency determinations or supersede existing
permit requirements. Rather, it properly exercised its
equitable authority to enforce existing requirements with
which Defendant had failed to comply.
Our conclusion that those provisions of the injunction
were consistent with Defendant’s storm water permit also
disposes of Defendant’s separation-of-powers argument.
Because the district court merely enforced the permits, it
did not “usurp” the authority of the executive branch.
Defendant also argues that the district court failed to
balance the equities or make the necessary findings before
issuing its injunction. We are unpersuaded. The district
court considered Defendant’s testimony concerning the cost
and difficulty of the various injunctive measures. The
district court also heard testimony throughout the trial
about the extreme degree of environmental degradation in
the Bay in general, and on Defendant’s leasehold in
particular. The court temporarily stayed the injunction to
allow further argument and evidence, and eventually
modified the original injunction with respect to testing,
containment of runoff, and cleanup. Finally, in its order
lifting the temporary stay, the court noted that it was
mindful of the cost that it was imposing on Defendant, but
concluded that the cost was outweighed by the need for
swift corrective action and the fragility of the local marine
environment. The district court’s findings and balancing of
the equities were adequate to justify its injunction.
25a
In sum, we conclude that the district court’s injunction
was not an abuse of discretion. We also conclude that the
injunction did not violate the separation-of-powers doctrine.
Therefore, we affirm the injunction in its entirety.
V. Civil Penalties
Finally, Defendant argues that the district court abused
its discretion in imposing a civil penalty of $799,000, because
the penalty is excessive, unreasonable, and unsupported by
evidence. We review for abuse of discretion the amount of a
civil penalty under the CWA. Leslie Salt Co. v. United
States, 55 F.3d 1388, 1397 (9th Cir. 1995).
The district court imposed the penalty pursuant to 33
U.S.C. § 1319(d), which provides, as relevant: “Any person
who violates ... any permit condition or limitation ... shall be
subject to a civil penalty not to exceed $25,000 per day for
each violation.” Ifa district court finds a violation, then civil
penalties under 33 U.S.C. § 1319(d) are mandatory. Leslie
Salt, 55 F.3d at 1397. A district court has discretion to set
the amount of a penalty (up to the statutory maximum) and
is instructed to consider the seriousness of the violation, any
economic benefit that resulted from the violation, any
history of violations by the party to be penalized, that
party’s good-faith efforts to comply with the applicable
requirements, the economic effect of the penalty on the
violator, and “such other matters as justice may require.” 33
US.C. § 1319(d).
The district court found that Defendant had been in
violation of the CWA for 799 days when the trial began and,
after considering the statutory factors, imposed a penalty of
$1,000 for each of the 799 days of violation. However, the
court also ordered that the penalty will be reduced by the
amount of the cost of any actions that Defendant takes to
improve its storm water diversion system and any changes
that Defendant makes to its facilities to comply with the
court’s injunction.
26a
Thus, the amount of the penalty actually is $799,000
minus the cost of such physical alterations. In challenging
the injunction, Defendant presented evidence that one such
alteration ~— the installation of a storm-water diversion
system -— would cost more than $1 million by dself.
Accordingly, anticipated alterations, when offset against the
$799,000 civil penalty, will reduce the penalty to zero. In
the circumstances, we cannot agree that the penalty is
excessive, and we hold that the district court did not abuse
its discretion.
CONCLUSION
For the reasons stated, we AFFIRM the district court’s
judgment in favor of Plaintiffs, the injunction, and the civil
penalty.
April 30, 1996
Certified Mail - Return Receipt R ted
Art Engle
President Southwest Marine, Inc.
P.O. Box 13308
San Diego, California
92170-3308
Lawrence Killeen
Executive Director
San Diego Unified Port District
P.O. Box 488
San Diego, California
92112
Re: Notice of Intent to Sue for Violations of the Clean
Water Act
Dear Messrs. Engle and Killeen:
We write to notify you that the San Diego
BayKeeper and the Natural Resources Defense Council
(““NRDC’”) believe that Southwest Marine, Inc. and the San
Diego Unified Port District (“Port District”) are violating
the Federal Water Pollution Control Act, 33 U.S.C. §§
1251-1376 (“Clean Water Act” or “Act’”’), as described below.
The information currently available to us indicates
that Southwest Marine and the Port District have violated
and continue to violate requirements concerning discharges
from the Southwest Marine facility at the foot of Sampson
Street in the City of San Diego. These requirements,
including requirements related to discharges associated
29a
with or ancillary to industrial manufacturing and treatment,
are embodied in the Act, its implementing regulations, and
National Pollutant Discharge implementing regulations, and
National Pollutant Discharge Elimination System
(“NPDES”) Permit No. CA0107697. This permit was issued
pursuant to the Act by the California Regional Water
Quality Control Board, San Diego Region (“Regional
Board”) on or around April 18, 1983. The requirements with
which we believe Southwest Marine and the Port District
have failed to comply are set forth in Attachment 1 to this
letter. See also 33 U.S.C. §§ 1311(a), 1314(e), & 1365, 40
C.F.R. Subpart K.
Additionally, the information currently available to
us indicates that Southwest Marine and the Port District
have violated and continue to violate NPDES General
Permit No. CAS000001 governing stormwater discharges
associated with industrial activities in California (“General
Industrial Permit”). The General Industrial Permit”). The
- General Industrial Permit was issued pursuant to the Act
by the California State Water Resources Control Board
(“State Board”) on or around November 19, 1991, and
amended by the State Board on or around September 17,
1992. Coverage under and compliance with the General
Industrial Permit are required before Southwest Marine can
lawfully discharge stormwater associated with industrial
activity. The General Industrial Permit requirements with
which we believe Southwest Marine and the Port District
have failed to comply are set forth in Attachment 2 to this
letter. See also 33 U.S.C. §§ 1311(a), 1342(p), & 1365, 40
C.F.R. § 122.26.
The San Diego BayKeeper and NRDC hereby notify
you of their intent to sue Southwest Marine and the Port
District for their failure to comply with requirements
embodied in the Clean Water Act, the Act’s implementing
regulations, NPDES Permit No. CA0107697, and the
30a
General Industrial Permit. With this letter, the
undersigned give notice of the alleged violations to the
following parties: Art Engle as owner and/or managing
agent of Southwest Marine; Lloyd A. Schwartz as registered
agent in California of Southwest Marine; Lawrence Killeen
as the head of the Port District; the Administrator of the
United States Environmental Protection Agency (“EPA”);
the Regional Administrator of EPA; the Executive Officer
of the State Board; and the Acting Executive Officer of the
Regional Board.
We believe that this notice of intent to sue
sufficiently states the grounds for complaint. This notice
covers all violations through the present. A suit, when filed,
will also address any violations that occur after service of
this notice letter. The San Diego BayKeeper and NRDC
intend to sue on behalf of their organizations and their
respective members.
The San Diego BayKeeper and NRDC pursue
negotiation whenever possible. This negotiation policy
applies to all types of environmental disputes, including
enforcement of stormwater pollution prevention
requirements. In keeping with this policy, we invite you to
discuss your Clean Water Act compliance with us.
If you have any question about the issues raised in
this letter or if you believe any of our allegations are
incorrect, please contact us by telephone, telecopy or mail.
We can be reached at the offices of the San Diego
BayKeeper, listed on the first page of this letter. NRDC’s
office location is as follows: 6310 San Vicente Blvd., Suite
250, Los Angeles, California 90048, (213) 934-6900 (voice),
(213) 934-1210 (facsimile). If you wish to contact us before
we file a complaint, we request that you do so as quickly as
possible. We intend to file suit 60 days after the date of this
letter. See 33 U.S.C. § 1365(b)(1)(a).
3la
Sincerely,
/s/ Everett L. DeLano, III /s/ Ken Moser ennaneseee
Everett L. DeLano, III Ken Moser
Senior Project Attorney Executive Director
San Diego BayKeeper/ San Diego BayKeeper
Natural Resources Defense
Council
Enclosures
ce: Carol Browner
Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
\ Washington, D.C. 20460
Felicia Marcus
Regional Administrator, Region 9
U.S. Environmental Protection Agency
75 Hawthorne Street
San Francisco, CA 94105
Walt Pettit
Executive Director
State Water Resources Control Board
901 P Street
Sacramento, CA 95814
John Robertus
Acting Executive Officer
California Regional Water Quality Control Board
San Diego Region
9771 Clairemont Mesa Blvd., Suite B
San Diego, CA 92124-1331
32a
Lloyd A. Schwartz
Registered Agent
Southwest Marine
P.O. Box 13308
San Diego, California
92170-3308
33a
Attachment 1
The information currently available to the San Diego
BayKeeper and NRDC indicates that Southwest Marine and
the Port District have violated the Act, its implementing
regulations, and NPDES Permit No. CA0107697. These
violations include, but are not limited to, the following:
1) NPDES Permit No. CA0107697 Parts B.3 (p. 7)
& D.7 (p. 10) and 40 C.F.R. § 125.104(b), requiring
the development and implementation of best
management practices programs, including, but not
limited to:
e establishing specific objectives for control of toxic
and hazardous pollutants by predicting direction,
rate of flow and total quantity of pollutants; and,
e addressing the following points for ancillary
activities: material inventory; material
compatibility; reporting and notification
procedures; visual inspections; preventive
maintenance; and, security.
2) NPDES Permit No. CA0107697 Part C.5 (p. 8),
prohibiting concentrations of toxic substances in
waters that produce detrimental physiological
responses in human, plant, animal, or aquatic life.
3) NPDES Permit No. CA0107697 Part E.10 (p. 14)
and 40 C.F.R. § 125.104(c)(1), requiring the submittal
of a complete permit application.
, 34a
Attachment 2
The information currently available to the San Diego
BayKeeper and NRDC indicates that Southwest Marine and
the Port District have violated the General Industrial
Permit. These violations include, but are not limited to, the
following:
1) Parts B.1 & B22 (p. 3)!, prohibiting stormwater
discharges that adversely impact human health or
the environment, and prohibiting stormwater
discharges that cause or contribute to a violation of
any applicable water quality standards, respectively.
2) Part C.2 (p. 3) and Section A (pp. 5-7), requiring
the development and implementation of a
Stormwater Pollution Prevention Plan, including,
but not limited to:
e listing pollutants likely to be present in
stormwater in significant quantities and
estimating the annual quantities of these
pollutants, Section A.4.d; and,
e describing the stormwater management controls
appropriate for the facility (for example,
stormwater pollution prevention personnel,
preventive maintenance, good housekeeping,
spill prevention and response, stormwater
management practices, erosion and sediment
controls, employee training, and inspections),
Section A.5.
1 Part, Section, and Page references are to the General Industrial
Permit.
35a
3) Part C.3 (p. 3) and Section B (pp. 9-16), requiring
the development and implementation of a monitoring
and reporting plan, including, but not limited to:
e conducting an annual site inspection, Section
B.5.a;
e conducting visual observations of all stormwater
discharge locations during the first hour of one
storm event per month that produces significant
stormwater discharge, Section B.5.c;
e collecting and analyzing samples of stormwater
discharge from at least two storm events, Section
B.5.d;
e analyzing samples of stormwater discharge for
toxic chemicals and other pollutants that are
likely to be present in stormwater discharge in
significant quantities, Section B.5.d.ii;
collecting samples from all locations where
stormwater is discharged or, in the alternative,
adequately establishing and documenting that
stormwater discharges from different locations are
substantially identical, Section B.11;
notifying the Regional Board, and, if applicable,
appropriate local agency, of instances of non-
compliance with General Industrial Permit
requirements, Section B.17.
36a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
No. 96-CV-1492-B AJB
Natural Resources Defense Council,
San Diego BayKeeper, Kenneth J. Moser,
Plaintiffs,
Southwest Marine, Inc.,
Defendant.
ORDER: (1) LIFTING LIMITED STAY OF
ENFORCEMENT OF JUDGEMENT; (2) DENYING ANY
FURTHER STAY PENDING APPEAL; AND (3)
SETTING HEARING ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES
FILED: March 7, 2000
I. Order Lifting Limited Stay Of Enforcement Of
Judgment
This Court entered judgment on the above-mentioned
case on September 7, 1999 pursuant to Findings of Fact and
Conclusions of Law. Upon motion of Defendant, this Court
also entered a Limited Stay of Enforcement of Judgment on
September 7, 1999, by the terms of which this Court stayed
for a period of 90 days the execution of certain portions of its
judgment in order to permit the parties to submit
37a
alternative or the most feasible methods to accomplish the
corrective action.
Good cause appearing, after review of the parties’ papers
with respect to Defendant’s Motion for Further Stay of
Enforcement of Judgment, after hearing oral argument, and
after being fully advised, this Court now lifts the previously
imposed Limited Stay of Enforcement of Judgment.
With respect to Paragraph 42 of the Findings of Fact
and Conclusions of Law, if Southwest Marine shall discharge
runoff into the bay because of an inability of its present
landslide containment system to handle the runoff,
Defendant shall sample the initial discharge from each point
of discharge and shall perform chemical analysis and toxicity
testing immediately thereafter and shall record these
results for future reference. Defendant only need test the
initial discharge, if any, from each rain event. A rain event
is considered to be rain that is immediately preceded by six
hours of dry weather.
With respect to Paragraph 43 of the Findings of Fact
and Conclusions of Law (“Sweepdowns”), the Court clarifies
the requirement that Defendant shall furnish a sufficient
number of mats in addition to its air hose brushing and clean
up so that workers exiting the ship area shall wipe their
shoes to remove contaminants.
With respect to Paragraph 45 of the Findings of Fact
and Conclusions of Law (“Water Column Testing”), the
“surface layer” shall be defined to be “microlayer.” “Surface
layer testing” shall consist of the testing of the “microlayer”
and shall be within the top fifty micrometers. The
remainder of the water column testing requirement shall
remain unchanged.
With respect to Paragraph 48 of the Findings of Fact
and Conclusions of Law concerning the capture of storm
water coming off of any and all piers, Defendant shall have
18 months from the date of the filing of this order to comply
38a
with this judgment. Defendant shall build its Pier
Stormwater Diversion Facility with respect to a five-year
storm criteria.
II. Order Denying Any Further Stay Of Enforcement
Of Judgment Pending Appeal
Any further stay of enforcement of judgment pending
the appeal of this Court’s judgment is DENIED.
In making this determination, the Court is mindful of the
cost imposed on Defendant with respect to its September 7,
1999 Judgment. The Court is also mindful of the
countervailing need for swift corrective environmental
action, the fragility of the bay’s marine eco-system, and the
almost certain inevitability of necessary corrective action on
the part of Southwest Marine.
III. Order Setting Hearing On Plaintiffs’ Motion For
Attorney’s Fees
With respect to Plaintiffs’ Motion for Attorney’s Fees,
Plaintiffs’ reply brief is due on May 2, 2000 and Defendant’s
supplemental reply is due on May 9, 2000. Defendant’s
supplemental reply shall be no longer than 10 pages.
Thereafter the Motion for Attorneys Fees will be
considered submitted, with hearing to be held on May 23,
2000 at 9 a.m. in Courtroom 2.
Parties are encouraged to stipulate to a reasonable fee
award for Plaintiffs’ fees in order to obviate the need for
hearing. If parties are unable to stipulate to a reasonable
fee award thereby necessitating this Court to determine a
reasonable fee award, this Court will award attorney’s fees
for the hearing to that party which comes the closest to the
fees awarded by the Court. That amount will be either
added to or subtracted from the attorney’s fees awarded at
the hearing.
IT ISSO ORDERED.
39a
Dated [3-7-00] /s/ Rudi M. Brewster
UNITED STATES SENIOR
DISTRICT JUDGE
ce: All Parties
Magistrate Judge
40a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
No. 96-1492-B AJB
Natural Resources Defense Council,
San Diego BayKeeper, Kenneth J. Moser,
Plaintiffs,
v.
Southwest Marine. Inc.,
Defendant.
LIMITED STAY OF ENFORCEMENT OF JUDGMENT
FILED: September 7, 2000
The Court has on this day entered Judgment in this
case, pursuant to Findings of Fact and Conclusions of Law.
Enforcement of the Judgment shall be and is hereby stayed
as to the following provisions of the Findings of Fact and
Conclusions of Law only:
Paragraph 48. Enforcement of only the following
portion of paragraph 48 is stayed pending completion of the
process set forth below:
Defendant shall have sixty days to prepare engineering
alternatives, with supporting cost data, to implement the
Court’s requirement that SWM “shall capture all
stormwater coming off any and all piers.” Defendant shall
present these alternatives, along with the underlying data,
4la
to Plaintiffs after the sixty-day period. Plaintiffs shall have
thirty days to respond as desired to the alternatives.
Defendant shall have ten days to reply. This enforcement
proposal shall then be considered submitted for further
action by the Court. The Court shall select the option it
considers to meet its requirement in the most reasonable
manner.
SWMWM’s failure to prepare and submit an alternative
program to the Court within the stated period shall be
deemed a decision not to do so, and Paragraph 48 shall
thereafter remain in full force and effect as written.
Paragraph 43. Enforcement of only the following
portion of Paragraph 43 is stayed pending completion of the
process set forth below:
Because the Court’s requirement to “conduct sweep
downs after every shift of areas in which operations may
have caused deposit of debris” may be unreasonable, the
Court notes that it has modified its sweepdown
requirement. As modified, the requirement applies only to
non-contained areas of the shipyard. However, the Court
orders Defendant to evaluate whether workers upon exiting
a contained area with accumulations of blast material are
“tracking” this blast material into non-contained areas
which, in turn, may be entering San Diego Bay. Defendant
shall evaluate the feasibility of a “sanitation station,” i.e., a
location where workers could remove debris from their
boots and/or clothes which otherwise might be deposited in
non-contained areas. Defendant’s proposal for this process
shall be filed and served within thirty days. Plaintiffs will
have ten days in which to respond to this material, after
which Defendant will have ten days to reply. The Court
shall select its remedy promptly thereafter.
SWMW’s failure to submit this finding and/or study to the
Court within the stated period shall be deemed a decision
not to do so.
42a
Paragraph 45. Enforcement of only the following
portion of paragraph 45 is stayed pending completion of the
process set forth below:
Defendant shall evaluate the benefits and cost
effectiveness of substituting “microlayer” testing such as
that set forth in the Kocan Declaration submitted with
Plaintiffs’ Status Report, i.e., providing that “surface
samples” be sea-surface micro layer samples, the top 50
micrometers (um) of water, in place of or as part of the
Court’s requirement that SWM perform water column
testing as described in paragraph 45 of the Findings of Fact
and Conclusions of Law. Defendant shall have thirty days
in which to conduct this evaluation, after which its findings
shall be presented to Plaintiffs. Plaintiffs will have thirty
days in which to review this material. Plaintiffs’ comments
shall be presented te Defendant, who will have ten days to
reply. After this time period, this material will be presented
to the Court as stated above.
SWM’s failure to prepare and submit an alternative
program to the Court within the stated period shall be
deemed a decision not to do so, and Paragraph 45 shall
thereafter remain in full force and effect as written.
Paragraph 42. Enforcement of only the following
portion of paragraph 42 is stayed pending completion of the
process set forth below:
..- no release shall be allowed until the results of
such testing have been received. No discharge shall
be allowed, unless testing results demonstrate that
the effluent complies with NPDES permit limits.
Southwest Marine shall operate or modify its storm
water retention system so as to allow conformance
with this requirement throughout its physical
facility.
The Court acknowledges that Defendant’s existing
stormwater containment system exceeds current regulatory
43a
requirements. The Court understands that the proposed
test-before-release requirement may require significant
capital increases to expand the retention system because of
the time delay associated with toxicity testing. This
expenditure may be unnecessary in light of the current
knowledge of the toxicity and pollution content of
Defendant’s stormwater over and above the first half-inch of
rainfall. The Court also recognizes there are limitations
both inherent in (mechanically-fed inflow and gravity
outflow) and outside (San Diego City sewer capacity
restrictions) of Defendant’s physical plant which may
require Defendant to retain captured stormwater for a
period of time during which a rain event may exceed the
holding capacity.
Therefore, in the interim, Defendant shall take the
following steps:
a. Early Release
Defendant shall release water from its diversion system
to the city sewer system as early as and to the greatest
extent possible during a rain event.
b. Release of Excess
Captured rainwater, only to the extent that it exceeds
the current capacity of the diversion system and the ability
to early release water to the city sewer system, may be
released to the Bay even though test results have not been
received and despite test results which demonstrate
pollutants exceeding NPDES permit standards.
c. Testing
First quarter-inch: Should SWM reasonably anticipate a
release of stormwater to the Bay because of a rain event
that may exceed the diversion system’s capacity, SWM
shall test the captured rainwater at approximately the first
+o
quarter-inch level. Defendant shall take split samples,
providing one sample to Plaintiffs.
Released water: For every release to the Bay, SWM
shall take split samples of the water upon initial release and
perform toxicity and contaminant testing. Furthermore,
this outflow to the Bay shall also be tested at each new
quarter-inch of water exiting the diversion system into San
Diego Bay. The results of such testing shall be recorded and
maintained and provided to the Court and Plaintiffs in
summary form at six-month intervals, assuming that a
release was allowed in any particular six-month period.
Should these test results demonstrate that water above the
capacity of the existing retention system is harmful to the
Bay, the Court will consider ordering capital improvements
at that time.
Correlated Tables: Defendant shall investigate the
feasibility of correlating toxicity results to the presence of
individual and/or multiple contaminants in water. The
results of this investigation shall be filed and served within
thirty days. Plaintiffs shall have ten days in which to
respond. Defendants shall then have ten days to reply. The
Court may thereafter enter such further orders for remedial
action as shall appear just and necessary.
The Court has set a status hearing on January 27, 2000
at 2:00 p.m., at which time the Court expects to lift this Stay
of Enforcement and issue such modifications as may be just
and necessary to the ordered injunctive relief. All other
provisions of the Findings of Fact and Conclusions of Law
and Judgment shall remain in full force and effect as
written.
IT IS SO ORDERED.
DATED: [9-1-99] /s/ Rudi M. Brewster _
UNITED STATES SENIOR
DISTRICT JUDGE
45a
UNITED STA‘'ES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 96-1492-B AJB
Natural Resources Defense Council,
San Diego BayKeeper, Kenneth J. Moser,
Plaintiffs,
v.
Southwest Marine, Inc.,
Defendant.
JUDGMENT FOR MONETARY DAMAGES AND
INJUNCTIVE RELIEF
FILED: September 7, 1999
This case having come to trial on November 3, 1998,
before the Honorable Rudi M. Brewster, United States
Senior District Judge, presiding without a jury; and,
The court having issued its Decision in Plaintiffs favor
on March 3, 1999; and
The court having issued Findings of Fact and
Conclusions of Law on_[9-]]_, 1999,
NOW, THEREFORE, it is hereby ORDERED that,
for good cause shown, Judgment is hereby entered in favor
of plaintiffs Natural Resources Defense Council, San Diego
BayKeeper and Kenneth J. Moser and against defendant
46a
Southwest Marine, Inc., as provided for in the Findings of
Fact and Conclusions of Law.
IT IS FURTHER ORDERED that this Court shall
retain jurisdiction over this matter for the next three (3)
years ending March 3, 2002, and that Plaintiffs may petition
this Court, upon a showing of good cause, to extend this
Court’s jurisdiction fo an additional reasonable time
sufficient to ensure that Defendant is complying with the
requirements of the Clean Water Act and the terms of this
Judgment as set forth in the Findings of Fact and
Conclusions of Law.
IT IS FURTHER ORDERED that plaintiffs, as the
prevailing party, shall recover their attorneys’ fees, experts’
fees, related non-taxable expenses and taxable costs from
defendant in an amount to be determined by the Court.
Plaintiffs shall serve and file their motion for attorneys’ fees
and costs no later than thirty (80) days following the entry
of judgment.
IT IS SO ORDERED.
Dated: [9-1-99] /s/ Rudi M. Brewster
United States Senior District Judge
47a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 96CV1492-B AJB
Natural Resources Defense Council,
San Diego BayKeeper, Kenneth J. Moser,
Plaintiffs,
v.
Southwest Marine, Inc.,
Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FILED: September 7, 1999
I. INTRODUCTION
This matter came on regularly for trial on November 3,
1998, before the Honorable Rudi M. Brewster, United
States Senior District Judge, presiding without a jury.
Charles Stevens Crandall, Everett L. DeLano III and Scott
H. Peters appeared as counsel for plaintiffs. Steven
McDonald, E. Patrick Swan and Lloyd Schwartz appeared
as counsel for defendant. Pursuant to F.R.Civ.P. 16 and
Civil Local Rule 16.1(f)(10)(b), the Court makes the
following findings and fact and conclusions of law:
1. This is an action for injunctive relief, civil Penalties,
and declaratory relief by Plaintiffs Natural Resources
Defense Council (“NRDC”), San Diego BayKeeper
48a
(“BayKeeper”), and Kenneth J. Moser against Southwest
Marine, Inc. (“SWM” or “Defendant”) for violations of the
Federal Clean Water Act (“CWA”), the implementing
regulations, and permits issued to SWM by the State of
California pursuant to the CWA.
II. STANDING
2. Plaintiff Kenneth J. Moser recreates on San
Diego Bay (“the Bay”). Up to and including the time of
trial, he lived near the Bay and worked on its waterftont as
the Executive Director of San Diego BayKeeper. Mr. Moser
resigned as Executive Director of BayKeeper effective
January 1, 1999, but he still resides in San Diego, he is still
employed by BayKeeper, and remains a member of that
organization and Plaintiff NRDC. Plaintiff Moser regularly
uses San Diego Bay in a variety of ways. He has aesthetic,
health, recreational, scientific and economic interests in San
Diego Bay, including the areas within and immediately
adjacent to SWM’s leasehold.
3. Other members of NRDC and BayKeeper live on
or near the Bay. At least one of BayKeeper’s members can
see the SWM facility from his home. Some of these
members volunteer time toward efforts to protect the Bay
from pollution and some of them participate in public
associations and task forces dedicated to planning future
uses of the Bay. Members of NRDC and BayKeeper
regularly use the Bay in at least the following ways:
boating, sailing, kayaking, wading, sightseeing, fishing,
scuba diving, shell fish gathering, swimming, and walking.
These members have aesthetic, health, recreational,
scientific and economic interests in San Diego Bay, including
the areas within and immediately adjacent to SWM’s
leasehold.
4. Each of the Plaintiffs Moser, NRDC and
BayKeeper has suffered, and will continue to suffer, actual
49a
and threatened harms to their interests as a result of SWM’s
ongoing conduct.
5. The injuries proven by the Plaintiffs are
redressible by the orders made by the Court.
III. JURISDICTION AND VENUE
6. The Court has personal jurisdiction over the
parties pursuant to 28 U.S.C. § 1331.
7. The Court has subject matter jurisdiction to 33
U.S.C. § 1365(a), which states that district courts have
jurisdiction to enforce alleged violations of effluent
standards, limitations, or orders.
8. Venue is proper in this Court pursuant to 33
U.S.C. § 1365(c) since the source in question is located in the
City and County of San Diego.
9. By a letter dated April 30, 1996 (the “Notice
Letter”), Trial Exhibit 12, Plaintiffs gave notice to SWM
that it was in violation of its NPDES Permit, the General
Industrial Permit, the CWA and their implementing
regulations.
10.The Notice Letter adequately apprised
Defendant that Plaintiffs were going to sue defendant
because SWM had not properly developed and adequately
implemented a Storm Water Pollution Prevention System
(“SWPPP”), a Best Management Practices (“BMP”), or
Stormwater Pollution Prevention and Monitoring Program
(“SWPPMP”). Natural Resources Defense Council V.
Southwest Marine, 945 F.Supp. 1330, 1333 (S.D. Cal. 1996).
IV. ADMITTED FACTS
11. The following facts were agreed to by the parties
and required no proof:
12. Defendant operates a shipyard at the foot of
Sampson Street in the City of San Diego. Its principal
business is the repair of marine vessels, mostly for the
United States Navy.
50a
13. Defendant engages in numerous industrial
activities and the facility includes marine railways, dry
docks, piers and wharfs, a painting area, a reclamation yard,
a sandblast area and assembly and work areas. Industrial
activities at the facility include, but are not limited to,
abrasive blasting, hydro blasting, paint application, tank
cleaning, mechanical repair and maintenance, structural
repair and assembly, strength. testing, equipment cleaning,
engine repair and installation, hydraulic repair and
installation, tank emptying, fueling, pattern making, boiler
cleaning, carpentry, refurbishing and modemization, air
conditioning and refrigeration repair, sheet metal
fabrication, and fiberglass repair.
14. From time to time the following materials have
been used at Defendant’s facility: abrasive blast grit,
anticorrosive paints, antifouling paints, oils, lubricants,
greases, fuels, weld, detergents, cleaners, rust inhibitors,
paint thinners, and solvents, hydrocarbons or chlorinated
solvents, degreasers, acids, caustics, resins, adhesives,
cements, sealants, zinc, and chlorine. .
15. SWM’s first National Pollutant Discharge
Elimination (“NPDES”) permit was issued by the Regional
Water Quality Control Board, San Diego Region
(““RWQCB’) on April 18,1983, RWQCB Order No. 83-11 (the
“1983 NPDES Permit”). The Regional Water Quality
Control Board and the State Water Resources Control
Board enforce that permit.
16.On November 19, 1991, the State Water
Resources Control Board (“SWRCB’) issued a general
permit applicable to storm water discharges from industrial
facilities in California, SWRCB Order No. 91-13-DWQ (as
amended by Order No. 92-12-DWQ)(the “1991 General
Industrial Permit”). On or before October 1, 1992, SWM
filed a Notice of Intent with the SWRCB to be permitted
under the 1991 General Industrial Permit.
5la
17. The 1991 General Industrial Permit requires
facilities, including SWM, to implement a Storm Water
Pollution Prevention Plan (“SWPPP”), to reduce or
eliminate industrial storm water pollution.
18. On August 23,1996, SWM amended its SWPPP.
19. On August 27, 1996, Plaintiffs filed the Complaint
herein.
20. On March 31, 1997, the SWRCB issued a new
general permit applicable to the discharge of storm water
from industrial facilities in California, SWRCB Order No.
97-03-DWQ, (the “1997 General Industrial Permit”) and this
new permit replaced the 1991 General Industrial Permit.
21. On October 15,1997, the RWQCB issued a new
NPDES permit (the “1997 NPDES Permit”) that replaced
both the 1983 NPDES Permit and the 1997 General
Industrial Permit.
22. On March 27, 1998, the Superior Court for the
County of San Diego stayed the effectiveness of the 1997
NPDES Permit but that stay was lifted as of the completion
of trial.
23. SWM’s 1983 NPDES Permit requires the
development and implementation of a Best Management
Practices Program (“BMP Program”).
24. The Clean Water Act and the General Industrial
Permit req aire certain technologies to reduce and eliminate
storm water pollution from Defendant’s facility and require,
among other things, the development of a SWPPP, and a
monitoring and reporting program, and other specific
requirements set forth therein.
25. Defendant adopted a BMP Plan January 15, 1992.
This written plan was not changed until the adoption of a
BMP Program Manual on January 12, 1998.
V. ADDITIONAL FINDINGS OF FACT
The Court makes the following additional findings of
fact:
52a
A. Adequacy of the Stormwater Plans Vis-A-Vis
Permit Requirements
26. Despite early deficiencies, Defendant has
developed stormwater prevention plans and _ best
management practices (“BMPs”) which are adequate under
the law, irrespective of which standard of review -- Best
Available Technology (“BAT”), Best-Conventional Pollutant
Control Technology (“BCT”) or reduction of runoff to the
Maximum Extent Practicable (“MEP”) is applied to the
question of adequacy. While plaintiffs presented examples
of plan inadequacies, Defendant demonstrated that
allegations of inadequacies had either been corrected or
were covered within existing categories of the permits. This
court’s visits to the shipyard have revealed demonstrable
improvement.
27. Defendant is not the stereotypical environmental
“bad actor.” The court is convinced that Defendant has
made a good faith effort in its attempt to implement
environmental protections. That effort may have been less
aggressive without the pendency of this lawsuit. However,
whatever the effect of this lawsuit, the plans as written are
deemed adequate.
B. Plan Implementation
28. Based on evidence presented at trial, SWM’s
implementation and enforcement of its SWPPPs, BMPs and
SWPPMP are inadequate. That inadequacy existed prior to
the time of the filing of this action and continues to this day.
As such, plaintiffs have demonstrated to the Court “a
continuing likelihood of recurrence in intermittent or
sporadic violation” of those issues in its notice letter. See
Sierra Club v. Union Oil Co., 853 F.2d 667, 671 (9th Cir.
1988).
29. Plaintiffs have presented convincing evidence
that Defendant did not make the inspections Defendant
claimed to have made. Even if the Court accepted
53a
Defendant’s evidence, the failure to maintain those records
demonstrates inadequate practices and a lack of sufficient
execution of their above-mentioned programs. Defendant
provided no satisfactory explanation for why approximately
53% of these inspection reports are missing.
30. For those inspection reports presented to the
court, a pattern of inadequate housekeeping is evident.
Violations, even when reported, were not always timely
remedied. While a_ substantial portion of these
implementation violations may not have a direct effect on
environment, these violations likely had some impact.
Defendant maintained that the problems cited to the Court
are mere “snapshots,” and should not be taken for
systematic problems. While such an argument has surface
attraction, it is ultimately unconvincing. Tirst, except for
this court’s most recent visit to SWM, Defendant had
adequate opportunity to remedy deficiencies prior to the
inspecting party’s arrival. Second, evidence to some extent
is always of the “snapshot” variety. As stated, taken
cumulatively, the evidentiary glimpses of Defendant’s
operations present a picture of overall inadequacies.
C. Causal Harms
31. Plaintiffs demonstrated that the implementation
inadequacies have led to significant contributions of
pollutants to Defendant’s leasehold and, as such, San Diego
Bay. While this case presents complications because of the
substantial amount of historically-caused contaminated
sediments in Defendant’s leasehold, this court finds that
Defendant’s failed to implement adequately its required
plans is contributing to and perpetuating the contamination
of the offshore leasehold.
32. Trial experts agreed that the offshore leasehold
was “devoid of life.” The question presented at trial was
whether the stormwater coming from Defendant’s landside
facility had and has causal connection to the environmental
54a
condition of that offshore habitat. While no one accident of
faulty implementation can be said to have caused a level of
pollution so as to harm marine life, taken cumulatively, the
Court finds that the evidence presented demonstrates that
Defendant’s operations have contributed to the
contamination of San Diego Bay.
33. The evidence conclusively demonstrated that
contaminants are entering the marine habitat. The testing
performed by Defendant revealed that substantial
quantities of pollutants - metals and toxics -- have entered
the Bay in Defendant’s stormwater discharges and because
of blasting operations. Second, the Court is convinced by
the evidence presented that, but for new infusions of
contaminants by stormwater or faulty operations, the
pattern of contaminated sediments would have revealed a
decreasing trend in levels of contamination. The Campbell
Shipyard Study (Trial Exhibit 127) undercut the testimony
of Defendant’s exvert Barrick. The long-existing presence
of paint chips and abrasive grit in the sedimentation in the
leasehold may help explain the lack of a decreasing trend,
but it is not a conclusive answer. Third, che Court is
convinced that the causal harms to the Bay are harms that
could be remedied by Defendant with improved practices.
VI. CONCLUSIONS OF LAW
34. Plaintiffs have demonstrated that: (1) they have
been and are being subjected to an actual and threatened
harm; (2) the harm is fairl’ traceable to Defendant’s
complained-of conduct; and, (3) there is a likelihood that the
requested relief will assist in redressing the alleged injuries.
35. Each plaintiff is suffering an injury-in-fact caused
by the specific violations alleged in the Notice Letter and
Complaint, which is redressible in this action. Therefore,
each plaintiff has standing to maintain this action.
55a
36. Existing and continuing violations of the Clean
Water Act, the implementing regulations, and SWM’s
permits have occurred at SWM since August 26, 1996.
37. Civil penalties should be imposed against
Defendant.
38. Injunctive relief should be provided to Plaintiffs.
39. Subject matter jurisdiction is proper.
40. SWM has been and is violating the Clean Water
Act, its regulations and SWM’s~-permits in numerous
respects by failing adequately to implement and enforce
water pollution prevention controls.
VII. RELIEF
A. Equitable Relief
41. The Clean Water Act vests courts with broad
authority to fashion appropriate equitable remedies. See 33
U.S.C. § 1365(a). Based on that broad authority, this court
shall retain jurisdiction over this matter for three years
from March 3, 1999. Plaintiffs may petition the court to
extend this court’s jurisdiction. Upon good cause showing,
the Court may extend its jurisdiction for a reasonable time
sufficient to ensure that Defendant is complying with the
requirements of the Act.
B. Specific Directi
42. Testing. To the maximum extent possible,
Southwest Marine shall allow no discharge of stormwater
effluent from any pipe discharging into the Bay until testing
has been performed for every significant known and
potential pollutant that may result from shipyard operations
and may be contained in the effluent. Such testing shall be
performed prior to any anticipated release and no release
shall be allowed until the results of such testing have been
received. No discharge shall be allowed unless testing
results demonstrate that the effluent complies with NPDES
permit limits. Southwest Marine shall operate or modify its
stormwater retention system so as to allow conformance
56a
with this requirement throughout its physical facility.
Southwest Marine shall maintain records of such testing,
and make copies available for review by this Court and
Plaintiffs at Defendant’s expense.
43. Sacepden ant cemtiaiiee, Southwest
Marine shall conduct sweep-downs after every shift of
non-contained areas in which operations may have caused
deposit of debris. After each sweep-down, certification will
be made that no debris remains in the area. Alternatively,
Southwest Marine shall certify that no debris was created
and thus no sweep-down was necessary. All certifications
shall clearly identify the certifying employee and shall be
made subject to penalty of perjury. Cleanup of contained
areas shall be addressed by the Court after further briefing
by the parties as set forth in the Court’s Stay filed herewith.
44. Inspections and Recordkeeping. Southwest
Marine shall make daily inspections of its physical plant.
Records shall be maintained for each inspection. Conditions
causing or having the potential of cause pollutants to enter
the Bay shall be noted in detail. No such inspections shall
be required for periods in which the shipyard is not
conducting operations. Inspection reports shall note such
time periods. All daily inspections shall be certified as
correct, and each report shall clearly identify the certifying
employee and shail be made subject to penalty of perjury.
45. Water Column Testing. On one occasion for each
vessel — whether in drydock or at pier side - on which
blasting or painting operations are conducted, Defendant
shall perform testing of the surrounding water to determine
if such operations are contributing to pollution levels in San
Diego Bay. Such testing shall be performed on a day in
which blasting or painting operations constitute a majority
of the operations conducted during the shift. Should no such
day exist, testing shall be done on the day of greatest
' blasting or painting activity. Defendant shall divide such
testing equally between painting and blasting operations.
57a
Within two hours of such blasting or painting activity,
Defendant shall perform water column pollution tests in at
least four locations surrounding the vessel. Such locations
shall be located within 50 to 100 feet distance from the
vessel, and at least 200 feet apart from each other. For each
location, water shall be sampled at the surface, and at each
20-foot interval between the water surface and the bottom
of the Bay. The results of such tests shall be certified in a
manner consistent with the provisions of this Decision, and
shall be finished on a quarterly basis to the Magistrate
Judge, with one copy provided to Plaintiffs.
46. Correction Action. Conditions with potential to
allow pollutants to enter the Bay shall be corrected within
four hours after observation. Southwest Marine shall certify
that such corrective action has been made. Shouid it not be
feasible to take corrective action within four hours,
Defendant shall take corrective action in an expeditious
manner. Defendant shall state in writing the reason why it
was not feasible. Feasibility should be narrowly construed
and should, with reason, apply only to mechanical or
structural problems. All certifications shall note the manner
of corrective action and the time period in which such action
was taken. All certifications shall clearly identify the
certifying employee and shall be made subject to penalty of
perjury.
B. Physical Plant Improvement
47. Shrouds. Southwest Marine shall repair and/or
replace shrouds which are in poor repair, defined as in a
state that may allow more than de minimis quantities of
debris from blasting, painting, or other similar operations
from entering the Bay. Such repair and/or replacement
shall take place within a reasonably expeditious peniod of
time. Defendant subsequently shall maintain and/or replace
shrouds which do not meet this criterion.
58a
48. Piers. Southwest Marine shall capture all
stormwater runoff coming off any and all piers. No scuttling
of runoff from piers will be allowed. Defendant shall take
steps to meet this requirement in a reasonably expeditious
manner.
49. Berms. Southwest Marine shall erect and
maintain concrete berms in all areas of its physical plant
from which runoff may enter the Bay. In areas that
experience significant pooling of water, and which threaten
to cause discharge into the Bay, Defendant shall pump out
such areas on an expeditious basis so as not to allow such
discharges. Should areas, including piers, be constructed or
re-constructed, Defendant instead may rely on sloping and
drainage so long as such a drainage system will
accommodate flows from even heavy periods of rainfall.
Should this alternative be taken, berms need not be
constructed. Should this alternative be taken, Defendant
shall certify to the court that such a system is as adequate as
any berm system.
50. Contaminated Sediments Cleanup. Without
deciding the question of its jurisdiction to order cleanup of
Defendant’s contaminated sediments to specific standards,
the Court declines to accept Plaintiffs’ invitation to issue
such an order at this time. As noted, the majority of the
pollution existing in the off-shore leasehold is present
because of historical practices at the shipyard before
Defendant obtained ownership. Defendant has begun the
process of remediation on the marine railways. Defendant
will soon begin the process of remediating the rest of the
leasehold. The cleanup standard to which the rest of the
leasehold must comply will be determined after hearings
before the State Water Resources Control Board. The court
chooses not to interfere in that process, and sees insufficient
reason why Plaintiffs should be accorded financial assistance
at this time to be involved in that process.
C. Penalties
59a
51. Penalty Amount The Clean Water Act
mandates civil penalties for the violations found in this
lawsuit. See 33 U.S.C. § 1319(d). Such penalties may not
exceed $25,000 per day. Id. Orders issued by this Court on
November 30, 1999 and January 28, 1999 have concluded
that civil penalties are available to the Plaintiffs. While civil
penalties are mandatory if the Court finds violations, the
amount assessed is wholly within the discretion of the court.
See Atlantic States Legal Foundation v. Tyson Foods, Inc.,
897 F.2d 1128, 1142 (11th Cir. 1990); Stoddard v. Western
Carolina Regional Sewer Authority, 784 F.2d 1200, 1208 (4th
Cir. 1986). “In determining the amount of a civil penalty the
court shall consider the seriousness of the violation or
violations, the economic benefit (if 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 on the violator, and such
other matters as justice may require.” 33 U.S.C. § 1319(d).
52. The Court does not believe such factors can be
mechanistically applied. Any violation of the Clean Water
Act should be regarded as serious. However, Defendant’s
violations have not been willful in the sense of a specific
intent to violate. Moreover, while this Court has concluded
that there is a link between tne violations and harm to the
Bay, the causation is less-than-direct. There has been no
showing that any particular valuation has resulted in
immediate harm; the effect is apparent when taken on a
cumulative basis. Defendant’s experts have convinced the
Court that the harms caused ere not grave ones, at least in
the context of the already polluted conditions. Such a
conclusion allows the Court to find that Defendant did not
act with deliberate indifference to the health of the Bay,
Certainly, this is not a case of massive spills and fish-kills.
The Court also believes that Defendant has made good-faith
efforts to meet the dictates of the Act’s requirements,
though it has fallen short with regard to implementation.
60a
However, failure to meet the standards required by the Act
have resulted in an economic benefit to Defendant.
53. The Court is aware that Defendant’s
improvements have resulted from significant investment.
But those investments were as required. Shortfalls have
come from a lack of sufficient attention and application of
dollars and manpower. Moreover, Defendant’s efforts were
prodded in significant measure by this lawsuit. To achieve
the goal of deterrence, a penalty must be high enough so
that the discharger cannot “write it off’ as an acceptable
environmental trade-off for doing business. .See PIRG v
Powell Duffryn Terminals, Inc., 720 F.Supp. 1158, 1166
(D.N.J. 1989).
54. Based on a review of the facts of this case, as
applied to the above-required factors, the Court imposes a
penalty of $1,000 per day for each day Defendant has been
in violation of the Act through poor implementation of its
plans from the date of the filing of the lawsuit - August 27,
1996 -- until the day before trial, November 3, 1998, for a
total of 799 days, or $799,000. Payment of this provisional
penalty will be held stayed for a period of three years, from
the date of the filing of this Decision.
55. Credit against the provisional penalty. The
_ penalty upon Defendant shall be reduced for direct costs
incurred only for the following expenditures: (1) after the
date of filing of the lawsuit, steps taken to improve its
stormwater diversion system; and (2) for steps taken by
Defendant with regard to changes in its physical plant to
comply with this Decision. Direct costs are defined to
include labor and materials. Direct costs shall include those
direct costs incurred relating to stormwater mitigation as
marginal additions to costs incurred in upgrading,
improving, rehabilitating, or constructing structures at the
shipyard.
6la
56. Defendant may record the direct costs associated
with these improvements and present this record to the
magistrate judge after expiration of the three-year period
for the Court’s review. Plaintiffs may file a response to this
filing. Once the court has determined an appropriate credit,
based on review of the parties’ filings, such credit will be
subtracted from the provisional penalty. At that time, any
Penalty remaining shall be paid to the U.S. Treasury, with
interest at the legal rate from the date of this Decision. Any
credits in excess of the penalty will mean no penalty shall be
owed to the U.S. Treasury but otherwise have no effect.
The Court shall have the discretion to include cots which
have not actually been incurred, but which Defendant can
demonstrate will be incurred at a time shortly after the
expiration of the three-year period.
57. The intent of the Clean Water Act is to maintain
and protect the waters of the United States. The Court
believes that the penalty/credit remedy established by this
Decision will better serve to forward that intent than simple
penalties.
D. Enforcement Procedures
58. Magistrate Judge Oversight. Consistent with
28 U.S.C. § 636(b))()-(3), all reporting requirements
mandated by this Decision shall be filed with the magistrate
judge assigned to this case. Plaintiffs may bring before the
magistrate judge any petition for relief or contempt based
on activities or omissions that Plaintiffs regard as violations
of the injunction. In response, Defendant may file
objections to such a petition. The magistrate judge shall
have discretion to order and hold an evidentiary hearing.
The magistrate judge shall make a report and
recommendation to this Court based on the evidence
presented, along with a recommendation of remedy if
deemed necessary. Should this Court decide relief is
merited, it may confirm in part or whole the report and
recommendation. Alternatively, this Court may proceed
62a
with any further hearings it deems necessary or may order
such additional relief it deems necessary.
59. Reporting Requirement. Southwest Marine
shall compile and maintain a record of its daily inspection
reports. On a quarterly basis, one copy of this record shall
be delivered to the magistrate judge and one copy to
Plaintiffs counsel. Southwest Marine shall also provide to
Plaintiffs on a quarterly basis the sweep-down certification
reports and corrective action reports.
: 60. Inspections. Plaintiffs shall be allowed access to
Defendant’s facility for inspection on four occasions per
year, for the next three years. During the calendar year, no
more than two inspections shall be allowed in any six-month
period. Two inspections may be made on days without
precipitation. Two of the inspections may be made on days
with precipitation. Unused inspection days shall not carry
over to the next calendar year. The duration of any
inspection shall not exceed two hours from actual start of
the walk-through. Plaintiffs shail be allowed no more than
four individuals on any one inspection, and no more than
two individuals may be experts. Plaintiffs shall provide, at
minimum a two-hour notice before arrival. The hours of
potential shall be limited to 9:00 a.m. to 3:00 p.m., Monday
through Friday.
D. Attorneys’ Fees
61. As the prevailing party, Plaintiffs are entitled to
an award of their attorneys’ and experts’ fees -— including
travel costs -- resulting from this litigation. See 33 U.S.C.
§ 1365(d). Plaintiffs shall prepare and present to the Court a
summary of their fees incurred in this action within thirty
days of the filing of the Judgment. Defendant may file
objections to the summary with the Court. Plaintiffs’ fees
may include work entailed in complying with the
requirements of this Decision as specified below. _
63a
62. Plaintiffs shall also be awarded attorneys’ fees for
the reasonable costs entailed with monitoring Southwest
Marine’s compliance with this Court’s dictates, i.e., those
costs associated with reviewing inspection reports and
conducting inspections. These fees may include actual time
spent during inspections for each attorney and a maximum
of eight hours total per year for review of Defendant’s
required reports. Time spent in compliance with these
maximum hours may be presented to the Court at the end of
the calendar year. Upon such submission and approval,
Defendant shall pay to Plaintiff these fees.
63. Plaintiffs may also be awarded attorneys’ fees
should they be the prevailing party in any motion brought
before the Court to enforce compliance with this Court’s
decision.
IT IS SO ORDERED.
Dated: [9-1-99] /s/ Rudi M. Brewster ss
Honorable Rudi M. Brewster
United States Senior District
Judge
64a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 96-1492-B -BAJB
Natural Resources Defense Council,
San Diego BayKeeper, Kenneth J. Moser,
Plaintiffs,
Southwest Marine, Inc.,
Defendant.
DECISION
FILED: March 3, 1999
I. Introduction
The instant matter having been presented to the Court
after a bench trial, and upon review of the trial testimony
and exhibits and of both Plaintiffs’ and Defendant’s
post-trial briefs, the Court makes the following Decision.
II. Standing and Adequacy of Notice
As stated during trial, this Court has found that
Plaintiffs have standing before this Court. Plaintiffs have
demonstrated constitutionally cognizable injuries. Despite
the progress made by Defendant in improving and
enhancing its operations, Plaintiffs’ allegations are not moot.
Finally, this Court has determined that the notice provided
to Defendant by Plaintiffs was adequate under the law.
65a
III. Adequacy of the Stormwater Plans vis-a-vis Permit
Requirements
This Court finds that despite early deficiencies,
Defendant has developed stormwater prevention plans and
Best Management Practices (“BMPs”) which are adequate
under the law, irrespective of what standard — BAT, BCT,
or MEP -— is applied to the question of adequacy.” While
Plaintiffs presented examples of plan inadequacies,
Defendant effectively demonstrated that allegations of
inadequacies had either been corrected or were covered
within existing categories of the permits. This Court’s visits
to the shipyard have revealed demonstrable improvement.
The testimony of Defendant’s experts - Dr. Roesner, Mr.
Curtis, Mr. Austin, and Mr. Halfax - as to the adequacy of
the plans was compelling.
Defendant is not the stereotypical environmental “bad
actor.” The Court is convinced that Defendant has made a
good-faith effort in its attempt to implement environmental
protections. That effort may have been less aggressive
without the pendency of Plaintiffs lawsuit. However,
whatever the effect of this lawsuit, the plans as written are
deemed adequate.
IV. Plan Implementation
Though the Court finds Defendant’s plans adequate,
based on the evidence presented at trial, this Court finds
that Defendant’s implementation/enforcement of its
stormwater prevention plans has been inadequate. That
inadequacy existed prior to the time of the filing of Plaintiffs
suit and continues to this day. As such, Plaintiffs have
demonstrated to the Court “a continuing likelihood of
recurrence in intermittent or sporadic violation” of those
issues in its notice letter. See Sierra Club v. Union Oil Co.,
853 F.2d 667, 671 (9th Cir. 1988).
Plaintiffs have presented convincing evidence that
Defendant did not make the inspections Defendant claims to
66a
have made. Even if the Court accepted Defendant’s
evidence, the failure to maintain those records demonstrates
shoddy practices and a lack of seriousness with which
Defendant has viewed this requirement. Defendant has
provided no satisfactory explanation for why approximately
fifty-three percent of these inspection reports are missing.
For those inspection reports presented to the Court, a
pattern of poor housekeeping is evident. Violations, even
when reported, were not always timely remedied. While a
substantial portion of these implementation violations may
not have had a direct effect on the environment, these
violations likely had some impact.
Defendant has maintained that the problems cited to
this Court are mere “snapshots,” and should not be taken for
systemic problems. While such an argument has surface
attraction, it is ultimately unconvinang. First, except for
this Court’s most recent visit to Southwest Marine,
Defendant had adequate opportunity to remedy deficiencies
prior to the inspecting party’s arrival. Second, evidence to
some extent is always of the “snapshot” variety. As stated,
taken cumulatively, the evidentiary glimpses of Defendant’s
operations present a picture of overall inadequacies.
V. Causal Harms
Plaintiffs have demonstrated that the implementation
inadequacies have led to significant contributions of
pollutants to Defendant’s leasehold and, as such, San Diego
Bay.
While this case presents complications because of the
substantial amount of historically-caused contaminated
sediments in Defendant’s leasehold, this Court finds that
Defendant’s failure to implement adequately its required
plans has contributed to and perpetuated the contamination
of the off-shore leasehold.
Trial experts agreed that the off-shore leasehold is
“devoid of life.” The question presented a’ trial was
67a
whether the stormwater coming from Defendant’s landside
facility had a causal connection to the environmental ©
condition of that offshore habitat. While no one incident of
faulty implementation can be said to have caused a level of
pollution so as to harm marine life, taken cumulatively, the
Court finds that the evidence presented demonstrates that
Defendant’s operations have contributed to the
contamination of San Diego Bay.
First, the evidence conclusively demonstrates that
contaminants are entering the marine habitat. The testing
performed by Defendant revealed substantial quantities of
pollutants - metals and toxics - have entered the Bay in
Defendant’s stormwater discharge and because of blasting
operations. Second, the Court is convinced by the evidence
presented that, but for new infusions of contaminations by
stormwater or faulty operations, the pattern of
contaminated sediments would have revealed a decreasing
trend in levels of concentration. The testimony of Mr.
Barrick was undercut by the Campbell shipyard study. The
persistence of paint chips and abrasive grit and lack of
sedimentation in the leasehold may help explain the lack of a
decreasing trend, but it is not a conclusive answer. Third,
the Court is convinced that the causal harms to the Bay are
harms that could be remedied by Defendant with improved
practices.
VI. Relief
A. Equitable Relief
The Clean Water Act vests courts with broad authority
to fashion appropriate equitable remedies. See 33 U.S.C.
§ 1365(a). Based on that broad authority, this Court shall
retain jurisdiction over this matter for three years from the
date of the filing of this Decision. Plaintiffs may petition the
Court to extend this Court’s jurisdiction. Upon good cause
showing, the Court may extend its jurisdiction for a
68a
reasonable time sufficient to ensure that Defendant is
complying with the requirements of the Act.
L Specific Directi
a. Testing
To the maximum extent possible, Southwest Marine
shall allow no discharge of stormwater effluent from any
pipe discharging into the Bay until testing has been
performed for every significant known and potential
pollutant that may result from shipyard operations and may
be contained in the effluent. Such testing shall be
performed prior to any anticipated release and no release
shall be allowed until the results of such testing have been
received. No discharge shall be allowed unless testing
results demonstrate that the effluent complies with NPDES
permit limits. Southwest Marine shall operate or modify its
stormwater retention system so as to allow conformance
with this requirement throughout its physical facility.
Southwest Marine shall maintain. records of such testing,
and make copies available for review by this Court and
Plaintiffs at Defendant’s expense.
b. Sweep downs and certifications
Southwest Marine shall conduct sweep downs after
every shift of areas in which operations may have caused
deposit of debris. After each sweep down, certification will
be made that no debris remains in the area. Alternatively,
Southwest Marine shall certify that no debris was created
and thus no sweep down was necessary. All certifications
shall clearly state the certifying employee and shall be made
subject to penalty of perjury.
c. Inspections and Recordkeeping
Southwest Maxine shall make daily inspections of its
physical plant. Records shall be maintained for each
inspection. Conditions causing or having the potential to
cause pollutants to enter the Bay shall be noted in detail. No
such inspections shall be required for periods in which the
69a
shipyard is not conducting operations. Inspection reports
shall note such time periods. All daily inspections shall be
certified as correct, and each report shall clearly state the
certifying employee and shall be made subject to penalty of
perjury.
d. Water Column Testing
On one occasion for each vessel - whether in drydock or
at pier side - on which blasting or painting operations are
conducted, Defendant shall perform testing of the
surrounding water to determine if such operations are
contributing to pollution levels in San Diego Bay. Such
testing shall be performed on a day in which blasting or
painting operations constitute a majority of the operations
conducted during a shift. Should no such day exist, testing
shall be done on the day of greatest blasting or painting
activity. Defendant shall divide such testing equally
between painting and blasting operations.
Within two hours of such blasting or painting activity,
Defendant shall perforin water column pollution tests in at
least four locations surrounding the vessel. Such locations
shall be located within 50 to 100 feet distance from the
vessel, and at least 200 feet apart from each other. For each
location, water shall be sampled at the surface, and at each
20-foot interval between the water surface and the botiom
of the Bay.
The results of such tests shall be certified in a manner
consistent with the provisions of this Decision, and shal] be
furnished on a quarterly basis to the Magistrate Judge, with
one copy provided to Plaintiffs.
it C tive Acti
Conditions with potential to allow poilutants to enter the
Bay shall be corrected within four hours after observation.
Southwest Marine shall certify that such corrective action
has been made. Should it not be feasible to take corrective
action within four hours, Defendant shall take corrective
70a
action in an expeditious manner. Defendant shall state in
writing the reason why it was not feasible. Feasibility
should be narrowly construed and should, with reason,
apply only to mechanical or structural problems.
All certifications shall note the manner of corrective
action and the time period in which such action was taken.
All certifications shall clearly state the certifying employee
and shall be made subject to penalty of perjury.
2. Physical Plant Improvements
a. Shrouds
Southwest Marine shall repair and/or replace shrouds
which are in poor repair, defined as in a state that may allow
more than de minimis quantities of debris from blasting,
painting, or other similar operations from entering the Bay.
Such repair and/or replacement shall take place within a
reasonably expeditious period of time. Defendant
subsequently shall maintain and/or replace shrouds which do
not meet this criterion.
b. Piers
Southwest Marine shall capture all stormwater runoff
coming off any and all piers. No scuttling of runoff froxa
piers will be allowed. Defendant shall take steps to meet
this requirement in a reasonably expeditious manner.
c. Berms
Southwest Marine shall erect and maintain concrete
berms in all areas of its physical plant from which runoff
may enter the Bay. In areas that experience significant
pooling of water, and which threaten to cause discharge into
the Bay, Defendant shall pump out such areas on an
expeditious basis so as not to allow such discharges. Should
areas, including piers, be constructed or re-constructed,
Defendant instead may rely on sloping and drainage so long
as such a drainage system will accommodate flows from even
heavy periods of rainfall. Should this alternative be taken,
berms need not be constructed. Should this alternative be
Tla
taken, Defendant shall certify to the Court that such a
system is as adequate as any berm system.
3. Contaminated Sediments Cleanup
Without deciding the question of its jurisdiction to order
cleanup of Defendant’s contaminated sediments to specific
standards, the Court declines to accept Plaintiffs’ invitation
to issue such an order at this time. As noted, the majority of
the pollution existing in the off-shore leasehold is present
because of historical practices at the shipyard before
Defendant obtained ownership. Defendant has begun the
process of remediation on the marine railways. Defendant
will soon begin the process of remediating the rest of the
leasehold. The cleanup standard to which the rest of the
leasehold must comply will be determined after hearings
before the State Water Resources Control Board. The
Court chooses not to interfere in that process, and sees
insufficient reason why Plaintiffs should be accorded
financial assistance at this time to be involved in that
process.
B. Penalties
1. _ Penalty Amount
The Clean Water Act mandates civil penalties for the
violations found in this lawsuit. See 33 U.S.C. § 1319(d).
Such penalties may not exceed $25,000 per day. Id. Orders
issued by this Court on November 30, 1999 and January 28,
1999 have concluded that civil penalties are available to the
Plaintiffs. While civil penalties are mandatory if the Court
finds violations, the amount assessed is wholly within the
discretion of the court. See Atlantic States Legal
Foundation v. Tyson Foods, Inc., 897 F.2d 1128, 1142 (11th
Cir. 1990); Stoddard v. Western Carolina Regional Sewer
Authority, 784 F.2d 1200, 1208 (4th Cir. 1986). “In
determining the amount of a civil penalty the court shall
consider the seriousness of the violation or violations, the
economic benefit (if any) resulting from the violation, any
72a
history of such violations, any good-faith efforts to comply
with the applicable requirements, the economic impact of
the penalty on the violator, and such other matters as
justice may require.” 33 U.S.C. § 1319(d).
The Court does not believe such factors can be
mechanistically applied. Any violation of the Clean Water
Act should be regarded as serious. However, Defendant’s
violations have not been willful in the sense of a specific
intent to violate. Moreover, while this Court has concluded
that there is a link between the violations and harm to the
Bay, the causation is less-than-direct. There has been no
showing that any particular violation has resulted in
immediate harm; the effect is apparent when taken on a
cumulative basis. Defendant’s experts have convinced the
Court that the harms caused are not grave ones, at least in
the context of the already polluted conditions. Such a
conclusion allows the Court to find that Defendant did not
act with deliberate indifference to the health of the Bay.
Certainly, this is not a case of massive spills and fish-kills.
The Court also believes that Defendant has made good-faith
efforts to meet the dictates of the Act’s requirements,
though it has fallen short with regard to implementation.
However, failure to meet the standards required by the Act
have resulted in an economic benefit to Defendant. The
Court is aware that Defendant’s improvements have
resulted from significant investment. But those
investments were as required. Shortfalls have come from a
lack of sufficient attention and application of dollars and
manpower. Moreover, Defendant’s efforts were prodded in
significant measure by this lawsuit. To achieve the goal of
deterrence, a penalty must be high enough so that the
discharger cannot “write it off as an acceptable
environmental trade-off for doing business. See PIRG v.
Powell Duffryn Terminals. Inc., 720 F.Supp. 1158, 1166
(D.N.J. 1989).
73a
Based on a review of the facts of this case, as applied to
the above-required factors, the Court imposes a penalty of
$1,000 per day for each day Defendant has been in violation
of the Act through poor implementation of its plans from the
date of the filing of the lawsuit - August 27, 1996 — until the
day before trial, November 3, 1998, for a total of 799 days, or
$799,000. Payment of this provisional penalty will be held
stayed for a period of three years from the date of the filing
of this Decision.
2. Credits against the provisional penalty
The penalty imposed upon Defendant shall be reduced
for direct costs incurred only for the following expenditures:
(1) after the date of filing of the lawsuit, steps taken to
improve its stormwater diversion system; and (2) for steps
taken by Defendant with regard to changes in its Physical
plant to comply with this Decision. Direct costs are defined
to include labor and materials. Direct costs shall include
those direct costs incurred relating to stormwater mitigation
as marginal additions to costs incurred in upgrading,
improving, rebabilitating, or constructing structures at the
shipyard.
Defendant may record the direct costs associated with
these improvements and present this record to the
magistrate judge after expiration of the three-year period
for the Court’s review. Plaintiffs may file a response to this
filing. Once the Court has determined an appropriate credit,
based on review of the parties’ filings, such credit will be
subtracted from the provisional penalty. At that time, any
penalty remaining shall be paid to the U.S. Treasury, with
interest at the legal rate from the date of this Decision. Any
credits in excess of the penalty will mean no penalty shall be
owed to the U.S. Treasury but otherwise have no effect.
The Court shall have the discretion to include costs which
have not actually been incurred, but which Defendant can
demonstrate will be incurred at a time shortly after the
expiration of the three-year period.
T4a
The intent of the Clean Water Act is to maintain and
protect the waters of the United States. The Court believes
that the penalty/credit remedy established by this Decision
will better serve to forward that intent than simple
penalties.
Consistent with 28 U.S.C. § 636(b)(1)-(3), all reporting
requirements mandated by this Decision shall be filed with
the magistrate judge assigned to this case. Plaintiffs may
bring before the magistrate judge any petition for relief or
contempt based on activities or omissions that Plaintiffs
regard as violations of the injunction. In_ response,
Defendant may file objections to such a petition. The
magistrate judge shall have discretion to order and hold an
evidentiary hearing. The magistrate judge shall make a
report and recommendations to this Court based on the
evidence presented, along with a recommendation of remedy
if deemed necessary. Should this Court decide relief is
merited, it may confirm in part or whole the report and
recommendation. Alternatively, this Court may proceed
with any further hearings it deems necessary or may order
such additional relief it deems necessary.
2. Reporting Requirement
Southwest Marine shall compile and maintain a record of
its daily inspection reports. On a quarterly basis, one copy
of this record shall be delivered to the magistrate judge and
one copy to Plaintiffs’ counsel. Southwest Marine shall also
provide to Plaintiffs on a quarterly basis the sweep down
certification reports and corrective action reports.
3. Inspections
Plaintiffs shall be allowed access to Defendant’s facility
for inspection on four occasions per year, for the next three
years. During the calendar year, no more than two
inspections shall be allowed in any six-month period. Two
T5a
inspections may be made on days without precipitation.
Two of the inspections may be made on days with
precipitation. Unused inspection days shall not carry over
into the next calendar year.
The duration of any inspection shall not exceed two
hours from actual start of the walk-through. Plaintiffs shall
be allowed no more than four individuals on any one
inspection, and no more than two individuals may be
experts. Plaintiffs shall provide, at minimum, a two-hour
notice before arrival. The hours of potential inspection shall
be limited to 9:00 a.m. to 3:00 p.m., Monday through Friday.
D. Attorneys’ Fees
As the prevailing party, Plaintiffs are entitled to an
award of their attorneys’ and experts’ fees - including travel
costs - resulting from this litigation. See 33 U.S.C. § 1365(d).
Plaintiffs shall prepare and present to the Court a summary
of their fees incurred in this action. Defendant may file
objections to the summary with the Court. Plaintiffs’ fees
may include work entailed in complying with the
requirements of this Decision as specified below.
Plaintiffs shall also be awarded attorneys’ fees for the
reasonable costs entailed with monitoring Southwest
Marine’s compliance with this Court’s dictates, i.e. those
costs associated with reviewing inspection reports and
conducting inspections. These fees may include actual time
spent during inspections for each attorney and a maximum
of eight hours total per year for review of Defendant’s
required reports. Time spent in compliance with these
maximum hours may be presented to the Court at the end of
the calendar year. Upon such submission and approval,
Defendant shall pay to Plaintiffs these fees.
Plaintiffs may also be awarded attorneys’ fees should
they be the prevailing party in any motion brought before
the Court to enforce compliance with this Court’s decision.
VII. Conclusion
76a
Plaintiffs shall prepare for this Court proposed findings
of fact and conclusions of law, and judgment, consistent with
this Decision. This document shall be submitted to the
Court within 30 days of the filing of this Decision.
Defendant shall have fifteen days from receipt to respond
with objections.
IT ISSO ORDERED.
Dated: [3-2-99] /s/ Rudi M. Brewster
United States Senior District
Judge
ee: All Parties
Magistrate Judge
77a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 96-1492-B (AJB)
Natural Resources Defense Council,
San Diego BayKeeper, Kenneth J. Moser,
Plaintiffs,
v. -
Southwest Marine, Inc.,
Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AND DENYING
DEFENDANT'S MOTIONS TO STRIKE
FILED: November 26, 1991
_ 1. Case Type and Jurisdiction
This is a citizen enforcement action for alleged violations
of the Federal Water Pollution Control Act (FWPCA). 33
U.S.C. § 1365. The Court has federal question jurisdiction
pursuant to 28 U.S.C. § 1331 and 33 U.S.C. § 1365(a)(1).
II. Background
Plaintiffs Natural Resources Defense Council, Inc.
(““NRDC”), San Diego Baykeeper, Inc., and Kenneth Moser
filed suit against Southwest Marine, Inc. for allegedly
violating numerous provisions of the Federal Water
78a
Pollution Control Act, 33 U.S.C. §§ 1365 et seg. Plaintiffs
allege that Defendants unlawful and excessive discharges of
water pollution from its bayside facility contribute noxious
pollutants to San Diego Bay and the Pacific Ocean, and that
Defendant has failed to develop and/or implement several
environmental compliance and monitoring plans as required
by the FWPCA.
Defendant operates a ship repair and modernization
facility located at the foot of Sampson Street in San Diego.
The facility includes marine railways, dry docks, piers,
wharfs, a reclamation yard, a sand blast area, and assembly
and work areas. Plaintiffs allege that Defendant discharges
materials into San Diego Bay from the following activities:
floating drydock deballasting, floating drydock submergence
and emergence, floating drydock operations, marine railway
operations. berth and pier operations, stormwater, boiler
and cogeneration feedwater, fire protection system
discharges, cooling water, and miscellaneous flows.
Plaintiffs allege that these unlawful discharges pollute San
Diego Bay and the Pacific Ocean.
Plaintiffs include two environmental public interest
groups whose members use San Diego Bay for recreation
and one individual who uses San Diego Bay for recreation.
To file a citizen suit under the FWPCA, a party must
deliver sixty days advance notice of the alleged violations to
the EPA, relevant state agency, and the alleged violator. 33
U.S.C. § 1365(b)(1)(A). On April 30, 1996, Plaintiffs sent a
letter to Defendant copied to the requisite federal and state
offices, declaring their intent to sue to redress Defendant’s
alleged violations. The statutory notice provision has now
been satisfied because more than sixty days have passed
since notice was provided, and no governmental agencies
have acted to redress the alleged violations. Defendant
previously filed a motion to dismiss claiming that Plaintiffs’
notice letter was deficient. On November 5, 1996, the Court
denied this motion.
79a
Plaintiffs’ claims focus on alleged violations of two
separate programs of the National Pollutant Discharge
Elimination System (“NPDES”) that regulate Defendant’s
discharges into San Diego Bay under the FWPCA.
Defendant’s industrial discharges are governed under its
own site-specific NPDES industrial discharge permit, and
its stormwater discharge is regulated by the standards of
the NPDES California General Industrial Permit.
Defendant was issued NPDES Permit No. CA0107697 for
its industrial discharges in 1983, and it secured coverage
under the NPDES General Industrial Permit No.
CAS000001 in 1992.1 All discharges not authorized by and
in conformance with NPDES permits violate the FWPCA.
Plaintiffs’ first cause of action alleges the following
violations of Defendant’s industrial discharge NPDES
permit: (1) Defendant pollutes San Diego Bay by
discharging toxic pollutants and hazardous substances; and
(2) Defendant has failed to develop and implement an
adequate Best Management Practices Program (“BMP”).
Plaintiffs’ second cause of action alleges that Defendant’s
stormwater discharge violates the NPDES General
Industrial Permit by: (1) failing to eliminate non-stormwater
discharges from the stormwater system, (2) failing to
develop and implement a stormwater Pollution Prevention
Plan (“SWPPP”), and (3) failing to develop and implement a
Monitoring and Reporting Program, also described as a
Stormwater Pollution Prevention Monitoring Plan
(““SWPPMP”).
On January 6, 1997, Defendant filed a motion for
= summary judgment. Defendant argued that the Court
lacked subject matter jurisdiction because Plaintiffs’
allegations of ongoing violations were not made in good faith
1 Water Quality Order No. 91-13-DWQ (as amended by Water Quality
Order 92-12 DWQ) issued pursuant to Section 402 of the Act, 33 U.S.C.
$1342.
80a
or based upon a reasonable investigation. Furthermore,
Defendant argued that, even if the Court exercises subject
matter jurisdiction, summary judgment should be granted
because Plaintiffs failed to establish that they can prove
ongoing violations at trial. Finally, Defendant argued that
Plaintiffs’ claims were moot. On February 3, 1997, the Court
ordered that the motion be continued to allow Plaintiffs
more time to conduct discovery.
III. Discussion
A. Standard of Law
Federal Rule of Civil Procedure 56(c) provides that
summary judgment is appropriate if the “pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” One of the
principal purposes of the rule is to dispose of factually
unsupported claims or defenses. Celotex Corp. v. Catrett,
477 US. 317, 325 (1986).
In considering a motion for summary judgment, the
court must examine all the evidence in the light most
favorable to the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962). A moving party who
does not bear the burden of proof at trial may discharge his
burden of showing that no genuine issue of material fact
remains by demonstrating that “there is an absence of
evidence to support the non-moving party’s case.” Celotex,
477 U.S. at 325. The moving party is not required to
produce evidence showing the absence of a genuine issue of
material fact on such issues, nor must the moving party
support its motion with evidence negating the non-moving
party’s claim, Lujan v. National Wildlife Federation, 497.
U.S. 871, 885 (1990). Instead, “the motion may, and should
be granted so long as whatever is before the District Court
demonstrates that the standard for the entry of judgment,
. 8la
as set forth in Rule 56(c), is satisfied.” Lujan, 497 U.S. at
885 (quoting Celotex, 477 U.S. at 323).
B. Motion for Summary Judgment
1. Subject Matter Jurisdiction
As discussed above, Plaintiffs’ allegations of violations of
the two NPDES permits include claims of ongoing illegal
discharges and failure to develop and implement required
supporting plans. The alleged illegal discharges would
result, at least in part, from the deficiency of the plans.?
The deficient plans, as cited by Plaintiffs’ Complaint, are the
BMP required for the industrial permit and the SWPPP and
SWPPMP for the stormwater permit.
On August 23, 1997, four days prior to the filing of this
suit Defendant submitted a revised SWPPP to the San
Diego Regional Water Quality Control Board (“Regional
Board”). Attached to the new SWPPP was the 1992 version
of Defendant’s BMP and a first SWPPMP. Defendant
contends that the allegations in Plaintiffs’ Complaint that
refer to their failure to develop and implement a BMP,
SWPPP and SWPPMP (collectively, the “plans”) refer to
the old versions of these plans. Under the new versions,
Defendant alleges that there will be no continuing violations
of the FWPCA, and therefore the Court lacks subject
matter jurisdiction over this case.
Section 505(a) of the FWPCA provides that “any citizen
may commence a civil action on his own behalf - (1) against
any person ... who is alleged to be in violation of (A) an
effluent standard or limitation, .. .” 33 U.S.C. § 1365(a).
2 The Court finds it unnecessary at this time to determine whether
the allegations of ongoing illegal discharges form the basis of an
independent cause of action or whether they are offered as evidence to
support Plaintiffs’ claims that Defendant has failed to develop and
implement required plans. If the claims are to be pursued
independently, Plaintiffs may later be required to show that such claims
were adequately noticed in its April 30, 1996 letter to Defendant.
82a
The Supreme Court interpreted the phrase ‘to be in
violation’ to require either an ongoing violation or the
likelihood of a future violation of the FWPCA, and to bar
citizen suits maintained wholly on past violations. Gwaltney
of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S.
49, 61-64,67 (1987). To establish subject matter jurisdiction
over a FWPCA suit, a plaintiff need only make goodfaith
allegations of ongoing continuous or intermittent violations.
Sierra Club v. Union Oil Co., 853 F.2d 667,670 (9th Cir.
1988); see also Gwaltney, 484 U.S. at 64. To defeat
jurisdiction, a defendant must show that the allegations fail
to satisfy the “reasonable inquiry” requirements of Rule 11.
Sierra Club v. Union Oil, 853 F.2d at 669; see FED. R. CIV.
P. 11.
Two sets of Plaintiffs’ claims must be subjected to the
good-faith pleading standard: (1) the illegal discharge claims
and (2) the failure to develop and implement required plans
claims.
a. Illegal Effluent Discharges
Plaintiffs allege that Defendant continues to discharge
water pollution into San Diego Bay in violation of its
industrial discharge permit and the stormwater discharge
regulations. The Complaint states that Defendant “has
violated, and continues to violate, numerous requirements of
the [Clean Water] Act governing the discharge and
abatement of polluted water, polluted stormwater, and
other substances (‘water pollution’) into San Diego Bay.”
Effluent discharges, particularly rain-induced
stormwater drainage, arc inherently intermittent and
sporadic and qualify as a continuing discharge even when
they do not occur every day. As long as Defendant’s facility
is exposed to rain and tidal activity, discharges will occur.
See Molokai Chamber of Commerce v. Kukui, 891 F. Supp.
1389, 1401 (D. Hawaii 1995) (circumstances where pollutant
is discharged in stormwater each time it rains constitutes a
83a
continuing discharge). Therefore, the Court has subject
matter jurisdiction over these claims if it finds that Plaintiffs
could in good faith allege a likelihood that illegal discharges
might recur in the future.
Plaintiffs submit a document from the Regional Board
that details a pattern of NPDES permit violations at
Defendant’s facility, with twenty-four violations over a
period of ten years.? Plaintiffs also submit an affidavit from
one of their attorneys which states that “[bJased on my
continuins review and knowledge of the evidence in this
case, ' continue to believe that Defendant is violating the
Act in numerous respects.” This evidence of a longstanding
pattern of violations sufficiently suggests a likelihood of
continued sporadic or intermittent violations in the future.
3 These violations, recorded between October 30, 1986 and June
16, 1995, include violations of both the stormwater General
Industrial Permit and the Industrial NPDES pemit. The
documentation includes: (1) a document from the Regional
Board evidencing 24 discharges in violation of the FWPCA. (2)
three of Defendant’s annual reports to the Regional Board
which plaintiffs allege demonstrate Defendant’s violation of
stormwater discharge requirements; and (3) a Staff Report from
the Regional Board that indicates that the sediments in San
Diego Bay adjacent to Defendant’s facility are high in heavy
metals and other pollutants. See P1 . NOS Exs. 1, 2, 3, 5, 6.
These documents evidence a pattern of violations over at least
the past ten years. This pattern warrants a presumption that
these discharges could continue in the future. The presumption
created by ten years of illegal discharges cannot be defeated by
four days of compliance during the brief period between the
adoption of the new SWPPP and the filing of the Complaint.
In February, Defendant moved to strike this document for lack of
foundation because it did not attribute any authorship. Plaintiffs now
supply the deposition testimony of Kristin Schwall of the Regional
WaterBoard staff, who claims the chart was authored by her for use by
the board in its ordinary course of business. Pla. Supp. Opp. p. 9, fn. 6,
Pla. Supp. NOL Ex. 2, pp. 8- 10. Therefore, Defendant’s motion to strike
is denied.
84a
Defendant contends that its new environmental
compliance and monitoring plans will ensure that there are
no future violations. However, the exercise of subject
matter jurisdiction requires only a showing that allegations
were made in good faith, and not actual proof. Plaintiffs
may in good faith doubt Defendant’s promises in view of its
history of noncompliance. Finally, as discussed below,
Plaintiffs have alleged specific instances of continuous and
ongoing illegal discharges. Therefore, subject matter
jurisdiction exists over the illegal discharge claims.
b. Environmental Compliance and Monitoring Plans
Plaintiffs allege in their Complaint that Defendant has
failed te “develop and implement” a BMP, SWPPP and a
SWPPMP as required by the Federal Water Pollution
Control Act. Plaintiffs state that Defendant (1) has failed to
implement a BMP that adequately serves to reduce and
eliminate discharges of water pollution from its facility; (2)
has failed to implement a SWPPP that lists pollutants likely
to be present in Stormwater or that provides for the
Stormwater management controls appropriate for the
facility; and (3) has failed to comply with the regulations
governing a SWPPMP by failing to conduct adequate visual
observations of Stormwater discharge, failing to collect and
analyze samples of Stormwater, and failing to notify the
Regional Board of instances of non-compliance. The
Complaint provides more specific examples of how these
plans are deficient and suggests the likelihood of other
inadequacies.
Defendant argues that its implementation of new plans
four days before Plaintiffs filed their Complaint deprives the
Court of subject matter jurisdiction over Plaintiffs’ claims
that these plans are legally inadequate. In making this
argument, Defendant assumes that its new plans remedy all
violations embodied in the old plans. If these new plans still
do not fully comply with the Federal Water Pollution
Control Act, then there is a continuing violation of the
85a
F WPCA and the Court has subject matter jurisdiction over
these claims. See City of New York v. Anglebrook Limited
Partnership, 891 F.Supp.. 900, 905 (S.D.N.Y. 1995) (finding
subject matter jurisdiction because “the City claims a
present violation - a flawed plan filed in violation of permit
requirements -- that is an actionable violation of an effluent
standard under § 1365(f)(6)”).
Defendant submits a declaration from an environmental
consultant (who used to be their Industrial Environmental
Manager) which states that their new plans are all in
compliance with their permits and the FWPCA. Austin
Decl. 4412, 16, 20, 22. Upon the completion of the additional
discovery time allotted by the Court, Plaintiffs argue that
the “new evidence establishes that [Defendant’s] conduct
has been far worse than originally known. This new
evidence lends further support to plaintiffs’ contentions that
the plans themselves, and {Defendant’s] implementation of
them, are deficient.”
The Court differentiates between alleged deficiencies in
the development of the required plans and deficiencies in
the implementation of such plans. If Plaintiffs objected only
to the former, then the adoption of new plans would
terminate the cause of action as strictly a past violation
unless Plaintiffs made good faith allegations that the new
plans were also legally deficient. If however, Plaintiffs’
Complaint alleges implementation deficiencies, then
Plaintiffs can in good faith fear that the substitution of one
allegedly hollow plan for another may not change
Defendant’s behavior.
The Court has jurisdiction to adjudicate implementation
failures because the development of new plans does not
extinguish the continuing nature of Defendant’s
implementation failures. If Defendant failed to coilect
samples or eliminate illegal discharges under the old plans,
there is reason to believe that they wili continue to fail to do
so wider the new plans. If the opposite presumption were
86a
true, a defendant could always draft a new plan when
threatened with litigation and claim a complete defense. A
potential plaintiff would be forced to wait until defendant
violated the FWPCA under its new plan before it could file
suit. Defendant could then create yet another new plan, and
the cycle would begin again.
At the time of the February hearing, it was not clear to
the Court whether it had jurisdiction to adjudicate the
alleged development failures of the plans. Defendant had
submitted an affidavit attesting that its new plans were in
compliance with all requirements of its permits and the
FWPCA. See Austin Decl. {J 12, 16, 20, 22, while Plaintiffs
had not clearly disputed these assertions as to both
development and implementation. However, Plaintiffs’
supplemental opposition, prepared with the benefit of
additional discovery, has satisfied the Court’s concerns.
Plaintiffs’ supplemental opposition alleges that
Defendant’s former environmental coordinator testified in a
recent deposition that Defendant’s BMP plan was deficient
as recently as 1995. Defendant has not revised its BMP
since 1992, and it submitted the 1992 version with its 1996
SWPPP. An adequate BMP is an important element of
compliance for both of Defendant’s NPDES permits. Many
of Defendant’s past discharge violations occurred under the
1992 BMP that is still in effect today. Defendant’s refiling of
the same BMP with its revised SWPPP does not end good
faith speculation that violations of the stormwater permit
arc likely to continue in the future. Furthermore,
Defendant has not supported its motion for summary
judgment of the industrial discharge claim, since it never
revised the BMP that forms the basis of Plaintiffs’
contentions.
Therefore, the Court may exercise subject matter
jurisdiction over Plaintiffs’ claims that Defendant has failed
to develop adequ: 2 plans as required by its NPDES
permits.
87a
2. The Merits: Proof or Evidence of Ongoing and
Future Violations
Plaintiff may survive Defendant’s motion for summary
judgment “either (1) by proving violations that continue on
or after the date the complaint is filed, or (2) by adducing
evidence from which a reasonable trier of fact could find a
continuing likelihood of recurrence in intermittent or
sporadic violations.” Sierra Club v. Union Oil, 853 F.2d at
671.
In February, Plaintiffs argued that they could not yet
prove the extent and severity of the FWPCA wiolations
because there had been no meaningful discovery. The Court
continued the motion for summary judgment at that time to
allow ample time for the discovery sought by Plaintiffs,
pursuant to FED. R. CIV. P. 56(f). Now that this discovery
has been completed, the Court seeks to determine whether
any material questions of fact remain that prevent judgment
from being entered at this time.
Plaintiffs can prevail at trial by showing either that
Defendant’s plans are inadequate facially or as applied, or
by establishing that there are or will likely be ongoing
violations of the NPDES permits.
a. Are the Plans Defective as Written?
EPA’s regulations define “best management practices”
as “schedules of activities, prohibitions of practices,
maintenance procedures, and other management practices
to prevent or reduce the pollution of ‘waters of the United
States.’ BMPs also include treatment requirements,
operating procedures, and practices to control plant site
runoff, spillage or leaks, sludge or waste disposal, or
drainage from raw material storage.” 40 C.F.R. § 122.2.
Defendant’s BMP, last modified in 1992, is an important
element of both its industrial and stormwater discharge
responsibilities.
88a
As discussed above in regards to subject matter
jurisdiction, a defective or inadequate BMP would implicate
both of Defendant’s NPDES permits. Plaintiffs argue that a
material question of fact on this point is created by
statements of a former employee of Defendant. Plaintiffs’
supplemental opposition cites deposition testimony of Daniel
Mills, Defendant’s former environmental coordinator. Mills
answered that there was “some internal concern over the
usability” of the BMP; that the plan “wasn’t really designed
as a policy that was effective” because it was “developed by
an outside agency not for [Defendant];” and that there was
discussion about the BMP to make the plan more specific to
Defendant’s facility.
However, the Mills excerpts do not include any direct
admission that the BMP’s shortcomings rise to the level of a
NPDES violation. In fact, Mills also testified that he
believed that the SWPPP, which necessarily includes the
BMP, is legally adequate. By their nature, no BMP will
ever be perfect, and consideration of improvements by itself
does not constitute any admission. It is interesting that
Mills apparently did not use the BMP in his daily inspection
routines (See Pl. Supp. NOL Ex. 3, p. 65), but Plaintiffs do
not explicitly allege that such a failure is a per se violation of
the permits.
Therefore, Mills’ statements do not prove that the BMP
was legally defective. However, do they constitute evidence
from which a reasonable trier of fact could find a continuing
likelihood of future violations? If a jury interpreted Mills’
testimony to mean that the BMP was not used by Defendant
in its daily practices, such a finding would help to support a
finding for Plaintiffs.
Plaintiffs next argue that the plans are insufficient as
evidenced by Defendant’s own past record of violations.
Defendant has not revised its BMP since 1992, and it
submitted the 1992 version with its 1996 SWPPP. An
adequate BMP is an important element of compliance for
89a
both of Defendant’s NPDES permits. Many of Defendant’s
past discharge violations occurred under the same 1992
BMP that is still in effect today. Therefore, these violations
are not only past violations, but also evidence a present and
ongoing failure to maintain an adequate BMP as required by
the NPDES permits.
Defendant argues that Plaintiffs have failed to provide
expert testimony essential to their case. In its reply,
Defendant notes that Plaintiffs’ first opposition stated:
This case involves numerous technical issues.
At the appropriate time, plaintiffs will designate
experts on various matters. These experts will
provide their opinions about matters such as
[Defendant’s] non-compliance with the law, the
effects such noncompliance has on _ the
environment and how [Defendant] must address
its noncompliance and ameliorate any problems
created by its activities.
Defendant maintains that Plaintiffs have failed to
deliver on this promise, and therefore have failed to refute
the testimony of Defendant’s experts that the plans do not
violate the NPDES permits. Defendant offers the expert
testimony of Mr. Dana Austin, an environmental consultant
retained by Defendant since 1996. Mr. Austin served as
Defendant’s Corporate Manager of Environmental Affairs
from 1991-1995, and, in his words, “was the person
principally responsible for overseeing the compliance of
corporate and divisional industrial operations with
environmental regulations ... [including] the Clean Water
Act.” Defendant relies heavily on what it claims to be the
undisputed expert assertions by Austin that since August
‘23, 1996, Defendant has implemented all necessary plans
and is otherwise in compliance with the conditions of its two
NPDES permits. Austin Declaration 44 11, 12, 15, 16, 19,
20, and 22. Defendant argues that Plaintiffs have failed to
rebut this expert testimony with expert testimony of their
90a
own, and that therefore summary judgment must be
granted. These contentions from the Austin Declaration
form the entirety of Defendant’s separate statement of
undisputed facts in support of its motion for summary
judgment.
The Court finds that the allegations and evidence
submitted by Plaintiffs place in dispute the assertions made
by Mr. Austin. Expert testimony can be rebutted by factual
allegations in lieu of contrary expert testimony.
Furthermore, Plaintiffs argue that the testimony of Austin
has been seriously impeached. They claim that his
deposition revealed that his “conclusory opinions were
exposed for their lack of significance,” and that he “took a
classic ‘head-in-the-sand’ approach to Defendant’s
culpability. Plaintiffs further allege that Austin “never
bothered to review highly relevant evidence.”
Next, Plaintiffs allege that Defendant’s SWPPP is
defective on its face because it fails to list all likely
pollutants in its stormwater discharges. SWPPPs must
include a “list of pollutants that are likely to be present in
stormwater discharge in significant quantities, and an
estimate of the annual quantities of these pollutants in
stormwater discharge.” Defendant’s NOL Ex. 3, Sec. A.
4(d). Plaintiffs submit a Regional Board staff memorandum,
dated April 19, 1996, that discusses Defendant’s proposed
SWPPP. The internal memo noted that Defendant’s
“sampling plan does not include analysis for all materials
[Defendant] is known to be handling such as rust inhibitors,
solvents, chlorine, anticorrosive and antifouling paints,
cooling and fire waters, petroleum chemicals. Annual
reports have no data on TBT, PAH, PCB, and TPE. PI.
NOL Ex. 4, p. 1. Defendant’s list of ten possible stormwater
pollutants in its implemented SWPPP does not include any
of the chemicals cited-by the region staff member. Def.
NOL Ex. 2, SWPPP Section C. These contentions, not
9la
directly countered by Defendant, leave a triable question of
fact as to the sufficiency of the SWPPP.
The Court finds that triable issues of fact remain
whether Defendant adequately developed the necessary
plans to be in compliance with its NPDES permits.
b. Is the Implementation of the Plans
Deficient?
Plaintiffs supply testimony and documented evidence
that allegedly shows that Defendant violates the NPDES
permits in practice. Before reviewing these allegations, it
must be noted that Plaintiffs are not suing Defendant for
specific discharges; rather, evidence of past behavior is
offered to show a pattern that could support a finding of
ongoing and/or likely future violations by Defendant.4
Among the factors outlined in Union Oil, Plaintiffs may
satisfy their burden of proof by establishing violations that
continue on or after the date the complaint is filed. Any
argument by Defendant that concedes (or fails to refute) a
post-Complaint violation but professes a current compliance
is an attempt at a mootness defense. While courts have
recognized that the doctrine of mootness prevents the
maintenance of a suit when “there is no reasonable
expectation that the wrong will be repeated,” the Defendant
bears a heavy burden to establish mootness and must
demonstrate that it is “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to
occur. ... Mootness doctrine thus protects defendants from
the maintenance of suit under the Clean Water Act based
solely on violations wholly unconnected to any present or
future wrongdoing, while it also protects plaintiffs from
4 The evidence of past behavior is only offered to support Plaintiffs’
claim that the required plaintiff documents are inadequate. Therefore,
the sufficiency of Plaintiffs’ Notice Letter is not implicated by the use of
this evidence. Defendant’s Reply (at p. 3) contemplates that evidence of
a discharge could provide evidence of a failure of a compliance plan.
92a
defendants who seek to evade sanction by predictable
protestations of repentaince and reform.” Gwaltney, 484
U.S. at 66-67 (citations and internal quotation marks
omitted).
Plaintiffs allege, and Defendant responds to, the
following specific violations:
1. Plaintiffs allege that Defendant’s marine railways
“remain a serious and ongoing water pollution problem and
currently result in the ongoing discharge of contaminated
water and materials into San Diego Bay.” Plaintiffs allege
that on their March 25, 1997 site visit, they conducted
physical sampling of the marine railways area, and that
laboratory analysis of the samples revealed high levels of
copper. zinc, oil and grease. Pla. Supp. NOL Ex. 20, pp. 2-4.
Plaintiffs allege that the conditions at the marine
railways violate both permits. The NPDES permit requires
that sump areas and waste dams be cleaned out on a regular
basis, and “within one working day of vessel departure.”
BMP #s 9, 12; Def. NOL Ex. 2. No ship was in the railway
during the site visit and therefore a finding could be
supported that Defendant fialed to clean the railway as
required. Furthermore, the polluted condition of the
railway could dallow non-stormwater dischrages prohibited
by the stormwater permit. Therefore. the condition of the
marine railways involves triable issues of fact that could
support NPDES permit violations.
2. Plaintiffs allege that their site inspections of Defendant’s
facility, conducted in March and April 1997, “revealed
ongoing violations.” Plaintiffs allege that Defendant has a
“history of ‘preparing’ for such inspections in such a way
that conceals the usual operating practices.” Even still, they
allege that their inspections revealed violations of the
permits. In addition to the marine railway discussed above,
plaintiff Kenneth Moser stated in his sworn declaration that
the condition of the shipyard and grounds violated the
93a
NPDES permits. Moser testifies that he collected samples,
later analyzed by Pacific Treatment Analytical Services,
Inc., that revealed significant quantities of oil, grease,
copper and zinc.
The stormwater General Permit includes a “good
housekeeping” provision that requires the maintenance of
“clean, orderly facility areas that discharge stormwater.”
General Permit No. CAS000001, Section A.5(c). The
evidence of alleged presence of toxic chemicals creates a
triable issue of fact as to whether Defendant violated the
“good housekeeping “ clause.
3. Plaintiffs allege that Defendant’s employees do not
conduct BMP inspections on a daily basis, as allegedly
required by both permits. Plaintiffs allege that Defendants
have failed to provide in discovery reports for “numerous
days,” including between August 29 and September 4, 1996.
Plaintiffs maintain that it is therefore reasonable to assume
that these records are unavailable because the inspections
were never conducted.
Defendants argue that BMP inspections are not
required. Defendant’s own SWPPP provides that
“{iInspections are conducted both on a daily (Daily BMP
Inspection) and Bi-Monthly ... basis. Def. NOL Ex. 2
SWPPP § FGi). While the provisions of the General
Industrial Permit do not require daily inspections, they do
require dischargers to include inspection plans to be
approved as part of their SWPPMP. Dischargers are
required to abide by the terms of their SWPPPs and
SWPPMPs. Some degree of deviation from individual plans
not required by the General Permit probably should be
disregarded, or companies would have a disincentive to
propose plans stronger than the minimal requirements. The
absence of a few days of reports is a de minimis violation,
unless a showing of bad faith is made. However, the claim
that “numerous” reports are missing may create a liable
question of fact.
94a
4. Plaintiffs allege that, at the time of the filing of the
Complaint, Defendant was discharging 2.16 million gallons
per day of chlorine-contaminated water in violation of the
stormwater permit. The page in their lodgements that
supports this finding appears to be missing (they cite Pla.’s
Supp NOL Ex. 15 attachment at 3). According to the
deposition of Armando DeQuesada, Defendant’s
environmental manager, the chlorination of “seawater
intake” stopped near the end of 1996. Pla. Supp. NOL Ex. 9,
p. 165-166. Therefore, these violations were occurring
condnuously at the time the Complaint was filed in August
1996. This individual claim is vulnerable to a mootness
defense because it appears that Defendant has installed a
new system that has ended these discharges. The Court
reserves judgment on this question for future proceedings, if
necessary.
5. Plaintiffs allege that stormwater collected in
February 1997 “revealed the highest levels of the pollutants
Total Suspended Solids (“TSS”), copper and lead ever
reported in [Defendant’s] stormwater.” Plaintiffs provide as
an exhibit a data sheet from Defendant’s records that
includes a series of numbers apparently reporting levels of
various chemicals at various times and places between 1992
and 1997. Pla. Supp. NOL Ex. 18, p. 57. The levels of the
three above-mentioned chemicals were in fact higher on
February 10, 1997 at outfall #2, than any of the other eight
dates included in the chart.
_ Defendants counter the February data by arguing that
Plaintiffs failed to provide expert testimony or to show that
the reported concentrations “adversely impact human
health or the environment.” Defendant is correct that the
data alone does not establish a prima facie violation;
however, the information was offered by Plaintiffs to
impeach. The assertion that the new SWPPP has improved
Defendant’s stormwater performance.
95a
Plaintiffs further allege that Defendant does not monitor
the adequacy of the required list of stormwater discharge
pollutants on its SWPPP. Plaintiffs offer deposition
testimony of Mr. Armando DeQuesada, Defendant’s
environmental manager who compiled the 1997 samples.
Mr. DeQuesada said that he did not conduct any additional
independent research to determine whether the SWPPP list
was satisfactory. It is not clear that he was aware of any of
the alleged deficiencies in the original list as noted by a
Regional Board staff member and discussed above in this
Order. In any case, Plaintiffs argue that he had a duty to
monitor stormwater discharges and update the list if
warranted.
From this record, it appears that unresolved material
questions of fact could support a finding that Defendant is
failing to effectively implement its SWPPP by failing to
conduct sufficient reports and testing, and by taking
insufficient action to minimize non-stormwater discharges.
6. Plaintiffs allege that Defendant continues to fail to
gather at least two samples per rainy season, and that
Defendant continues to fail to collect samples from all
locations where stormwater is discharged, or, in the
alternative, establish that stormwater discharges from
different locations are substantially identical. Plaintiffs
provide a report submitted by Defendant to the Regional
Board in June 1996. Question 9 of the Report asks:
Section B.5.d of the General Permit requires that
stormwater samples from at least two storms be
collected and analyzed. a. How many storms did
you sample? Answer: 0 (NONE). b. How many
stormwater discharge points are located at your
facility? Answer: 5. Did you sample from every
discharge point? Answer: No. If you did not
sample from every discharge point, attach an
explanation why you did not or attach a
96a
justification as to why certain discharge points are
substantially identical.
Pla.’s NOL Ex. 1, p. 4. Plaintiffs allege that Defendant
did not attach any explanation or justification.
Furthermore, Plaintiffs point to the stormwater
analyses conducted by Defendant between 1992-1997, as
noted above. These reports indicate substantially different
results at different outfalls from nearly conte
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.