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NATURAL RESOURCES DEFENSE COUNCIL v. SOUTHWEST MAR

November 4, 1996

NATURAL RESOURCES DEFENSE COUNCIL, INC.; SAN DIEGO BAYKEEPER, INC.; and KENNETH J. MOSER, Plaintiffs
v.
SOUTHWEST MARINE, INC., Defendant.



The opinion of the court was delivered by: BREWSTER

 This matter came on regularly for hearing upon defendant's motion to dismiss for lack of subject matter jurisdiction. After due consideration of the moving and opposing papers, the Court hereby DENIES defendant's motion to dismiss.

 I. Background

 Plaintiffs Natural Resources Defense Council, Inc. ("NRDC"), San Diego Baykeeper, Inc. ("SDB"), and Kenneth Moser ("Moser") filed suit against Southwest Marine, Inc. ("Southwest") for allegedly violating numerous provisions of the Clean Water Act; 33 U.S.C. § 1365. Plaintiffs allege (1) that Southwest's unlawful and excessive discharges of water pollution from its bayside facility contribute noxious pollutants to, and harm, the San Diego Pay and the Pacific Ocean, and (2) that Southwest has failed to prepare and implement several environmental compliance and monitoring plans required by the Clean Water Act.

 Plaintiffs allege that on April 30, 1996, they gave defendants and various federal and state officials notice of the alleged violations and of their intent to file suit as required by 33 U.S.C. § 1365(b)(1)(A). They further allege that more than sixty days have passed since notice was provided, but neither the EPA, nor any state or regional environmental regulatory agency has commenced and diligently prosecuted a court or administrative action to redress the violations alleged in the notice letter. Complaint §§ 4-5. Southwest contends that plaintiffs' notice letter did not provide them with any information regarding the date, location, or any activity that they allege constitutes a violation of the Clean Water Act.

 The notice letter states:

 
The information currently available to us indicates that Southwest Marine and the Port District have violated and continue to violate requirements concerning discharges from the Southwest Marine facility at the foot of Sampson Street in the City of San Diego. These requirements, including requirements related to discharges associated with or ancillary to industrial manufacturing and treatment, are embodied in the Act, its implementing regulations, and National Pollutant Discharge Elimination System ("NPDES") Permit No. CA0107697. ... The requirements with which we believe Southwest Marine and the Port District have failed to comply are set forth in Attachment 1 to this letter.
 
Additionally, the information currently available to us indicates that Southwest Marine and the Port District have violated and continue to violate NPDES General Permit No. CAS000001 governing stormwater discharges associated with industrial activities in California... The General Industrial Permit requirements with which we believe Southwest Marine and the Port District have failed to comply are set forth in Attachment 2 to this letter.

 II. Discussion

 A. Governing Law

 Title 33 U.S.C. § 1365(b) provides:

 No action may be commenced--

 
(1) under subsection (a)(1) of this ...

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