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

Filing 61

ORDER signed by Judge Garland E. Burrell, Jr. on 7/15/2011 ORDERING Plaintiff's CWA claims are barred by 33:1365(b)(1)(B) and are DISMISSED for lack of jurisdiction. Because of this ruling, the Court lacks supplemental jurisdiction over pltf's state claims, and those claims are DISMISSED. This action shall be closed. CASE CLOSED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a nonprofit corporation,

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Plaintiff,

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v.

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CHICO SCRAP METAL, INC., a
California corporation; GEORGE
W. SCOTT, SR. REVOCABLE INTER
VIVOS TRUST; GEORGE SCOTT, SR.,
an individual; and GEORGE SCOTT,
JR., an individual,

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Defendants.
________________________________

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2:10-cv-01207-GEB-GGH
ORDER DISMISSING ACTION FOR
LACK OF JURISDICTION

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Defendants move for an order dismissing this citizen water

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pollution enforcement action. Plaintiff alleges in this action twelve

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claims under the Federal Water Pollution Control Act (“Clean Water Act”

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or “CWA”), and three claims under California Health & Safety Code

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section 25249.5 et seq. Plaintiff alleges in its CWA claims that

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Defendants’ discharges of pollutants from scrap metal facilities they

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operate violates Defendants’ permits issued under the National Pollutant

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Discharge

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dismissal motion: 1) Plaintiff lacks standing to bring its claims; 2)

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Plaintiff’s claims are moot; and 3) the CWA “civil penalty” bar in 33

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U.S.C.

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Plaintiffs’ claims.

Elimination

System

1319(g)(6)(a)(ii)

(“NPDES”).

deprives

this

Defendants

Court

of

argue

in

jurisdiction

their

over

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Defendants’ dismissal motion includes a request that judicial

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notice be taken of the following documents which are part of California

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state court criminal cases involving three of the named Defendants in

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the instant federal lawsuit: 1) “Imminent and Substantial Endangerment

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Determination and Remedial Action Consent Order[s]” dated October 1,

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2008; 2) a “Terms of Plea” filed in Butte County Superior Court in

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California

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Probation/Conditional & Revocable Release” dated October 20, 2008.

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Further, following oral argument on the dismissal motion, Defendants

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requested that judicial notice be taken of the following document which

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is part of the same state court criminal cases: “Petition for Violation

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of Probation” dated June 6, 2011. These judicial notice requests are

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granted since referenced documents “have a direct relation to matters at

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issue” in this federal court action. U.S. ex rel. Robinson Rancheria

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Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

on

October

17,

2008;

and

3)

a

“Conditions

of

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Defendants’ dismissal motion was heard on February 7, 2011.

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Following oral argument on the motion, the Court realized the parties

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did not brief whether 33 U.S.C. § 1365(b)(1)(B) has a bearing on the

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Court’s jurisdiction over this federal lawsuit, and therefore ordered

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briefing on this issue. § 1365(b)(1)(B) deprives a court of jurisdiction

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over a CWA citizen enforcement action “if the . . . State has commenced

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and is diligently prosecuting a civil or criminal action in a court of

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. . . a State to require compliance with [an effluent] standard [or]

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limitation[.]” 33 U.S.C. § 1365(b)(1)(B).

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Defendants operate scrap metal facilities in Butte County,

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California (“scrap metal facilities”), under NPDES permits issued by the

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state of California. (Decl. of Kim Scott in Supp. of Defs.’ Mot to

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Dismiss (“Scott Decl.”) ¶¶ 1, 5.) NPDES permits “make the generally

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applicable

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[promulgated

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discharger.” Sierra Club v. Chevron, 834 F.2d 1517, 1519 (9th Cir.

effluent
under

limitations
the

CWA]

and
the

2

other

water

individual

quality

obligation

standards
of

the

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1987). “[C]ertain states are authorized to issue NPDES permits to

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discharging

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1251(b), 1342(b)). “California maintains an NPDES permit program that

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has been approved by the EPA Administrator.” Id. (citing CAL . WATER CODE

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§ 13370 et seq.).

entities

within

the

state.”

Id.

(citing

33

U.S.C.

§§

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In 2007, the state of California commenced individual criminal

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actions against three of the named Defendants in this federal court

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lawsuit

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(“Defs.’ RJN”) Ex. B, at 1:17-24.) The state of California alleged these

(“criminal

Defendants”).

(Defs.’

Req.

for

Judicial

Notice

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criminal

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environmental laws when operating the scrap metal facilities. Id.

Defendants

were

responsible

for

violating

various

state

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In October of 2008, these state criminal Defendants entered

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into a “global” plea agreement that resolved each state criminal case.

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Id. Ex. B, at 2:1, 13:20-21. Part of this plea agreement “placed [each

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Defendant] on five years informal court probation” commencing in October

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of 2008. Id. Ex. B, at 4:2, 15:8. These criminal Defendants also entered

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into consent orders with the California Department of Toxic Substances

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Control (“DTSC”) concerning each scrap metal facility. Id. Ex. A, at

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194, 359, 542. Terms in the criminal Defendants criminal probation

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obligated each criminal Defendant to comply with the referenced DTSC

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consent orders. Id. Ex C, at 1-2. Each consent order contains the

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following provision: “Maintain Drainage Control: [Defendants] agree to

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maintain drainage control that meets, at a minimum, . . . the Waste

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Discharge Requirements for Discharges of Storm Water Associated with

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Industrial Activities as adopted by the California State Water Quality

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Control Board.” Id. Ex. A, at 202, 368, 550.

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plea agreement, the state of California imposed a fine of $700,000 on

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the

criminal

Defendants,

$500,000
3

of

which

Further, pursuant to the

“is

suspended

pending

1

satisfactory

2

certification

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successfully complied with the requirements of the [consent orders].”

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Id. Ex. B, at 2:22, 2:25-3:2, 13:27-28, 14:3-7.

completion
by

the

of

the

[DTSC]

terms

that

of

[the

probation

criminal

including

Defendants

the

have]

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In December of 2009, the California Regional Water Quality

6

Control Board, Central Valley Region (“CWQCB”) sent letters to Defendant

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Chico Scrap Metals, Inc., a named defendant in this federal lawsuit, in

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which it states: storm water runoff from the scrap metal facilities

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exceed the Environmental Protection Agency (“EPA”) benchmarks. (Scott

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Decl. ¶ 8; Ex. A.) Each letter also states: “failure to respond to the

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exceedances . . . is a violation of the [NPDES] Permit[s].” Id. Ex. A.

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On

March

17,

2010,

Plaintiff

provided

notices

to

the

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Defendants in this federal civil water pollution action which informs

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them of CWA violations occurring at the scrap metal facilities. (Id. ¶

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11;

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Complaint in this federal lawsuit on May 17, 2010. In June of 2010, the

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CWQCB “issued a Notice of Violation [of Defendants’ NPDES permits] for

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. . .

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2011, the state of California filed a “Petition for Violation of

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Probation” in each above referenced state court criminal case, in which

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it alleges that the criminal Defendants violated probation by, inter

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alia, violating the NPDES permits at the scrap metal facilities. (Defs.’

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Supplemental Request for Judicial Notice, Addendum A, ¶¶ 8, 14, 15, 24,

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June 29, 2011.)

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Second

Am.

Compl.

(“SAC”)

¶

2.)

Plaintiff

filed

its

the [scrap metal] facilities.” (Scott Decl. ¶ 9.)

“Congress

enacted

the

CWA

‘to

restore

and

initial

On June 6,

maintain

the

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chemical, physical, and biological integrity of the Nation’s waters.’”

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The Piney Run Pres. Ass’n v. The Cnty. Comm’rs of Carroll Cnty., MD, 523

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F.3d 453, 455 (4th Cir. 2008) (quoting 33 U.S.C. § 1251).
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To serve those ends, the Act prohibits the
discharge of any pollutant by any person unless
done in compliance with some provision of the Act.
One such provision, codified at 33 U.S.C. § 1342,
established
a
National
Pollution
Discharge
Elimination System that is designed to prevent
harmful discharges into the Nation’s waters.
Generally speaking, the NPDES requires dischargers
to obtain permits that place limits on the type and
quantity of pollutants that can be released into
the Nation’s waters. An NPDES permit defines, and
facilitates compliance with, and enforcement of, a
preponderance of a discharger’s obligations under
the Act. The [EPA} initially administers the NPDES
permitting system for each State, but a State may
apply for a transfer of permitting authority to
state officials. If authority is transferred, then
state officials have the primary responsibility for
reviewing and approving NPDES discharge permits,
albeit with continuing EPA oversight. . . .

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Although
the
primary
responsibility
for
enforcement rests with the state and federal
governments, private citizens provide a second
level of enforcement and can serve as a check to
ensure the state and federal governments are
diligent in prosecuting Clean Water Act violations.
Specifically, § 505(a) of the CWA, 33 U.S.C. §
1365(a), authorizes citizens to bring suit against
any NPDES permit holder who has allegedly violated
its permit. We have recognized that this citizen
suit provision is critical to the enforcement of
the CWA, as it allows citizens to abate pollution
when the government cannot or will not command
compliance. However, citizen suits are meant to
supplement rather than to supplant governmental
action, and the CWA - specifically § 1365(b)(1)(B)bars a citizen from suing if the EPA or the State
has
already
commenced,
and
is
‘diligently
prosecuting,’ an enforcement action. This statutory
bar is an exception to the jurisdiction granted in
subsection (a) of § 1365, and jurisdiction is
normally determined as of the time of the filing of
a complaint.

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Id. at 455-456 (internal quotation marks and citations omitted).

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Here, the existence of jurisdiction is decided by determining

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whether 33 U.S.C. § 1365(b)(1)(B) bars Plaintiff’s federal CWA citizen

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enforcement

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prosecutions against the criminal Defendants in California state court,

action

based

on

the

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commencement

of

criminal

state

1

and the prosecution of those cases. § 1365(b)(1)(B) prescribes a federal

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court is without jurisdiction over a CWA citizen enforcement action if

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the “State has commenced and is diligently prosecuting a . . . criminal

4

action

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standard [or] limitation[.]” 33 U.S.C. § 1365(b)(1)(B). “An effluent

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standard or limitation includes a ‘permit or condition thereof.’” Sierra

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Club v. City and Cnty. of Honolulu, No. 04-00463 DAE-BMK, 2008 WL

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1968317, at *4 (D. Hawaii May 7, 2008) (quoting 33 U.S.C. § 1365(f)).

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Plaintiff “bears the burden of proving that [the state of California]

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has not diligently prosecuted [its state criminal cases against the

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criminal Defendants based their violations of their NPDES permits].”

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Piney

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ordinarily be considered ‘diligent’ if the judicial action ‘is capable

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of requiring compliance with the [CWA] and is in good faith calculated

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to do so[.] . . . [D]iligence is presumed.” Id. (quoting Friends of

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Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 760

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(7th Cir. 2004)).

in

[state

Run,

523

court]

F.3d

at

to

require

459.

“A

compliance

CWA

with

enforcement

[an

effluent]

prosecution

will

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The October 2008 probation order, which governs the criminal

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Defendants’ probation and incorporates by reference the three consent

20

orders, constitutes a “commenced . . . action in a court of

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State” under § 1365(b)(1)(B). See Friends of Milwaukee’s Rivers, 382

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F.3d at 753 (stating that stipulations and consent orders filed during

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pending lawsuits constitute “commenced judicial enforcement action[s]”);

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cf. Sierra Club, 2008 WL 1968317, at * 5 (analyzing consent decrees

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filed as part of EPA judicial enforcement action when determining

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whether

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1365(b)(1)(B)). The state court criminal probation orders also require

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each criminal Defendant to comply with the effluent standards and

a

subsequently

filed

citizen

6

suit

was

barred

. . . a

under

§

1

limitations in their NPDES permits. Further, the Petition for Violation

2

of Probation filed in the state court criminal cases evinces that

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California

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Therefore, the § 1365(b)(1)(B) bar prevents the federal court from

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having jurisdiction in this federal lawsuit, even though some of the

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defendants in this federal lawsuit were not on state probation in the

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state criminal cases.

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is

diligently

prosecuting

the

criminal

Defendants.

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Section 1365(b)(1)(B) does not speak of diligently
prosecuting
particular
defendants
but
of
“diligently prosecuting a civil or criminal action
. . . to require compliance.” Even a diligent
prosecutor may decide that the strategically
appropriate course of action is to [pursue an
action] against a particular set of parties rather
than to pursue further action against all parties
alleged to have violated provisions of the CWA.

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Karr v. Hefner, 475 F.3d 1192, 1199-1200 (10th Cir. 2007) (affirming

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dismissal of nine Defendants under § 1365(b)(1)(B) even though a prior

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EPA action “resulted in a consent decree against only two of [those]

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Defendants”).

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Therefore, Plaintiff’s CWA claims are barred by 33 U.S.C. §

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1365(b)(1)(B) and are dismissed for lack of jurisdiction. Because of

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this ruling, the Court lacks supplemental jurisdiction over Plaintiff’s

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state claims, and those claims are dismissed.

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This action shall be closed.
Dated:

July 15, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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