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California Sportfishing Protection Alliance v. Chico Scrap M Inc.

United States District Court, E.D. California

October 9, 2014

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


ALLISON CLAIRE, Magistrate Judge.

On October 8, 2014, the court heard oral argument on plaintiff's motion to compel. Megan E. Truxillo appeared for plaintiff and Kimberly A. Almazan and Therese Y. Cannata appeared for defendants. After carefully considering the parties' papers and arguments, plaintiff's motion to compel is GRANTED.


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 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. 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. The Ninth Circuit held that neither provision of the CWA barred plaintiff's suit. 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, alleging violations of the Clean Water Act, 33 U.S.C. §§ 1311 & 1342. Specifically, the complaint alleges violations of provisions of the Permit that (1) prohibit discharging 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, (4) require implementation of a storm water monitoring and reporting program, and (5) require reporting any noncompliance with the Permit. ECF No. 97. Plaintiff also claims that defendants have violated the California Health & Safety Code § 25249.5, et seq. by discharging Proposition 65-listed chemicals from its facility. Id . 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.[1]


On October 11, 2010, plaintiff issued its first set of requests for production to all defendants, to which they responded in part on November 15, 2010. ECF No. 155 at 5. The following request for production and opposition are at issue here:

Plaintiff's Request for Production No. 31:

Any and all DOCUMENTS setting forth YOUR assets, liabilities and net worth at all times since March 17, 2005.

Defendants' Response to Request No. 31:

Defendants incorporate by reference in to this specific response, each of the general objections listed above. Defendants further object that this request seeks documents subject to the privacy protections afforded under federal and California law. Defendants further object that the request for documents pertaining to defendants' "assets, liabilities and net worth at all times since March 17. 2005" is not reasonably calculated to lead to the discovery of admissible evidence. Defendants will not produce documents in response to this request.

Id. at 5-6.[2]

On December 13, 2013, plaintiff deposed Mr. George Scott Sr. ECF No. 155-1 at 45-48. During plaintiff's deposition it asked questions regarding Mr. Scott Sr.'s finances, but counsel for Mr. Scott objected and instructed him not to answer. Id . On February 7 & 12, 2014, defendants corresponded with plaintiff regarding its discovery requests. Id . at 3-6.[3] On February 12, 2014, plaintiff wrote defendants regarding defendants' objections to plaintiff's request for financial information. Id . at 3-6. On February 26, 2014, plaintiff deposed Ms. Kim Scott as the person most knowledgeable for defendant Chico Scrap M Inc. ("Chico Scrap Metal"). Id . at 50-53. Plaintiff asked several questions regarding Chico Scrap Metal's finances, which counsel objected to and then instructed Ms. Scott not to respond to. Id . On March 4, 2014, defendants wrote a letter to plaintiff regarding their upcoming meet and confer appointment that set out their opposition to plaintiff's discovery requests. Id . at 26-30. Plaintiff responded with their own letter outlining their position on March 6, 2014. Id . at 7-8.

On June 27, 2014, plaintiff issued its third set of requests for production to all defendants. ECF No. 156, Ex. B. The requests for ...

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