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

Filing 251

ORDER signed by Judge Garland E. Burrell, Jr. on 1/4/2016 GRANTING 226 Motion for Reconsideration. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a nonprofit corporation,

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Plaintiff,

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

ORDER GRANTING DEFENDANTS’
MOTION FOR PARTIAL
RECONSIDERATION

v.
CHICO SCRAP METAL, INC., a
California corporation;
GEORGE W. 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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Defendants Chico Scrap Metal, Inc., George W. Scott,

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Sr., individually and as trustee of the George W. Scott, Sr.

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Revocable

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partial reconsideration under Federal Rule of Civil Procedure

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(“Rule”) 54(b), and Local Rule 230(j), of this Court’s Order

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Granting

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Judgment Motion, (Defs.’ Mot. for Recons. (“Mot.”) 1:23–27, ECF

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No. 226), filed August 17, 2015. (Order Granting in Part and Den.

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in Part Each Party’s Summ. J. Mot. (“Order”), ECF No. 221.)

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Defendants argue the motion should be granted based on their

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assertion that the Court committed clear error in calculating the

Inter

in

Vivos

Part

and

Trust,

dated

Denying

in

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September 25,

Part

Each

1995,

Party’s

seek

Summary

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number of times Defendants violated Section C of California’s

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General Industrial Storm Water Permit (the “General Permit”).

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I.

LEGAL STANDARD

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“A district court’s power to rescind, reconsider, or

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modify an interlocutory order is derived from the common law, not

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from the Federal Rules of Civil Procedure.” City of Los Angeles,

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Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th

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Cir. 2001). Further, Rule 54(b) authorizes the district court to

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revise “any order or other decision, however designated, that

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adjudicates

fewer

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liabilities

of

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before the entry of a judgment adjudicating all the claims and

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all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).

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“[A] motion for reconsideration should not be granted, absent

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highly

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presented with newly discovered evidence, committed clear error,

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or if there is an intervening change in the controlling law.”

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Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890

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(9th Cir. 2000) (quoting 389 Orange St. Partners v. Arnold, 179

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F.3d 656, 665 (9th Cir. 1999)).

unusual

than

fewer

all

than

the

all

the

circumstances,

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II.

claims

or

the

parties . . .

unless

the

rights
at

district

any

court

and
time

is

DISCUSSION

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The Order of which reconsideration is sought holds in

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pertinent part: “The uncontroverted facts establish Defendants

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never submitted a report to the [California Regional] Water Board

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in response to receiving a storm water discharge sampling result

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that

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(citation omitted).)

[exceeded]

a

water

quality

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2

standard.”

(Order

17:21–24

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The

Order

further

holds

the

California

Toxics

Rule

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(“CTR”) is the applicable water quality standard, (Order 17:24–

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26), and explains: “The CTR ‘promulgates criteria for priority

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toxic pollutants for the State of California.’ 40 C.F.R. 131.38.

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For

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concentrations apply:

storm

water

discharges,

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Copper:
Lead:
Zinc:

pollutant

0.065 mg/L

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following

0.013 mg/L

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the

0.12 mg/L

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Id.” (Order 15:1–8.) These pollutant concentrations represent the

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CTR’s Criteria Maximum Concentration (“CMC”), which “equals the

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highest concentration of a pollutant to which aquatic life can be

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exposed for a short period of time without deleterious effects.”

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40 C.F.R. § 131.38(b)(1) n.d.1

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The

Order

explains:

sampling

results

“Therefore,

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standards, they violated Section C of the General Permit[ by not

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submitting a report to the California Regional Water Board].”

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(Order 17:24–26.)
the

number

of

times

excess

of

Defendants

the

time

Defendants

Concerning

in

each

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received

further

CTR

received

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sampling results in excess of the CTR standards that they were

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required to report under Section C of the General Permit, the

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Order states in pertinent part:

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Plaintiff argues Defendants’ own samples
reveal sixty-five instances where the level
of copper, lead, and/or zinc exceeded the CTR
standards . . . .
Since
the
evidence

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1

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In contrast, the CTR’s “Criteria Continuous Concentration (CCC) equals
the highest concentration of a pollutant to which aquatic life can be exposed
for an extended period of time (4 days) without deleterious effects.” 40
C.F.R. § 131.38(b)(1) n.d.

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concerning the sixty-five samples Defendants
collected and analyzed is uncontroverted,
Plaintiff’s motion concerning these samples
is granted and Defendants’ motion is denied.
Defendants also do not dispute the sample
results taken on December 11, 2014 from
SWSL2, at 9:10 AM and 2:50 PM, which evince
four
additional
violations.
(Pl.’s
SUF
¶¶ 160-161.) Therefore, Plaintiff’s motion as
to these samples is granted and Defendants’
motion is denied.

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(Order 17:28, 18:1–11.)
Defendants

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evidence . . .

argue

the

demonstrates

Court

only

erred

because

“[t]he

[forty] . . . uncontroverted

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exceedances of the limitations set forth in the CTR.” (Mot. 3:5–

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8.)

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addressed below.

Defendants’

arguments

concerning

specific

samples

are

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A.

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Defendants seek reconsideration of the sample collected
Defendants

Sample Collected on January 20, 2012, from SWSL2

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by

on

January 20,

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Statement of Undisputed Facts number 140, arguing the evidence

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evinces that the storm water contained .041 mg/L of lead, rather

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than the .21 mg/L of lead listed in Plaintiff’s Statement of

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Undisputed Facts. The evidence cited by Plaintiff shows that the

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storm water collected on January 20, 2012, from SWSL2 contained

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.041 mg/L of lead. (Ex. S PLF001558, ECF No. 168-5.) Therefore,

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Plaintiff only demonstrated an exceedance of copper.

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B.

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Defendants

2012,

identified

in

Plaintiff’s

Four Samples Collected on March 20, 2013
seek

reconsideration

of

four

samples

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Defendants collected and analyzed on March 20, 2013, which are

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identified in Plaintiff’s Statement of Undisputed Facts numbers

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151, 152, 153, and 154. (Ex. A 7–10, ECF No. 226-2.) Defendants

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argue:
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This Court granted summary judgment in favor
of Defendants as to all March 20, 2013
samples. See Order at 49:5–6 (“Plaintiff’s
motion concerning this date is denied and
Defendants’ motion is granted[.]”[] (emphasis
added)[)].

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As to Plaintiff’s March 20, 2013 samples,
this Court held that “Plaintiff offers no
evidence from which a reasonable inference
could be drawn that the wet weather event on
March 20, 2013 began less than one hour
before the Facility opened.” See Order at
49:2–4.

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As to Defendants’ March 20, 2013 samples,
Defendants stated in Response to Undisputed
Fact No. 151 that these samples were not
“from Facility discharges stemming from a
qualifying event and not representative of
the
Facility.”
Therefore,
this
Court’s
holding
that
these
samples
are
“uncontroverted” is incorrect. See Order at
18:9.

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(Id.) Defendants make the same argument for the remaining samples

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identified

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address these arguments.

in

The

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numbers

record

152,

shows

153,

and

154.

Defendants

Plaintiff

disputed

the

does

not

evidence

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concerning the four samples collected on March 20, 2013, in their

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Response to Plaintiff’s Statement of Undisputed Facts. (Defs.’

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Resp. to Pl.’s SUF ISO Pl.’s Mot. for Partial Summ. J. (“Defs.’

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Resp. to Pl.’s SUF”) Nos. 151–54, ECF No. 189.) Therefore, this

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portion of the Order is withdrawn, since the disputed factual

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issues have to be resolved at trial.

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C.

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Defendants seek reconsideration of the sample Plaintiff
on

Sample Collected on December 3, 2014

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collected

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Plaintiff’s Statement of Undisputed Facts number 157. Defendants

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argue:

“The[]

December 3,

sample[]

2014.

w[as]

This

not
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sample

taken

is

by

identified

Defendants

in

and

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Defendants dispute the origin of the water sample.” (Ex. A 11.)

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Plaintiff does not address this argument.

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The

record

shows

Defendants

disputed

the

sample’s

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origin in their Response to Plaintiff’s Statement of Undisputed

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Facts. (Defs.’ Resp. to Pl.’s SUF No. 157.)

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Further, this sample’s inclusion in this section of the

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Order appears to have been a typographical error, since the Court

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also held, “Plaintiff fails to present evidence that sufficiently

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identifies the origin of the . . . water sample[ collected on

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December 3, 2014 and identified in number 157].” (Mot. 18:25–28.)

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Therefore,

this

portion

of

the

Order

is

withdrawn,

since the disputed factual issues have to be resolved at trial.

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D.

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Lastly, the Court also erred in calculating the number
violations

Remaining Samples

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of

under

Section

C

of

the

General

Permit,

and

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therefore revised rulings are set forth in the following chart:

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Pl.’s
SUF No.
118

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119

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120

Pl.’s SUF
On November 1, 2008, storm
water containing 0.041mg/L of
copper, 0.014mg/L of lead,
and 0.166mg/L of zinc was
discharged from the Facility
at the northern discharge
location, SWSL1.
On November 1, 2008, storm
water containing 0.135mg/L of
copper, 0.0193mg/L of lead,
and 0.165mg/L of zinc was
discharged from the Facility
at the southern discharge
location, SWSL2.
On February 17, 2009, storm
water containing 0.021mg/L of
copper, 0.0284mg/L of lead,
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Court’s Exceedance
of CTR Findings
Copper and zinc
exceeded.

Copper and zinc
exceeded.

Copper and zinc
exceeded.

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121

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125

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126

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127

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133

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136

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139

and 0.178mg/L of zinc was
discharged from the Facility
at the northern discharge
location, SWSL1.
On February 17, 2009, storm
water containing 0.0216mg/L
of copper, 0.0278mg/L of
lead, and 0.185mg/L of zinc
was discharged from the
Facility at the southern
discharge location, SWSL2.
On April 12, 2010, storm
water containing 0.036mg/L of
copper, 0.026mg/L of lead and
0.092mg/L of zinc was
discharged from the
Facility’s Southwest Corner.
On December 29, 2010, storm
water containing 0.024mg/L of
dissolved copper, 0.016mg/L
of dissolved lead and
0.15mg/L of dissolved zinc
was discharged from the
Facility’s Southwest Corner.
On December 29, 2010, storm
water containing 0.028mg/L of
copper, 0.016mg/L of lead and
0.15mg/L of zinc was
discharged from the Facility
at “SP #1.”
On March 18, 2011 storm water
containing 0.0051mg/L of lead
was discharged from the
Facility’s southern discharge
location, SWSL2.
On October 10, 2011, storm
water containing 0.15mg/L of
copper, 0.02mg/L of lead, and
0.16mg/L of zinc was
discharged from the
Facility’s southern discharge
location, SWSL2 (per the
chain of custody, although
location is in conflict with
AR assertion that only SWSL1
discharged on that date).
On January 20, 2012, storm
water containing 0.037mg/L of
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Copper and zinc
exceeded.

Copper exceeded.

Copper and zinc
exceeded.

Copper and zinc
exceeded.

No exceedance.

Copper and zinc
exceeded.

Copper and zinc
exceeded.

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155

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156

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158

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159

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160

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161

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163

copper, 0.044mg/L of lead and
0.27mg/L of zinc was
discharged from the
Facility’s northern discharge
location, SWSL1.
On December 3, 2014, storm
water containing 0.032mg/L of
copper and 0.032mg/L of lead
was discharged from the
Facility at the southern
discharge location, SWSL 2
Inside.
On December 3, 2014, storm
water containing 0.03mg/L of
copper and 0.03mg/L of lead
was discharged from the
Facility’s southern discharge
location, SWSL2 Outside.
On December 11, 2014, storm
water containing 0.035mg/L of
copper, 0.050mg/L of lead and
0.16mg/L of zinc was
discharge from the Facility’s
southern discharge location,
SWSL2 Inside.
On December 11, 2014, storm
water containing 0.038mg/L of
copper, 0.057mg/L of lead and
0.18mg/L of zinc was
discharged from the
Facility’s southern discharge
location, SWSL2 Outside.
On December 11, 2014, storm
water containing 0.036mg/L of
copper, 0.049mg/L of lead and
0.14mg/L of zinc was
discharged from the
Facility’s southern discharge
location, SWSL2.
On December 11, 2014, storm
water containing 0.029mg/L of
copper, 0.038mg/L of lead and
0.12mg/L of zinc was
discharged from the
Facility’s southern discharge
location, SWSL2.
On February 6, 2015 storm
water containing 0.041mg/L of
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Copper exceeded.

Copper exceeded.

Copper and zinc
exceeded.

Copper and zinc
exceeded.

Copper and zinc
exceeded.

Copper exceeded.

Copper exceeded.

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copper, 0.044mg/L of lead,
and 0.12mg/L of zinc was
discharged from the
Facility’s southern discharge
location, SWSL #2.

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III.

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For

the

stated

CONCLUSION
reasons,

reconsideration has been granted.
Dated:

January 4, 2016

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Defendants’

motion

for