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California Sportfishing Protection Alliance V.. Chico Scrap M Inc.

United States District Court, E.D. California

February 18, 2014

CHICO SCRAP M INC., ET AL., Defendants.


ALLISON CLAIRE, Magistrate Judge.

On January 22, 2014, the court held a hearing on plaintiff California Sportfishing Protection Alliance's ("CSPA") motion to quash or modify subpoenas. Andrew Packard appeared for plaintiff. Therese Cannata appeared for defendants. On review of the Joint Statement re Discovery Disagreement, upon review of the documents submitted for in camera review, upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


Defendants own and operate three scrap metal recycling facilities in Butte County, California. The facilities receive scrap m salvage vehicles, and process other waste for recycling and disposal.

Defendants' facilities are subject to the requirements and conditions contained in California's Industrial Activities Storm Water General Permit ("the Permit"), a National Pollutant Discharge Elimination System ("NPDES") general permit issued by the California State Water Resources Control Board ("the Board") pursuant to its authority under the Porter-Cologne Water Quality Control Act, Cal. Water Code §§ 13370-13389.[2] A violation of the Permit is a violation of the Clean Water Act, 33 U.S.C. § 1365(a)(1), because the Act prohibits the discharge of any pollutant into the waters of the United States, except in compliance with an applicable NPDES permit. 33 U.S.C. §§ 1311(a), 1342(a)(1), (b) & (p).

In 2007, the California Department of Toxic Substances Control ("CDTSC") initiated an investigation of defendants' facilities after discovering that concrete and construction debris had been dumped in wetlands on some of defendants' land. The CDTSC extended the investigation to defendants' three recycling facilities and found high levels of hazardous contamination. The CDTSC ordered defendants to "characterize" the extent of contamination, but defendants did not comply.

In 2007 and 2008, the Butte County district attorney filed civil and criminal actions against defendants, alleging numerous violations of state environmental and occupational safety laws. The civil complaint alleged that defendants were liable under various state laws for "unlawfully stor[ing], transport[ing, ] and dispos[ing] of hazardous waste." Specifically, the State asserted claims under California's Health and Safety Code, sections 25189.5 and 25189.6 (improper handling and disposal of hazardous waste); Business and Professions Code, sections 17203, 17204, 17206(b) (engaging in unfair business practices); and Fish and Game Code, section 5650(f) (depositing substances that are deleterious to fish, plant, or bird life into state waters). In two criminal actions, the State charged defendants with violations of the Health and Safety Code, 25189.5(a) (disposing of hazardous waste without a permit), 25189.6(a) (reckless handling of hazardous waste), 25503.5(a) (failing to submit a hazardous material release response plan after notice), 25507 (failing to report immediately a release of hazardous substances), 25509(a) (failing to inventory hazardous substances), sections 42400(a) (violating air quality rules), 42400.1(a) (negligently emitting air contaminants), 42400.2(a) (knowingly emitting air contaminants); Vehicle Code, section 11500 (acting as an automobile dismantler without a license or in violation of site requirements); Labor Code, section 6423 (violating hazardous substances removal protective standards in a workplace); Penal Code, sections 166 (criminal contempt), 373a (failing to abate a nuisance after notice), and 374.8 (depositing hazardous substances onto a road, street, highway, or into waters of the state); and Code of Regulations, title 22, section 66262.34(f) (failing to label hazardous waste containers).

In October 2008, defendants entered into a plea agreement that resolved both the civil and the criminal proceedings. The agreement provided that defendants would pay fines and serve a term of probation.[3] Among other things, the agreement required defendants to abide by three remedial action consent orders that the CDTSC had issued during the previous month. Among other requirements, the consent orders required defendants to clean up hazardous substances detected at the three facilities and to reduce potential human exposure to those substances. The plea agreement allowed defendant Chico Scrap Metal to continue operating the facilities during the probation term so as to generate revenue to pay for the cleanups.

In January 2010, the Federal Environmental Protection Agency ("EPA") inspected defendants' three facilities and found that the sites' storm water management systems failed to comply with the Permit. In March, plaintiff sent defendants, as well as state and federal agencies, notice of its intent to sue defendants under the Act for violations of the Permit. The notices alleged ongoing violations of the storm water permit at defendants' three facilities. Neither state nor federal officials commenced any enforcement proceedings under the Act after receiving the notices.

In May 2010, plaintiff filed this action. The complaint alleges violations of provisions of the Permit that (1) prohibit discharges of polluted storm water, (2) require preparation of a "Storm Water Pollution Prevention Plan, " (3) require the use of certain pollution control technologies for storm water discharges, and (4) require implementation of a storm water monitoring and reporting program.

In June 2010, the California Water Quality Control Board issued notices to defendants that they were in violation of the Permit, citing the January 2010 inspections. The notices requested that defendants submit a report describing how the violations were being addressed.

Defendants then moved to dismiss this federal action, arguing that plaintiff's claims were barred by one of the Act's "diligent prosecution" bars, 33 U.S.C. § 1319(g)(6)(A)(ii). The district court ordered supplemental briefing on whether a different "diligent prosecution" bar, § 1365(b)(1)(B), also applied. The court ultimately ruled that § 1365(b)(1)(B) barred plaintiff's citizen suit without reaching the potential application of § 1319(g)(6)(A)(ii), and accordingly dismissed the action.

Plaintiff timely appealed. Harold M. Thomas, Special Deputy District Attorney, Office of Butte County District Attorney ("Deputy DA Thomas"), filed an Amicus Curiae brief arguing against preclusion of plaintiff's claims and stating that the State's most recent efforts to revoke defendants' probation terms were intended to obtain remedies under the State's hazardous waste laws and not under the Act and that the State's prosecution and resulting probation terms (1) were never intended to address compliance with the California Storm Water Permit; (2) did not identify any violations of the Storm Water Permit; and (3) did not specify any Storm Water Permit compliance measures. Pl.-Appellant's Reply Br. at 10 (citing State Amicus Br. at 8, 10, 14).

Plaintiff also argued on appeal that the nature of the instant suit differed markedly from the State Action. Pl.-Appellant's Brief, Cannata Decl., Ex. Q at 23, ECF No. 106-5 at 56. Per plaintiff, in the State Action defendants faced six felonies involving the illegal disposal and storage of hazardous waste under the California law and 26 misdemeanors involving various hazardous material, waste, and air quality violations. In this action, defendants are sued for alleged violations of federal law, the CWA. See id. 23-29.

The Ninth Circuit ultimately held that (1) suit was not barred by CWA provision barring citizen suit when a state has diligently prosecuted action to require compliance with the standard, limitation, or order, and (2) suit was not barred by CWA provision barring citizen suit when a state has diligently prosecuted action under a comparable state law. The decision of the district judge was therefore reversed and this action remanded for further proceedings.

Following remand, plaintiff filed the operative third amended complaint pursuant to the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to 1387, and California Health & Safety Code § 25249.5 et seq. Plaintiff is now moving solely against one of defendants' three facilities, Chico Scrap Metal's Oroville location ("CSM-NorCal"). Plaintiff seeks declaratory and injunctive relief.


A. General Background

On October 23, 2013, defendants issued subpoenas to the Custodian of Records for the Butte County Office of the District Attorney ("the DA's Office") and to Deputy DA Thomas pursuant to Federal Rule of Civil Procedure 45 for the production of certain documents and communications. The subpoena to the DA's Office included eighteen requests for production and the subpoena to Deputy DA Thomas included twenty requests. Id.

On November 6, 2013, plaintiff moved to quash or modify ten requests addressed to the DA's Office and ten requests addressed to Deputy DA Thomas. On November 20, 2013, defendant filed an opposition. Because they failed to file a joint discovery statement and because there was no evidence that the parties met and conferred, the hearing on this dispute was continued to January 29, 2014. The parties have now filed a joint discovery statement.

B. The Parties' Positions

1. Plaintiff

Per plaintiff, the documents responsive to the challenged requests consist of various communications with plaintiff's counsel concerning defendants and related to (1) this litigation, including drafting of Deputy District Attorney's amicus curiae brief; (2) various enforcement actions filed by the Butte County District Attorney's Office against defendants; and (3) actions filed by defendants in both state and ...

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