The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
Previously pending on this court's law and motion calendar for December 16, 2010, was plaintiff's motion to compel inspections of land and property filed November 11, 2010, and defendants', Chico Scrap Metal Inc.'s *fn1 motion for protective order filed November 22, 2010, to forego such discovery as well as to stay responses to certain paper discovery. The motion for protective order was, in essence, a one-sided request to stay CSPA's discovery. Defendants Andrew Packard appeared on behalf of plaintiff. Therese Cannata and Juna Kim represented defendants.
On January 7, 2011, defendants filed a request for a "temporary stay" of discovery pending ruling on defendants' motion to dismiss currently scheduled before the Honorable Garland E. Burrell Jr. The combined effect of defendants' discovery motions is to request a mutually applicable, temporary stay of discovery.
After hearing oral argument and having reviewed the parties' papers, including further submittals, the court now issues the following order.
Background to These Motions
This case is proceeding on the second amended complaint, filed December 10, 2010. California Sportfishing Protection Alliance ("CSPA") is proceeding as a "citizen enforcer," under the Clean Water Act, 33 U.S.C. § 1365, alleging that Chico Scrap Metal ("CSM" or defendants) is continuing to violate the terms of the National Pollutant Discharge Elimination System (NPDES) Permit based on storm water discharged from defendants' facilities in Chico (CSM-20th St.), Durham (CSM-Durham) and Oroville (CSM-NorCal). In addition to these alleged violations, plaintiff further alleges that defendants failed to implement the required Best Available Technology Economically Achievable ("BAT") for conventional pollutants, and that they failed to develop and implement an adequate Storm Water Pollution Prevention Plan and adequate Monitoring and Reporting Program. Plaintiff seeks civil penalties, injunctive relief and costs.
Plaintiff seeks to compel inspection of defendants' three facilities pursuant to CSPA's formal notices of inspection issued October 1, 2010. There are two requests for inspection noticed, one for three "wet" inspections, on three days where rain is forecast, during the wet season, November 5, 2010 through May 31, 2010, and one dry inspection initially noticed for November 5, 2010.
Absent consideration of the below described state enforcement action as duplicative and CSPA's standing, defendants do not seriously dispute CSPA's right to conduct discovery per se in a CWA action, i.e., whether CSPA, in this action, can inspect defendants' property to determine whether defendants are properly managing storm water discharges. Rather, defendants decry the duplicative nature of this federal action with one commenced in state court by state officials (described below). Defendants seek to stay discovery until jurisdiction/statutory preclusion is resolved in or about March 2011, when their motion to dismiss will be heard and resolved, arguing that the requested discovery is premature and overbroad. They request an order either forbidding the discovery, specifying the terms of discovery, or limiting the scope of discovery. As noted above, defendants later requested a omnibus stay of discovery. Three grounds for issuance of a stay as argued by defendants in the protective order motion were: (1) the State agency oversight precludes this Clean Water Act (CWA) action; (2) CSPA has initiated this action only to remedy past actions; (3) CSPA has not shown that "navigable" waters of the United States are involved such that a Clean Water Act litigation is proper.
On January 11, 2011, defendants filed the promised motion to dismiss, but on grounds only somewhat similar to the grounds set forth in the motion for protective order. Defendants claimed therein that: (1) CSPA lacked standing on account of no concrete injury; (2) mootness; and (3) the other action preclusion section of the CWA (comparable state law) barred a civil penalty action in this court.*fn2 In determining whether to stay discovery pending adjudication of the motion, the undersigned will focus on the recently filed motion to dismiss, but with recognition of the fact that CSPA has only had an opportunity to respond to such arguments as they may have been contained in the protective order motion.
State Enforcement Activites
Defendants were previously the subject of civil and criminal court actions and regulatory enforcement proceedings in Butte County Superior Court and through the Department of Toxic Substances Control ("DTSC"). These cases resulted in a plea agreement and probation order, applicable to each of defendants' facilities, which incorporates three DTSC orders, termed the "Consent Orders," effective October 16, 2008, and lasts for a five year probationary period, supervised by Butte County Superior Court. In addition to these orders, the California Valley Regional Water Quality Control Board ("CVRWQCB") and the EPA, through its contractor, have monitored defendants and found violations on January 11 and 13, 2010. The CVRWQCB formally adopted many of the EPA's observations and issued a violation notice in June 2010. Apparently, these violations have been addressed.
At the hearing on the parties' motions, defendants were directed to file a copy of the criminal complaint in the underlying action. Defendants complied on December 20, 2010; however, plaintiff filed on that date an unsolicited declaration of Leona Winner, project manager of the CSM sites for the California Environmental Protection Agency, DTSC. (Dkt. #33.) Defendants then requested and received permission to file their own declarations; however, they filed a statement on January 7, 2011, indicating that they could not submit declarations because the DTSC would not permit their employees to provide declarations. (Dkt. #38.)
The criminal complaints filed against defendants in state court contain little reference to violations involving storm water discharge. The misdemeanor complaint contains 26 counts, but only one refers to depositing hazardous materials into "waters of the state" as well as onto roads. CSM is accused of violating Penal Code § 374.8 by discharging waste into the storm sewers of Chico. (Dkt. #34, Ex. C, Count 26.) The felony complaint is limited to counts alleging violations of Cal. Health and Safety Code section 25189.5(a), for disposing of hazardous waste at an unauthorized facility. (Dkt. #34, Ex. B.) There is no allegation concerning discharge of hazardous materials into waters of the United States; however, it stands to reason that the rather comprehensive nature of the DTSC oversight, even combined with informal EPA inspections, would encompass such discharges prohibited by the CWA.*fn3
Defendants also inform that "penalties" have been previously assessed by the court as part of the resolution in the state actions in the amount of $381,580.00 The Consent Orders in this case reference storm water discharges. They first provide that any response action must be consistent with all state and federal statutes. (Joint Exs. A-1, A-2, A-3, ¶ 5.1.) In addition to hazardous waste, remedial objectives include maintaining drainage control and protecting groundwater. These paragraphs of the Consent Orders provide:
18.104.22.168 Maintain Drainage Control. The Respondents agree to maintain drainage control that meets, at a minimum,  the Waste Discharge Requirements for Discharges of Storm Water Associated with Industrial Activities as adopted by the California State Water Quality Control Board.
5.2.3 Protection of Groundwater. Existing and potential beneficial uses of groundwater shall be protected. The Regional Water Quality Control Board Basin Plan identifies public water supply as a beneficial use of this aquifer. Therefore, drinking water standards or more conservative values determined by a ...