Kimberly Mueller, UNITED STATES DISTRICT JUDGE.
This is a civil enforcement action brought by plaintiff The California Sportfishing Protection Alliance (CSPA) against defendant River City Waste Recyclers, LLC (River City), alleging violations of the Federal Water Pollution Control Act, 42 U.S.C. §§ 1251-1387 ("the Clean Water Act" or "the Act") at River City's three-acre metal recycling facility in Sacramento, California (the Facility). This case is before the court on CSPA's motion for partial summary judgment of defendant's liability for violations of the Clean Water Act, including a determination as a matter of law of the total number and days of violations under the Act. ECF No. 26. River City opposes the motion, Opp'n, ECF No. 27, and the CSPA has replied, Reply, ECF No. 39. On January 29, 2016, the court held a hearing; Michael Lozeau and Rebecca Davis appeared for CSPA, and Mark Pruner appeared for River City. After the January 2016 hearing, the court allowed River City to file supplemental briefing and CSPA a surreply, clarifying their respective positions regarding the record. River City filed its supplemental briefing on February 8, 2016, Supp. Brief, ECF No. 50, and CSPA its surreply on February 11, 2016, Surreply, ECF No. 51.
CSPA has filed twenty pages of objections to the evidence River City submitted in opposition to partial summary judgment. River City raises just as many in its response to CSPA's statement of material facts. "The court is mindful of the language in Ninth Circuit cases that `[d]efects in evidence submitted in opposition to a motion for a summary judgment are waived absent a motion to strike or other objections.'" Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006). At the same time, this case is yet another example of "attorneys routinely rais[ing] every objection imaginable without regard to whether [they] are necessary, or even useful." Id.
Relevance and Foundation
Here, many of the parties' objections concern the relevance and foundation of evidence offered. "[O]bjections to evidence on the ground that it is irrelevant" are duplicative of the summary judgment standard. A court cannot rely on irrelevant facts in a motion for summary judgment. See Powell v. Union Pac. R. Co., 864 F.Supp.2d 949, 953 n.2 (E.D. Cal. 2012) (citing Burch, 433 F.Supp.2d at 1119) (emphasis omitted). Accordingly, relevance objections are overruled. In terms of foundation, "documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Nevertheless, "[o]n summary judgment, evidence need not be in a form that is admissible at trial. Accordingly, as long as a party submits evidence, which, regardless of its form, may be admissible at trial, it may be considered on summary judgment." Collins v. Mendoza-Powers, No. 06-1608, 2009 WL 453060, at *5 n.4 (E.D. Cal. Feb. 23, 2009) (citations omitted). In some instances, foundation may be apparent from the face of a document, see, e.g., Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011), or it may otherwise be apparent that "substantive evidence could be made use of at trial," Lindell v. Synthes USA, 155 F.Supp.3d 1068, 1071-72 (2016) (citation and quotation marks omitted). General objections based on lack of foundation also are overruled.
River City's Late-Filed Declarations
CSPA objects as untimely to the supplemental declaration of Bryan Wilson, owner and operator of River City, ECF No. 36, and the declaration of David Zweig, the president of Analytical Environmental Services, an environmental consulting firm retained by River City in May 2014 to assist with water quality regulatory compliance issues, ECF No. 35, because the declarations were not filed until January 15, 2016, while the deadline for River City to file its opposition was December 4, 2015. Local Rule 142 provides that any affidavit shall be "filed with the ... opposition ... to which it relates, unless accompanied by an affidavit of counsel purporting to show good cause for the separate filing thereof...." River City has provided no explanation for the filing of these two declarations more than a month after they were due. The Wilson supplemental declaration and the Zweig declaration both are STRICKEN.
Bryan Wilson Declaration
The court divides into five categories CSPA's objections to the declaration of Bryan Wilson, owner and operator of River City, CSPA Evid. Obj., ECF No. 41, and addresses them below: (1) legal conclusions; (2) improper lay witness opinion
CSPA objects to several statements in the Wilson declaration, contending they are legal conclusions. See, e.g., CSPA Evid. Obj., ECF No. 41 at 5, 10. Legal conclusions are inadmissible when presented as lay testimony. See e.g., Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1060-61 (9th Cir. 2008) (lay witnesses may not tell the finder of fact what result to reach). CSPA's objections are SUSTAINED to the extent Wilson offers legal opinions.
Improper Lay Witness Opinion Testimony
CSPA objects to certain declaration testimony as improper lay opinion. Federal Rule of Evidence 701 requires that non-expert witnesses restrict their testimony to opinions that are rationally based on their perception, helpful to understanding their testimony or to determining a fact at issue, and not based on specialized knowledge. Fed. R. Evid. 701; Taylor v. Shippers Transp. Exp., Inc., No. 13-2092, 2014 WL 7499046, at *3 (C.D. Cal. Sept. 30, 2014).
Here, the majority of CSPA's objections focus on legal conclusions, not improper opinion testimony. See, e.g., Wilson Decl. ¶ 10 ("From the beginning ... extensive planning took place to protect and address exposure of heavy metal to water."); id. ¶ 11 ("Prior to the excavation of the ditch and work on the detention basin [River City] had implemented numerous other BAT/BCTs."). As stated above, the court sustains objections to legal conclusions.
CSPA's remaining objections concern irrelevant evidence the court does not consider in this order. Accordingly, CSPA's objections in this respect are OVERRULED.
CSPA also objects to various statements as hearsay. Hearsay statements are those made outside a court proceeding that are offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Summary judgment cannot be granted on the basis of inadmissible hearsay evidence. See Shippers Transp., 2014 WL 749904, at *4. But the court may consider hearsay evidence offered by one who opposes summary judgment if the statements in question could be presented in admissible form at trial. Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003).
CSPA objects to the following statements in Wilson's declaration as hearsay: "I am informed that a 10-year rain event produces water at approximately the 85th percentile ...," Wilson Decl. ¶ 7; "Storm water pollution preventions [sic] plans and compliance are frequent discussion points in our conversation," id.; ¶ 9; "all of these other recycling businesses are fully permitted," id.; "none of these other recycling businesses have, or are required to have, storm water detention basins ...," id.; "[a]ll inspections by the Regional Water Board of the ... recycling facility passed The Clean Water Act standards and requirements," id. ¶ 17; and "[n]o violations have ever been issued to defendant River City by the Regional Water Board, and all BATs/BCTs recommended by the Regional Water Board ... were promptly implemented," id. The court finds these statements irrelevant in the context of the pending motion. CSPA's objections with
Wilson also makes averments along the lines of "[CSPA's] representatives on the visits agree with me" or "[CSPA's] counsel... said ... directly to me." To the extent these statements are offered to prove the truth of the communication described, they are the statements of River's City's opponent or of one of its representatives and therefore are not hearsay. See Fed. R. Evid. 801(d)(2). CSPA's objections to these statements are also OVERRULED.
Contradictory Deposition and Declaration Testimony
CSPA objects to several statements Wilson made in his declaration on the basis that the statements contradicted his earlier deposition testimony. See, e.g., Wilson Decl. ¶ 3 ("From the beginning of the business, I have used Best Available Technology ... and Best Convention Pollution control Technology...."); id. ¶ 4 ("In this manner, the detention basin was created at the natural and existing two-foot depression...."); id. ("The berm and the detention basin were designed to channel and retain surface runoff water so that there would be no surface water runoff from the Property...."). The Ninth Circuit has held "that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). But this rule "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony." Id. at 266-67. To apply the rule, the district court must first make the factual determination the contradiction is actually a sham. Id. at 267. To trigger an exclusion, the inconsistency must be "clear and unambiguous." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009).
The court finds that CSPA has not sufficiently established the inconsistencies here are "clear and unambiguous." CSPA's objections to these statements are OVERRULED to the extent they are not addressed by rulings already made above.
Declarations often are self-serving, because a party submits them to support his or her position. S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007). The source of declaration evidence may have some bearing on its credibility and on the weight it may be given by a trier of fact, but the district court may not disregard evidence at the summary judgment stage solely based on its self-serving nature. See id.
At the same time, a self-serving declaration does not always create a genuine issue of material fact precluding summary judgment: The district court can disregard a self-serving declaration that states only conclusions and not facts. See id.; see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1059 n.5, 1061 (9th Cir. 2002) (district court properly disregarded declaration including facts beyond declarant's personal knowledge without indicating how she knew facts to be true); F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) ("A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.").
Bearing in mind these principles, the court will not disregard a declaration solely because it is self-serving. CSPA's objections to the Wilson Declaration on this ground are OVERRULED.
CSPA requests the court take judicial notice of the following items under Federal
(1) Exhibit A: the statewide 1997 NPDES Permit, titled Waste Discharge Requirements (WDRs) for Discharges of Storm Water Associated with Industrial Activities Excluding Construction Activities, State Water Resources Control Board Water Quality Order No. 97-03-DWQ, NPDES General Permit No. CAS000001 (1997 General Permit).
(2) Exhibit B: the 2014 NPDES General Permit for Storm Water Discharges Associated with Industrial Activities, State Water Resources Control Board Order No. 2014-0057-DWQ, NPDES General Permit No. CAS000001 (2015 General Permit), effective as of July 1, 2015.
(3) Exhibit C: excerpts from the United States Environmental Protection Agency (EPA), Storm Water Multi-Sector General Permit for Industrial Activities (MSGP). 65 Fed. Reg. 64,746, 64,767 (Oct. 30, 2000).
(4) Exhibit D: the judicial opinion issued in Ecological Rights Foundation v. Sierra Pacific Industries, No. 01-0520 (C.D. Cal. Oct. 29, 1999).
(5) Exhibit E: the judicial opinion issued in Santa Monica BayKeeper v. SunLite Salvage, Inc., et al., No. 99-04578 (C.D. Cal. Dec. 15, 1999).
(6) Exhibit F: excerpts of the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Basin Plan) (September 1, 1998). See Request for Judicial Notice (RJN), ECF No. 23.
All of these exhibits are relevant to CSPA's motion for summary judgment and are either judicial or quasi-judicial documents. The court judicially notices them. Cal. Sportfishing Protection Alliance v. Callaway, No. 10-1801, 2012 WL 5949109, at *6 (E.D. Cal. Nov. 28, 2012), report and recommendation adopted, 2013 WL 875961 (E.D. Cal. Mar. 7, 2013); S.F. Baykeeper v. W. Bay Sanitary Dist., 791 F.Supp.2d 719, 770 n.13 (N.D. Cal. 2011).
STATUTORY AND REGULATORY BACKGROUND
The Clean Water Act prohibits "the discharge of any pollutant by any person" into the waters of the United States without a permit issued under the National Pollutant Discharge Elimination System (NPDES). 33 U.S.C. §§ 1311(a), 1342. "NPDES permits are issued by [the United States Environmental Protection Agency (EPA)] or by States that have been authorized by EPA to act as NPDES permitting authorities." Envtl. Def. Ctr., Inc. v. U.S. E.P.A, 344 F.3d 832, 841 (9th Cir. 2003) (citing 33 U.S.C. §§ 1342(a)-(b)).
Specifically, authority to issue permits under the NPDES is vested with the Administrator of the EPA, but the authority may be delegated to the states. 33 U.S.C. § 1342(b). California has been granted permitting authority. Santa Monica Baykeeper v. Kramer Metals, Inc., 619 F.Supp.2d 914, 919 (C.D. Cal. 2009). California issued the statewide 1997 General Permit, which applies to all storm water
The parties agree the General Permits apply in this case, beginning on their effective dates; the issue is whether River City complied with the General Permits. The court first reviews the requirements of the General Permits.
In 1991, as provided by section 402(p) of the Clean Water Act, the California State Water Resources Control Board issued a statewide General Permit, the 1997 General Permit, applicable "to all storm water discharges requiring a permit except construction activity."
Conditions of Compliance under the General Permits
Facility operators must meet the applicable standards for discharge of pollutants using the best available technology economically achievable (BAT) and the best conventional pollutant control technology (BCT) to prevent and reduce pollutants in storm water discharges, under Clean Water Act section 301, which regulates pollutant discharges, and section 402, which provides the NPDES requirements. RJN-A-010. The 2015 General Permit's effluent limitations section does not differ in any significant way from that in the 1997 Permit. RJN-B-020 ("Dischargers shall implement [best management practices (]BMPs[)] that comply with the BAT/BCT requirements ... to reduce or prevent discharges of pollutants ... in a manner that reflects best industry practice considering technological availability and economic practicability and achievability.").
The 1997 General Permit did not specifically define BAT or BCT, but the 2015 General Permit does, defining BAT as a
RJN-B-154. The 2015 General Permit defines BCT as "a technology-based standard for the discharge from existing industrial point sources of conventional pollutants including
Receiving Water Limitations
The 1997 and 2015 General Permits provide that facility operators must not cause or contribute to a violation of applicable water quality standards through the facility's storm water discharges. RJN-A-010; RJN-B-023. One of the applicable water quality standards here is the California Toxics Rule (CTR), 40 C.F.R. § 131.38. See Kramer, 619 F.Supp.2d at 926-27. The CTR limits the level of toxic pollutants in storm water discharges in California. 40 C.F.R. § 131.38(b)(1). Within California, the Sacramento River and the San Joaquin River Basins have additional water quality standards provided by a single "Basin Plan."
Reduction or prevention of pollutants in storm water discharges is accomplished through the development and implementation of BMPs under the General Permits. RJN-A-010. BMPs consist of "schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of the waters of the United States." RJN-A-077. "BMPs also include treatment measures, operating procedures, and practices to control facility site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage." Id. "BMPs may include any type of pollution prevention and pollution control measure necessary to achieve compliance with the General Permit." Id. Implementation of BMPs constitutes compliance with BAT and BCT and, in most cases, compliance with water quality standards. RJN-A-010.
The requirement of compliance with applicable water quality standards is also known as the receiving water limitation in Section C(2) in the 1997 General Permit. RJN-A-019.
Storm Water Pollution Prevention Plan (SWPPP)
The 1997 and 2015 General Permits require facility operators to develop and implement a SWPPP to help identify the sources of pollution that affect the quality of industrial storm water discharges and authorized non-storm water discharges, and describe and ensure the implementation of BMPs. RJN-A-011; RJN-B-007, 026, 028-29. A SWPPP must include the following: (a) a site map with different areas and boundaries clearly delineated, RJN-A-028-29, (b) a list of raw materials, intermediate products, final or finished products, recycled materials, and waste or disposed materials, id. (c) a description of potential pollutant sources and a summary of all industrial activities and potential pollutant sources, and potential pollutants, RJN-A-029-31, (d) an assessment of all industrial activities and potential pollutant sources as described above, RJN-A-032, and (e) a description of the storm water BMPs to be implemented for each potential pollutant and its source identified from the foregoing assessment, id.
Monitoring and Reporting
The 1997 General Permit requires facility operators to develop and implement a monitoring program to (a) demonstrate compliance with the 1997 General Permit, (b) help implement the SWPPP, and (c) measure BMPs' effectiveness in reducing or preventing pollutants in storm water
Sample collection and visual observations are required only during "scheduled facility operating hours," which are times when "the facility is staffed to conduct functions related to industrial activity," but exclude times when "only routine maintenance, emergency response, security, and/or janitorial services are performed." RJN-A-040; RJN-B-159. Visual observations are required only during daytime hours. If unable to collect the required samples or make the visual observations, facility operators must provide explanations in their annual reports. Facility operators must retain records of all monitoring information, copies of all reports required by the applicable General Permit, and records of all data used to complete the Notice of Intent for five years from the date of measurement, report, or monitoring.
The 2015 General Permit provides similar requirements with two exceptions as noted below. RJN-B-037-43; see infra, notes 4, 5.
Significant Changes between the 1997 and 2015 General Permits
The 2015 General Permit requires dischargers to implement a set of minimum
BMPs along with any advanced BMPs necessary to reduce or prevent pollutants in storm water discharges. RJN-B-082. The 1997 General Permit did not require minimum BMPs but allowed dischargers to consider which non-structural BMPs should be implemented. RJN-B-083. The minimum and advanced BMPs required in the 2015 General Permit are consistent with EPA's 2008 Multi-Sector General Permit for Storm Water Discharges Associated with Industrial Activity (2008 MSGP), guidance developed by the California Storm Quality Association and Regional Water Quality Control Board inspectors. Id. at 82-83.
The 2015 General Permit also requires dischargers to submit and certify all reports electronically. Id. The previous Permit used a reporting process with electronic reporting as an option. Id.
The 2015 General Permit also includes design storm standards for dischargers implementing treatment control BMPs. RJN-B-085. The standards include both volume-and flow-based criteria. RJN-B-036. Specifically, the minimum standard required under the 2015 General Permit provides that treatment control BMPs should be able to treat the runoff produced from an 85th percentile 24-hour storm event as determined from local, historical rainfall records. Id.
River City owns and operates the Facility. Resp. Stmt. Undisp. Material Facts (UMF) nos. 1, 4-6. Bryan Wilson is its sole member and manager. Wilson Decl. ¶ 1, ECF No. 29. The Facility began operations in April 2011. UMF no. 2. The Facility covers approximately 3 acres and includes a yard, an office, two scales, and
CSPA is a non-profit public benefit corporation organized under California state law. Its more than 2,000 members use the Sacramento River and the Sacramento-San Joaquin Delta (the Delta) and its tributaries for recreational, scientific, aesthetic, educational and conservational purposes, including fishing, boating, fish and wildlife observation, and hiking. UMF nos. 24, 26, ECF No. 28; Crenshaw Decl. ¶¶ 3-4.
CSPA promotes the conservation, restoration, and enhancement of California's fishery resources and the aquatic and terrestrial habitats these resources depend on. It advocates for the preservation of land and aquatic habitat for scientific, historic, recreational, educational, agricultural, and scenic or open space opportunities. It promotes social welfare through the protection, enhancement, and restoration of sportfishing in California. UMF no. 25; Crenshaw Decl. ¶ 4. CSPA also seeks out those who violate state or federal water quality control and endangered species regulations. UMF no. 28. Its members are concerned about the discharge of contaminated storm water into the Sacramento River and the Delta, because those discharges upset the natural balance of the ecosystem and destroy its natural beauty. UMF no. 27.
On March 31, 2014, CSPA served a Notice of Violation and Intent to File Suit under the Clean Water Act (Notice Letter) on River City, with copies sent to the EPA, the State Water Resources Control Board, the U.S. Department of Justice, and the Central Valley Regional Water Quality Control Board. UMF no. 33.
Storm water discharged from the Facility is regulated by the 1997 and 2015 General Permits. UMF no. 7. River City's operations include storing, sorting, processing, and recycling scrap metal, electronics, car parts, bottles and cans, cardboard, pallets, concrete, and other materials, which are stored in piles, open dumpsters, and containers. UMF no. 8. River City's operations also include vehicle fueling, maintenance, and repair work. UMF no. 9. Pollutant sources associated with these activities include the outdoor storage and processing of scrap metal, car parts, electronics, and used appliances; piles of concrete; shipping and receiving areas; loading and unloading areas; and areas where vehicles and equipment are fueled, maintained, and stored. UMF no. 11.
The Facility collects and discharges storm water via a single outflow point, a storm drain at its northwest corner, which empties onto Watt Avenue from the Facility's location on Elder Creek Road in Sacramento, California. UMF nos. 1, 12,13. Water in the storm drain flows into Morrison Creek, which flows into the Sacramento River, and then into the Sacramento-San Joaquin Delta. Id.
At some point during River City's operation, protections were taken against the
Wilson Decl. ¶ 11.
River City also placed concrete blocks around the concrete pad in the metal processing area to prevent pollutants from flowing into the water before the detention basin was excavated in 2014 to collect the storm water discharges. Davis Decl. Ex. H at DDH007; id. Ex. I at DDI002-05; id. Ex. AA at DDAA001.
River City's 2011 and 2012 SWPPPs list the following BMPs: inspections of heavy equipment, availability of spill cleanup kits for oil and fuel spills, wetting roadways to reduce dust and fugitive wood particles, confinement of metal and wood recycling to the operations area "to the extent practicable," periodic sweeping, and the use of fiber rolls, and tarps to cover metal bins during storm events. UMF no. 44.
In November 2012, staff from the Central Valley Regional Water Quality Control Board (the Board) conducted a site visit at the Facility. UMF no. 46. The only BMP observed by the Board staff during this inspection was a fiber roll that the staff considered ineffective. UMF no. 47. "[N]o other BMPs were observed between the [metal processing area] and the outfall
In May 2014, in response to CSPA's March 2014 Notice Letter, Wilson excavated a ditch near River City's western property line to channel all storm water into the Facility's northwest outfall. UMF no. 14. No engineering plans or design drawings were prepared for this or any future excavation of the ditch. UMF no. 18. Wilson directed his employees to use the excavator onsite to dig the ditch "to a depth of about two feet." UMF no. 19. Wilson paced the length of the ditch, and estimated it to be roughly 200 feet, but no other actual measurements were taken. Davis Decl. Ex. Y at DDY019.
The cost of the excavation was the cost of labor, fuel, and ongoing rent of the machine. UMF no. 21. Wilson estimated the cost of digging the ditch to be $2,000, which includes a portion of the rent of the excavator he keeps on site continuously, for use on site. Davis Decl. Ex. Y at DDY020-21.
Since the Facility began operations in 2011, it has always been feasible to construct a detention basin capable of stopping storm water discharges from significant rain events, but a basin was not excavated until 2014. UMF no. 23. In October 2014, River City expanded the ditch built in May of that year, and excavated a basin at the end of the ditch to contain all storm water onsite using the onsite excavator. UMF nos. 15-16. The ditch and detention basin configuration was expanded a third time in early June 2015. UMF no. 16. After the third expansion, the storage capacity of the ditch and basin was 4,872 cubic feet. UMF no. 52.
In December 2014, the Board notified River City of its BMPs' inadequacy during the previous two rainy seasons, and advised River City that "[t]he levels of pollutants in [its] storm water samples indicate
CSPA's expert hydrogeologist, a former EPA employee, Matthew Hagemann visited and inspected the Facility on December 3, 2014 and again on June 23, 2015. UMF no. 50. On June 23, 2015, Hagemann observed and photographed the detention basin, which was filled almost to the brim with muddy water and surrounded by mud and debris. UMF no. 51. He determined the basin was twenty-four feet and two inches wide, twenty-one and four inches to twenty feet wide, and two and a half to three feet deep. Hagemann Decl., Ex. A, ECF No. 21-1 at 31.
An 85th percentile, 24-hour storm, the minimum standard set by the 2015 General Permit, would generate 6,125 cubic-feet of water at the Facility. UMF no. 53. The capacity of the ditch and the basin at the Facility is insufficient to retain a storm of this size. UMF no. 54. The ditch and basin therefore do not meet the 2015 General Permit requirement for a volume-based treatment control BMP. Hagemann Decl. ¶ 15; id. Ex. A at 4-5. An overflow structure is essential for the ditch and basin BMP because if the basin were to overflow, the earthen berm that serves as a makeshift back-up impoundment structure could be breached. UMF no. 57. A breach would result in a sediment-laden discharge to the municipal storm water drain inlet, located twenty feet from the earthen berm at the Facility's northern boundary. UMF no. 57.
Receiving Water Limitations
The parties do not dispute the applicability of the EPA benchmark for SIC 5093 facilities
CSPA has submitted reports of water sampling analyses of storm water samples taken at River City by River City on April 26, 2012, October 22, 2012, April 4, 2013, and March 10, 2014. Davis Decl. Exs. U, V, W, X; see also id. Ex. G. In all four samplings, aluminum, copper, and iron exceeded the EPA benchmark. UMF nos. 61-75. Total Suspended Solids (TSS) and zinc exceeded the EPA benchmark on three occasions. UMF nos. 81-88. Lead exceeded the EPA benchmark on two occasions. UMF nos. 77-78. Chemical Oxygen Demand (COD) exceeded the EPA benchmark on one occasion. UMF nos. 79-80.
The Basin Plan incorporates the maximum contaminant levels (MCL) and secondary maximum contaminant levels (SMCL) from Table 64449-A, Title 22 of the California Code Regulations. UMF nos. 89-90; see also 22 Cal. Code Regs. § 64449. In all four samplings, aluminum and copper exceeded one or both of the MCL and SMCL levels. UMF nos. 91-100. On three occasions, iron exceeded the Basin Plan water quality objective and SMCL levels, and zinc exceeded the water quality objective. UMF nos. 101-06, 110-13. On two occasions, lead exceeded the water quality objective. UMF nos. 108-09.
Within the time periods demarcated by the statute of limitations applicable to this case, River City has operated under four SWPPPs. UMF no. 114. River City's first
SWPPP I and SWPPP II did not identify containment of storm water as a BMP for the facility. UMF no. 119. The "detention basin" described in SWPPP III referred to a depression in the ground adjacent to the Facility's discharge location, which did not prevent storm water from discharging. UMF no. 120. River City planned and implemented a detention basin designed to contain storm water after SWPPP III was prepared. UMF no. 121. None of the four SWPPPs discusses electronic goods as a source of pollutants even though consumer electronics were and are a potential source of pollutants at the Facility. UMF nos. 122-23.
Car parts, engines, engine parts, radiators, automotive batteries, and alternators are and have been found at the Facility since the beginning of its operation in 2011. UMF no. 125. The SWPPPs address the handling of equipment used in River City's recycling business and the equipment's hydraulic fluid and fuel, but do not address car parts. Davis Decl. Ex. L at DDL006-008; id., Ex. M at DDM007-008; id. Ex. N at DDN008-009; id., Ex. O at DDO007-009. The SWPPPs also generally identify metal, but do not specifically list out the significant materials handled and stored at the site, or how they were stored, received, shipped, or handled. Davis Decl., Exs. L, M, N, O.
In River City's response to CSPA's first set of requests for admission, River City states that the maps for River City's SWPPP II and SWPPP III appear in the record as separate documents. Davis Decl. Ex. E at DDE012; id. Ex. G at DDG007-008. However, the map that allegedly accompanied SWPPP II is not before the court. Instead, the record contains only the maps for SWPPP III and SWPPP IV. See Davis Decl. Exs. P & Q.
The 2014 map submitted with SWPPP III does not depict the southern boundary of the Facility or the berm installed in July 2014. Davis Decl. Ex. P. The 2014 map does depict a detention basin and a ditch. Id. No locations of exposed materials are depicted. Id. The 2014 map provides only the following clearly demarcated areas: the ditch, the basin, a neighboring tenant, paved areas, the owner's storage, the office, a business next door, and the Facility's northern and western borders of Elder Creek Road and South Watt Avenue. Id.
River City's monitoring program described in each of the four SWPPPs indicates the Facility will only analyze storm water samples for pH, Specific Conductance,
SWPPP II and III were not signed or certified. Davis Decl., Ex. E at DDE012; id. Ex. G at DDG007-08.
4. Monitoring and Reporting Program
River City's annual reports do not reflect any monthly visual observations of storm water discharges for: February 2012, May 2012, November 2012, December 2012, January 2013, February 2013, March 2013 and May 2013. Davis Decl. Ex. R at DDR016; id. Ex. S at DDS016, 018. Precipitation had occurred in those months, but it is uncertain if any storm occurred during "scheduled facility operating hours" when industrial activity was occurring, because the record does not show at what time each storm occurred. Davis Decl. Ex. B at DDB039; RJN-A-040. There was no analysis of iron, aluminum, lead, copper, zinc, or COD levels in the 2011/2012 annual report for the Facility. Davis Decl. Ex. R at DDR009. River City sampled and analyzed only one rain event during the 2013-2014 wet season. UMF no. 140. River City did not analyze the storm water it sampled on April 4, 2013 for chemical oil and grease or TOC. UMF no. 141; Davis Decl. Ex. W at DDW004. River City's 2013/2014 annual report did not report the COD levels in its storm water sample taken on March 10, 2014. UMF no. 142.
Summary judgment is appropriate where the court is satisfied "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the court looks at the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in ... [the] [non-movant's] favor." Id. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Mayweathers v. Terhune, 328 F.Supp.2d 1086, 1092-93 (E.D. Cal. 2004); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004).
The moving party bears the initial burden of demonstrating to the court "that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the burden of persuasion at trial would be on the non-moving party, the movant may satisfy the initial burden by either (1) introducing affirmative evidence that negates an essential element of the non-moving party's claim; or (2) showing that the non-moving party's evidence is insufficient to establish an essential element of the non-movant's case. Id. at 331, 106 S.Ct. 2548. When the non-moving party adopts the second option, conclusory statements that the non-moving party lacks any evidence are insufficient to meet the initial burden. See id.
Once the moving party satisfies this initial burden, the burden then shifts to the non-moving party, who "must establish that there is a genuine issue of material fact...." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is "material" when it might affect the outcome of the suit under the applicable substantive law governing the claim. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ("Only disputes over facts that might affect the outcome of the suit under the
In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record ...; or show  that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002).
The court may examine pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed. R. Civ. P. 56(c); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079-80 (9th Cir. 2004). Additionally, in resolving the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Thus, for instance, competent testimony by a single declarant may defeat summary judgment though opposed by many other declarants. United States v. 1 Parcel of Real Prop., Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 491-92 (9th Cir. 1990).
The court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).
CSPA's standing is a threshold matter and is discussed first. Because the court concludes CSPA has standing to bring this action, the court next addresses the particulars of civil enforcement and whether a continuous violation occurred here. Finally, it reaches the merits to determine whether River City failed to comply with the General Permits as a matter of law.
The court first decides whether Jim Crenshaw has standing as a member of CSPA, its president and a member of its Board of Directors, which in turn provides standing for CSPA. Second, the court decides whether Crenshaw's declaration is admissible at this stage of the proceedings.
"A plaintiff has the burden to establish that it has standing." WildEarth Guardians v. U.S. Dep't of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015). The doctrine of prudential standing prohibits an individual from litigating another person's rights. Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). An organization has standing
River City raises five arguments, attacking Crenshaw's standing: (1) Crenshaw has not identified any injury suffered, (2) Crenshaw lives too far from the Delta, (3) Crenshaw has provided no support showing his use of the waters at issue here, (4) Crenshaw does not have the expertise to identify River City as the cause of his injuries, and (5) Crenshaw has not traced the alleged violations to River City. Opp'n at 8. The court addresses each argument in turn below.
First, River City contends Crenshaw has not shown a particular injury or harm he suffered personally. Id. The "injury in fact" requirement in environmental cases is satisfied if an individual adequately shows he has an aesthetic or recreational interest in a particular place, animal, or plant species and that this interest is impaired by a defendant's conduct. See, e.g., Laidlaw, 528 U.S. at 183, 120 S.Ct. 693; Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130; Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). Specifically, an individual can establish "injury in fact" by showing he has a sufficient connection to the area at issue to "make credible the contention that [his] future life will be less enjoyable ... if the area in question remains or becomes environmentally degraded." Pac. Lumber, 230 F.3d at 1147. Here, Crenshaw argues he lives near the Sacramento River and the Delta, and regularly uses the waterway for outdoor activities. Crenshaw Decl. ¶ 14. Specifically, he fishes, boats, kayaks, and conducts wildlife observations and photography on the Sacramento River and the Delta. Id. ¶ 15. In light of these facts, the court finds River City's argument unpersuasive.
Second, and also with respect to injury, River City argues Crenshaw lives too many miles from the Delta to suffer an injury. Opp'n at 8. The Ninth Circuit has found that
Id. (citing Laidlaw, 120 S.Ct. at 705 (an individual who has canoed in the river would do so again if not for the discharges has stated an injury in fact)). As stated above, even though Crenshaw does not live
Third, River City argues Crenshaw has not established his use of the navigable waters within the Delta. Opp'n at 8. However, as in Pacific Lumber and Laidlaw, Crenshaw has stated he holds longstanding recreational and aesthetic interests in both the Sacramento River and the Delta. Crenshaw explains he has used the Sacramento River and the Delta for fishing and other activities several times in the past, and he avers River City's conduct has impaired his enjoyment of the same activities. He points out in his declaration that he often enjoys the activities in areas where he avers the "storm water is ultimately discharged into the Sacramento River from River City." Crenshaw Decl. ¶ 14. He also states that he has observed pollutants in the water and that the pollutants were discharged from River City. Id. ¶ 15. Lastly, Crenshaw expresses hope a reduction in the discharge of pollutants from River City will improve the water quality of the Sacramento River and the Delta, and allow him to enjoy recreational activities and nature unimpaired in the future. Id. ¶¶ 18-19. The court finds Crenshaw has provided sufficient information substantiating his use of the navigable waters here.
Fourth, River City argues Crenshaw does not have the expertise to identify River City as the cause of the environmental harm he seeks to redress in this lawsuit. Opp'n at 8. However, the threshold question of individual standing under the Clean Water Act is "whether an individual can show that [he] has been injured in [his] use of a particular area because of concerns about violations of environmental laws, not whether the [he] can show there has been actual environmental harm." Pacific Lumber, 230 F.3d at 1151 (citing Laidlaw, 120 S.Ct. at 704; Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 163-64 (4th Cir. 2000) (en banc)). Crenshaw's concern with violations of environmental law is sufficient; he does not require an expert to testify as to any actual environmental harm.
Fifth, like the defendant in Pacific Lumber, River City argues Crenshaw has failed to trace any harm back to its Facility. See Opp'n at 8 (citing 230 F.3d at 1152). Again, echoing the Ninth Circuit in Pacific Lumber, "the causal connection put forward for standing purposes cannot be too speculative, or rely on conjecture about the behavior of other parties, but need not be so airtight at this stage of the litigation as to demonstrate that the plaintiffs would succeed on the merits." 230 F.3d at 1152. The fact that Crenshaw derives less enjoyment from recreation in the Sacramento River and the Delta due to River City's pollution does not require any "attenuated chain of conjecture" or "presumptions that other actors will behave in any particular way" to create the link between River City's alleged violations and Crenshaw's reduced enjoyment. Id. Crenshaw declares he believed River City discharged pollutants in its storm water flows and contributed to the contamination of fish and waters downstream in the Sacramento River and the Delta. Crenshaw Decl. ¶ 17. As a result, he could no longer enjoy his activities in the two bodies of water as he did before. Id. ¶¶ 16-19. Crenshaw has satisfied the causation element of Article III standing.
Finally, River City argues that Crenshaw's declaration lacks foundation, because there is no basis for his naming of River City as the originator of any of the oil or other materials he has observed in
In sum, Crenshaw has standing. River City's objection to his declaration is accordingly OVERRULED.
The court next considers River City's argument that it cannot have violated the Clean Water Act because no public entity has undertaken an enforcement action. Specifically, River City points out that the Regional Water Quality Control Board never cited it for any violations of the Clean Water Act. Opp'n at 8.
River City's argument miscomprehends the policy behind citizen enforcement actions. "The Clean Water Act explicitly allows private citizens to bring enforcement actions against any person alleged to be in violation of federal pollution control requirements." Ass'n to Protect Hammersley v. Taylor Res., 299 F.3d 1007, 1012 (9th Cir. 2002) (citing 33 U.S.C. § 1365(a)(1)) (citations omitted). A would-be citizen enforcer must give sixty days' notice of her intent to sue, and if the EPA or the State elects to commence an enforcement action within that sixty-day period, the citizen enforcement suit is barred. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 59-60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The Supreme Court has found this rule suggests citizen enforcement suits are meant to supplement rather than "supplant governmental action." Id. at 60, 108 S.Ct. 376.
Finally, contrary to River City's argument, the absence of public enforcement is not commensurate with compliance, given EPA's enforcement discretion. Id. at 61, 108 S.Ct. 376. Consequently, the court evaluates whether River City violated the Clean Water Act, as argued by CSPA as a citizen enforcer.
Third, the court considers whether the 2015 General Permit's standards apply in this case. CSPA argues River City did not comply with the 1997 General Permit in violation of the Clean Water Act, 40 C.F.R. § 122.41, and continues not to be compliant with the 2015 General Permit, which took effect July 1, 2015. River City contends the 2015 General Permit's standard is inapplicable to the case at hand, because CSPA's complaint was filed in June 2014, prior to the 2015 General Permit's effective date. River City's primary concern appears to be the 2015 General Permit's requirement that the Facility's BAT/BCT detention basin be capable of containing runoff during an 85th percentile, 24-hour storm event. Opp'n at 4, 8-9; Reply at 5-6. Again, River City's argument runs contrary to Ninth Circuit precedent.
To prevail at trial, a citizen-plaintiff must prove ongoing violations by the defendant. "[A] citizen-plaintiff may prove ongoing violations `either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.'" Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 998 (9th Cir. 2000) (citation omitted). "Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition." Id.
To succeed here, CSPA must show ongoing violations at the Facility. As noted above, the 2015 General Permit superseded
Accordingly, the court will consider whether River City complied with the 2015 General Permit after July 1, 2015.
Noncompliance with the General Permits
In evaluating whether River City was noncompliant with the General Permits, the court considers whether River City met the following requirements: (a) effluent limitations, (b) receiving water limitations, (c) Storm Water Pollution Prevention Plans, and (d) monitoring and reporting. As part of the court's effluent limitations analysis, the court addresses whether River City implemented any BMPs.
First, the court considers whether River City achieved the required best available and best conventional technology — BAT/BCT — at the Facility. CSPA argues prior to the excavation of the ditch and detention basin at the Facility in October 2014, the Facility had not implemented any best management practices — BMPs — that could achieve BAT/BCT. Mot. at 7. The concrete blocks and the straw wattles that were in place, CSPA argues, were not enough to prevent storm water from flowing over scrap metal, engines, crushed concrete, old TVs and computers before entering the storm drain. Id. There were no other measures in place to treat the excessive metal concentrations in River City's discharge. Id. at 8.
CSPA further contends even after October 2014, the Facility remained noncompliant with either the 1997 General Permit or the 2015 General Permit, because the ditch and detention basin River City excavated do not qualify as BAT/BCT. Id. at 9. The ditch and basin, as measured by Hagemann on June 23, 2015, do not conform to the volume requirement set by the 2015 General Permit, and there was also no overflow structure, such as a standpipe or a culvert for the ditch and basin, to serve as a backup impoundment structure in case of an overflow. Id.
River City points to Bryan Wilson's declaration and its own response to CSPA's first set of requests for admissions, and argues it implemented "numerous and various BATs/BCTs." Opp'n at 8. In its response to CSPA's request for admissions, for example, it states it placed straw wattles around certain areas, stopped accepting automobiles and waste wood to reduce pollutant sources, increased housekeeping, created large berms, and implemented SWPPP and training on BMP/BAT procedures. Davis Decl. Ex. I.
River City's vague and conclusory answers to CSPA's requests for admission, without more, are insufficient to withstand summary judgment. See, e.g., Carter v. Clark Cty., 459 Fed.Appx. 635, 636-37 (9th Cir. 2011) (citing Villiarimo, 281 F.3d at 1061, and Publ'g Clearing House, 104 F.3d at 1171). Conclusory statements in Wilson's declaration, that he had implemented and expanded BAT/BCT, are similarly insufficient. See e.g., Wilson Decl. ¶¶ 4, 10. These statements are not supported by undisputed facts in the record. "Conclusory
Even if the court accepts the straw wattles did qualify as part of the Facility's attempt to achieve BAT/BCT, it is undisputed the wattles were ineffective. In November 2012, staff from the Board visited the Facility. UMF no. 46. The only BMP the Board observed was a "fiber roll," another term for a straw wattle, that the staff rated ineffective. UMF no. 47. The Board staff noted that other than the ineffective fiber roll, "no other BMPs were observed between the crush pad and the outfall area." UMF no. 48. In December 2014, the Board notified River City of the inadequacy of its BMPs during the previous two rainy seasons and advised River City that "[t]he levels of pollutants in [its] storm water samples indicate [sic] the current BMPs implemented at [the Facility] are not sufficient to reduce pollutant concentrations below benchmark levels." UMF no. 49.
The 1997 and 2015 General Permits both require facilities to reduce or eliminate pollutants associated with industrial activity in storm water discharges, and storm water discharges must comply with the Basin Plan. RJN-A-018, 019 (1997 General Permit); RJN-B-007, 008, 023 (2015 General Permit). Yet, as of December 2014, River City's efforts had not reduced pollutant concentrations. River City's BMPs were insufficient as of December 2014.
Finally, River City points to no undisputed fact in the record to show it implemented BMPs between December 2014 and June 23, 2015. On the latter date, it expanded the ditch and the detention basin for the third time to reach a storage capacity of 4,872 cubic feet, which was still less than the 6,125 cubic feet essential for the required BMP. UMF nos. 52, 53, 57. Therefore, when the 2015 General Permit, with the 85th-percentile, 24-hour storm event standard, took effect on July 1, 2015, River City's BMPs had not achieved the required BAT/BCT.
In sum, under Clean Water Act section 301, River City is required to meet the applicable standards for discharge of pollutants using BMP that meets the BAT and BCT standards to prevent and reduce pollutants in storm water discharges. See RJN-A-010. Yet, as of December 2014, River City's BMP was inadequate and continued to discharge pollutants. Despite the subsequent excavation and expansion of the ditch and detention basin, River City's BMP remained ineffective and incompliant with the Basin Plan. Accordingly, no reasonable factfinder can conclude other than that River City has not implemented BMPs to achieve BAT/BCT for the Facility since April 2011.
Receiving Water Limitations
The court next considers River City's storm water samples. CSPA argues analyses of samples from the Facility's storm water discharges between 2012 and 2014 showed concentrations of aluminum, copper, iron, lead, TSS, zinc and COD exceeded the EPA benchmark values and the 1997 General Permit's Section C(2) receiving water limitations. Mot. at 10-11. CSPA also argues the sample results are evidence that River City did not provide adequate BMPs for the Facility. Id. at 11.
River City concedes that the levels of aluminum, cooper, iron, lead, TSS, zinc and COD from its storm water samples exceeded the EPA benchmark values and the 1997 General Permit's Section C(2) receiving water limitations. UMF nos. 59-109. Specifically, samples taken on March 14, 2012, April 26, 2012, October 22, 2012, April 4, 2013, and March 10, 2014 exceeded the CTR for copper. UMF nos. 96-100.
Storm Water Pollution Prevention Plans
Third, the court reviews River City's SWPPPs for the Facility. The SWPPPs relevant to this case are SWPPP I, prepared September 2011; SWPPP II, prepared September 2012; SWPPP III, prepared July 2014; and SWPPP IV, prepared June 29, 2015. Mot. at 12; see also Davis Decl. Ex. L (SWPPP I); id. Ex. M (SWPPP II); id. Ex. N (SWPPP III); id. Ex. O (SWPPP IV). CSPA argues these four SWPPPs did not comply with the 1997 and 2015 General Permits' requirements because (1) they did not identify BAT/BCT storm water containments, (2) they did not identify pollutant sources and potential pollutants in the Facility's storm water discharge, (3) they did not include a compliant site map of the Facility, and (4) SWPPP I, II, and III were not signed and certified. Id. at 13-16.
River City contends it had "generally identified these matters, and in what counts, took action to protect against the discharge of polluted waters." Opp'n at 9. River City also argues its maps were compliant despite the lack of an engineer's seal, and argues it certified the SWPPPs when required. Id.
A party is strictly liable for NPDES Permit violations under the Clean Water Act; and there are no exceptions for minimal violations or mistakes. Sierra Club v. Union Oil Co., 813 F.2d 1480, 1490-91 (9th Cir. 1987), vacated, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988), reinstated and amended, 853 F.2d 667 (9th Cir. 1988); see also 33 U.S.C. § 1311(a).
The SWPPP must include a narrative description of the facility's industrial activities, including storage areas, shipping and receiving areas, fueling areas, vehicle and equipment storage and maintenance areas, material handling and processing areas, waste treatment and disposal areas, and dust or particulate generating areas. RJN-A-029-31. Additionally, the SWPPP also must include a list of potential pollutant sources associated with the facility's industrial
Here, the 1997 and the 2015 General Permits required the SWPPP to identify pollutant sources and potential pollutants in the Facility's storm water discharge. RJN-A-032; RJN-B-029. The identification of the potential pollutants and pollutant sources called for by the General Permits' requirements is "relatively specific." Kramer Metals, 619 F.Supp.2d at 930. In Kramer Metals the facility at issue was also a scrap metal recycling facility. And as the court in Kramer Metals pointed out, while the General Permits do not require the listing of every single metal or material coming into the Facility, they do require more specifics than just "metals": "at the very least, those [metals] that show up in [River City's] own testing of the [F]acility would be appropriate to list," because without specific identification of potential pollutants, it would be difficult to know if the BMPs in place are effective. Id. Aluminum, copper, lead, zinc, TSS, and COD all were present in River City's own analyses of its storm water samples. Davis Decl. Exs. U, V, W, X. Yet none of these materials were mentioned in any of the four SWPPPs. Davis Decl. Ex. L at DDL007; id. Ex. M at DDM007; id. Ex. N at DDN008; id. Ex. O at DDO008.
In addition, car parts and consumer electronics are sources of pollutants at the Facility, but they were never discussed in the SWPPPs; there was only a brief mention of the handling of equipment used in recycling business, and the equipment's use of hydraulic fluid and fuel. UMF nos. 122, 125; Davis Decl. Ex. L at DDL006-008; id. Ex. M at DDM007-008; id. Ex. N at DDN008-009; id. Ex. O at DDO007-009. The 1997 and 2015 General Permits require the SWPPP to include a description of "significant" and "industrial" materials handled and stored at the site, and a description of how each material is stored, received, shipped, and handled, as well as its handling frequency and quantity. RJN-A-029; RJN-B-029.
In addition to the SWPPPs' written descriptions, the 1997 and the 2015 General Permits required a site map to identify the Facility's boundaries, nearby water bodies, municipal storm drain inlets, and areas of industrial activity, among other things. RJN-A-028-32; RJN-B-028. The areas of industrial activity include
RJN-A-029. The map provided with the July 2014 SWPPP III did not fulfill the list of requirements in the 1997 General Permit, and River City does not point to any evidence to dispute its noncompliance in this respect. Rather, it offers only conclusory statements in an interrogatory answer, saying that it "implemented SWPPP," Davis Decl., Ex. I at DDI004, and in Wilson's declaration, which states that River City provided maps with every SWPPP and that "[t]hese maps did identify drains, drainage areas, and discharge locations..., [and] the original maps showed the tipping areas where materials are temporarily exposed." Wilson Decl. ¶ 13. The court has identified only two SWPPP maps in the record, both attached to the declaration of CSPA's counsel. See Davis Decl. Exs. P, Q. The map in Exhibit Q, which was submitted with SWPPP IV in 2015, does fulfill the identification requirements as noted above. But the map in Exhibit P, which was provided with SWPPP III in 2014, falls short of the requirements of the 1997 General Permit. Specifically, the 2014 map provides no delineation of areas other than a discharge/sample area, two paved areas, storage, office, space used by another tenant, and a next door business. Other than Wilson's conclusory statement that he has provided a map that fulfills the identification requirements, River City has not pointed to any evidence in the record to support Exhibit P's compliance with the 1997 General Permit. See Davis Decl. ¶¶ 18-19; id. Exs. P, Q. As noted above, "a conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact." Pub'g Clearing House, 104 F.3d at 1171.
River City also has not provided any SWPPP maps for years prior to 2014, although it argues in its supplemental briefing filed after hearing that Exhibit P was used for SWPPP I, II, and III. Supp. Brief at 3. However, like the statements in the Wilson declaration, merely saying that "[e]very updated SWPPP, every year, included an updated map which Mr. Wilson produced," does not make it so on summary judgment. Even if Exhibit P had been used for SWPPP I and II, it does not meet the requirements of the 1997 General Permit.
Lastly, the 1997 General Permit requires "[a]ll reports, certification, or other information required by the General Permit or requested by the Regional Water Board, State Water Board, U.S. EPA ... [to] be signed by [the proprietor]" and certified. RJN-A-063-64. It is undisputed that SWPPP II and III were not signed or certified. Davis Decl., Ex. E at DDE012 & Ex. G at DDG007-008. Although CSPA argues SWPPP I also was not signed or certified, it does not support this argument with citations to the record. Mot. at 18.
Accordingly, the court finds as a matter of law that SWPPP I, II, III, and IV did not comply with the 1997 General Permit. As there is no evidence in the record with respect to SWPPPs for the time period after July 1, 2015, the court does not determine whether River City was in compliance with the 2015 General Permit in this respect. CSPA's motion for summary judgment is DENIED in so far as it is based on SWPPP requirements for the 2015 General Permit. The balance of CSPA's motion regarding SWPPP requirements for the 1997 General Permit is GRANTED.
Monitoring and Reporting
Lastly, the court considers the General Permits' monitoring and reporting requirements. CSPA argues River City did not implement a site-specific monitoring
The 1997 General Permit required visual observations of storm water discharges from one storm event per month during the wet season, October 1 to May 30. RJN-A-040-41. It is undisputed there were no monthly visual observations of storm water discharges for February 2012, May 2012, November 2012, December 2012, January 2013, February 2013, March 2013 and May 2013. Davis Decl. Ex. R at DDR016; id. Ex. S at DDS016, 018. While visual observations are "only required of storm water discharges that occur during daylight hours that are preceded by at least three (3) working days without storm water discharges and that occur during scheduled facility operating hours," RJN-A-041, CSPA has shown eighty-three precipitation events occurred in all of these months. Davis Decl. Ex. B at DDB039. Although the court draws all inferences in River City's favor, no reasonable jury could conclude on this record that each and every precipitation event CSPA identified occurred at night and outside scheduled operating hours. Even if the precipitation events did occur at night and outside scheduled facility operating hours, under the 1997 General Permit River City was required to provide documentation of these circumstances in its annual report to the Board. RJN-A-012.
Similarly, CSPA has shown precipitation events occurred during the 2013-2014 wet season. Davis Decl. Ex. B at DDB039. The 1997 General Permit required River City to sample and analyze the first storm event of the wet season, and at least one other storm event in the same wet season. RJN-A-041. It is undisputed River City sampled and analyzed only one rain event during the 2013-2014 wet season. UMF no. 140.
It is also undisputed there is no analysis of iron, aluminum, lead, copper, zinc, or COD levels included in the Facility's 2011-2012 annual report. Davis Decl. Ex. R at DDR009. The 1997 General Permit required River City to analyze its samples for the additional metals required by Table D of the 1997 General Permit based on the Facility's SIC code. RJN-A-058. Its failure to do so is in violation of the General Permit and the Clean Water Act.
Lastly, River City analyzed neither the storm water it sampled on April 4, 2013 for chemical oil and grease, nor the COD levels in the storm water sample taken on March 10, 2014. UMF no. 141; see also Davis Decl. Ex. E at DDE009; id. Ex. G at DDG005; id. Ex. W at DDW004-05. The 1997 General Permit required River City to analyze the samples for oil and grease or organic carbon. RJN-A-042. COD is one additional metal required by Table D of the 1997 General Permit based on the Facility's SIC code. RJN-A-058.
The court thus finds as a matter of law that River City did not comply with the 1997 General Permit's monitoring and reporting requirement between September 2011 and the date of this motion. Here again, as there is no evidence in the record with respect to whether River City met the monitoring and reporting requirement for the time period after July 1, 2015, the court does not make any decision with respect to River City's compliance with the 2015 General Permit in this regard. CSPA's motion for summary judgment is DENIED in so far as it is based on the monitoring and reporting requirements under the 2015 General Permit. The balance
Number and Days of Violations
CSPA also requests the court calculate the number and days of violations River City has committed. Citizens can seek civil penalties in a suit brought to enjoin or otherwise abate ongoing violations. 33 U.S.C. § 1365(a); Gwaltney, 484 U.S. at 58-59, 108 S.Ct. 376. Civil penalties are paid to the United States Treasury. See Sierra Club, Inc. v. Electronic Controls Design, Inc., 909 F.2d 1350, 1354 (9th Cir. 1990). The methodology for calculating the maximum amount of civil penalties in any Clean Water Act case is to determine categories of violations; add the number of daily violations in each category; total the violations for each category; and multiply this total by the daily maximum civil penalty $25,000. 33 U.S.C. § 1319(d); Hawaii's Thousand Friends v. City and Cty. of Honolulu, 821 F.Supp. 1368, 1395 (D. Haw. 1993). Once the court has calculated maximum civil penalties, the court may proceed to adjust downward from this maximum based on statutory factors. Id.
Here, CSPA does not request the court determine the ultimate penalty appropriate. Instead, CSPA moves for summary judgment of the number and days of violations only. The court finds the record is insufficient to calculate the information CSPA requests at this time. For example, the record is unclear regarding when River City began operations. Furthermore, CSPA also has not clarified how it reached the number and days of violations in its briefing, either by providing supporting citations to the record, or pointing out any supporting case law. Therefore, CSPA's motion for summary judgment of the number and days of violations is DENIED.
CSPA's motion for partial summary judgment, ECF No. 19, is GRANTED IN PART and DENIED IN PART. The Wilson supplemental declaration, ECF No. 36, and the Zweig declaration, ECF No. 35, both are STRICKEN. The parties' stipulated request to extend the pretrial conference and trial schedule, ECF No. 60, is DENIED.
IT IS SO ORDERED.