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Baykeeper v. Levin Enterprises, Inc.

United States District Court, N.D. California

December 18, 2013

SAN FRANCISCO BAYKEEPER, Plaintiff,
v.
LEVIN ENTERPRISES, INC. et al., Defendants

Page 1209

For San Francisco Baykeeper, a California non-profit corporation, Plaintiff: Daniel Cooper, LEAD ATTORNEY, Caroline Ann Koch, Lawyers for Clean Water, Inc., San Francisco, CA; George Matthew Torgun, Jason Robert Flanders, Sejal Choksi-Chugh, San Francisco Baykeeper, San Francisco, CA.

For Levin Enterprises, Inc., a California corporation, Levin-Richmond Terminal Corporation, a California corporation, Defendants: Catherine W. Johnson, Hanson Bridgett LLP, Oakland, CA; Lawrence M. Cirelli, Nathan Andrew Metcalf, Sophia B. Belloli, Timothy Devon Findley, Hanson Bridgett LLP, San Francisco, CA.

OPINION

Page 1210

ELIZABETH D. LAPORTE, United States Chief Magistrate Judge.

ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES' CROSS-MOTIONS FOR SUMMARY ADJUDICATION

I. Introduction

This case arises under the Clean Water Act (" CWA" ), 33 U.S.C. § § 1251 et seq. Plaintiff San Francisco Baykeeper, an environmental advocacy group, alleges that Defendants Levin Enterprises, Inc. (" LEI" ), and Levin-Richmond Terminal Corporation (" LRTC" ), which operate a marine bulk terminal (" the Levin Facility" ) on the Lauritzen Canal and the Santa Fe

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Channel of San Francisco Bay, have violated the CWA and their permit to discharge storm water under the National Pollutant Discharge Elimination System (" NPDES" ). Plaintiff has moved for partial summary judgment on two of Defendants' affirmative defenses. Plaintiff argues that its notice-of-intent-to-sue letter was adequate, and that Defendants must have -- and do have -- permit coverage for all their activities at the terminal. Defendants filed a cross-motion for summary judgment as to all of Plaintiff's claims based on the inadequacy of the notice of intent to sue, and for summary judgment as to most of Plaintiff's claims based on their contention that no permit is required for most of the activities at the Levin Facility. The Court grants in part and denies in part both motions for summary judgment.

II. Background

A. Regulatory Background

1. Clean Water Act

The goal of the Clean Water Act is to " restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 310(a) of the CWA prohibits the discharge of pollutants from any point source into waterways without an NPDES permit. 33 U.S.C. § 1311(a). The CWA defines " point source" as " any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14).

Congress established the permitting process for storm water discharge in 1987. Most discharges composed entirely of storm water are exempt from the CWA's permitting requirements, but permits are required for discharges associated with " industrial activity." See 33 U.S.C. § 1342(p)(1) and (2); Natural Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1304-05 (9th Cir. 1992) (detailing EPA's regulations regarding " industrial activity" sources). EPA's implementing regulations at 40 C.F.R. § 122.26 require NPDES permit authorization for facilities engaged in industrial activity to discharge to United States waters.

There are eleven categories of facilities engaged in industrial activity, grouped according to Standard Industrial Classification (" SIC" ) codes. See 40 C.F.R. § 122.26(b)(14). Marine transportation facilities, such as the one at issue in this case, are SIC code 4491; industrial activities at transportation facilities are defined as the portions of the facility involved in vehicle maintenance, equipment cleaning, or airport deicing operations. Id.

2. California's Permit for Industrial Dischargers

In 1973, the EPA delegated its authority to operate the NPDES program to the State of California. See 57 Fed. Reg. 43,733, 43-743-35 (listing states with permitting authority). The State Water Board is a delegated agency and is authorized to issue, implement, and enforce NPDES permits. See Cal. Water Code § 13160. This authority includes implementation and enforcement of the Permit and exercise of residual authority pursuant to 33 U.S.C. § 1342(p)(2)(E), which provides that a delegated state may determine that a storm water discharge contributing to a violation of a water quality standard, or that is a significant contributor of pollutants to United States waters, requires an NPDES permit. See 57 Fed. Reg. 43,733, 43-743-35.

The State Board issued a single statewide permit (" Permit" or " General Permit" )

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for industrial discharges in 1991. See Declaration of Caroline Koch ISO Pl.'s MSJ (" Koch Decl. " ) Ex. E at II. The Permit was modified in 1992 and reissued in 1997. Id. To lawfully discharge storm water in California, facilities engaged in certain industrial activity must comply with the terms of the Permit. 33 U.S.C. § 1342(p)(2)(B); see also Koch Decl. 1 Ex. E at 1 (listing regulated discharges). Facilities seeking coverage under the General Permit must submit a Notice of Intent to Comply with the General Permit (" NOI" ). Id. Ex. E at 6. The NOI embodies the discharger's agreement to abide by the terms of the permit. Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003).

The Permit has four basic requirements. First, permittees must implement best management practices (" BMPs" ) to reduce or prevent pollutants in storm water discharges. Second, the Permit forbids discharges of storm water that cause or contribute to an exceedance of applicable Water Quality Standards in the applicable water quality or basin plan. Third, permittees must develop and implement a Storm Water Pollution Prevention Plan (" SWPPP" ). Fourth, permittees must develop and implement a Monitoring and Reporting Program (" M& RP" ) in compliance with Section B of the Permit, which includes filing annual reports with the Regional Water Quality Control Board. Koch Decl. 1 Ex. E at 4, 11-23, 24-45.

B. Factual and Procedural History of Defendants'

Permits 1. The LRTC Permits

Defendant LRTC owns the Levin Facility, a dry bulk cargo marine terminal in Richmond, California, on the Inner Harbor of San Pablo Bay. Defs.' MSJ Br. at 8. (Plaintiff states that Defendant Levin Enterprises, Inc., is the owner of the Main Terminal and the North Parr Yard portions of the Levin Facility, and that the South Parr yard is owned by the 799 Wright Avenue LLC, whose sole owner is Defendant Levin Enterprises, Inc. Koch Decl. 1 ¶ 25, Ex. U (Excerpts from Defendants' Responses to Requests for Admission) at 5-10.) It accepts dry bulk cargo from customers via truck or rail and loads the cargo into ships. There are facilities to temporarily store cargo before loading and two berths for cargo ships. Most of the cargo is stored outside. Defs.' Br. at 8; Declaration of James Holland ISO Defs.' Cross-Motion for Summary Judgment (" Holland Decl." ) ¶ ¶ 6-8. Defendant LRTC has an air permit from the Bay Area Air Quality Management District (" BAAQMD" ) for the storage and handing of dry bulk cargo and its associated equipment (e.g., the bulk transport system). Holland Decl. Ex. B.

In 1992, Defendants submitted a " Notice of Intent for General Permit to Discharge Stormwater Associated with Industrial Activity" to the State Board. Koch Decl. 1 Ex. G at 2. Levin Enterprises is listed as the Owner/Operator, and the Levin Facility is described as a marine bulk terminal with an SIC code of 4491. Id. Under " Industrial Activities at Facility," three activities are checked: material storage, vehicle maintenance, and material handling. Id. Under " Types of materials handled and/or stored outdoors," scrap metal and " Other: Materials loaded/unloaded ie: Bauxite, Coal, Green Coke, Hog Fuel, Aggregate, etc." are checked. Id. at 3. The Facility is listed as approximately 43 acres. Id.

In 1997, the General Permit expired. Those facilities enrolled under the prior Permit were sent NOI certifications and instructed that to enroll under the new General Permit, they should sign the certification and return it to the State Board.

Page 1213

Koch Decl. 1 Ex. H at 2. Defendant signed the certification and dated it May 25, 1998. Id. at 3. The certification states that " I certify that the provisions of the permit, including the development of and implementation of a Storm Water Pollution Prevention Plan and a Monitoring Program Plan, will be complied with." Id.

Defendants submitted their first SWPPP and M& RP for the Levin Facility in June of 2003. Koch Decl. 1 Exs. I, J. They submitted further SWPPPs and M& RPs dated 2006-2007 and 2011-2012. Id. Exs. O, P, Q. The current SWPPP, from 2013, states that Defendants " elected to manage all of the stormwater runoff" at the Facility. Id. Ex. S at 6.

2. Plaintiff's Notice-of-Intent-to-Sue Letter

On June 5, 2012, Plaintiff wrote Defendants a letter (" Notice Letter" ) notifying them of Plaintiff's intent to file suit under the Clean Water Act. First Amended Compl. (" FAC" ), Docket No. 12, Ex. A. The letter will be discussed in more detail below, but it is approximately 20 pages long, plus attachments, and describes Plaintiff's role as an advocacy organization, Defendants' operation, how storm water pollutes the San Francisco Bay watershed, how the Regional Board administers the General Permit, how Defendants' industrial activities pollute the Bay, and the specific alleged violations of the Clean Water Act.

3. Regional Board Communication Regarding LRTC's Permit Coverage

On March 18, 2013, the Chief of the Regional Board's Watershed Division, Shin-Roei Lee, sent Defendants a letter stating that the Levin Facility " has had permit coverage" under the General Permit since 1992, and is required to maintain and implement a SWPPP. Having reviewed Defendants' 2013 SWPPP and 2011-12 Annual Monitoring Report, Ms. Lee wrote:

[W]e determine that the Terminal has been and must continue to be covered by the Permit due to the following reasons:
1) At the Terminal, dry bulk material storage and handling of materials . . . are conducted in a way that results in discharges of polluted storm water.
2) The Terminal lacks structural and non-structural controls necessary to prevent the discharge of pollutants associated with industrial activities at the Terminal.
3) Laboratory analyses of storm water samples taken from the site as reported in the 2011-2012 Annual Report show that storm water contains pollutants, including metals and suspended sediments above U.S. EPA's benchmark values (see attached table).
In summary, the Terminal is required to remain covered by and comply with the Permit.

Declaration of Shin-Roei Lee, Defendants' MSJ Brief (" Lee Decl." ), Ex. A at 1-2.

On April 9, 2013, Defendants challenged Ms. Lee's letter, and on May 29, 2013, Yuri Won, the Regional Board's Senior Staff Counsel, responded:

It appears that the storage and handling of the coke piles, by itself, at the site is not identified in the statewide general industrial stormwater permit (General Permit) as requiring permit coverage. Nonetheless, we understand that the Levin-Richmond Terminal has filed a Notice of Intent (NOI) to comply with the General Permit with respect to the coke piles. As such, we expect the Levin-Richmond Terminal to comply with the General Permit as it pertains to the coke piles.

Page 1214

Lee Decl. Ex. B. On May 2, 2013, Regional Board staff member Michelle Rembaum-Fox inspected the Levin Facility and found violations of the General Permit, laid out in a June 11, 2013 Notice of Violation letter from Ms. Lee. Lee Decl. ¶ 7 & Ex. C (" NOV letter" ).

Defendants responded to the NOV letter on July 30, 2013. Declaration of Catherine Johnson ISO Defs.' MSJ (" Johnson Decl." ) Ex. C. In the response, Catherine Johnson, Defendants' counsel, stated that

LRTC has been managing its bulk material storage and handling activities as if these activities were regulated by the General Permit. We have been doing so on a voluntary basis and hope to continue to so [sic].
Based on our conversations with you, we understand that you concur that the bulk material handling and storage is not subject to the General Permit. Nonetheless, you also take the position that LRTC must comply with the General Permit as to all activities identified in its
Notice of Intent to Comply (" NOI" ), including activities not subject to the General Permit, such as bulk material storage and handling. . . .
LRTC wants to work cooperatively with the Regional Board. We understand that a voluntary compliance on the magnitude assumed by LRTC is highly unusual if not unprecedented and leads to some confusion on all sides.

Johnson Decl. Ex. C at 1. The letter also stated that Defendants believe that all of the issues raised in the NOV had been resolved. Id.

Ms. Lee, the Watershed Chief at the Regional Board, provided a declaration to Defendants that is attached to their opening brief. In it, she outlined her history with the Regional Board and her credentials; she has been the Watershed Management Division Chief since November of 2003 and supervises compliance assurance and enforcement efforts related to the Permit. Lee Decl. ¶ 2. Ms. Lee states that " [t]he Regional Water Board has no position on the disposition of this lawsuit between two private parties and provides this declaration for the purpose of clarifying certain statements or positions that may be attributed to the Regional Water Board by the parties in this case." Id. ¶ 4. After laying out the correspondence and inspection history, Ms. Lee states " [t]o date, the Regional Water Board has taken no formal Board action adopting the position that LRTC must continue to have Permit coverage for activities that are not subject to the General Permit." Id. ¶ 8. She states further that " [t]he General Permit does not identify bulk material handling and storage activities at transportation facilities as industrial activities that require a permit under the General Permit." Id. ¶ 9. Finally, she states that " [t]o date, the Regional Water Board has taken no formal Board action adopting the position that discharges from LRTC contribute to a violation of a water quality standard or are a significant contributor of pollutants to waters of the United States under 40 CFR section 122.26(a)(1)(v)." Id. ¶ 10.

III. Legal Standard

A. Summary Judgment

Summary judgment shall be granted if " the pleadings, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient

Page 1215

evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court must view the facts in the light most favorable to the non-moving party and give it the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court must not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999).

A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id. If the moving party meets its initial burden, the opposing party " may not rely merely on allegations or denials in its own pleading; " rather, it must set forth " specific facts showing a genuine issue for trial." See Fed.R.Civ.P. 56(e)(2); Anderson, 477 U.S. at 250. If the nonmoving party fails to show that there is a genuine issue for trial, " the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323.

B. Summary Adjudication

The parties have asked that if the Court declines to grant summary judgment, it instead grant summary adjudication under Federal Rule of Civil Procedure 56(g), which provides that a court " may enter an order stating any material fact -- including an item of damages or other relief -- that is not genuinely in dispute and treating the fact as established in the case." Fed.R.Civ.P. 56(g). Summary adjudication may be appropriate on clearly defined issues. California Sportfishing Protection Alliance v. Diablo Grande, Inc., 209 F.Supp.2d 1059, 1065 (E.D. Cal. 2002) (citing Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir. 1990)). It can be used to narrow issues while allowing the court to retain its power to adjudicate all claims. Id. Summary adjudication may be used to dispose of affirmative defenses. Id.

IV. Argument

There are two main questions at this stage of the case. One is which activities at the Levin Facility are covered by the General Permit. The other is whether Plaintiff's Notice Letter was sufficient. Although these issues are somewhat intertwined, and because Plaintiff's arguments have evolved over the course of briefing and oral argument, the Court will first address the scope of ...


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