Wishtoyo Foundation v. Los Angeles Coastkeeper et al

Filing 262

MINUTES (IN CHAMBERS): ORDER Granting in Part and Denying in Part Motion for Partial Summary Judgment as to Plaintiffs' Fourth Cause of Action by Judge Gary A. Feess. Having reviewed the briefs, supporting documents, and arguments, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion for partial summary judgment as to the fourth cause of action 131 . See document for details. (smo)

LINK: 131
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Title

Wishtoyo Foundation v. Magic Mountain LLC et al

Present: The Honorable

Date

December 3, 2014

GARY ALLEN FEESS

Stephen Montes Kerr
Deputy Clerk

None
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

(In Chambers)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PARTIAL
SUMMARY JUDGMENT AS TO PLAINTIFFS’ FOURTH CAUSE OF ACTION
On June 24, 2014, Plaintiffs filed a motion for partial summary judgment on their fourth
cause of action for violations of the National Pollution Discharge Elimination System
(“NPDES”) numeric effluent limitations based on 36 instances in which Defendants’ selfreported monitoring results were in excess of the effluent limits. (Docket No. 131.) Defendants
opposed on July 28 and Plaintiffs replied on August 4. (Docket Nos. 156, 161.) Following a
hearing on August 13 regarding new issues raised on reply, the Court granted a discovery
continuance and permitted Defendants to submit a sur-reply, which they filed on October 6.
(Docket No. 199.) The Court heard oral argument on October 20, 2014. After the hearing, the
parties lodged supplemental evidence on October 27, 2014. (Docket Nos. 226, 233.) Having
reviewed the briefs, supporting documents, and arguments, the Court GRANTS IN PART AND
DENIES IN PART Plaintiffs’ motion for partial summary judgment as to the fourth cause of
action.
I.
BACKGROUND
The following facts are taken from the evidence presented in support of and in opposition
to the motion. The facts set forth below are undisputed unless otherwise noted.
Since December 29, 2006, Magic Mountain LCC (“MMLLC”) has owned and operated a
260-acre amusement park in Valencia, California (the “Facility”), which is directly adjacent to
the Santa Clara River. Statement of Undisputed Facts (“SUF”) 1. Six Flags Theme Parks, Inc.
(“SFINC”), the predecessor to MMLLC, was a named permit holder and entered into settlement
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Case No.

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Date

Title

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Wishtoyo Foundation v. Magic Mountain LLC et al

agreements with the State for permit violations at the Facility as late as 2009.1 Id. The Facility
discharges wastewater and storm water from three discharge points set forth in MMLLC’s
NPDES permits: Discharge Points 001, 002, and 003. (SUF 2.)
The Facility’s discharges into the Santa Clara River are regulated by three successive
individual NPDES Permits (collectively, the “Individual Permits”). (SUF 4.) On June 2, 2005,
the Regional Water Quality Control Board (“RWQCB”) issued SFINC an individual permit,
which was amended in 2008. (SUF 5-6.) The 2008 amendment was issued to “Magic Mountain,
LLC (Former Six Flags Theme Park, Inc.).” (Docket No. 133-2 [Declaration of Daniel P.
Mensher, Ex. 2].) In 2011, the RWQCB issued an individual permit to MMLLC only. (SUF 7.)
The Individual Permits contain numeric effulent limitations. (SUF 8.) Permit holders are
required to monitor the effluent discharged from their facilities and report data regarding
pollutants in its discharges to the RWQCB and the EPA. (SUF 22.) The following sets forth
relevant portions of those reports regarding storm water discharges from 2006 through 2011.
A. ANNUAL REPORTS
In the 2006-2007 Annual Report for Storm Water Discharges Associated with Industrial
Activities, “Six Flags Magic Mountain” (the dba of MMLLC) reported the following discharges:
•
•
•
•
•

a copper sample of 83 µg/L from Discharge Point 001, taken on April 20,
2007 (SUF 23);
a copper sample of 41 µg/L from Discharge Point 002, taken on April 20,
2007 (SUF 24);
a copper sample of 260 µg/L from Discharge Point 003, taken on April 20,
2007 (SUF 25);
a total suspended solids (“TSS”) sample of 420 mg/L from Discharge Point
001, taken on April 20, 2007 (SUF 26); and
a TSS sample of 220 mg/L from Discharge Point 003, taken on April 20,
2007 (SUF 27).

1

The other two defendants, Six Flags Magic Mountain and Six Flags Entertainment Corporation, were
dismissed on August 21, 2014. (Docket No. 182.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Date

Title

December 3, 2014

Wishtoyo Foundation v. Magic Mountain LLC et al

In the 2007-2008 Annual Report for Storm Water Discharges Associated with Industrial
Activities, MMLLC reported the following discharges:
•

a TSS sample of 82 mg/L from Discharge Point 003, taken on February 20,
2008 (SUF 28).

In the 2008-2009 Annual Report for Storm Water Discharges Associated with Industrial
Activities, MMLLC reported the following discharges:
•
•
•
•

a copper sample of 33 µg/L from Discharge Point 001, taken on January 22,
2009 (SUF 29);
a copper sample of 500 µg/L from Discharge Point 002, taken on February
5, 2009 (SUF 30);
a TSS sample of 240 mg/L from Discharge Point 001, taken on February 5,
2009 (SUF 31); and
a TSS sample of 120 mg/L from Discharge Point 003, taken on February 5,
2009 (SUF 32).

In the 2009-2010 Annual Report for Storm Water Discharges Associated with Industrial
Activities, MMLLC reported the following discharges:
•
•
•
•
•
•

a copper sample of 40 µg/L from Discharge Point 001, taken on January 17,
2010 (SUF 33);
a TSS sample of 110 mg/L from Discharge Poin 001, taken on January 17,
2010 (SUF 34);
a TSS sample of 86 mg/L from Discharge Point 003, taken on January 17,
2010 (SUF 35);
two samples of copper at Discharge Point 002 that were 30 µg/L on January
17, 2010 and 40 µg/L on January 26, 2010 (SUF 36);
two samples of copper at Discharge Point 003 that were 70 µg/L on January
17, 2010 and 100 µg/L on January 26, 2010 (SUF 37); and
a copper sample of 40 µg/L from Discharge Point 002, taken on January 26,
2010 (SUF 38).

In the 2010-2011 Annual Report for Storm Water Discharges Associated with Industrial
Activities, MMLLC reported the following discharges:

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Title

Wishtoyo Foundation v. Magic Mountain LLC et al
•
•
•
•
•

Date

December 3, 2014

a copper sample of 40 µg/L from Discharge Point 002, taken on December
17, 2010 (SUF 39);
a copper sample of 70 µg/L from Discharge Point 003, taken on December
17, 2010 (SUF 40);
a copper sample of 40 µg/L from Discharge Point 002, taken on February
25, 2011 (SUF 41);
a copper sample of 100 µg/L from Discharge Point 003, taken on February
25, 2011 (SUF 42); and
a TSS sample of 130 mg/L from Discharge Point 003, taken on February
25, 2011 (SUF 43).

In the 2011-2012 Annual Report for Storm Water Discharges Associated with
Industrial Activities, MMLLC reported the following discharges:
•
•
•
•

a copper sample of 1,100 µg/L from Discharge Point 002, taken on
February 27, 2012 (SUF 48);
a TSS sample of 200 mg/L from Discharge Point 002, taken on February
27, 2012 (SUF 49);
a copper sample of 56 µg/L from Discharge Point 002, taken on March 17,
2012 (SUF 50); and
a copper sample of 79 µg/L from Discharge Point 003, taken on March 17,
2012 (SUF 51).

In the 2012-2013 Annual Report for Storm Water Discharges Associated with
Industrial Activities, MMLLC reported the following discharges2:

2

Defendants claim that there are disputed facts as to the discharges sampled on February 8, 2013. In
particular, the Facility reported copper samples from Discharge Points 002 and 003 with concentrations of .12
ug/L and .16 ug/L, respectively; however, Plaintiffs respond that the Facility inaccurately reported the underlying
laboratory results, which indicated copper concentrations of .12 mg/L (or 120 µg/L) and .16 mg/L (or 160 µg/L)
from Discharge Points 002 and 003. Compare Opp. at 10-11; Mensher Decl., Ex. 11 at 3 with Reply at 13-14;
Second Mensher Decl., Ex. 2 at 21, 37. Defendants assert that lab report was not “produced by Defendant” as
stated in the Second Mensher Declaration and that the parties have not stipulated to its authenticity. (Sur-Reply at
7, n.4.) The Court agrees that Plaintiffs have not laid an adequate foundation for the lab report in the Second
Mensher Declaration. At the same time, the Court believes this is a mere oversight on Plaintiffs’ part and queries
whether Defendants can, in good faith, challenge the authenticity of the report.
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Title

Wishtoyo Foundation v. Magic Mountain LLC et al
•
•
•

Date

December 3, 2014

a copper sample of 120 µg/L from Discharge Point 002, taken on February
8, 2013 (SUF 56);
a copper sample of 160 µg/L from Discharge Point 003, taken on February
8, 2013 (SUF 57); and
a TSS sample of 190 mg/L from Discharge Point 003, taken on February 8,
2013 (SUF 58).

In an excerpt from the 2013-2014 Annual Storm Water Monitoring Report, MMLLC
reported concentrations of copper and TSS that were above the NPDES effluent limitations.
(Docket No. 226 [Declaration of Allison M. LaPlante, Exs. A & B].)
B. QUARTERLY REPORTS
Defendants also reported data relevant to the pending lawsuit in its quarterly monitoring
reports.
In Defendants’ Quarterly Monitoring Report for July-September 2011, Defendants
reported an E. Coli sample of 300/100 mL from Discharge Point 003, taken on September 8,
2011. (SUF 44.)
In Defendants’ Quarterly Monitoring Report for October-December 2011, Defendants
reported an oil and grease sample of 16 mg/L, a fecal coliform sample of >=1,600/100 mL, and
an e. coli sample of >=1,600/100 mL, all taken from Discharge Point 003 on October 13, 2011.
(SUF 45-47.)
In Defendants’ Quarterly Monitoring Report for April-June 2012, as to Discharge Point
003, Defendants reported a lead sample of .049 mg/L taken on April 19, 2012, the average
monthly effluent limitation for lead for the month of April 2012 as .049 mg/L, a lead sample of
.081 mg/L taken on May 3, 2012, and a lead sample of .034 mg/L taken on May 30, 2012. (SUF
52-55.)
///
///

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Date

Title

December 3, 2014

Wishtoyo Foundation v. Magic Mountain LLC et al

C. SETTLEMENTS WITH THE BOARD
SFINC and MMLLC each separately entered Stipulated Orders on Settlement Offers (in
September 2008 and June 2013, respectively) in which they agreed to pay fines to the RWQCB
for violations of the Individual Permits. (SUF 11.3)
D. THE PRESENT LAWSUIT
Based on the monitoring reports, Plaintiffs allege in their fourth cause of action that
Defendants’ discharges from the Facility routinely exceed the Individual Permits’ effluent
limitations. On April 20, 2012, Plaintiffs gave notice of the violations alleged in the Complaint.
(SUF 12.4) On June 27, 2012, Plaintiffs filed this lawsuit. (Docket No. 1.)
II.
LEGAL STANDARD
Summary judgment is proper where “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute exists if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party” and material facts are those “that might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“As the party with the burden of persuasion at trial, [Plaintiffs] must establish beyond
controversy every essential element” of their fourth cause of action under the Clean Water Act.
So. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (citation omitted).
Once the moving party satisfies its initial burden, the nonmoving party must set forth specific

3

Defendants object to the Stipulated Orders on the grounds that they are “inadmissible settlement
communications” under Federal Rule of Evidence 408. That rule, however, only applies to settlement offers and
negotiations “either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction.” Fed. R. Evid. 408. Plaintiffs’ use of the publicly available Stipulated
Orders does not fall under either category. For example, the settlements reflect the identity of the entities who
bore responsibility for the operation of the facility, the scope of the permits under which the facility operates, and
the understanding of the facility’s operator regarding its obligation to comply with permit requirements. As such,
Defendants’ objection is OVERRULED.
4

Rather than attaching the April 20, 2012 notice letter to a declaration, Plaintiffs cite to their Complaint,
which attaches a copy of the letter. The Court agrees that the letter has not been authenticated, however, as with
the lab report, the Court queries whether Defendants can challenge the letter’s authenticity in good faith.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Date

Title

December 3, 2014

Wishtoyo Foundation v. Magic Mountain LLC et al

facts showing that there is a genuine issue for trial. Id. (“[The non-moving party] can defeat
summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier
of fact to find in its favor.”) (citations omitted).
Both parties must support their factual positions by “citing to particular parts of materials
in the record . . . or . . . showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1). “[T]he inferences to be drawn from the underlying facts . . .
must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III.
DISCUSSION
A.

Plaintiffs’ Have Standing to Bring This Citizen Suit

Plaintiffs’ members have significant aesthetic, cultural, and recreational interests in the
health of the Santa Clara River, the wildlife that relies on the River, and the habitat it supports.
(SUF 13.) Despite asserting evidentiary objections to the declarations supporting SUF 13,
Defendants state the fact is “[u]ndisputed” and that they “have never challenged the standing of
Plaintiffs.” (Resp. to SUF 13.) Nor have Defendants disputed that “Plaintiff organizations’
purposes are germane to the interests sought to be protected in this suit.” (SUF 17.) The Court
therefore concludes that Plaintiffs have standing to bring this citizen suit.
B.

The Clean Water Act and Permit System

The objective of the Clean Water Act is to restore and maintain the “chemical, physical
and biological integrity of [the] Nation’s waters.” 33 U.S.C. § 1251(a). In accordance with that
objective, § 301(a) of the Clean Water Act makes unlawful “the discharge of any pollutant by
any person,” unless in compliance with a permit issued under the NPDES. 33 U.S.C. §§
1311(a), 1342; Envtl. Prot. Agency v. California ex rel. State Water Resources Control Board,
426 U.S. 200, 205 (1976). “An NPDES permit serves to transform generally applicable effluent
limits and other standards . . . into the obligations . . . of the individual discharger.” Id.
“[A] permittee violates the CWA when it discharges pollutants in excess of the levels
specified in the permit, or where the permittee otherwise violates the permit’s terms.” Natural
Resources Defense Council, Inc. v. County of Los Angeles, 725 F.3d 1194, 1204 (9th Cir.
2013); 40 C.F.R. § 122.41(a) (“Any permit noncompliance constitutes a violation of the Clean
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Water Act and is grounds for [an] enforcement action”). The Clean Water Act authorizes citizen
suits “against any person . . . who is alleged to be in violation of . . . an effluent standard or
limitation under this chapter.” 33 U.S.C. § 1365(a)(1). The Act imposes strict liability for
NPDES violations. See Santa Monica Baykeeper v. Kramer Metals, Inc., 619 F.Supp.2d 914
(C.D. Cal. 2009), citing Hawaii’s Thousand Friends v. City & County of Honolulu, 821 F.Supp.
1368 (D. Haw. 1993) (noting that because the Clean Water Act imposes strict liability, issues of
fault do “not absolve the violator from penalties, although [a lack of fault] might mitigate the
amount of the penalties assessed”).
Accordingly, to establish a violation of the Act, Plaintiffs need only prove that
Defendants violated the terms and conditions of their NPDES permit. The parties agree that the
Individual Permits govern the Facility. The court’s task is to interpret the Individual Permits like
any other contract. Natural Resources Defense Council, 725 F.3d at 1204. “If the language of
the permit, considered in light of the structure of the permit as a whole, “is plain and capable of
legal construction, the language alone must determine the permit’s meaning.” Id. at 1204-05
(citation omitted). “If, however, the permit’s language is ambiguous, we may turn to extrinsic
evidence to interpret its terms.” Id. at 1205.
C.

The Facility’s Individual Permits

The Individual Permits contain numerous restrictions and limitations on the Facility’s
discharges. At issue in this motion are the numeric effluent limitations, which limit the
maximum discharge of specific pollutants. Section I.B.4 of the 2005 and 2008 permits and
Section IV of the 2011 permit identify the final effluent limitations that apply to all discharges
from the Facility. (Mensher Decl., Ex. 1 at 13; Ex. 2 at 16; Ex. 3 at 13.) Plaintiffs contend that
the text of the Individual Permits is clear and that Defendants’ monitoring reports demonstrate
that certain pollutants exceed the numeric effluent limitations set in the Individual Permits.
(SUF 3, 9, 10.)
If “monitoring data shows that the level of pollutants in federally protected water bodies
exceeds those allowed under the Permit, then, as a matter of permit construction, the monitoring
data conclusively demonstrate that the County Defendants are not ‘in compliance’ with the
Permit conditions. Thus, the County Defendants are liable for permit violations.” Natural
Resources Defense Council, 725 F.3d at 1207; see also Sierra Club v. Union Oil Co. of
California, 813 F.2d 1480, 1492 (9th Cir. 1987) (violations reported in self-monitoring reports
constitute “conclusive evidence of an exceedance of a permit limitation”).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Title

Wishtoyo Foundation v. Magic Mountain LLC et al
D.

Date

December 3, 2014

The Individual Permits Cover Storm Water

The principal issue presented in this motion is whether the effluent limitations found in
the Individual Permits apply to discharges of storm water. Plaintiffs contend that the Individual
Permit establishes effluent limitations for both wastewater and storm water. Defendants contend
that those effluent limitations apply only to discharges of non-storm wastewater. (Resp. to SUF
3, 9, 10.) This section addresses the numerous flaws in Defendants’ analysis.
1.

Benchmarks Versus Effluent Limitations

Defendants urge the Court to take an “individualized and flexible approach” to evaluate
permit compliance because discharges that exceed EPA benchmark levels do not violate the
Clean Water Act. In support of this argument, Defendants rely on the analysis in Santa Monica
Baykeeper v. Kramer Metals, Inc., 619 F.Supp.2d 914 (C.D. Cal. 2009), a non-precedential
district court decision.
In Kramer Metals, the issue was whether EPA benchmark levels, which are guidelines in
analyzing compliance with the Clean Water Act, were objective measures such that a scrap metal
recycling facility’s storm water discharges in excess of the benchmarks constituted a violation of
the Clean Water Act. Id. at 920-22. After reviewing the EPA Multi-Sector General Permit for
Storm Water Discharges Associated with Industrial Activity (“MSGP”), the court concluded that
benchmark values are not effluent limitations and that plaintiff in that case did not even “argue
that Kramer’s storm water discharges were in excess of a reportable quantity.” Id. at 920. After
reviewing the relevant general permit and pertinent regulations, the district court concluded that
“[t]here are no numeric effluent limitations for scrap recycling facilities set forth either in 40
C.F.R. Subchapter N or in the MSGP.” Id. at 923-24 (holding that “samples in excess of [EPA]
benchmarks do not necessarily constitute a violation of the General Permit”). Plainly Kramer
Metals is readily distinguishable because, unlike this case, it did not involve an alleged violation
of effluent limitations in a Individual Permit issued for the facility in issue. The court in that
case simply held that, where there were no effluent limitations established for scrap metal
facilities like Kramer Metals, the court would not import EPA benchmarks as objective measures
of compliance with the Clean Water Act. In this case, there is no dispute that the Individual
Permits set forth effluent limitations, not “benchmarks.”
Defendants then point to the RWQCB’s May 13, 2010 letter to Mr. Thomas Edgar, the
Facility’s Director of Administration, which referenced “benchmarks,” not effluent limitations,
in connection with the Facility’s storm water discharges. (Declaration of Thomas Edgar, Ex. A.)
The Court has reviewed the May 13, 2010 letter, entitled “Annual Report Review - Benchmark
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UNITED STATES DISTRICT COURT
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Value Exceedance: NPDES General Permit (Permit) for Storm Water Discharges Associated
With Industrial Activity (Order No. 97-03 DWQ; NPDES No. CAS000001), WDID# 4
191008031.” Id. The letter refers to the general permit, not the Individual Permits at issue in
this motion. Id. at 2 (“If you fail to implement or upgrade your BMPs and amend your SWPPP,
pursuant to § 13385 of the California Water Code, you are subject to enforcement action,
including administrative civil liability (penalties), for your violation(s) of the General Permit.”).
Defendants have not shown how failure to comply with the General Permit bears any relevance
to, or should be read to excuse, violations of the Individual Permits. There is no logic to their
argument that the absence of a similar RWQCB letter in the record pertaining to the Individual
Permits does not “demonstrate[] that the Regional Board does not apply the effluent limitations
to Defendants’ storm water discharges.” (Sur-Reply at 6.) On the contrary, the evidence in the
record indicates that the Board separately and independently evaluates compliance with each
permit.
2.

The 2005 and 2008 Individual Permits’ Reference to “Wet Weather
Conditions” Is Not Ambiguous

In their Sur-Reply, Defendants argue that the 2005 and 2008 Individual Permits do not
apply effluent limitations to storm water discharges because “the phrase ‘wet weather
conditions’ means conditions with an inch or less of rain” and “[a]ccording to the findings of the
2005 NPDES Permit and the 2008 NPDES Permit, the Facility does not begin to discharge storm
water runoff until there is an inch or more of rain.” (Sur-Reply at 3.) Defendants conclude that
these phrases, found at different points in the permit, somehow demonstrate that the permit does
not establish effluent limitations for storm water discharges.
Nothing in the plain language of the 2005 and 2008 Individual Permits supports
Defendants’ contorted argument. First, Defendants make much of a paragraph from the section
of the permits entitled “Description of Wastes Discharged and Outfalls,” which states that the
Facility “discharges up to 1.52 million gallons per day (mgd) of wastewater, and up to 2.5
million gallons of storm water runoff during storm events when the rainfall exceeds one inch,
through Discharge Serial Nos. 001, 002, and 003[.]” (Mensher Decl., Ex. 1 at 5, Ex. 2 at 5.)
Defendants claim this paragraph somehow defines the point at which rainfall is “capable of
producing storm water runoff” to create discharge. (Sur-Reply at 3.) In other words, rain of less
than an inch produces no runoff, but once it reaches the one inch level, it produces 2.5 million
gallons of runoff. The argument fails to take into account a number of variables including the
rate of the rain fall. One can easily imagine that a half inch of rain that fell in 15 minutes would
create substantially more runoff than an inch of rain that fell at a steady rate over a 24 hour
period. The cited passage merely indicates an “up to” amount of discharge for rain of a certain
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amount, but says nothing about the minimum level of rainfall necessary to “trigger” storm water
runoff. See Declaration of Allison M. LaPlante ¶ 4, Ex. E (Docket No. 226) (September 3, 2008
email from environmental consultant to Regional Board, explaining that the statement is “simply
meant to relate rainfall in inches to volume of storm water discharged from the park”). This
comment indicates that, even if the Facility experiences less than an inch of rainfall, any
resulting storm water runoff is clearly still subject to the permit regulations.
Nevertheless, Defendants attempt to manufacture an ambiguity in the permit language by
pointing to a sentence in the “Final Effluent Limitations” section, which states, “[T]he effluent
limitations established in this Order are applicable to discharges during both dry and wet weather
conditions[.]” (Mensher Decl., Ex. 1 at 14; Ex. 2. at 17.) Defendants seize on the undefined
phrase “wet weather conditions,” which they argue means “conditions with an inch or less of
rain.” (Sur-Reply at 3.) This reading is both unsupported and unreasonable. Based on the plain
language of the permit, the effluent limitations apply regardless of the weather conditions,
whether wet or dry. Defendants provide no rational explanation for how that idea can be
stretched to define what constitutes “dry” as opposed to “wet” weather. Putting aside
Defendants’ misreading of the “Description” section of the permits, there is no support for
Defendants’ narrow interpretation of “wet weather conditions” as distinguishable from rainfall
producing storm water runoff.5 As explained above, regardless of quantity discharged, storm
water is storm water.
Common sense also supports the application of effluent limitations to all discharges. For
example, a facility in the midst of a drought may try to avoid liability for exceeding the effluent
limitations by arguing that their discharged pollutants are more highly concentrated because the
discharges are not being diluted by the average expected rainfall. The language of the permit ––
stating that effluent limitations apply “during both dry and wet weather conditions” ––
forecloses such an argument. Although Defendants appreciate the “unpredictable nature of
rain,” they assert that storm water requires “at least [] 1” of rain” and conclude that “it would not
make sense to apply the effluent limitations to storm water discharges.” (Sur-Reply at 6.) Not
so. Defendants’ evidence regarding how much rainfall is needed to result in a discharge misses
the point. See, e.g., Declaration of David Dixon ¶ 10 (Docket No. 233-12) (concluding that

5

Defendants state they have deposed several of the Regional Board’s staff members who each “had a
different definition of the phrase ‘wet weather conditions,’” but did not include this evidence because they
thought it would be inappropriate in a sur-reply. (Sur-Reply at 2, n.2.) The Court sees no need to review those
deposition transcripts because the plain language of the Individual Permits simply does not lend itself to the
ambiguity Defendants attempt to create. However one defines “wet weather conditions,” the permit establishes
effluent limitations for storm water run off as well as for waste water discharges.
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approximately .35 to .6 inches of rainfall will result in a storm water discharge; Declaration of
Frederick Giroux ¶ 5 (Docket No. 234-1) (“Assuming only storm water (i.e., rainfall) flows into
the Interceptor, then there would have to be 0.51 inch of rainfall for there to be a discharge from
001.”). No one disputes that Defendants’ self-reported exceedances were taken following events
that produced a discharge. The only sensible reading of the plain language of the permit is one
that includes all discharges in both dry and wet weather conditions.
Defendants’ assertion that the effluent monitoring requirements in Attachment T apply
only to “wastewater” and not “storm water” is likewise unfounded. The Individual Permits
explain that Discharge Points 001, 002, and 003 carry both wastewater and storm water “into a
storm drain thence to the Santa Clara River.” (See, e.g., Mensher Decl., Ex. 1 at 5, Ex. 3 at 1
[including “storm water runoff” under “effluent description” for all three discharge points].) The
effluent monitoring requirements in Attachment T state that a “sampling station shall be
established for each point of discharge” and that “samples shall be collected after the wastewater
is discharged via [a lined or an unlined] tributary to the Santa Clara River, but prior to
discharging into the Santa Clara River.” (Def. Request for Judicial Notice, Ex. 2 at 53.) At this
point, the storm water has been commingled with the wastewater from other sources. Indeed,
the rationale for effluent limitations for discharges of oil and grease, TSS, settleable solids,
phenols and turbidity was that “these pollutants have the potential to be present in storm water
runoff in general.” (Second Declaration of Daniel P. Mensher, Ex. 1 at 19.)
Finally, that wastewater also includes storm water is confirmed by Rosario Aston’s
deposition testimony that “storm water is included in the discharge through outfall 001, 002, and
003.” (Declaration of Ryan C. McKim, Ex. 1, Aston Dep. 130:1-2; see also Aston Dep. 131:1315 [the Facility “included the storm water in their application as their discharge. So in the
effluent limitation, it includes the storm water.”].) To claim that the 2005 and 2008 Individual
Permits “do not contain requirements for testing effluent limitations in storm water discharges”
(Sur-Reply at 4, emphasis in original) mischaracterizes Ms. Aston’s testimony. Defendants can
point to no evidence exempting storm water, or distinguishing it from other sources, such as
irrigation runoff, midway washdown, or water attraction overflow. The numeric effluent
limitations apply to storm water runoff.6

6

The Court rejects Defendants’ convoluted “notice of Plaintiffs’ legal theories” argument for the reasons
set forth in this section; namely, that the Individual Permits do not distinguish between non-storm water and storm
water discharges.
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Title

Wishtoyo Foundation v. Magic Mountain LLC et al
E.

Date

December 3, 2014

Effect of Interim Effluent Limitations

For some pollutants, the 2005 Permit established “interim limits,” which expired on June
2, 2010. Declaration Daniel Mensher, Ex. 1 at 8 (“The interim limits are applicable from the
date of adoption of the Order through June 2, 2010, after which, the Discharger shall
demonstrate compliance with the final effluent limitations.”). For example, for copper, the chart
identifying interim daily effluent limitations from Discharge Points 001 and 003 lists “32” and
“240,” respectively. (See Mensher Decl., Ex. 1 at 17.) Discharge Point 002 has dash marks (“-”).
Defendants claim the dash marks mean they could discharge at will during the interim
period. (Opp. at 9 [“In other words, during the interim period, there was no effluent limitation
for copper discharged from Discharge Point 2.”].) Defendant raises the point, but no one
actually argues, that the dash marks could mean “no copper (i.e., zero) discharges were
permitted during the interim period.” (Opp. at 10.) Defendants claim that “Ms. Aston testified
that the dash marks mean that there is no limit for the effluent” (Sur-Reply at 7), but the excerpts
of her deposition transcript do not include the tables (“Table 6, Table 7, and Table 8”) that she
was referencing in providing her testimony. (McKim Decl., Ex. 1, Aston Dep. 119:9-16.)
The only reasonable interpretation of the dash marks given the nature of “interim”
limitations and the goals of the permit is that there was no need for an interim effluent limit for
copper from Discharge Point 002, but that the final limitation for copper from Discharge Point
002 (39.2) was in effect from the date of issuance of the Permit. (Mensher Decl., Ex. 1 at 15.)
Thus, Defendants’ challenges to SUF 30, 36, and 38 regarding copper from Discharge Point 002
not violating the interim effluent limits because there were no such limits are rejected.
F.

Plaintiffs’ Have Carried Their Burden of Establishing that Defendants’
Violations of the Individual Permits are “Ongoing” as to Copper and TSS

Citizens may prevail in NPDES enforcement actions only where the violation is
“ongoing” and not one “wholly past.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 64. 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.” Natural Res. Def. Council v. Sw. Marine, Inc., 236 F.3d
985, 998 (9th Cir. 2000). “The court will find a violation ‘ongoing’ by comparing self-reported
exceedances before the complaint was filed and afterwards. If the same parameter is exceeded,
or a violation recurs and the cause has not been completely eradicated, then the violation will be
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Date

Title

December 3, 2014

Wishtoyo Foundation v. Magic Mountain LLC et al

deemed ‘ongoing’ and liability will attach.” Sierra Club v. Union Oil Co. of California, 716
F.Supp. 429, 433-34 (N.D. Cal. 1988) (granting partial summary judgment and rejecting Union
Oil’s claim that violations were not “ongoing” because it “ha[d] not lately reported an
exceedance”).
Defendants claim that their violations are “wholly past.” However, as Plaintiffs point out,
“Defendants do not argue that their Permit violations of copper and TSS are wholly past . . . as
they have admitted to violating their Permit for copper and TSS after Plaintiffs filed their
Complaint.” (Reply at 15.) With respect to lead, Plaintiffs state that “lead continues to appear in
Defendants’ effluent today. SSUF 69,” but there is no fact number 69 in their separate statement.
As for e. coli, fecal coliform, oil, and grease, Defendants claim to have used “employee training”
to prevent discharges. Defendants state that “the fact that years have gone by without incident
should create the inference that Magic Mountain LLC’s remedial actions are working.” (SurReply at 9.)
It is clear that the copper and TSS violations are not wholly past and, in fact, have been
continuing for quite some time, including in the February 2014 samples. (Docket No. 226, Exs.
A & B.) Defendants submit the Declaration of R. Bruce Thomas, a civil engineer with the
consulting firm that assists the facility in managing their legal obligations under the Clean Water
Act, who states that MMLLC “self-reported . . . elevated levels of TSS and Copper in
stormwater discharges that exceeded their NPDES numerical limitations in February 2014 as a
matter of extra precaution.” Thomas Decl. ¶¶ 1-3 (Docket No. 233-11). Thomas further states
that this self-reporting was “not an admission that [MMLLC’s] stormwater discharges were
regulated by its NPDES permits, but rather was done as a matter of being particularly cautious in
light of the ongoing litigation[.]” Id. ¶ 4. Thomas’ declaration does not create a genuine issue of
material fact because MMLLC’s motivations for reporting the exceedances are irrelevant to
whether elevated levels of TSS and copper were present. Liability should attach to the copper
and TSS violations.
It appears Plaintiffs omitted the evidentiary support for the continuing violation as to lead,
and therefore have not carried their burden on summary judgment as to lead. The discharges of
e. coli, oil, and grease appear to have been one-off violations that have not recurred since this
action was filed. The Court will not grant summary judgment as to liability for the discharges of
lead, e. coli, oil, and grease.
///

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UNITED STATES DISTRICT COURT
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CIVIL MINUTES - GENERAL
Case No.

CV 12-05600 GAF (MANx)

Date

Title

December 3, 2014

Wishtoyo Foundation v. Magic Mountain LLC et al
IV.
CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for partial summary judgment as to the
fourth cause of action is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.

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