California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc. et al

Filing 221

ORDER signed by Judge Garland E. Burrell, Jr on 8/14/15 GRANTING IN PART AND DENYING IN PART 165 and 174 Motions for Summary Judgment. (Meuleman, A)

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UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

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9
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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a nonprofit corporation,

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Plaintiff,

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No. 2:10-CV-01207-GEB-AC

ORDER GRANTING IN PART AND
DENYING IN PART EACH PARTY’S
SUMMARY JUDGMENT MOTION

v.
CHICO SCRAP METAL, INC., a
California corporation;
GEORGE SCOTT, SR.,
individually and as trustee
of GEORGE W. SCOTT, SR.
REVOCABLE INTER VIVOS TRUST
DATED SEPTEMBER 25, 1995,

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Defendants.

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19

Pending are cross motions for summary judgment on the

20

claims alleged in Plaintiff’s Third Amended Complaint (“TAC”)

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under the federal Clean Water Act (“CWA”) and California Health &

22

Safety Code section 25249.
II.

23

Defendants

24

“own
located

and/or
at

operate

1855

Kusel

the
Road

[scrap
in

metal

25

recycling]

26

California (‘the Facility’).” (Pl.’s SUF ¶¶ 1, 8, ECF No. 189.)

27

1

28

facility

UNCONTROVERTED FACTS1

Oroville,

The following facts concerning the motions are either admitted or
“deemed” uncontroverted since they have not been controverted with specific
facts as required by Local Rule 260(b).

1

1

“The [F]acility’s primary purpose is to receive, separate, and

2

ship recyclable . . . scrap metals, plastics, and CRV items

3

(bottles and cans). . . . The received materials are separated at

4

the facility, bailed and shipped.” (Packard Decl. Ex. SS, Resp.

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No. 12 p. 9, ECF No. 168-7.) The Facility has “stockpiles of

6

metal and other debris” and “[m]ost of the industrial activities

7

at the Facility occur outdoors.” (Pl SUF ¶ 11.) When it rains,

8

“[s]torm

9

activities is discharged from the Facility.” (Pl.’s SUF ¶ 10.)

water

associated

10

II.

11

with

[the

Facility’s]

industrial

LEGAL STANDARD

14

A party is entitled to summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to summary judgment as a
matter of law.” . . . The moving party has
the burden of establishing the absence of a
genuine dispute of material fact.

15

City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir.

16

2014) (quoting Fed. R. Civ. P. 56(a)) (citing Celotex Corp. v.

17

Catrett, 477 U.S. 317, 323 (1986)). “A fact is ‘material’ when,

18

under the governing substantive law, it could affect the outcome

19

of the case.” Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav.

20

Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.

21

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A “dispute about

22

a material fact is ‘genuine,’ . . . if the evidence is such that

23

a

24

party.” Anderson, 477 U.S. at 248. Summary judgment “evidence

25

must be viewed in the light most favorable to the nonmoving

26

party, and all reasonable inferences must be drawn in favor of

27

that party.” Sec. & Exch. Comm’n v. Todd, 642 F.3d 1207, 1215

28

(9th Cir. 2011) (citing Johnson v. Paradise Valley Unified Sch.

12
13

reasonable

jury

could

return

2

a

verdict

for

the

nonmoving

1

Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)).

2

A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by . . . citing to particular parts of
materials in the record . . . or . . .
showing that the materials do not establish
the absence or presence of a genuine dispute,
or that an adverse party cannot produce
admissible evidence to support the fact.

3
4
5
6
7

Fed. R. Civ. P. 56(c)(1).

8

However,
if
the
nonmovant
does
not
“specifically
.
.
.
[controvert
duly
supported] facts identified in the [movant’s]
statement of undisputed facts,” the nonmovant
“is deemed to have admitted the validity of
the
facts
contained
in
the
[movant’s]
statement.” Beard v. Banks, 548 U.S. 521, 527
(2006). A district court has “no independent
duty ‘to scour the record in search of a
genuine issue of triable fact.’”

9
10
11
12
13
14

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.

15

2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

16

1996)).

17

III. DISCUSSION

18

A.

Objections

19

1.

Rule 26

20

Each party objects to what it characterizes as expert

21

testimony evidence; Plaintiff moves to strike the declaration of

22

Bryan

23

Defendants

24

exhibits

25

support of Plaintiff’s motion.

Gartner

26

submitted

move

L-U

from

Each

27

Procedure

28

written

to

exclude
the

for

an

support

is

which

of

paragraphs

Declaration

objection

26(a)(2)(B),
report

in

made

of

3

13-22
John

under

requires

expert

Defendants’

witness

and
Lane

Federal
a

party
who

motion

the

and

attached

submitted

Rule
to

“is

of

in

Civil

disclose
retained

a
or

1

specially employed to provide expert testimony in the case;” the

2

report must include “a complete statement of all opinions the

3

witness will express and the basis and reasons for them; the

4

facts of data considered by the witness in forming them; [and]

5

any exhibits that will be used to summarize or support them.”

6

(emphasis added.)

7

Plaintiff argues the Gartner declaration offers expert

8

testimony

and

9

disclosing

his

10

declaration

does

11

discloses Gartner’s personal observations based on his work at

12

the Facility.

13

The

Defendants

opinions
not

behalf

earlier.

contain

Gartner

violated

Defendants

expert

declaration
of

Rule

and

the

instead

Gartner’s

work

15

Facility’s efforts to comply with a Department of Toxic Substance

16

Control Order. Plaintiff has not shown that the subject matter of

17

Gartner’s

18

requirements.

19

declaration is denied.

was

Therefore,

Defendants

argue

subject

to

Plaintiff’s

the

connection

not

conducted

declaration

in

by

counter

testimony

details

Defendants

26

14

20

on

therefore

Rule
motion

referenced

26’s

with

disclosure

challenging

portions

the

of

the

Lane’s

21

declaration should be excluded because they include new opinions

22

on

23

(“BMPs”).

the

adequacy

24

of

the

Facility’s

Best

Management

Practices

Plaintiff responds that although Lane was retained as

25

an

expert

on

26

Feather River, his factual statements regarding BMPs serve only

27

to authenticate Exhibits L-U, which are photographs he took of

28

the

Facility,

whether

and

discharges

therefore

the
4

from

the

Facility

referenced

reach

portions

of

the

his

1

declaration

2

Plaintiff argues that even though lane took the photographs he

3

has

4

photographs.

not

5

are

given

not

an

Exhibits

subject

opinion

L-U

the

based

attached

expert

on

to

Facility,

the

how

is

depicted

rule.

the

declaration

Lane

in

are

photographs

of

7

declaration

declare

8

photographs. Therefore, Defendants have not shown the referenced

9

portions

Lane’s

and

when

what

disclosure

6

of

the

to

and

declaration

are

the

subject

referenced

Rule

challenging

26’s

declaration is denied.

12

2.

13

Plaintiff submitted 126 evidentiary objections to the

14

content of the declarations Defendants submitted in support of

15

their motion and their opposition to Plaintiff’s motion. Each

16

objection has been considered. The objections are raised under

17

Federal

18

discussion in this Order infra herein reveals each objection is

19

either sustained or overruled.

21

motion

to

the

11

B.

their

took

of

disclosure

Rules

and

Lane

13-22

10

20

requirements

paragraphs

the

Evidentiary Objections to Declarations

of

Evidence

701,

703,

and/or

802,

and

the

Plaintiff’s Requests for Judicial Notice
Plaintiff

supports

its

motion

with

a

request

that

22

judicial notice be taken of exhibits A-N attached to its Request

23

for Judicial Notice (ECF No. 166), and supports its opposition to

24

Defendants’ motion with a request that judicial notice be taken

25

of exhibits A-B attached to a second Request for Judicial Notice.

26

(ECF NO. 182.) Defendants oppose judicial notice being taken of

27

exhibits C-F, I-K, and M-N that support Plaintiff’s motion and

28

exhibit A that supports Plaintiff’s opposition.
5

1

Each

document

for

which

Plaintiff

requests

judicial

2

notice is, with the exception of Exhibit I, a government record.

3

Government

4

“relevant to an[] issue” before the court. Flick v. Liberty Mut.

5

Fire Ins. Co., 205 F.3d 386, 392 n.7 (9th Cir. 2000) (“In this

6

case

7

because

8

appeal.”). Plaintiff has shown that each of these exhibits is

9

relevant

10

records

though,

we

the

to

are

deny

susceptible

such

[documents]

the

pending

a

are

to

request
not

motions.

judicial

[for

notice

judicial

relevant

to

Therefore,

any

its

when

notice],
issue

request

on

for

judicial notice of these exhibits is granted.

11

Plaintiff, however, has not shown Exhibit I, a report

12

created by a third-party titled “Lower Feather River HUC/Honcut

13

Creek Watershed, Existing Condition Assessment,” is susceptible

14

to judicial notice. Therefore, Plaintiff’s request for judicial

15

notice of Exhibit I is denied.

16

C.

17

Jurisdictional Issues
The

parties

concerning

seek

on

jurisdiction: whether Plaintiff has sufficiently established the

20

element of its CWA claims that requires it to show the discharges

21

about which it complains are into “navigable waters,” and whether

22

Plaintiff

23

lawsuit.

has

standing

subject

following

19

it

court’s

the

issues

established

federal

judgment

18

has

the

summary

to

matter

prosecute

this

24

1.

“Navigable Waters”

25

An essential element of Plaintiff’s CWA claims requires

26

it to show the pollutant discharges about which it complains were

27

discharged “into navigable waters [of the United States] without

28

a permit.” United States Dep’t of Energy v. Ohio, 503 U.S. 607,
6

1

611

2

‘waters

3

currently used, or were used in the past, or may be susceptible

4

to use in interstate or foreign commerce, including all waters

5

which are subject to the ebb and flow of the tide.”

6

328.3(a)(1). The Feather River is a navigable water of the United

7

States. See N. Bloomfield Gravel-Mining Co. v. United States, 88

8

F. 664, 665 (9th Cir. 1898) (finding the Feather River to be

9

navigable).

10

(1992).
of

Here
the

“[t]he

United

Plaintiff

[relevant

States’

argues

definition

means[:]

the

Facility

All

of

the]

waters

which

term
are

33 C.F.R. §

discharges

pollutants

11

into the Wyman Ravine, from which water flows into the Honcut

12

Creek and then into the Feather River, and that since the Wyman

13

Ravine is a tributary of the Feather River, it is considered

14

“navigable

15

uncontroverted

16

Creek, and Feather River are downstream from the Facility, and

17

that the Feather River specifically is 19 miles downstream of the

18

Facility. (Defs.’ SUF ¶¶ 21-23.)

19

waters”

of

facts

the

United

establish

States

that

the

under
Wyman

the

CWA.

Ravine,

The

Honcut

Plaintiff argues sufficient connectivity exists between

20

the

Facility

and

the

21

Facility’s

22

Plaintiff cites as support for its position, the report of its

23

geologist, John Lane, in which Lane opines that discharges from

24

the Facility flow into a ditch running parallel to Kusel Road and

25

then into an unnamed seasonal intermittent stream; and from the

26

stream, water flows for 1.5 miles before discharging into the

27

Wyman Ravine, which is hydrologically connected to Honcut Creek

28

and the Feather River. (Lane Decl. Ex. A pg. 4-5, ECF No. 170-1.)

pollutants

Feather

River

discharge

7

to

into

establish
“navigable

that

the

waters.”

1

Lane states in his report:

2

On April 4, 2011, [he] observed continuous
storm water flow from the Facility under
Kusel Road . . . into the unnamed seasonal
stream, past a stockpond approximately 30
feet in diameter and into Wyman Ravine. This
inspection was conducted from a helicopter
and the flight is documented in [photographs
attached to his report].

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Lane Decl. Ex. A p. 5, ECF No. 170-1.) Plaintiff argues Lane’s
report

demonstrates

the

Facility’s

pollutants

discharge

into

navigable waters since the Wyman Ravine is a tributary of the
Feather River, and under the CWA, tributaries of navigable waters
are themselves considered navigable waters. (Pl. Mot. 16:20-25.)
Defendants argue that Lane’s personal observations of
connectivity between the Facility and the Wyman Ravine are “pure
speculation”

since

Lane

“initially

provided

no

evidence

of

connectivity [and notwithstanding his deposition testimony that
he

observed

such

connectivity

and

took

photographs

of

his

observations,] the “photographs fail to establish a clear and
unbroken connection between the Facility and the Wyman Ravine.”
(Def. Mot. 17:5; 17:24-27.)
If
Facility’s

other

bodies

discharges

to

of

water

“seep

are

conduits

for

the

into

the

navigable

[Feather

River”],” and the Facility’s discharges “significantly affect the
physical, biological, and chemical integrity of the [Feather]
River,” then the Facility’s discharges are “subject to the CWA.”
N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 996 (9th
Cir. 2007) (interpreting Rapanos v. United States, 547 U.S. 715
(2006)). “Even . . . intermittent . . . [seepage is sufficient].”
Headwaters, Inc. v. Talent Irrigation Dist., 241 F.3d 526, 534
8

1

(9th Cir. 2001).

2

Since Plaintiff has shown discharges from the Facility

3

reach

the

Wyman

Ravine

and

the

Wyman

Ravine

seeps

into

the

4

Feather River, Plaintiff’s motion on this issue is granted and

5

Defendants’ motion is denied.

6

2.

7

Concerning the issue of standing, the uncontroverted

8

facts establish that Plaintiff California Sportfishing Protection

9

Alliance is a non-profit corporation. (Pl SUF ¶ 165.) A non-

10

profit organization “has standing to bring suit on behalf of its

11

members when [1] its members would otherwise have standing to sue

12

in their own right, [2] the interests at stake are germane to the

13

organization’s purpose, and [3] neither the claim asserted nor

14

the relief requested requires the participation of individual

15

members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw

16

Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Plaintiff

17

bears

18

indispensable

19

supported

in

20

plaintiff

bears

21

Wildlife, 504 U.S. 555, 561 (1992).

22

the

Standing

burden

of

part

of

the

same
the

establishing
the

standing,

plaintiff’s

way

as

burden

any

of

case,

other

proof.”

and
[it]

matter

Lujan

v.

on

as

“an

must

be

which

the

Defenders

of

Plaintiff satisfies the second and third elements of

23

organizational

standing

since

its

24

participation of individual members and the interests at stake

25

are germane to the organization’s stated purpose, which is “the

26

preservation of land and aquatic habitat for scientific, . . .

27

[and] recreational . . . opportunities.” (Pl.’s SUF ¶ 166.) The

28

parties dispute whether Plaintiff meets the first prong of the
9

claims

do

not

require

the

1

standing inquiry which requires Plaintiff to evince that one of

2

its members has standing to sue in his or her own right. To

3

establish individual standing:

4

First, the [member] must have suffered an
‘injury in fact’—an invasion of a legally
protected interest which is (a) concrete and
particularized and (b) actual or imminent,
not conjectural or hypothetical. Second,
there must be a causal connection between the
injury and the conduct complained of—the
injury has to be fairly traceable to the
challenged action of the defendant, and not
the result of independent action of some
third party not before the court. Third, it
must
be
likely,
as
opposed
to
merely
speculative,
that
the
injury
will
be
redressed by a favorable decision.

5
6
7
8
9
10
11
12

Lujan,

504

13

standing, Plaintiff presents three of its members as standing

14

witnesses:

15

(collectively

16

testimony regarding their use of the Feather River.

17

U.S.

Bill
the

at

560-61

Jennings,
“Standing

Defendants

argue

(emphasis

Jim

added).

Crenshaw,

Witnesses”),

Plaintiff

To

and
who

cannot

demonstrate

Chris

gave

Shutes

deposition

demonstrate

the

18

Standing Witnesses suffered an injury in fact fairly traceable to

19

Defendants’

20

deposition testimony of each Standing Witnesses reveals that none

21

of them have used either the Wyman Ravine or the Honcut Creek, as

22

required

23

Facility, and that the types of aesthetic and recreational harm

24

about which each Standing Witness complains is insufficient to

25

demonstrate an injury in fact. Jennings did not discuss the Wyman

26

Ravine during his deposition and could not recall spending time

27

at Honcut Creek, (Cannata Decl. ISO Def. Mot. Ex. D, 74:1-13;

28

77:10-13, ECF No. 195); and Crenshaw and Shutes each testified he

to

conduct.

show

an

Specifically,

injury

that

10

Defendants

is

fairly

argue

that

traceable

to

the

the

1

had never been on the Honcut Creek or the Wyman Ravine. (Cannata

2

Decl. ISO Def. Mot. Ex. B, 77:1-5, ECF No. 195; Cannata Decl. ISO

3

Def. Mot. Ex. F, 122:18-21; 155:21-156:1, ECF No. 195.)

4

Plaintiff

responds

that

the

Standing

Witnesses

5

“testified to historical and ongoing use of” the Feather River,

6

which

7

Defendants’ conduct since the Feather River is only 19 miles from

8

the

9

River

demonstrates

Facility.
is

19

The
miles

their

injuries

uncontroverted
downstream

of

are

facts
the

fairly

traceable

establish
Facility

the

and

to

Feather

that

the

10

Standing Witnesses each use the Feather River for aesthetic and

11

recreational purposes. (Defs.’ SUF ¶ 23; Pl.’s SUF ¶¶ 173-176.)

12

“[E]nvironmental plaintiffs adequately allege injury in

13

fact when they aver that they use the affected area and are

14

persons ‘for whom the aesthetic and recreational values of the

15

area will be lessened’ by the challenged activities.” Friends of

16

the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S.

17

167,

18

approximately 40 miles downstream” from the facility at issue,

19

but who stated their enjoyment of the land was diminished by the

20

defendant’s alleged discharge of mercury in violation of the CWA

21

“adequately documented injury in fact”).

183

(2000)

(finding

a

standing

witness

who

“canoed

22

The Standing Witnesses’ aesthetic and recreational use

23

of the Feather River evince that they have “reasonable concerns

24

about the effects of [Defendants’] discharges” on their interests

25

in the Feather River. Laidlaw, 528 U.S. at 184. Since the Feather

26

River is approximately 19 miles downstream from the Facility,”

27

(Defs.’ SUF ¶ 23), it is sufficiently close to the Facility to

28

demonstrate each Standing Witnesses’ injury is fairly traceable
11

1

to Defendants’ conduct. Laidlaw, 528 U.S. at 183. Therefore, on

2

this issue, Plaintiff’s motion is granted and Defendants’ motion

3

is denied.

4

D.

CWA Claims

5

The

parties

violating

9

Water

Permit

(the

“General

in

General

Permit”),

which

on

8

California’s

CWA,

judgment

alleges Defendants engaged in conduct proscribed by the CWA by
of

the

summary

7

terms

under

for

Plaintiff’s

the

alleged

move

6

10

claims

cross

Plaintiff

Industrial

which

Storm

Defendants

were

issued.

11

“The

Clean

Water

Act

prohibits

the

discharge

of

12

pollutants from a ‘point source’ into the waters of the United

13

States without a permit issued under the terms of the National

14

Pollution Discharge Elimination System [(“NPDES”)].” Envt’l Def.

15

Ctr., Inc. v. United States EPA, 344 F.3d 832, 841 (9th Cir.

16

2003). “The discharge of pollutants without an NPDES permit, or

17

in violation of a permit, is illegal.” Waterkeepers N. Cal. v. AG

18

Indus. Mfg., Inc., 375 F.3d 913, 915 (9th Cir. 2004). “An NPDES

19

permit serves to transform generally applicable effluent limits

20

and

21

individual discharger.” Envt’l Prot. Agency v. Cal. ex rel. State

22

Water Res. Control Bd., 426 U.S. 200, 205 (1976). NPDES permits

23

are issued by [the] EPA or States that have been authorized by

24

EPA to act as NPDES permitting authorities.” Envt’l Def. Ctr.,

25

Inc. v. US EPA, 344 F.3d 832, 841 (9th Cir. 2003).

26
27
28

other

standards

.

.

.

into

obligations

.

.

Much of the responsibility for administering
the
NPDES
permitting
system
has
been
delegated to the states. States may issue
individual permits to industrial discharges
or may cover many discharges under the terms
12

.

of

the

1

of one general permit. California has issued
a
general
permit
to
cover
industrial
discharges. In order to be covered under
California’s
General
Permit,
individual
dischargers must file a notice of intent with
the state.”

2
3
4
5

Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913, 915

6

(9th Cir. 2004). Defendants filed “a notice of intent” with the

7

California

8

approved on December 10, 2007. (Defs.’ SUF ¶¶ 1, 5, ECF No. 184.)

9

“Private citizens may sue under the Clean Water Act to enforce

10

the specific provisions of [the] California[] General Permit.”

11

Waterkeepers

12

1365(a)(1), (f)(6)).

Regional

N.

Water

Cal.,

Board

375

F.3d

(“Water

at

915

Board”),

(citing

33

which

was

U.S.C.

§

13

Plaintiff alleges Defendants violated the terms of the

14

General Permit as follows: (1) discharging contaminated storm

15

water contrary to Section C of the General Permit; (2) failing to

16

develop

17

Prevention Plan (“SWPPP”) contrary to Section A of the General

18

Permit;

19

Economically

20

Control Technology (“BCT”) contrary to Order B of the General

21

Permit; and (4) failing to implement an adequate Monitoring and

22

Reporting Plain (“MRP”) contrary to Section B of the General

23

Permit.

and

(3)

implement

failing

an

to

Achievable

adequate

implement

Storm

Best

(“BAT”)/Best

Water

Pollution

and

Available

Technology

Conventional

Pollutant

24

1.

Storm Water Discharges

25

Both parties seek summary judgment on Plaintiff’s claim

26

that Defendants violated Section C of the General Permit 131

27

times by failing to submit a report to the Water Board when the

28

Facility’s storm water discharges contained levels of copper,
13

1

lead,

2

standards.

and/or

3

5
6

excess

of

the

applicable

water

quality

(General Permit Pg. 4.) However, Section C(3) states:

8

A Facility operator will not be in violation
of [Section] C.2. as long as the facility
operator has implemented BMPs that achieve
BAT/BCT and . . . [t]he facility operator ...
submit[s]
a
report
to
the
appropriate
Regional Water Board that describes the BMPs
that are currently being implemented and
additional BMPs that will be implemented to
prevent or reduce any pollutants that are
causing or contributing to the exceedance of
water quality standards.

9
10
11
12
13
14

in

Section C(2) of the General Permit states in part:
Storm water discharges . . . shall not cause
or contribute to an exceedance of any
applicable water quality standards contained
in a Statewide Water Quality Control Plan or
the applicable Regional Water Board’s Basin
Plan.

4

7

zinc

(General Permit p. 4.) Section C(4) states:

15

[the referenced report must be submitted to
the Water Board] within 60 days after either
the Facility operator or the . . . Water
Board determines that discharges are causing
or contributing to an exceedance of an
applicable water quality standard.

16
17
18
19

(General Permit pgs. 4-5.) The uncontroverted facts establish

20

that Defendants did not submit a report to the Water Board in

21

response to a storm water discharge exceeding an applicable water

22

quality standard. (Pl.’s SUF ¶ 164.)

23

Plaintiff argues the California Toxic Rules standards

24

(“CRT standards”) are “an[] applicable water quality standard”

25

under the General Permit, and that samples of water discharged

26

from the Facility on 131 occasions show levels of copper, lead,

27

and/or zinc in excess of the CTR standards. (See Pl.’s SUF ¶¶

28

115-163.)
14

1

The

CTR

“promulgates

criteria

for

priority

toxic

2

pollutants for the State of California.” 40 C.F.R. 131.38. For

3

storm water discharges, the following pollutant concentrations

4

apply:

5

Copper: 0.013 mg/L

6

Lead: 0.065 mg/L

7

Zinc: 0.12 mg/L

8

Id.

9

Defendants argue the CTR standards are inapplicable to

10

the Facility and therefore they were not required to report to

11

the Water Board each time a sample revealed levels of copper,

12

lead, and/or zinc in excess of the CTR standards. Defendants

13

further argue that even if they were required to report such

14

discharges, Plaintiff has not presented evidence demonstrating

15

that a portion of the 131 water samples Plaintiff references

16

represent the Facility’s water quality since Plaintiff has not

17

shown that the samples came from inside the Facility.

18

Plaintiff argues that by failing to file reports with

19

the Water Board, Defendants violated section C2 of the General

20

Permit,

21

Inc.(“Kramer”), 619 F. Supp. 2d 914 (C.D. Cal. 2009), in support

22

of their position. In Kramer a plaintiff sued a scrap metal

23

recycling facility contending its storm water discharge samples

24

contained levels of chemicals exceeding the CTR, and contended

25

since defendant failed to report the excess levels to the Water

26

Board, it violated Section C of the General Permit. Id. at 926.

27

The Kramer defendant countered that the General Permit did not

28

require it to report violations of the CTR standards. The Kramer

citing

Santa

Monica

Baykeeper

15

v.

Kramer

Metals,

1

court disagreed, stating “the [CTR standard] is a water quality

2

standard that applies to [Defendant].” Id. The court reasoned

3

that “[t]he CTR [standards] expressly appl[y] to ‘all waters’ for

4

‘all purposes and programs under the Clean Water Act’” and that

5

storm water discharges are “regulated by the General Permit,”

6

which requires “adherence to water quality standards,” including

7

the CTR standards. Id. at 927.

8

Defendants argue Kramer was wrongly decided and that

9

the “CTR’s criteria . . . are not applicable to storm water

10

discharges . . . and do not establish compliance or noncompliance

11

with the General Permit,” relying primarily on Divers’ Envt’l

12

Conservation Org. v. State Water Res. Control Bd., 145 Cal. App.

13

4th 246, 256 (2006), EPA statements, and statements from a Water

14

Board employee. In Divers, the California Court of Appeal stated:

15

“In

16

expressed a preference for doing so by way of BMP’s rather than

17

by

18

limitations.” Defendants also cite to an EPA report entitled,

19

“Economic Analysis of the California Toxic Rules,” in which the

20

EPA states “[t]he State of California has significant flexibility

21

and discretion as to how it chooses to implement the CTR within

22

the NPDES permit program,” and argue therefore the CTR standards

23

were not meant to constitute a per se violation of the General

24

Permit.

25

Water Board scientist Scott Zaitz gave deposition testimony that

26

to his knowledge the CTR are not part of the General Permit.

27

(Cannata Opp’n Decl. Ex. A 135:14-22, ECF No. 195-1.)

28

regulating

way

of

(Def.

storm

water

imposing

Opp’n

.

.

permits

.

17:16-18.)

the

water

EPA

has

repeatedly

quality-based

Defendants

further

numeric

argue

that

Plaintiff replies that Divers is inapposite since the
16

1

Divers

2

Defendants’

reliance

3

support

.

4

inapplicable to facilities covered by the General Permit]” since

5

Kramer “specifically rejected the argument that Defendants repeat

6

here.” (Pl. Reply 10:6-8; 9:16-19.) Plaintiffs also respond that

7

Defendants citation to Zaitz’s testimony is unpersuasive since he

8

was “not speaking on behalf of the Water Board” and his testimony

9

“relates solely to his own practice.” (Pl. Reply 10:22-23; 11:3-

10

court

.

was

.

not

analyzing

on

the

the

Economic

EPA’s

conclu[ding]

that

General

the

Permit,

report

CTR

and

“does

not

[standards

are

4.)

11

CTR standards state:

12

17

[The] EPA . . . promulgate[d] [the standards]
to fill a gap in California water quality
standards that was created in 1994 when a
State court overturned the State’s water
quality control plans which contained water
quality
criteria
for
priority
toxic
pollutants. Thus, the State of California has
been without numeric water quality criteria
for
many
priority
toxic
pollutants
as
required by the [CWA], necessitating this
action by [the] EPA.

18

65 Fed. Reg. 31682. Kramer states the CTR “is a water quality

19

standard [as the phrase is used] in the General Permit, [Section]

20

C(2).” 619 F. Supp. 2d at 927.

13
14
15
16

21

The

uncontroverted

facts

establish

Defendants

never

22

submitted a report to the Water Board in response to receiving a

23

storm

24

quality

25

Defendants

26

standards, they violated Section C of the General Permit.

water

27
28

discharge

standard.
received

sampling

(Pl.’s

SUF

sampling

result
¶

that

164.)

results

violated

Therefore,

in

excess

a

each
of

the

water
time
CTR

Plaintiff argues Defendants violated Section C of the
General

Permit

131

times.

Plaintiff
17

argues

Defendants’

own

1

samples reveal sixty-five instances where the level of copper,

2

lead, and/or zinc exceeded the CTR standards, (Pl.’s SUF ¶¶ 118-

3

128, 133, 136, 139, 140, 151-159, 163), and additional samples

4

taken by third-parties reveal sixty-six other instances where the

5

level of copper, lead, and/or zinc exceeded the CTR standards.

6

(Pl.’s SUF ¶¶ 115-117, 129-132, 134-135, 137-138, 141-150, 157,

7

160-162.)

8

Since the evidence concerning the sixty-five samples

9

Defendants collected and analyzed is uncontroverted, Plaintiff’s

10

motion concerning these samples is granted and Defendants’ motion

11

is denied. Defendants also do not dispute the sample results

12

taken on December 11, 2014 from SWSL2, at 9:10 AM and 2:50PM,

13

which evince four additional violations. (Pl.’s SUF ¶¶ 160-161.)

14

Therefore, Plaintiff’s motion as to these samples is granted and

15

Defendants’ motion is denied.

16

Defendants argue that Plaintiff fails to demonstrate

17

the

remaining

samples

taken

represent

18

Facility’s storm water discharges since it is not evident that

19

the samples were taken from the Facility or from an outside

20

source; Defendants argue the analysis of this comingled storm

21

water would not accurately reflect the levels of copper, lead,

22

and/or zinc in the Facility’s discharges, and therefore unless

23

Plaintiff can identify the source of the remaining water samples,

24

it cannot succeed on its claims based thereon. (Pl.’s SUF ¶¶ 115-

25

117, 129-132, 134-135, 137-138, 141-150, 157.) Plaintiff fails to

26

present evidence that sufficiently identifies the origin of the

27

remaining water samples and consequently has not met its burden

28

to show these samples are the Facility’s discharges. Therefore,
18

the

quality

of

the

1

each

2

denied.

motion

concerning

the

remaining

sixty-two

violations

is

3

2.

Storm Water Pollution Prevention Program (“SWPPP”)

4

The

parties

cross

move

for

summary

judgment

on

5

Plaintiff’s claim that Defendants violated the General Permit by

6

failing

7

Pollution Prevention Program (“SWPPP”).

8

to

develop

and

implement

an

adequate

Storm

Water

14

[T]he General Permit requires that permittees
develop and implement a [SWPPP] that meets
certain requirements. The SWPPP has two major
objectives: (1) to identify and evaluate
sources of pollutants and (2) to identify and
implement site-specific BMPs to reduce or
prevent pollutants associated with industrial
activities in storm water discharges. Section
A of the General Permit catalogues with
significant detail what an SWPPP must contain
to comply with the General Permit. A SWPPP
must contain [inter alia] . . . maps
(including a site map).

15

Kramer Metals, Inc., 619 F. Supp. 2d at 920. Plaintiff alleges

16

Defendants violated the General Permit since 1989 because from

17

1989-2007 the Facility did not have a SWPPP and the site maps on

18

the SWPPPs the Facility eventually created are missing required

19

information.

9
10
11
12
13

20

a.

Failure to Develop a Site Map

21

Plaintiff argues Defendants violated Section E(2) of

22

the General Permit from the time the Facility opened until 2007

23

since it is uncontroverted that the Facility “did not develop any

24

SWPPP” prior to 2007. (Pl SUF ¶ 15.) Section E(2) of the General

25

Permit

26

implement a SWPPP in accordance with [S]ection A of this General

27

Permit when the industrial activities begin.” (General Permit

28

p.6.)

states:

“Facility

operators

19

.

.

.

must

develop

and

1

Defendants
to

5

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,

6

484 U.S. 49 (1987). (Def. Opp’n 23:23-24.)

requires

“that

9

continuous

citizen-plaintiffs

or

intermittent

Court

its

SWPPP

therefore summary judgment in their favor is warranted, citing

Supreme

filed

a

4

the

[Plaintiff]

created

Plaintiff’s claim “is based on a wholly past violation,” and

Gwaltney,

which

they

3

8

on

since

“prior

In

date

that

2

7

the

respond

held

allege

a

violation—that

lawsuit,”

that

state
is,

the

of

a

CWA

either

reasonable

10

likelihood that a past [violator] will continue to [violate the

11

CWA]

12

violations” cannot support a citizen-plaintiff’s claim under the

13

CWA. Gwaltney, 489 U.S. at 57-58.

in

14

the

future,”

and

that

evidence

of

“wholly

past

Plaintiff filed its initial complaint in this action on

15

March

16

evince

17

initiating this lawsuit, Plaintiff’s claim against Defendants for

18

failing to create a SWPPP alleges a “wholly past violation” for

19

which a citizen-plaintiff cannot sue.

20

Therefore,

21

Defendants’ motion is granted.

22

17,

2010.

that

(ECF

Plaintiff’s

1.)

Since

created

Defendants

b.

23

No.

a

motion

on

the

SWPPP

uncontroverted
prior

to

facts

Plaintiff

Gwaltney, 489 U.S. at 58.

this

issue

is

denied

and

Failure to Include Required Information

Plaintiff

also

alleges

the

Facility’s

SWPPPs

are

24

inadequate since the SWPPP site maps are missing the following

25

required information: (1) points of discharge from the Facility,

26

(2)

27

discharge, (3) portions of the Facility’s drainage areas that are

28

impacted by run-on from the surrounding area, and (4) areas of

structural

control

measures

20

that

affect

storm

water

1

soil erosion.

2

///

3

i.

Points of Discharge

4

Plaintiff argues Defendants violated Section A(4) of

5

the General Permit since “the Facility discharges storm water

6

from the West Gate and from the Southern property boundary, [but]

7

neither of these discharge points have ever been identified [on

8

the SWPPP site map]” as required by Section A(4). (Pl. Mot. 7:14-

9

16 (emphasis added).) Plaintiff supports its position citing the

10

uncontroverted facts that “[t]he Facility maps attached to the

11

2008, 2010, 2012, and 2013 SWPPPs do not identify the West Gate

12

or

13

discharge points.” (Pl.’s SUF ¶ 16.)

the

west

14

end

of

the

property’s

southernmost

boarder

as

Section A(4) of the General Permit states the SWPPP’s

15

site

map

shall

include:

“[t]he

location

of

the

storm

water

16

collection and conveyance system, associated points of discharge,

17

and direction of flow.” (General Permit p. 14 (emphasis added).)

18

Defendants respond they did not violate Section A(4) of

19

the General Permit by failing to list the referenced locations as

20

points of discharge since the locations are “not part of [the

21

Facility’s] storm water collection and conveyance system.” (Def.

22

Opp’n

23

Declaration of Kim Scott, the Facility’s Environmental and Safety

24

Coordinator, who declares the referenced points of discharge “are

25

not

26

system.” (K. Scott Decl. Opp’n ¶ 4, ECF No. 194.)

25:1-2.)

part

of

the

Defendants

Facility’s

support

storm

this

water

argument

collection

citing

the

conveyance

27

Plaintiff replies that Defendants cannot explain why

28

the referenced discharge points “are not part of [the Facility’s]
21

1

storm water conveyance system,” but provides no evidence to rebut

2

Scott’s averment. (Pl. Reply 14:11-26.)

3

Section A(4) of the General Permit does not require

4

SWPPP site maps to include points of discharge that are not

5

associated

6

conveyance system, and the Scott Declaration evinces that the

7

West Gate and the Southern property boundary are not part of the

8

Facility’s

9

Therefore,

10

with

storm

a

facility’s

water

Plaintiff’s

storm

collection

motion

on

water

and

this

collection

conveyance
issue

is

and

system.

denied

and

Defendants’ motion is granted.

11

ii.

Structural Control Measures

12

Plaintiff argues Defendants violated Section A(4) of

13

the General Permit since the Facility’s “SWPPPs call for straw

14

wattles and absorptive socks to be placed around the large . . .

15

scrap metal piles at the Facility,” yet “none of these structural

16

BMPs have ever been identified on any of the Facility maps” as

17

required by Section A(4). Plaintiff supports its position citing

18

the uncontroverted facts that the SWPPPs identify straw wattles

19

and absorbent socks as BMPs used at the Facility, yet “no straw

20

wattles or absorbent socks have ever been identified on any of

21

the Facility’s SWPPP [site] maps.” (Pl.’s SUF ¶¶ 20-21.)

22

Section A(4) of the General Permit states in part that

23

the site map shall include: “any structural control measures that

24

affect storm water discharges.” (General Permit p. 14.)

25

Defendants respond that Section A(4) of the General

26

Permit

did

not

require

27

absorbent socks on the SWPPP site maps since

28

considered

structural

them

BMPs

to

(rather
22

identify

they

straw

are

wattles

or

these “are not
considered

non-

1

structural BMPs).” (Def. Opp’n 25:25-26:2.) Defendants cite in

2

support

3

Defendants’ expert geologist, where he avers straw wattles and

4

absorbent

5

permanent,” and “must be periodically replaced.” (Brown Decl.

6

Opp’n Pl. Mot. ¶ 6, ECF No. 192.) Brown also declares “[s]traw

7

wattles

8

“[a]bsorbent socks are primarily used as part of spill clean-up

9

equipment.” (Brown Decl. Opp’n Pl. Mot. ¶¶ 4-5, ECF No. 192.)

of

their

socks

are

10

position

are

are

averments

non-structural

primarily

Plaintiff

the

used

replies

structural

to

that

since

prevent

straw

Brown,

are

not

erosion,”

and

and

absorptive

socks

12

Defendants

13

“Defendants’ expert . . . conceded that the straw wattles and

14

absorptive

15

15:10-11.) However Plaintiff’s purported support does not address

16

the distinction between structural and non-structural BMPs.

socks

identified

are

than

“they

soil

wattles

Damon

11

have

rather

BMPs

from

them

non-structural

BMPs

such

SWPPPs

as

structural.”

(Pl.

in

their

Mot.

7:16;

Pl.

since
and

Reply

17

The General Permit states structural BMPs “generally

18

consist of structural devices that reduce or prevent pollutants

19

in

20

discharges.” (General Permit p. 21.)

21

Permit

22

processes, prohibitions, procedures, schedule[s] of activities,

23

etc.,

24

activities

25

authorized non-storm water discharges. They are considered low

26

technology,

27

Non-structural BMPs can include “spill clean-up procedures” and

28

“sediment and erosion control activities.” (General Permit p. 19-

storm

water

states

that

discharges

that

prevent
from

and

non-structural

pollutants

contacting

cost-effective

with

authorized

23

water

In contrast, the General

BMPs

“generally

associated
storm

measures.”

non-storm

water

(General

with

consist

of

industrial

discharges

Permit

p.

and

19.)

1

20.)

2

Section A(4) of the General Permit does not require a

3

site map to include non-structural BMPs, and averments in Brown’s

4

declaration evince that straw wattles and absorptive socks are

5

non-structural

6

controverted Defendants’ evidence, its motion on this issue is

7

denied and Defendant’s motion is granted.

BMPs.

8

Since

Plaintiff

has

not

sufficiently

iii. Drainage Areas Impacted by Run-On

9

Plaintiff argues Defendants violated section A(4) of

10

the General Permit because “the Facility has historically been

11

subject

12

facility at the southeast corner, causing [water] pooling, [but]

13

neither this run-on nor its associated discharge[s] have ever

14

been identified on any of the Facility’s site maps” as required

15

by the General Permit. (Pl. Mot. 7:20-22.) Plaintiff supports its

16

position citing deposition testimony of Kim Scott, Jihan Gray,

17

and

18

discusses

19

(“Apex”). (Pl.’s SUF ¶ 22.)

to

significant

Defendants’

storm

expert

run-on

from

water

geologist
an

run-on

Damon

adjacent

from

Brown,

facility

in

named

an

adjacent

which
Apex

each

Lumber

20

Section A(4) of the General Permit states that site

21

maps shall include “portions of the drainage area impacted by

22

run-on from surrounding areas.” (General Permit p. 13.)

23

Defendants

argue

they

were

not

required

to

include

24

references to run-on at the southeast corner of the Facility on

25

the SWPPP site map since “there is typically no run-on in that

26

area”

27

during

28

repaired.”

and
the

the

occasions

“breach
(Def.

of

Opp’n

a

where
berm

run-on

has

.

[that]

.

27:22-25.)
24

.

occurred,

Defendants

was

happened

immediately

support

their

1

position

2

declaration:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

citing

the

following

averments

in

Kim

[The Facility] is bordered on the south and
southeast by a facility called Apex Lumber, a
logging and forestry equipment sales company.
During the 2008-2009 and 2009-2010 storm
seasons, there was no run-on from the Apex
facility . . . because, at that time, [the
Facility] had large work product piles
[preventing run-on]. . . .
Prior to the
2010-2011 storm season, [the Facility] moved
the work product piles. . . . [and] Apex
agreed to, and did, create a small pond on
the Apex facility . . . to eliminate run-on
.... Unfortunately, during the course of the
2010-2011 storm season, I noticed slight runon from Apex on at least one occasion. . . .
Apex then agreed to, and did create a
trenched and bermed area near the southern
fence line between the Facility and Apex
prior to the 2011-2012 storm season. [The
Facility] personnel inspected this southern
fence line/south-eastern corner on a weekly
basis during the 2011-2012 and 2012-2013
storm seasons. Those inspections revealed no
run-on from Apex to the Facility. During the
2013-2014 storm season . . . we experienced a
significant storm event that overwhelmed the
BMPs that we had in place near the southern
fence line. . . . I noticed a breach of our
bermed area . . . . [which] appeared to
create either runoff or run-on or both (it
was difficult to determine) between [the
Facility] and Apex (basically storm water
pooled in this area). I immediately worked
with a team to place sandbags and hay bales
in this area to close off this area of
comingled storm water. As a result, during
the summer of 2014, in advance of the 20142015 storm season, [the Facility] implemented
[a BMP] intended to improve the elevation of
the
southern
border
and
eliminate
the
potential of run-on from Apex . . . , [which
has] worked . . . meaning that it is
effectively preventing . . . run-on at the
southern border. . . . Because the issue of
run-on . . . at the southern end of the
Facility was both unintended and immediately
repaired (during the storm), I did not
include reference to run-on from Apex on [the
Facility’s] site map(s).”
(K. Scott Decl. in Opp’n Pl. MSJ ¶¶ 6-7, ECF No. 194.)
25

Scott’s

1

Scott’s averments evince that the Facility experienced

2

run-on from Apex Lumber at the southeast corner during the 2010-

3

2011 and 2013-2014 storm seasons, which was not referenced on the

4

SWPPP site maps; however, Section A(4) of the General Permit

5

requires site maps to identify “portions of the drainage areas

6

impacted by run-on from surrounding areas.” (General Permit p.

7

13.) Therefore, Plaintiff’s motion on this issue is granted and

8

Defendants’ motion is denied.

9

iv.

Areas of Soil Erosion

10

Plaintiff argues Defendants violated Section A(4) of

11

the General Permit because “more than half of the Facility is

12

covered in pervious soil, [yet] none of the [SWPPP site] maps

13

identify any ‘areas of soil erosion’ as required by [Section A(4)

14

of] the [General] Permit.” (Pl. Mot. 8:1-3.) Plaintiff supports

15

its position citing the uncontroverted facts that the Facility

16

contains some amount of pervious soil and “Defendants’ expert has

17

admitted that none of the Facility [SWPPP site] maps identify any

18

‘areas of soil erosion.’” (Pl.’s SUF ¶¶ 26-27.)

19

Section A(4) of the General Permit states in part that

20

site

maps

shall

include

“[the]

direction

and

flow

of

each

21

drainage area, on-site surface water bodies, and areas of soil

22

erosion.” (General Permit p. 13 (emphasis added).)

23

Defendants respond that the Facility “does not have any

24

areas of soil erosion” and “[j]ust because there is dirt on the

25

Facility

26

contending that “[f]actors such as slope, elevation, compactions,

27

vegetation, place[ment] of straw wattles, and related BMPs impact

28

the potential for erosion.” (Def. Opp’n 29:19-20; 29:25-30:1.)

does

not

mean

that

there

26

will

be

soil

erosion[,]”

1

Defendants support their position citing the declaration of Damon

2

Brown, in which he avers that “the Facility does not have [areas

3

of soil erosion], and thus they are not required to be listed on

4

the [SWPPP site maps].” (Bond Decl. ISO Def. Mot. ¶ 30, Exs. P,

5

Q, ECF No. 181.)

6

Plaintiff replies that it is unlikely that the Facility

7

has no areas of soil erosion since “over half of the Facility is

8

unpaved and covered with dirt,” and asserts that Defendants “have

9

historically

had

problems

controlling

their

Total

Suspended

10

Solids (“TSS”)” levels, which indicates that solids such as soil

11

are present in the Facility’s storm water discharges. Plaintiff

12

supports

13

Report,

14

locations

15

respectively. (Packard Decl. Ex. Q, CSM 004357, ECF No. 168-4.)

its

argument

which
at

citing

indicates
the

the

that

Facility

Facility’s

water

showed

2009-2010

samples

697

mg/L

taken

and

802

Annual

from

two

mg/L

TSS

16

It is uncontroverted that the Facility contains some

17

pervious soil. (Pl.’s SUF ¶ 26.) Further, although Defendants’

18

expert opines the Facility contains no areas of soil erosion, the

19

Facility’s 2009-2010 Annual Report TSS levels support drawing the

20

reasonable inference that soil from the Facility is eroding into

21

the

22

solid

23

motion on this issue is denied.

24

Facility’s

water

particles

3.

discharges

suspended

in

since

the

the

TSS

discharges.

level

measures

Therefore,

each

Best Available Technology Economically Achievable

25

(“BAT”)/Best Conventional Pollution Control

26

Technology (“BCT”)

27
28

The

parties

cross

move

for

summary

judgment

on

Plaintiff’s claim that Defendants violated General Permit Order
27

1

B(3),

2

covered by this General Permit must reduce or prevent pollutants

3

associated with industrial activity in storm water discharges...

4

through

5

pollutants and BCT for conventional pollutants.” (General Permit

6

p.

7

BAT/BCT in 33 U.S.C. § 1314 (b)(2)(B) as follows:

4

8

which

states

in

implementation

(emphasis

pertinent

of

added).)

BAT

The

part

for

CWA

“[f]acility

toxic

and

discusses

operators

non-conventional

the

assessment

of

Factors relating to the assessment of [BAT]
... shall include consideration of the total
cost of application of technology in relation
to the effluent reduction benefits to be
achieved from such application, and shall
also take into account the age of equipment
and
facilities
involved,
the
process
employed, the engineering aspects of the
application of various types of control
techniques,
process
changes,
non-water
quality
environmental
impact
(including
energy requirements), and such other factors
as the Administrator deems appropriate.

9
10
11
12
13
14
15

“[T]he factors for assessing BCT are defined at 33

16

U.S.C. §1314(b)(4)(B) and are similar.” Cal. Sportfishing Prot.

17

Alliance v. Cal. Ammonia Co., No. CIV S-05-0952 WBS JMF, 2007 WL

18

273847, at *7 (E.D. Cal. Jan. 29, 2007).

19

Plaintiff

makes

six

arguments

concerning

Defendants’

20

failure to implement BAT/BCT: (1) storm water discharge samples

21

reveal

22

Defendants have not provided covered storage for the Facility’s

23

waste piles; (3) Defendants have not implemented modern sweeping

24

technology; (4) Defendants failed to use appropriate filtration

25

media; (5) Defendants failed to properly design and size the

26

filtration

27

implement BMPs to address dissolved metals.

28

chemical

units

a.

levels

they

do

in

excess

use;

and

of

(6)

EPA

benchmarks;

Defendants

(2)

failed

Chemical Levels in Excess of EPA Benchmarks
28

to

1

Plaintiff argues Defendants have not achieved BAT/BCT

2

since the Facility’s discharges reveal levels of chemicals in

3

excess of the EPA benchmark levels, which is a per se violation

4

of the General Permit. Plaintiff supports its position citing a

5

compilation

6

discharge sample results exceed the EPA benchmark for aluminum

7

iron, and zinc. (Gray Decl. Ex. G, ECF No. 177-1.)

chart

which

shows

the

Facility’s

storm

water

8

Defendants respond that discharge levels in excess of

9

the EPA benchmark levels are only circumstantial evidence that

10

the Facility failed to implement BAT/BCT, and contend Plaintiff

11

has not shown the referenced water samples were taken from the

12

Facility. (Def. Mot. 27:24-25.) Defendants argue if the samples

13

were taken from an outside source, the results may not represent

14

the Facility’s discharges, and therefore Plaintiff has not shown

15

the Facility violated the General Permit.

16

Plaintiff has not presented evidence identifying the

17

source of the referenced water samples. Therefore, each motion on

18

this issue is denied.

19

b.

20

Covered Storage

Plaintiff

argues

Defendants

have

not

implemented

21

BAT/BCT at the Facility since “Defendants[] [have identified in]

22

SWPPPs . . . stockpiles of . . . metals stored at the Facility as

23

pollutant

24

covered . . . to prevent storm water contact.” Plaintiff contends

25

that as a result, “storm water washes through and across the

26

[metal] stockpiles, collecting finely divided toxic heavy metal

27

particulates and sediment, before discharging from the Facility.”

28

(Pl.

Mot.

sources,”

8:10-13.)

but

these

Plaintiff
29

stockpiles

supports

“ha[ve]

its

[not

position

been]

citing

1

Defendants’ SWPPPs, which list areas of exposed scrap metal as a

2

source of potential pollutants at the Facility, (Packard Decl.

3

Ex. G CSM 000307; Ex. I CSM 000497, ECF Nos. 186-1, 186-2), and

4

the undisputed facts establishing that some of the Facility’s

5

metal stockpiles are not covered. (Pl.’s SUF ¶ 29.)

6

Defendants

respond

that

the

Facility

is

adequately

7

managing its metal stockpiles since water that washes across the

8

stockpiles “encounter[s] [a] myriad [of tools] aimed at filtering

9

sediment.” (Def. Opp’n 31:2-3.) Defendants support their position

10

citing

11

prevents pollutants from leaving the Facility when storm water is

12

discharged through “daily sweeping, two bio-swales, sand filters,

13

vegetated filters, straw wattles & blankets, absorbent socks,

14

berms & grading to direct flow, gravel & baserock to filter storm

15

water, tanks to capture the storm water before it discharges, and

16

a filtering drain inlet box.” (K. Scott Decl. ¶ 8, ECF No. 194.)

17

Kim

Scott’s

The

declaration,

uncontroverted

where

facts

she

avers

establish

the

that

Facility

some

of

18

Defendants’ metal stockpiles are uncovered; but it has not been

19

shown that covering the stockpiles is necessary in light of how

20

the stockpiles are managed. Therefore each motion is denied on

21

this issue.

22

c.

Modern Sweeping Technology

23

Plaintiff argues the technology Defendants use to trap

24

and capture pollutants before they are released in the Facility’s

25

storm water discharges has not achieved BAT/BCT, contending:

26
27
28

Defendants use [1950’s era] “drum” or “brush”
sweepers
on
the
Facility’s
impervious
surfaces, [and] this . . . technology . . .
has been surpassed by a new generation of
“regenerative” sweepers that use a pulse of
30

1

air to dislodge particulate matter together
with vacuum hoses to capture and hold fine
particulate.

2
3
4
5
6
7
8
9
10
11
12
13
14
15

(Pl.

Mot.

argues

Defendants

should

have

“a number of locations [where] . . . distinctly visible piles and
rows of fine particulate matter remained on the surface of the
Facility” after sweeping. (Pl. Mot. 8:24-26.) Plaintiff cites the
uncontroverted
sweepers,

fact

(Pl.’s

that

SUF

¶

Defendants
33),

and

use
the

“drum”
rebuttal

or

“brush”

report

of

Plaintiff’s expert geologist, Steven Bond, in which he opines
“the Facility’s sweeping procedures and the sweeping equipment
are wholly inadequate to prevent metal particulates and other
debris on the Facility from coming into contact with storm water
and discharge[s] from the Facility.” (Bond Decl. Ex. B. p 16, ECF
No. 167-1.) Specifically Bond declares:
On the . . .
September [18,] 2014 site
inspection, portions of the Facility had
recently been swept[,] . . . [however] large
portions of the concrete pad [were] . . .
left unswept and covered in layers of [debris
such that] . . . areas of dirt, finely
divided metal particulate, and debris [were]
exposed to rainfall and . . . to storm water
runoff . . . . [Defendants’ sweepers are] not
effective at removing the fine particulate
materials from within the cracks, joints, and
fissures of the concrete pavement. Further,
[they] obviously cannot sweep close to or
within the piles or under bins, leaving large
portions of the Facility processing areas
unswept.

17
18
19
20
21
22
23
24

(Bond Decl. Ex. B. p. 16, ECF No. 167-1.)

26
27

Plaintiff

implemented this new technology since Plaintiff has documented,

16

25

8:20-23.)

Defendants
averments

from

Damon

counter,
Brown’s

citing

the

declaration:

28
31

following
Defendants

quoted
are

not

1

required to use the “regenerative sweepers” Plaintiff references

2

since

3

“keeping the soil at the site for managed reuse [as they can with

4

the

5

environment than sending [the soil] into the waste stream” as

6

would happen if the Facility used a regenerative sweeper. (Brown

7

Decl. ¶ 33, ECF No. 181.) Defendants further rejoin that the

8

Facility

9

concerns regarding Bond’s September 18, 2014 visit are “of no

10

consequence” since that was “a dry, hot day and no rain was

11

forecasted,” and the Facility “engage[s] in much more careful and

12

elaborate sweeping on days on which rain is forecasted.” (Def.

13

Opp’n 32:3-14.) Defendants also rely on the following averments

14

from the Declaration of Jihan Gray, the Facility Manager, who

15

avers that between 2007-2008, the Facility “implemented and/or

16

engaged in . . . daily sweeping near scrap metal piles.” (Gray

17

Decl. ¶ 3, ECF No. 177.) Defendants also cite the portion of Kim

18

Scott’s

19

“prior to [Plaintiff’s September 18, 2014] inspection, [but the

20

Facility] did not perform the very thorough sweeping inspection

21

that

22

forecasted.” (K. Scott Decl. ¶ 9, ECF No. 194.)

23
24
25

their

drum

it

current

and

brush

“engages

protocol

sweepers]

in

declaration,

typically

sweeping

daily

where

does

more

sweeping”

she

prior

is

avers

to

or

“is

effective,”

beneficial

and

the

on

that

Facility

a

day

and

to

the

Plaintiff’s

was

when

swept

rain

is

In light of the disputed factual issues each motion on
this issue is denied.
d.

Appropriate Filtration Media

26

Plaintiff argues the Facility currently uses sand in

27

its water filtration system which is not as effective as other

28

filtration media and that by choosing to use sand, Defendants
32

1

fail to achieve BAT/BCT. (Pl. Mot. 9:2-5; 9:11-13.) Plaintiff

2

supports its position by citing a report on which Defendants’

3

expert environmental chemist, Barton Simmons, relies in reaching

4

his conclusions, where it was found that filtration media such as

5

compost, packing wood, enviro-media, ash, zeolite, and fine glass

6

are capable of removing zinc from ground water at a 50-97% rate,

7

whereas sand is capable of removing zinc from ground water at a

8

16%

9

groundwater at a 39-97% rate, whereas sand removed copper from

10

rate,

and

that

those

same

materials

removed

copper

from

ground water at a 29% rate. (Packard Decl. Ex. ZZ CSM 026363.)

11

Defendants respond that its sand filters are adequate,

12

and cite the rebuttal report of Plaintiff’s expert Steven Brown

13

who states: “Having observed the sand filters at the Facility and

14

having [the] benefit of the observations made at the site during

15

recent

16

current purpose.” (Brown Decl. Ex. P p. 8, ECF No. 181-17.)

2014

17
18

storm

events,

the

design

appears

sound

for

its

In light of the factual disputes concerning this issue,
each motion is denied.

19

e.

Properly Designed and Sized Filtration Units

20

Plaintiff argues even if Defendants’ water filtration

21

units used a filtration media other than sand, the units would

22

still

23

themselves are so poorly designed and undersized for the volumes

24

of

25

[overflows and] bypasses [the water filtration system] without

26

treatment under common, normal rainfall conditions.” (Pl. Mot.

27

9:14-17.) Plaintiff supports its position citing Steven Bond’s

28

opening report, which states that the Facility’s water filtration

fail

storm

to

water

achieve

BAT/BCT

generated

at

since

the

33

“the

Facility

filtration

that

storm

units

water

1

units have “an inappropriate design and do[] not function as a

2

filter under common, normal rainfall conditions.” (Bond. Decl.

3

Ex. A p. 16-17, 38 ECF No. 167-1.)

4

Defendants respond that the Facility’s “sand filters

5

are more than adequate to meet the BAT/BCT standards,” (Def.

6

Opp’n 32:24), and support their position citing Damon Brown’s

7

following deposition testimony: the sand filters are “working

8

well when you look at the monitoring data.” (Cannata Opp’n Decl.

9

Ex. C 265:1-267:13, 195-1.)

10

In

light

factual

effectiveness

12

Facility’s

disputes

water

concerning

filtration

units,

the

motion on this issue is denied.
f.

the

the

11

13

of

of

each

Dissolved Metals

14

Plaintiff argues the Facility has not achieved BAT/BCT

15

concerning dissolved metals since water sample results “show...

16

[dissolved] copper, lead, zinc, nickel, chromium and molybendum

17

are discharged” from the Facility, and Defendants “have . . .

18

failed to develop and implement BMPs to address discharges of any

19

dissolved metals, which, by definition, are not [mitigated] by

20

filtration.” (Pl. Mot. 10:23; 11:1-3; 11:4-7.) Plaintiff cites

21

two water samples taken from the Facility on December 6, 2007,

22

and relies on Steven Bond’s analysis of those samples, where he

23

opines copper, lead, zinc, nickel, chromium and molybdenum are

24

discharged

25

concludes “[t]here are no BMPs at the Facility that address the

26

issue of dissolved or dissociated pollutants.” (Packard Decl. Ex.

27

W CSM000729-754, ECF No. 168-5; Bond Decl. Ex. A, App’x B Table

28

2, ECF No. 167-1; Bond Decl. Ex. A p.9, ECF No. 167-1.)

from

the

Facility

in

34

their

dissolved

form,

and

1

Defendants

counter

that

the

Facility’s

BMPs

address

2

dissolved metals and support their position citing Damon Brown’s

3

declaration, where he avers Bond’s assessments of the Facility’s

4

BMPs are “incorrect” since research has shown the traditional

5

sand

6

removal properties” and have been “effective for the treatment of

7

dissolved

8

(Brown

9

Defendants also rely on a portion of Barton Simmons’ declaration

10

where he avers that Bond’s methodology was faulty since he relied

11

on two samples, which is an insufficiently small sample size, and

12

the samples he analyzed presented “non-detect” chemical levels,

13

which should not have been used. (Simmons Decl. Opp’n Pl. Mot., ¶

14

11, ECF No. 190.)

filters

metal

Decl.

15

the

In

Facility

uses

contaminants

ISO

Def.

light

of

Mot.

the

“have

commonly
Ex.

P,

factual

excellent

found
p.

8,

heavy

metal

in

storm

water.”

ECF

No.

181-17.)

disputes

concerning

the

16

Facility’s BMPs addressing dissolved metals, each motion on this

17

issue is denied.

18

4.

19

Plaintiff

and

for

22

Defendants to develop and implement a Monitoring and Reporting

23

Program (“MRP”) for the Facility.

25
26
27
28

of

the

General

Defendants

summary

comply

B

alleging

move

21

Section

claim

cross

judgment

with

Plaintiff’s

Defendants

20

24

on

Monitoring and Reporting Program (“MRP”)

Permit,

failed

which

As part of [a] MRP, a permittee must conduct
visual observations of storm water throughout
the Wet Season; must collect water samples at
each outfall during specific times; must
analyze
these
samples
for
specific
contaminants; and must file Annual Reports
with the [Water] Board summarizing the visual
observation, results of sampling analysis,
and General Permit compliance.
35

to

requires

1

Santa Monica Baykeeper v. Int’l Metals Ekco, Ltd., 619 F. Supp.

2

2d 936, 942 (C.D. Cal. 2009). Plaintiff alleges Defendants’ MRP

3

was inadequate since Defendants (1) failed to sample for all

4

required pollutants, (2) failed to consistently sample at each of

5

the

6

required number of samples during the 2012-2013 wet season.

Facility’s

7

discharge

a.

points,

and

(3)

failed

to

take

the

Sampling Required Pollutant Parameters

8

Each party seeks summary judgment on Plaintiff’s claim

9

alleging Defendants violated Section B of the General Permit by

10

failing to test the Facility’s water samples for polychlorinated

11

biphenyl (“PCBs”). Defendants further seek summary adjudication

12

on

13

failing to test the Facility’s water samples for nickel, cadmium,

14

chromium, antimony, arsenic, mercury, molybdenum, and selenium.

Plaintiff’s

15

claim

that

Defendants

violated

Section

B

by

Section B(5) of the General Permit requires that storm

16

water

17

pollutants

18

discharges in significant quantities.” (General Permit p. 27.)

19

The General Permit defines “significant quantities” as follows:

20

“the volume, concentration, or mass of pollutant that can cause

21

or threaten to cause pollution, contamination, or nuisance; or

22

adversely impact human health or the environment; and/or cause or

23

contribute

24

standards for the receiving water.” (General Permit Attachment

25

4.)

26

samples

be

that

to

a

analyzed
are

likely

violation

i.

for
to

of

“[t]oxic
be

any

chemicals

present

in

applicable

and

other

storm

water

water

quality

PCBs

27

Plaintiff argues Defendants were required to analyze

28

their water samples for PCBs since surface soil samples at the
36

1

Facility

2

Barton Simmons acknowledges PCBs are “ubiquitous” in the scrap

3

metal industry, yet Defendants have not required PCB testing of

4

their storm water samples. (Pl. Mot. 11:9-21; Pl. RJN Ex. H, CSM

5

002179, ECF No.

reveal

the

presence

of

PCBs

and

Defendants’

expert

166-3.)

6

Defendants respond “PCBs are virtually insoluble,” and

7

so “[t]he probability of the Facility’s storm water containing

8

PCBs above the benchmark level is extremely low.” (Def. Opp’n

9

45:11-22.) Defendants cite in support of their position Simmons’

10
11
12
13
14
15
16
17
18

Declaration where he avers:
[w]hether or not PCBs are present in the soil
at [the Facility] is somewhat irrelevant to
the present case [because] . . . . [t]here is
not only no evidence that PCBs in storm water
have left [the Facility], but also no reason
to expect PCBs in storm water. PCBs are
virtually insoluble; . . . . [therefore],
[t]he probability of the Facility’s storm
water containing PCBs above a benchmark is
extremely low.
(Simmons Decl. ¶ 6, ECF No. 190.)
Plaintiff

disagrees,

citing

the

portion

of

Steven

19

Bond’s declaration where he avers that Simmons’ opinion is “not

20

credible” for the following reasons:

21
22
23
24
25
26
27
28

[T]he
solubility
of
PCBs
is
not
a
precondition for transport in storm water or
any
surface
water
flows.
Storm
water
transports
solid
and
dissolved
chemical
components
alike.
Regardless
of
the
solubility of a contaminant, it is subject to
transport in solid particulate form. Eroded
sediment is transported in storm water mainly
as a mass of suspended soil particulates
referred to as total suspended solids (TSS).
Storm
water
samples,
unless
otherwise
specified,
are
analyzed
for
the
total
concentrations of contaminants which include
total, dissolved, and dissociated chemicals.
37

1

(Bond Decl. IS Pl. Reply ISO Pl. MSJ ¶ 6, ECF No. 211.)

2

In

light

of

the

disputed

factual

issues

concerning

3

whether PCBs are likely to end up in the Facility’s storm water

4

and

5

analyze

6

present in storm water discharges in significant quantities,”

7

each motion on this issue is denied.

Section

B(5)’s

water

requirement

samples

8

ii.

9

for

that

the

“pollutants

Facility

that

are

need

likely

only
to

be

Remaining Chemicals

Defendants seek summary judgment on Plaintiff’s claim

10

alleging

they

violated

11

Facility’s water samples for nickel, cadmium, chromium, antimony,

12

arsenic,

13

significant quantities of these chemicals were not present in the

14

water samples. Defendants support their position citing Barton

15

Simmons’ rebuttal report where Simmons states that based on the

16

Water

17

nickel,

18

selenium were all below the background or benchmark levels, and

19

therefore

20

PLF013760, ECF No. 178-2); and that the Facility’s 2010 sampling,

21

which shows the levels of nickel, cadmium and chromium, were

22

below background or benchmark levels. (Simmons Decl. ¶ 7, ECF No.

23

178.) Defendants also argue they were not required to test for

24

the

25

General Permit lists circumstances under which a facility need

26

not sample for pollution parameters listed in Table D; however,

27

this argument has not been shown relevant since Plaintiff’s claim

28

does not reference pollutants listed in Table D of the General

mercury,

Board’s

testing

referenced

molybdenum,

December

cadmium,

Section

2007

chromium,

was

not

pollutants

B(5)

and

by

selenium,

sampling,
antimony,

required,

since

38

failing

the

test

arguing

concentration

arsenic,

(Simmons

Section

to

mercury,

Decl.

B(5)(c)(iii)

Ex.

of

the

that

of
and

B,

the

1

Permit. (General Permit p. 43.)

2

Plaintiff responds there is a genuine material factual

3

issue

4

water samples for the referenced chemicals, arguing the chemicals

5

are

6

significant quantities, citing Steven Bond’s expert report, where

7

he states that the referenced chemicals have all been found at

8

the Facility by the government and opines:

9

likely

to

whether

be

Defendants

present

in

should

the

have

Facility’s

analyzed

storm

water

the

in

Based on the nature of the operations at the
Facility, the types of materials handled and
stored at the Facility, and the general lack
of structural controls and less than ideal
housekeeping practices, the above-referenced
[chemicals] are likely to be present in CMS’s
storm
water
discharges
in
significant
quantities.

10
11
12
13
14

concerning

(Bond Dec. ISO Pl. Mot. Ex. A, p. 35-36, ECF No. 167-1.)

15

In

light

of

the

factual

dispute

concerning

whether

16

significant quantities of the referenced chemicals are likely

17

present in the Facility’s storm water, each motion on this issue

18

is denied.

19

b.

20

Consistent Sampling

Plaintiff alleges Defendants violated Section B(7) of

21

the

22

discharge points at the Facility; specifically Plaintiff alleges

23

Defendants failed to sample: (1) discharge point SWSL1 in 2009-

24

2010; (2) discharge point SWSL1 in 2010-2011; (3) the discharge

25

point at the West Gate in any year; and (4) the discharge point

26

at the southwestern corner at the western end of the southern

27

Property boundary in any year.

28

General

Permit

by

failing

to

consistently

sample

all

Section B(7)(a) of the General Permit states “facility
39

1

operators shall . . . collect samples of storm water discharges

2

from all drainage areas that represent the quality and quantity

3

of the facility’s storm water discharges.” (General Permit. P.

4

28.) However, Section B(7)(d) states:

5

[f]acility operators who determine that the
industrial activities and [Best Management
Practices] within two or more drainage areas
are substantially identical may . . .
collect samples from a reduced number of
substantially identical drainage areas....
Facility operators must document such a
determination in the annual report.

6
7
8
9
10

(General Permit p. 28.)

11

i.

12

Plaintiff

2009-2010 Wet Season

argues

Defendants

failed

to

sample

the

13

discharge area identified as SWSL1 during the 2009-2010 season,

14

and

15

identifies two discharge locations, SWSL1 and SWSL2.

16

¶ 75.)

17

cites

the

Facility’s

2009-2010

Annual

Report,

which

(Pl.’s SUF

Defendants respond they were not required to sample

18

SWSL1

19

identical to SWSL2, which was sampled. The Facility’s 2009-2010

20

Annual Report states discharges from SWSL2 are representative of

21

the discharges from SWSL1:

22
23
24
25
26
27
28

since

under

Section

B(7)(a),

SWSL1

is

substantially

The [West Gate] storm water sample location
... is located immediately north of the
entrance. The [South West Corner] storm water
sample location . . . is located down stream
of the West Gate location on the south west
frontage of the facility. The flows from the
West Gate join the flow at the south frontage
of the property at the South West Corner
sample location; therefore it was determined
that one sample location is representative of
both flows and only one sample location (down
gradient location) was sample[d] as allowed
in Section B7d of the General Permit.
40

1

(Pl.’s SUF ¶ 76; Packard Decl. Ex. Q CSM 4357, ECF No. 168-4)

2

(emphasis added.)

3

Section B(7)(a) of the General Permit states that in

4

order

to

rely

5

representative of SWSL1, the facility operator must determine

6

“the

7

“substantially

identical.”

8

neither

sufficiently

9

therefore each motion on this issue is denied.

industrial

party

on

the

activities

10

ii.

11

storm

Plaintiff

water

and

samples

BMPs”

(General

from

within

Permit

addresses

both

p.

this

SWSL2

areas

28.)

as

are

However,

requirement,

and

2010-2011 Wet Season

argues

Defendants

were

required

to

sample

12

storm water discharges from SWSL1 during 2010-2011; however, the

13

uncontroverted facts show the 2010-2011 Annual Report does not

14

list SWSL1 as a discharge location. (Pl.’s SUF ¶ 80.)

15

Defendants

respond

that

they

were

not

required

to

16

sample storm water discharges from SWSL1 in 2010-2011 since the

17

SWSL1

18

Defendants

19

Scott’s declaration where she avers that at the end of the 2009-

20

2010

21

discharge from SWSL1 was being caused by a neighboring facility,

22

and

23

determined

24

likely due to the improvements [that the neighboring facility

25

stated it would make] and (2) any discharge from SWSL2 would be

26

representative

of

27

Facility,”

therefore

28

discharge point.” (K. Scott Decl. Opp’n Pl. Mot. ¶¶ 17-18, ECF

discharge

storm

after

point

support

season,

was

their

the

she

spoke

that

“(1)

and

position

Facility

with
the

the

eliminated.

the

citing

neighboring

industrial

from

Opp’n

42:7-8.)

portion

that

much

facility,

SWSL1

activities

Facility

41

the

determined

discharge

the

(Def.

was

on

“eliminated

of

of

it

no

the
SWSL1

Kim

the

was

longer

entire
as

a

1

No. 194.)

2

Plaintiff

5

Defendants

6

exemption[,] . . . and Defendants failed to respond [in the

7

Annual Report] that they were” claiming the exemption. (Pl. Reply

8

22:15-18.)
Scott’s

whether

not

they

declaration

consider

are

shows

SWSL2

Annual

representative of SWSL1 since the report “affirmatively directs
indicate

did

2010-2011

4

Kim

Facility

Defendants’

Report

to

the

that

3

9

reveals

replies

claiming

the

the

Facility

to

be

B(7)(d)

did

not

10

report samples from SWSL1 in the 2010-2011 Annual Report because

11

she considered SWSL2 to be representative of the entire Facility.

12

However,

13

Defendants chose not to report storm water sampling from SWSL1

14

because

15

disclose

16

Defendants did not do so. Therefore, Plaintiff’s motion on this

17

issue is granted, and Defendants’ motion is denied.

the

they

2010-2011

opined

that

SWSL2

information

18

Annual

was
in

Report

prescribed

representative,
their

2010-2011

they

that

needed

Annual

if

to

report.

iii. West Gate

19

Plaintiff argues Defendants violated Section B of the

20

General

Permit

by

failing

“to

21

discharges from the West Gate of the Facility. (Pl. Mot. 13:8-9.)

22

The uncontroverted facts establish the Facility’s Annual Reports

23

have never reported storm water samples taken from the West Gate.

24

(Pl.’s SUF ¶ 97.) Plaintiff supports its argument that there were

25

storm water discharges at the West Gate by citing Steven Bond’s

26

averments that “[i]t seemed reasonable to assume that, under high

27

flow conditions [meaning intense rainstorms] . . . there would be

28

flow out of the [West Gate],” (Packard Decl. Ex. EEE 48:19-25,
42

identify,

sample

and

monitor”

1

ECF No. 168-12), and photographs Bond took on December 11, 2014

2

showing discharge at the West Gate. (Bond Decl. ¶ 10, Ex. I,

3

CSM19396,

4

relies on samples requested by the Water Board showing there were

5

water discharges from the Facility’s West Gate in December 2007.

6

(Packard Decl. Ex. W, CSM 000730, ECF No. 168-5.)

CSM19405,

7

CSM19408,

ECF

No.

167-2.)

Plaintiff

also

Defendants respond they were not required to sample at

8

West

Gate

since

9

prevented discharges in that area[,]” and even if storm water did

10

discharge, sampling at the West Gate “would be redundant [of

11

sampling at SWSL2].” (Def. Mot. 30:3-13.) Defendants also cite a

12

portion of Jihan Gray’s declaration, where she avers “[s]torm

13

water sometimes discharged from the Facility at [the West Gate,

14

but] . . . [s]ampling at the ‘West Gate’ would be redundant

15

because it is home to . . . many of the same BMPs as SWSL1 and

16

SWSL2,” and also that she “installed a berm at the ‘West Gate

17

area

18

discharges.” (Gray Decl. ¶ 12, ECF No. 177.)

[in

the

November

Facility

2014]

installed

which

has

a

berm,

“which

completely

has

prevented

19

Gray’s averments evince that water has discharged from

20

the West Gate, and therefore Section B(7) of the General Permit

21

requires

22

unless

23

activities and BMPs” at the West Gate are substantially identical

24

to another location and “such a

25

the annual report.” (General Permit p. 28.) The uncontroverted

26

facts establish that Defendants’ Annual Report does not list the

27

West Gate as a discharge point, (Pl.’s SUF ¶ 97); nor does the

28

report state that the West Gate was substantially identical to

Defendants
the

to

facility

sample

storm

operator

water

determines

from

that

“the

location

industrial

determination [is documented] in

43

1

another discharge point. Therefore, Plaintiff’s motion on this

2

issue is granted and Defendants’ motion is denied.

3

///

4

iv.

Southern Boundary

5

Plaintiff argues Defendants “failed to identify, sample

6

and monitor” the southwest corner at the western end of the

7

southern property boundary,” (Pl. Mot. 13:7-1), and supports its

8

argument

9

avers that on December 12, 2014, he observed, “discharges . . .

citing

several

Steven

the

12

uncontroverted facts establish the Facility’s Annual Report never

13

reported storm water samples taken at this location. (Pl.’s SUF ¶

14

97.)
the

General

beyond

he

(Packard Decl. Ex. JJ, 134:1-23, ECF No. 168-7.) Further, the

that

corner”

where

11

respond

southwest

testimony,

from

Defendants

in

deposition

10

15

areas

Bond’s

Permit

SWSL2.”

did

not

16

require them to sample the “alleged southwestern discharge point”

17

since the only evidence of discharge from this location was a

18

“one-time occurrence” during “one of the largest storm events in

19

recent memory,” as a result of which the Facility’s “outfall pipe

20

at SWSL2 was overwhelmed and compromised,” and “storm water began

21

flowing

22

Defendants also rejoin that the Facility “made interim repairs to

23

the SWSL2 pipe[,] and the area has been secure in subsequent

24

storm

25

following

26

matter:

27
28

out

through

events.”

(Def.

portion

of

the

pipe

Opp’n
Kim

as

well

43:10-20.)

Scott’s

as

around

the

Defendants

declaration

pipe.”

cite

the

concerning

the

due to the nature, size and intensity [of the
December
11,
2014
storm
event,
the
Facility’s]
outfall
pipe
at
SWSL2
was
overwhelmed and compromised. As a result,
44

1

storm water began flowing out through the
pipe as well as around the pipe. [The
Facility] immediately made interim repairs to
that location and the area has been secure in
subsequent storm events.

2
3
4
5
6
7
8
9

(K. Scott. Decl. ¶ 20, ECF No. 194.) Defendants also cite Scott’s
declaration where she avers “any discharge from SWSL2 would be
representative

12
13

16
17
18
19
20
21
22
23
24

activities

on

the

entire

Decl. ¶ 17, ECF No. 194.)
Plaintiff

replies

“Defendants

have

never

claimed

reduced sampling in relation to the southern boundary discharge
point as required to claim the exemption under Section B(7)(d).”
(Pl. Reply 24:1-3.)
Kim

Scott’s

averments

evince

that

storm

water

discharged from the southwest corner at the western end of the
southern property boundary. (K. Scott. Decl. ¶ 20, ECF No. 194.)
The General Permit required the Facility to sample water from the
southwest corner at the western end of the southern property
boundary unless, inter alia, the facility operator “documented
[his or her] . . . determination

[in the annual report that the

discharge point was substantially identical to another discharge
point,]” which Defendants did not do. (General Permit p. 28.)
Therefore,

Plaintiff’s

motion

on

this

issue

is

granted

and

Defendants’ motion is denied.

25

c.

26
27

industrial

any storm water discharges from the southwest corner. (K. Scott

14
15

the

Facility,” and therefore the Facility was not required to report

10
11

of

Failure to Take Samples

Plaintiff argues Defendants violated Section 5 of the
General

Permit

by

failing

to

take

28
45

two

storm

water

discharge

1

samples during the 2012-2013 wet season. Concerning this matter,

2

Section B(5)(a-b) of the General Permit states:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Facility operators shall collect storm water
samples during the first hour of discharge
from (1) the first storm event of the wet
season, and (2) at least one other storm
event in the wet season. All storm water
discharge locations shall be sampled. . . .
Sample collection is only required of storm
water discharges that occur during scheduled
facility
operating
hours
and
that
are
preceded by at least (3) three working days
without storm water discharges.
(Pl. RJN Ex. A General Permit p. 26-27.) Plaintiff argues “[f]or
the 2012-2013 wet season, Defendants did not report any storm
water samples to the Regional Board and certified under oath that
. . . ‘[t]here was no qualifying event,’ . . . [h]owever, . . .
it is undisputed that storm water discharged from the Facility on
at least three [occasions] during the 2012-2013 wet season.” (Pl.
Mot. 13:20-14:1.) Plaintiff contends discharges occurred November
17, 2012; December 21, 2012; and March 20, 2013.
i. November 17, 2012
Plaintiff

cites

in

support

of

its

position

that

a

discharge occurred on November 17, 2012, the Lane Report, where
Lane provides the results from a sampling event conducted on
November 17, 2012. (Lane Decl. Ex. I. PLF014630, ECF No. 170-3.)
Defendants

respond

“there

were

no

discharges”

in

November 2012, and that the November 17, 2012 samples were taken
by a third-party and Plaintiff cannot demonstrate “what occurred
on that date, where the samples were taken, or when they were
taken.” (Def. Opp’n 35:3-6; 35:14.) Defendants cite a portion of
Kim Scott’s declaration where she avers “[o]n November 17, 2012
46

1

there

2

discharge.” (K. Scott Decl. ¶¶ 11, ECF No. 194.)

was

not

enough

rain

at

the

Facility

to

generate

a

3

In light of the conflicting evidence on the issue of

4

whether there was a discharge at the Facility on November 17,

5

2012, each motion concerning this date is denied.

6

ii. December 21, 2012

7

Plaintiff

cites

in

support

of

its

position

that

a

8

discharge occurred from the Facility on December 21, 2012, the

9

Lane Report in which Lane “presents the analytical results for

10

... the sampling event conducted on December 21, 2012.” (Lane

11

Decl. Ex. J, PLF014664, ECF No. 170-4.)

12

Defendants respond that they “do[] not believe” there

13

was a discharge from the Facility on December 21, 2012, citing to

14

a portion of Jihan Gray’s Declaration, and arguing that “[t]hough

15

Ms. Gray does not recall December 21, 2012 with certainty, she

16

knows and attests to her custom and practice that she tries to

17

complete

18

rains/discharges,” and since there is no form for December 21,

19

2012, this is evidence that there was no discharge from the

20

Facility that day. (Def. Opp’n 36:18-28; Gray Decl. ¶ 4, ECF No.

21

193 (emphasis added.)

22

a

Wet

Weather

Plaintiff

replies

create

insufficient

24

Form

whenever

evidence

of

Gray’s

dispute

of

fact

averment

genuine

habit

that

she

“tries

to

since

it

is

analyzed samples from that date.
Gray’s

a

Observation

that

23

25

to

Visual

complete

a

Lane

Wet

26

Weather Visual Observation Form whenever it rains/discharges” is

27

insufficient to controvert Plaintiff’s direct evidence concerning

28

the

discharge

on

December

21,
47

2012.

See

Fed.

R.

Evid.

406

1

Advisory

Committee’s

2

sampling

and

3

determining whether a particular behavior is a habit); see also

4

S.E.C. v. Dunn, No. 2:09-CV-2213 JCM (VCF), 2012 WL 475653, at *5

5

(D. Nev. Feb. 14, 2012) (“This court finds that, as contemplated

6

in the Federal Rules of Evidence, the term ‘habit’ requires more

7

consistency

8

Plaintiff’s

9

Defendants’ motion is denied.

Note

uniformity

of

action

motion

10

(2011)
of

than

(stating

response

has

concerning

been

the

are

key

shown

this

“adequacy

of

factors”

in

here.”).

date

is

Therefore

granted

and

iii. March 20, 2013

11

Plaintiff

cites

in

support

of

its

position

that

12

Defendants failed to report a storm water discharge on March 20,

13

2013,

14

Analytical LLC, which states the sample date is “03/20/2013.”

15

(Packard Decl. Ex. Z, CSM003763, ECF No. 168-5.)

a

report

showing

storm

water

samples

analyzed

by

KIFF

16

Defendants respond that they were not required to file

17

a report for March 20, 2013, since the discharge occurred prior

18

to the start of business hours, citing Section 5(b)(8) of the

19

General Permit, which states in part that when a discharge begins

20

more than one hour before a facility begins its operations, the

21

facility operator “may . . . sample collection more than one hour

22

after discharge begins if the facility operator determines that

23

the objectives of the Section will be better satisfied.” (General

24

Permit p. 29 (emphasis added).) Defendants cite in support of

25

their position that the rain event on March 20, 2013 began prior

26

to business hours the Wet Weather Visual Observation Form filled

27

out by Jihan Gray, which states “rain heavy through night[,]

28

sample had been discharging for several hours before 8:00 A.M.”
48

1

(Gray Decl. Ex. D, CSM 4268, ECF No. 193-1.)

2

Plaintiff offers no evidence from which a reasonable

3

inference could be drawn that the wet weather event on March 20,

4

2013

5

Therefore, Plaintiff’s motion concerning this date is denied and

6

Defendants’ motion is granted.

7

began

E.

less

than

one

hour

before

the

Facility

opened.

California Law

8

Plaintiff’s Cal. Health & Safety Code section 25249

9

claim alleges Defendants knowingly discharged lead into sources

10

of drinking water. Plaintiff alleges Defendants violated section

11

25249

12

concentrations above the CTR standard. Defendants seek summary

13

judgment on each of the forty-two discharges; however, Plaintiff

14

only seeks summary judgment on eighteen discharges and argues the

15

remaining

16

material fact precluding summary judgment.

on

forty-two

17

occasions

twenty-four

Cal.

Health

by

discharges

&

Safety

discharging

present

Code

a

section

water

with

lead

genuine

issue

of

25249

states

in

18

pertinent part, “[n]o person . . . shall knowingly discharge or

19

release

20

reproductive toxicity into water or into land where such chemical

21

passes or probably will pass into any source of drinking water.”

22

“Lead has been identified as a known carcinogen and reproductive

23

toxin.” Evnt’l. Law Found. v. Beech-Nut Nutrition Corp., 235 Cal.

24

App. 4th 307, 312 (2015). However, a “safe harbor exemption” in

25

Cal. Health & Safety Code section 25249.9(b) states: “section

26

25249

27

defendant can show, inter alia, that] “the discharge or release

28

is in conformity with all other laws and with every applicable

a

shall

chemical

not

known

apply

to

to

the

any

49

state

discharge

to

or

cause

cancer

release

[if

or

the

1

regulation, permit, requirement, and order.”

2

Plaintiff argues it is uncontroverted that on twelve

3

dates between 2008 and 2012, samples of storm water from the

4

Facility revealed concentrations of lead in excess of the CTR

5

standards. (Pl.’s SUF ¶¶ 218-227, 232, 235-237, 250-257.)

6

Defendants rejoin there is no evidence the Facility

7

discharged or released lead into sources of drinking water since

8

the origin of the lead concentrations in the samples is unclear

9

and therefore Plaintiff has not shown lead was “discharged or

10

released”

11

“discharged or released” lead as the phrase is used in section

12

25249, and cite Consumer Advocacy Grp., Inc. v. Exxon Mobile

13

Corp. (“CAG”), 104 Cal. App. 4th 438 (2002), in support of their

14

argument.

15

“release” “convey movement out of a confined space such as a

16

container,

17

another,” stating:

18
19
20
21
22
23
24

from

The

the

CAG

not,

.

Facility.

court

.

.

held

Defendants

that

simply

the

argue

words

movement

they

have

“discharge”

from

one

point

not

and

to

“discharge or release” as used in section
25249 refers to a movement of chemicals from
a confined space into the land or the water.
The subsequent passive migration of chemicals
through the soil or water after having been
so discharged or released by a party does not
constitute
another
discharge
or
release
within the meaning of section 25249.
Id. at 444, 450.
Plaintiff has not presented evidence that the Facility

25

was the source of the lead detected in the

referenced water

26

samples. Therefore its motion on this issue is denied.

27

Defendant argues even if the source of the detected

28

levels of lead is uncertain, its motion on all forty-two samples
50

1

should

2

exemption,” applies, (2) Plaintiff’s TAC is insufficiently vague,

3

(3) there is insufficient evidence that any discharge was made

4

“knowingly[,]”

5

discharge was made “into a source of drinking water.”

be

granted

for

and

four

(4)

reasons:

there

is

(1)

the

“safe

insufficient

harbor

evidence

any

6

1.

7

Defendants argue they are protected by the “safe harbor

8

exemption” since inter alia, the “discharges or releases” from

9

the Facility are “in conformity with . . . every applicable

10

regulation, permit, requirement, and order.” Cal. Health & Safety

11

Code

12

violated the terms of the General Permit, and therefore the safe

13

harbor exemption does not apply.

§

Safe Harbor

25249.9(b).

14

Plaintiff

responds

that

Defendants

have

Plaintiff presented sufficient evidence to demonstrate

15

that

some

16

Section C of the General Permit by “caus[ing] or contribut[ing]

17

to

18

standards” for lead in the CTR. (General Permit. P. 4) Therefore,

19

Defendants’

20

exemption is denied.

an

of

the

exceedance

Facility’s

of

summary

21

2.

22

.

.

.

judgment

Defendants

storm

water

[the]

motion

discharges

applicable

based

on

violated

water

the

safe

quality

harbor

Vagueness
argue

the

allegations

in

Plaintiff’s

TAC

23

concerning Plaintiff’s section 25249 claim are so vague that the

24

basis

25

32:27-28:1.)

26

attached to the TAC demonstrate its section 25249 claim is not

27

vague. Concerning this claim, Plaintiff alleges “[t]his action

28

... seeks to remedy Defendant[s’] . . . continuing discharge or

of

Plaintiff’s
Plaintiff

claim

cannot

responds

51

be

that

determined.
the

TAC

and

(Def.

Mot.

Exhibit

D

1

releases of lead and lead compounds into sources of drinking

2

water in violation of California Health & Safety Code Section

3

25249.5 (also referred to as ‘Proposition 65’).” (TAC ¶¶ 4-5.)

4

Exhibit

5

Proposition 65 Violations” that Plaintiff sent Defendants, it

6

states: the asserted “violations [of section 25249] involve the

7

discharge of lead and lead compounds into sources of drinking

8

water.” (TAC Ex. D.) In light of the referenced allegations in

9

the TAC, Defendants have not shown this claim is impermissibly

10

D,

which

is

attached

to

the

TAC,

is

a

“Notice

of

vague.

11

3.

12

Defendants argue Plaintiff cannot show any discharge or

13

release of lead from the Facility was done “knowingly.” Plaintiff

14

responds that Defendants “have known that the Facility discharges

15

lead

16

reports from a November 1, 2008 sampling event revealing lead in

17

the storm water. (Packard Decl. ISO Pl. Mot. Ex. O, CSM 000660,

18

ECF No. 168-3.) The water sample results Plaintiff references

19

were published in Defendants’ 2008-2009 Annual Report and create

20

a genuine issue of material fact concerning whether Defendants

21

had knowledge that the discharges or releases from its Facility

22

contained

23

argument is denied.

since

“Knowingly”

at

least

lead.

the

Therefore

date”

when

Defendants’

Defendants

motion

received

based

on

lab

this

24

4.

“Into a Source of Drinking Water”

25

Defendants argue Plaintiff cannot show any discharge or

26

release of lead from the Facility “passes or probably will pass

27

into a source of drinking water” as required to prove its section

28

25249 claim. Plaintiff responds that the Facility’s discharges
52

1

probably will pass into the Wyman Ravine, which is a designated

2

source

3

citing to John Lane’s report where he states that on April 4,

4

2012, he personally “observed continuous storm water flow from

5

the Facility . . . into Wyman Ravine.” (Lane Decl. Ex. A p.4, ECF

6

No. 170-1.)

7

the Wyman Ravine is a tributary of the Feather River, (Pl SUF ¶

8

265), and the text of the Basin Plan, which states the Feather

9

River

of

is

drinking

an

water.

Plaintiff

supports

its

position

by

Plaintiff also cites the uncontroverted fact that

existing

source

of

drinking

water,

and

“[t]he

10

beneficial uses of any . . . body of water generally apply to its

11

tributary streams.” (Pl. RJN Ex. B Basin Plan (“Basin Plan”)

12

II.2.00; II.4.00-II-6.00, ECF No. 166-1).

13
14

In light of Plaintiff’s evidence, Defendants’ motion on
this issue is denied.

15

IV.

CONCLUSION

16

For the stated reasons, Plaintiff’s motion for partial

17

summary judgment is GRANTED in part and DENIED in part, and

18

Defendants’ motion for summary judgment is GRANTED in part and

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DENIED in part.

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Dated:

August 14, 2015

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