Coastal Environmental Rights Foundation v. American Recycling International, Inc.

MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim

S.D. Cal.April 24, 2017

DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 54132305.V6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOSSAMAN LLP BYRON P. GEE (SBN 190919) bgee@nossaman.com HUBERT T. LEE (SBN 297548) hlee@nossaman.com 777 S Figueroa St 34th Fl Los Angeles, CA 90017 Telephone: 213.612.7800 Facsimile: 213.612.7801 Attorneys for Defendant AMERICAN RECYCLING INTERNATIONAL, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA COASTAL ENVIRONMENTAL RIGHTS FOUNDATION, a non-profit corporation, Plaintiff, vs. AMERICAN RECYCLING INTERNATIONAL, INC, a California corporation, dba LKQ PICK YOUR PART OCEANSIDE, Defendant. Case No: 17-cv-425 BAS (JMA) DEFENDANT AMERICAN RECYCLING INTERNATIONAL, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. R. CIV. P. RULE 12(b)(1) and RULE 12(b)(6) Date Action Filed: March 1, 2017 Hearing Date: June 5, 2017 NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.51 Page 1 of 35 - 1 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, PLAINTIFF, AND ITS COUNSEL OF RECORD: PLEASE TAKE NOTICE that on June 5, 2017, or as otherwise scheduled by this Court, before the Honorable Cynthia Bashant, in Courtroom 4B of the United States Courthouse for the Southern District of California, 221 West Broadway, Suite 4145, San Diego, California, defendant American Recycling International, Inc. (“LKQ”) will and hereby do move the Court to dismiss plaintiff Coastal Environmental Rights Foundation’s (“CERF”) complaint alleging Clean Water Act violations, pursuant to Federal Rule of Civil Procedure 12(b)(1) as this Court lacks subject matter jurisdiction to hear CERF’s claims, and pursuant to Federal Rule of Civil Procedure 12(b)(6) for CERF’s failure to state a claim upon which relief can be granted. In accordance with Paragraph 4(A) of the Honorable Cynthia Bashant’s “Standing Order for Civil Cases,” counsel for LKQ, Byron Gee and Hubert Lee, contacted counsel for CERF, Livia Borak Beaudin, to discuss the substance of this contemplated motion and any potential resolution that could be had; this motion is made following the conference of counsel that took place on April 10, 2017. As set forth in the accompanying Memorandum of Points and Authorities, there is good cause for the relief requested. This Court lacks subject matter jurisdiction to hear CERF’s claims. CERF’s notice of intent to sue letter sent to LKQ prior to filing its complaint does not sufficiently meet regulations governing notice. Furthermore, CERF’s Clean Water Act claims fail to articulate cognizable legal theories and must be dismissed with prejudice pursuant to Fed. R. Civ. P. Rule 12(b)(6). This Motion is based upon this Notice and Motion, the accompanying Memorandum of Points and Authorities, LKQ’s Request for Judicial Notice and accompanying exhibits, any Reply filed in support of this Motion, and upon such other evidence and oral argument as may be received by the Court. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.52 Page 2 of 35 - 2 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: April 24, 2017 NOSSAMAN LLP BYRON P. GEE HUBERT T. LEE By: /s/ Byron P. Gee Byron P. Gee Hubert T. Lee Attorneys for Defendants AMERICAN RECYCLING INTERNATIONAL, INC. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.53 Page 3 of 35 - 1 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 6 A. Background and summary ......................................................................... 6 B. California Industrial Storm Water Permits under the CWA ...................... 7 C. CERF’s litigation ....................................................................................... 8 II. LEGAL STANDARDS: .................................................................................. 9 A. Dismissal under Fed. R. Civ. P. Rule 12(b)(1) lack of subject matter jurisdiction. ..................................................................................... 9 B. Dismissal under Fed. R. Civ. P. Rule 12(b)(6) failure to state a claim upon which relief can be granted. .................................................. 10 III. ARGUMENT ................................................................................................ 11 A. Pursuant to Fed. R. Civ. P. Rule 12(b)(1), Plaintiff’s Complaint must be dismissed as the Court lacks subject matter jurisdiction to hear Plaintiff’s claims. ......................................................................... 11 1. CERF’s Sixty (60) day notice of intent to sue letter (“Notice”) fails to comply with the notice provisions of 33 U.S.C. § 1365 and 40 C.F.R. § 135.3(a). ............................................ 11 B. CERF’s Complaint must be dismissed for failing to state a claim upon which relief can be granted. .................................................. 15 1. CERF’s first cause of action is premised on impermissible readings of the GIP. ............................................................................ 15 2. CERF’s second cause of action is not cognizable as a matter of law because numerical effluent limits play no role in determining whether a discharger’s BMPs meet Best Available Technology/Best Control Technology standards (“BAT/BCT”), as required in Section V of the GIP; alternatively, to the extent CERF is alleging LKQ’s BMPs are generally inadequate, LKQ’s enrollment in the ERA requires that this claim must fail. ........................................................ 21 3. CERF’s third cause of action fails to sufficiently plead a cognizable claim for relief and should be dismissed. ......................... 24 4. CERF’s fourth, fifth and sixth causes of action should be dismissed because CWA citizen suits do not remedy wholly past violations and LKQ remedied the claims prior to the filing of CERF’s Complaint; CERF’s forth cause of action Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.54 Page 4 of 35 - 2 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 should also be dismissed for incorrectly alleging LKQ is required to sample for phosphorus. ..................................................... 25 5. CERF’s seventh cause of action should be dismissed because the GIP does not require LKQ’s Level 1 ERA Plan to include an evaluation of copper and zinc NALs or an evaluation of BMP and SWPPP revisions to address copper and zinc NALs. ................................................................................... 29 IV. CONCLUSION ............................................................................................. 30 Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.55 Page 5 of 35 - 3 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 765 F.3d 1169 (9th Cir. 2014) .............................................................. 7, 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................... 10, 22, 25 Assateague Coastkeeper v. Alan & Kristin Hudson Farm, 727 F. Supp. 2d 433 (D. Md. 2010) ................................................................... 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) .............................................................................. 10 Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm'n, 366 F.3d 692 (9th Cir. 2004) .............................................................................. 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................... 25 Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794 (9th Cir. 2008) ........................................................................ 12, 15 Exportal Ltda v. United States, 902 F.2d 45 (D.C. Cir. 1990) ............................................................................. 13 Fabi Const. Co. v. Sec'y of Labor, 508 F.3d 1077 (D.C. Cir. 2007) ......................................................................... 30 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387 (4th Cir. 2011) .............................................................................. 26 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987). .................................................................................... 11, 25 Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) ............................................................................................. 9 Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.56 Page 6 of 35 - 4 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994) ............................................................................................. 9 Lee v. City of L.A., 250 F.3d 668 (9th Cir. 2001) .............................................................................. 10 McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182 (E.D. Cal. 1988) ................................................................... 28 MGIC Indemnity Corp. v. Weisman, 803 F.2d 500 (9th Cir. 1986) ............................................................................... 6 Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) ........................................................................................... 13 Nehrlich v. JLW-TW Corp., 2016 WL 127584 (S.D. Cal. Jan. 11, 2016) ...................................................................................... 6 Porter v. Jones, 319 F.3d 483 (9th Cir. 2003) .............................................................................. 10 Puget Soundkeeper All. v. Cruise Terminals of Am., LLC, No. C14-0476 JCC, 2015 WL 7431415 (W.D. Wash. Nov. 20, 2015) ............................................................................................................. 14, 15 San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153 (9th Cir. 2002) ...................................................................... 12, 15 San Francisco Baykeeper v. Levin Enterprises, Inc., 12 F. Supp. 3d 1208, 1224 (N.D. Cal. 2013) ............................................... 21, 22 San Francisco Herring Ass'n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847, 860 (N.D. Cal. 2015) ......................................................... 26 Santa Monica Baykeeper v. Kramer Metals, Inc., 619 F. Supp. 2d 914 (C.D. Cal. 2009) .................................................... 17, 20, 23 Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256 (D.C. Cir. 2005) ........................................................................... 18 Sierra Club Ohio Chapter v. City of Columbus, 282 F. Supp. 2d 756 (S.D. Ohio 2003) ............................................................... 13 Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.57 Page 7 of 35 - 5 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sierra Club v. Union Oil Co. of California, 853 F.2d 667 (9th Cir. 1988) .................................................................. 26, 27, 28 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) .............................................................................. 10 United States v. Faltico, 687 F.2d 273 (8th Cir. 1982) .............................................................................. 16 Washington Trout v. McCain Foods, Inc., 45 F.3d 1351 (9th Cir. 1995) .................................................................. 10, 11, 12 Statutes 33 U.S.C. § 1311(a) ................................................................................................... 7 33 U.S.C. § 1342(p)(2)(B) ......................................................................................... 7 33 U.S.C. § 1342(p)(2)(E) ......................................................................................... 7 33 U.S.C. § 1365 ...................................................................................................... 11 33 U.S.C. § 1365(b) ................................................................................................. 11 33 U.S.C. § 1365(b)(1)(A) ....................................................................................... 11 Other Authorities 40 C.F.R. § 135.3 ..................................................................................................... 13 40 C.F.R. § 135.3(a) .............................................................................. 11, 12, 13, 14 40 C.F.R. § 135.3(c) ................................................................................................ 13 Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.58 Page 8 of 35 - 6 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A. Background and summary Defendant American Recycling International, Inc. (“Defendant” or “LKQ”) operates a motor vehicle dismantling, storage, and parts retailing facility doing business at LKQ Pick Your Part (“LKQ Facility”). Dkt. No. 1 at ¶ 9. The LKQ Facility is located at or around 1030 Airport Road, Oceanside CA. Id. at 29. On or around July 2015, LKQ became the operator of the LKQ Facility – prior to that, the LKQ Facility was operated by Ecology Auto Parts. Id. at 34. Promptly thereafter, LKQ sought and obtained permission with the Regional and State Water Resources Control Board (“State Water Board”) to lawfully discharge storm water under the Clean Water Act (“CWA”), completing its enrollment on or around August 4, 2015. Accordingly, LKQ operates as a lawful storm water discharger subject to California’s General Industrial Storm Water Permit (“GIP”)1. Id. at 30. And since then, LKQ has been fully compliant with the terms of the GIP. As described in detail below, plaintiff Coastal Environmental Rights Foundation (“CERF” or “Plaintiff”) asks that this Court impose CWA liability on LKQ for actions entirely permissible within the terms of the GIP. For example, CERF insists that storm water discharges that contain pollutants that exceed certain water quality standards are per se CWA/GIP violations, despite plain language in 1 See also Request for Judicial Notice (“RJN”), Exhibit A (GIP attached as Exhibit A). “On a motion to dismiss, the Court may consider documents specifically identified in the complaint whose authenticity is not questioned by the parties, even if they are not physically attached to the complaint.” Nehrlich v. JLW-TW Corp., 2016 WL 127584, at *4 (S.D. Cal. Jan. 11, 2016). “A court may take judicial notice of matters of public record outside the pleadings without converting a motion to dismiss into a motion for summary judgment.” MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.59 Page 9 of 35 - 7 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the GIP to the contrary. LKQ urges this Court to carefully examine the four corners of the GIP2 – doing so will corroborate LKQ’s argument that CERF’s claims are without merit and subject to dismissal. Alternatively, this Court lacks subject matter jurisdiction, as CERF failed to provide LKQ with adequate notice prior to filing its citizen suit alleging CWA violations. B. California Industrial Storm Water Permits under the CWA The CWA authorizes certain water discharges from a point source into water ways of the United States, so long as the discharger has obtained an NPDES permit to do so. 33 U.S.C. § 1311(a). For storm water discharges associated with industrial activity, Congress has established a permitting process, which provides that a delegated state such as California may require an industrial storm water discharger to obtain such a permit. 33 U.S.C. § 1342(p)(2)(E); 57 Fed. Reg. 43,733, 43–743–35 (September 22, 1992) (demonstrating that California is a delegated state). The State Water Board has the authority to issue, implement, and enforce NPDES permits in California. See Cal. Water Code § 13160. Pursuant to this authority, the State Water Board has issued a single general statewide permit (the “GIP”) that regulates all storm water discharges associated with industrial activity – to lawfully discharge storm water in California, facilities engaged in certain industrial activities must enroll with the State Water Board and comply with the terms of this GIP. 33 U.S.C. § 1342(p)(2)(B). The most recent GIP became effective July 1, 2015 pursuant to Order No. 2014-0057-DWQ. Dkt. No. 1 at ¶ 24. This GIP amended a prior version that was issued in 1997 (“Old GIP”).3 Id. The most recent GIP contains a number of 2 Courts interpret CWA general permits as they would a regulation. Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 765 F.3d 1169, 1172 (9th Cir. 2014). 3 See also RJN, Exhibit B (Old GIP attached as Exhibit B). Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.60 Page 10 of 35 - 8 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantial revisions that are germane to this suit. For example, while both the current GIP and Old GIP required industrial storm water dischargers to collect samples of discharges at designated discharge points during a designated number of “qualifying storm events”4 , the GIP has been revised to now explicitly state “[w]ater quality standards apply to the quality of the receiving water, not the quality of the industrial storm water discharge.” RJN, Exh. A, GIP at 5, ¶ 37. Also for the first time, the GIP has created an Exceedance Recovery Action Program (“ERA”), which provides dischargers that show storm water discharge samples exceeding certain numerical action limits/benchmarks a “pathway” to stay compliant with the GIP. RJN, Exh. A, GIP, Industrial General Permit Fact Sheet at 56. The significance of these revisions will be discussed in detail below. C. CERF’s litigation CERF styles itself as an organization established “to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents.” Dkt. No. 1 at ¶ 9. Through its counsel, it provided LKQ with a sixty (60) day notice of intent to sue letter (“Notice”) on December 21, 2016, informing LKQ of its intent to file a citizen suit against it pursuant to the Clean Water Act. Id. at 29. CERF then filed this suit on March 1, 2017. See Dkt. No. 1. CERF’s Complaint contains the following seven claims: 4 The GIP defines a “Qualifying Storm Event” to be “a precipitation event that… [p]roduces a discharge for at least one drainage area; and, [i]s preceded by 48 hours with no discharge from any drainage area.” RJN, Exh. A, GIP, Section XI.B.1. Under the GIP, storm water samples collected by the discharger during a qualifying storm event are required to be analyzed for certain constituents/parameters (e.g. storm water samples may be sampled for pH, oil and grease levels, et al.). These sampling requirements are found in RJN, Exh. A, GIP, Section XI.B. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.61 Page 11 of 35 - 9 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. LKQ’s storm water discharges exceeded applicable water quality standards, violating the Sections III and VI discharge prohibitions and receiving waters limitations of the GIP. 2. LKQ is in violation of “Effluent Limitations” Section V of the GIP. 3. LKQ’s Storm Water Pollution Prevention Plan (“SWPPP”) is inadequate. 4. LKQ’s Monitoring and Reporting Program (“MRP”) is inadequate. 5. LKQ did not conduct required qualifying storm event sampling. 6. LKQ did not submit accurate reports. 7. LKQ failed to comply with requirements for Level 1 ERA reports. See Dkt. No. 1 at ¶¶ 102-164. As explained below, this Court does not have subject matter jurisdiction over these claims. Even if the Court had jurisdiction, these claims fail as a matter of law. Claims 1, 2, 3, and 7 do not state cognizable claims for relief. Claims 4, 5, and 6 are “wholly past” violations where, under the CWA’s citizen suit provision, the court lacks jurisdiction to hear such claims. II. LEGAL STANDARDS: A. Dismissal under Fed. R. Civ. P. Rule 12(b)(1) lack of subject matter jurisdiction. Plaintiff bears the burden of establishing federal subject matter jurisdiction. In effect, the court presumes lack of jurisdiction until plaintiff proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-378 (1994). Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions even when the parties either overlook or elect not to raise the issue. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Under the CWA, if a party seeking to bring a citizen enforcement action has not complied with the CWA's notice requirement, the district court in which that Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.62 Page 12 of 35 - 10 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action is brought lacks subject matter jurisdiction and must dismiss the action. Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995). B. Dismissal under Fed. R. Civ. P. Rule 12(b)(6) failure to state a claim upon which relief can be granted. A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To survive a dismissal motion, a complaint must satisfy the minimal notice pleading requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). That is, the complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The determination whether a complaint satisfies the plausibility standard is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. A court is generally limited to the pleadings and must construe all “factual allegations set forth in the complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). But a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). / / / / / / / / / Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.63 Page 13 of 35 - 11 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ARGUMENT A. Pursuant to Fed. R. Civ. P. Rule 12(b)(1), Plaintiff’s Complaint must be dismissed as the Court lacks subject matter jurisdiction to hear Plaintiff’s claims. 1. CERF’s Sixty (60) day notice of intent to sue letter (“Notice”) fails to comply with the notice provisions of 33 U.S.C. § 1365 and 40 C.F.R. § 135.3(a). Citizen plaintiffs must provide a notice of intent to sue to the alleged violator, to the U.S. Environmental Protection Agency (“EPA”), and to the relevant state enforcement agency at least 60 days prior to actually filing suit. 33 U.S.C. § 1365(b)(1)(A). The purpose of notice is twofold: to allow the violator time to bring itself into compliance with the CWA and to alert appropriate agencies so that administrative action may provide relief before courts must become involved. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987). Notice in citizen suits is a “mandatory, not optional, condition precedent” to filing suit. Assateague Coastkeeper v. Alan & Kristin Hudson Farm, 727 F. Supp. 2d 433, 437 (D. Md. 2010) citing Hallstrom v. Tillamook County, 493 U.S. 20, 26 (1989). Without adequate notice, the Court does not have subject matter jurisdiction to hear the case. Washington Trout, 45 F.3d 1351 at 1355. The CWA authorizes the EPA Administrator to prescribe the manner of the notice. 33 U.S.C. § 1365(b). Regulations promulgated under that authorization instruct that the notice: [s]hall include sufficient information to permit the recipient to identify [1] the specific standard, limitation, or order alleged to have been violated, [2] the activity alleged to constitute a violation, [3] the person or persons responsible for the alleged violation, [4] the location of the alleged violation, [5] the date or dates of such Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.64 Page 14 of 35 - 12 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violation, and [6] the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 135.3(a). Courts within the Ninth Circuit have “strictly construed” the notice requirements for citizen suits under the Clean Water Act. San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1157 (9th Cir. 2002). The Ninth Circuit, even at its most lenient, requires notice to inform the targeted party “precisely what it allegedly did wrong, and when.” Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 801 (9th Cir. 2008). Courts will not grant exceptions to notice requirements, as doing so would circumvent congress’ statutory intent in requiring notice prior to plaintiff filing a CWA citizen suit. Id. (citing Hallstrom, 493 U.S. 20). Here, CERF’s Notice fails to provide the “address and telephone number of the person giving notice.” 40 C.F.R. § 135.3(a). And with respects to the First and Second Causes of Action in Plaintiff’s Complaint, Dkt. No. 1 at ¶¶ 102-121, CERF’s Notice is also deficient in that it failed to identify the “activity alleged to constitute a violation.” 40 C.F.R. § 135.3(a). a. CERF failed to sufficiently notify LKQ of its address and telephone number. First, CERF’s Notice fails to provide the address, and telephone number of the person giving notice. See generally, Notice, Dkt. No. 1 at 28-38. While CERF’s counsel’s contact information was provided, failure to identify the noticing party’s address and telephone number is grounds for dismissal for lack of jurisdiction. For example, in Washington Trout, the Ninth Circuit upheld a district court’s dismissal of a Clean Water Act claim for plaintiff’s failure to disclose one of the plaintiff’s address and telephone number in their notice of intent to sue letter, in violation of 40 C.F.R. § 135.3(a), 45 F.3d 1351. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.65 Page 15 of 35 - 13 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Sierra Club Ohio Chapter v. City of Columbus, 282 F. Supp. 2d 756, 775 (S.D. Ohio 2003), the district court rejected plaintiffs’ contention that the notice letters nonetheless provided sufficient information for the defendant to determine the phone numbers of the individuals giving notice because they could have looked up the telephone numbers, they could have called directory assistance, or they could have asked plaintiffs’ counsel for the phone numbers. Like in the Ninth Circuit, the Sierra Club court observed that case law from the Sixth Circuit and from the Southern District of Ohio requires that the individuals giving notice “comply strictly with the statutory and regulatory notice requirements.” Id. at 775- 76. Thus, plaintiff’s failure to “provide this information in a clear manner is reason enough to dismiss their Complaint for lack of jurisdiction.” Id. at 776. Lastly, the text of 40 C.F.R. § 135.3 further supports LKQ’s position. While 40 C.F.R. § 135.3(a) requires that notice shall include sufficient information to permit the recipient to identify the “full name, address, and telephone number of the person giving notice,” 40 C.F.R. § 135.3(c) also requires that “the notice shall state the name, address, and telephone number of the legal counsel, if any, representing the person giving the notice.” Notably, nothing in the text of 40 C.F.R. § 135.3 suggests that the noticing party is no longer required to identify the full name, address, and telephone number of the person giving notice, if that person is represented by counsel. Reading this text to mean that a noticing party represented by counsel is no longer bound to the “address and telephone” identification requirement in 40 C.F.R. § 135.3(a) not only renders this regulation surplusage, it impermissibly “re-writes” a noticed-and-commented regulation and is unequivocally beyond the bounds of the regulation’s plain language. See Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669 (2007) (cautioning against reading a regulation in a way that renders it surplusage); Exportal Ltda v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990) (“the plain meaning of the Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.66 Page 16 of 35 - 14 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [agency’s] regulations is dispositive”). Because of this deficiency, the Court lacks subject matter jurisdiction to hear CERF’s Complaint. b. CERF failed to sufficiently notify LKQ of the industrial “activity” that forms the basis of its CWA allegations. Second, this Court otherwise lacks jurisdiction over CERF’s Complaint because CERF’s Notice failed to identify the activity or activities that underlie these causes of action. See Dkt. No. 1 at ¶¶ 102-121; see also 40 C.F.R. § 135.3(a). Specifically, CERF’s first and second causes of action are premised on allegations that LKQ discharged storm water associated with industrial activity that exceeded certain water quality standards and/or benchmarks. See Dkt. No. 1 at ¶¶ 102-112 (First Cause of Action: “Discharges of Contaminated Storm Water in Violation of the Industrial Permit's Discharge Prohibitions and Receiving Water Limitations and the Clean Water Act”); see also Dkt. No. 1 at ¶¶ 77-81, 86, 114- 117 (CERF’s Second Cause of Action alleging that because LKQ’s storm water discharges exceeded EPA benchmarks and California Toxics Rules standards, it has violated the “Effluent Limitations” section of the GIP.) But CERF’s Notice fails to identify any industrial activity that forms the basis for CERF’s allegations for these two claims. See generally Dkt. No. 1 at 29-38. These deficiencies are grounds for dismissal. See 40 C.F.R. § 135.3(a) (“Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify… the activity alleged to constitute a violation”). In Puget Soundkeeper All. v. Cruise Terminals of Am., LLC, No. C14-0476 JCC, 2015 WL 7431415, at *7-8 (W.D. Wash. Nov. 20, 2015) the district court found that “proper notice must identify the activity causing the violation” and when a notice claims that unlawful storm water discharges are “associated with industrial activity,” the notice must identify the “violating activities with enough Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.67 Page 17 of 35 - 15 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specificity for Defendants to remedy them.” Id. at *7-8. Here, CERF’s Notice makes no effort to identify which industrial activity is causing the alleged impermissible storm water discharges. See generally Dkt. No. 1 at 29-38. LKQ is left to conduct a “guessing game” as to what it allegedly did wrong, which the Ninth Circuit has frowned upon. Marina Point Dev. Co., 566 F.3d at 801. The Notice’s failure to identify an industrial activity causing the violation(s) is made all the more prominent when the allegations made by CERF in its Complaint are juxtaposed with CERF’s Notice. The Complaint alleges that LKQ engages in the industrial activities of dismantling used motor vehicle parts, metal cutting, fluid drainage, torching, bailing, and vehicle fueling, washing, and maintenance. Dkt. No. 1 at ¶¶ 62-63. The Complaint further alleges that “Plaintiff is informed, believes, and thereon alleges that with every significant rain event, the LKQ Facility discharges polluted storm water from the industrial activities.” Dkt. No. 1 at ¶ 73. Yet, the Notice fails to identify any of these industrial activities. C.f. Puget Soundkeeper All., 2015 WL 7431415, at *7-8 (finding that plaintiff’s notice letter alleging storm water discharges from defendant’s site were associated with industrial activities such as equipment cleaning and vehicle maintenance had identified the industrial activities with enough specificity to satisfy CWA’s notice requirement). Indeed, as the purpose of the CWA’s notice requirement is “to give the accused company the opportunity to correct the problem,” CERF’s Notice is woefully deficient in effectuating this purpose. Tosco Corp., 309 F.3d at 1158. B. CERF’s Complaint must be dismissed for failing to state a claim upon which relief can be granted. 1. CERF’s first cause of action is premised on impermissible readings of the GIP. CERF’s allegations that LKQ has violated the GIP’s discharge prohibitions and receiving water limitations are based on untenable legal theories that if Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.68 Page 18 of 35 - 16 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accepted, render critical portions of the GIP as surplusage. A court's task in interpreting and enforcing a general permit under the Clean Water Act is the same as it would a regulation. Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 765 F.3d 1169, 1172 (9th Cir. 2014); E.P.A., General Permit Program Guidance 21 (1988), available at http://www.epa.gov/npdes/pubs/owm0381.pdf (“[G]eneral permits are considered to be rulemakings...”). “A regulation should be construed to give effect to the natural and plain meaning of its words.” Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm'n, 366 F.3d 692, 698 (9th Cir. 2004). A court’s interpretation of a general permit is a legal question. See United States v. Faltico, 687 F.2d 273, 276 (8th Cir. 1982) (holding that interpreting regulations are questions of law). Here, CERF’s first cause of action fails as a matter of law because (1) Water Quality Standards (“WQS”), as that term is defined in the GIP, are not per se enforceable numerical standards under the GIP or CWA; (2) accepting CERF’s legal theory would lead to absurd results where certain storm water discharges would simultaneously be permissible and impermissible under the GIP; (3) imposing GIP liability based on CERF’s legal theory would circumvent a GIP provision that allows dischargers that have storm water discharges exceeding certain thresholds to participate in a program that allows the discharger to stay compliant with the GIP; and (4) prior case law indirectly addressing this issue is not applicable because those cases were based on a prior version of the GIP that has since been significantly revised. First, CERF’s allegation that LKQ’s storm water discharges cause or contribute to an exceedance of “Water Quality Standards5” in violation of 5 Under the GIP, the term “water quality standards” is defined as standards “[c]onsist[ing] of beneficial uses, water quality objectives to protect those uses, an Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.69 Page 19 of 35 - 17 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Discharge Prohibitions (Section III.D. of the GIP) and Receiving Water Limitations (Section VI.A. of the GIP) is based on an incorrect premise unsupported by the GIP’s plain language – that EPA Benchmark values, California Toxics Rule water quality standards, and/or the San Diego Basin Plan water quality objectives are enforceable WQSs that are applied to storm water discharge samples. See Dkt. No. 1 at ¶¶ 77-82, 106-107; See also Dkt. No. 1 at 30-33. This premise is baseless – under the GIP, storm water monitoring data that shows exceedances of these WQSs are not violations of either the GIP or the Clean Water Act. Rather, “[w]ater quality standards apply to the quality of the receiving water, not the quality of the industrial storm water discharge.” GIP at 5, ¶ 37 (emphasis added); see also Santa Monica Baykeeper v. Kramer Metals, Inc., 619 F. Supp. 2d 914, 924 (C.D. Cal. 2009) (“EPA Benchmarks are relevant guidelines that should be used to evaluate the efficacy of a facility's BMPs, but that samples in excess of those benchmarks do not necessarily constitute a violation of the General Permit”). Indeed, the State Water Board has acknowledged that these WQSs are used to evaluate the efficacy of a facility’s “Best Management Practices”, not as enforceable numerical limits that impose permit/CWA liability. See id.; see also RJN, Exh. A, GIP at 5, ¶ 37 (“If any Discharger’s storm water discharge causes or contributes to an exceedance of a water quality standard, that Discharger must implement additional BMPs or other control measures in order to attain compliance with the receiving water limitation.”) In other words, if a discharger antidegradation policy, and policies for implementation. Water quality standards are established in Regional Water Quality Control Plans (Basin Plans) and statewide Water Quality Control Plans. U.S. EPA has also adopted water quality criteria (the same as objectives) for California in the National Toxics Rule and California Toxics Rule.” RJN, Exh. A, GIP, Attachment C at 8. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.70 Page 20 of 35 - 18 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 causes or contributes to an exceedance of a “water quality standard”, the discharger is not subject to CWA/permit liability; rather it is only required to modify BMPs or control measures. Compare RJN, Exh. A, GIP at 5, ¶ 37 with Dkt. No. 1 at ¶ 106 (CERF alleging, in tension with the plain language of the GIP, that “discharges of contaminated storm water have caused or contributed to and continue to cause or contribute to an exceedance of WQSs in violation of Discharge Prohibition III.D. and Receiving Water Limitation VI.A.”) Second, treating WQSs as numeric discharge limits leads to absurd results when harmonized with the rest of the GIP. For example, the GIP notes that storm water discharge samples that exceed Numeric Action Level (“NALs”), which are less than or as stringent as WQSs6, are not considered permit violations. See RJN, Exh. A, GIP, Attachment C at 4 (“NALs are not effluent limits. The exceedance of an NAL is not a permit violation.”) But because in practice, an NAL exceedance is also a WQS exceedance, CERF is asking the Court to hold that a single storm water sample can simultaneously be both a permissible NAL exceedance and an impermissible WQS exceedance.7 To impose CWA/GIP liability for a storm water discharge sample that exceeds a WQS when that same sample is a simultaneously permissible NAL exceedance is not only a completely nonsensical result, it is simply an impermissible reading of the GIP that this court should avoid. See id. (“The exceedance of an NAL is not a permit violation”); Sec’y of Labor v. 6 See Dkt. No. 1 at 31 (table comparing benchmark/WQO values with NALs). 7 This is made clearly evident when reviewing the table of sampling data Plaintiff provides in its Notice letter. Every storm water measurement plaintiff cites is both a benchmark/WQO exceedance and an NAL exceedance. See id. (table indicating concurrent NAL and benchmark/WQO exceedances). It would be patently absurd to accept CERF’s theory and hold that these exceedances are simultaneously both GIP violations and not GIP violations. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.71 Page 21 of 35 - 19 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Twentymile Coal Co., 411 F.3d 256, 260–61 (D.C. Cir. 2005) (holding the court should avoid interpreting regulations that “lead to absurd results”) Third, allowing CERF to proceed under its first cause of action without first allowing LKQ to complete its authorized participation in the “Exceedance Response Action” (“ERA”) program circumvents both the purpose of the GIP’s ERA program and the permit’s plain language. Under the GIP, if a discharger’s storm water monitoring data shows inconsistencies with NALs, the discharger is allowed to enroll in the ERA program, which is “designed to assist Dischargers in complying with its General Permit” by “evaluat[ing] the effectiveness of their BMPs being implemented to ensure they are adequate to achieve compliance with [the GIP].” RJN, Exh. A, GIP at 11, ¶ 64. The purpose of the ERA is to provide dischargers with a way to stay in compliance with the GIP while effectuating the goals of the permit program. See id., Industrial General Permit Fact Sheet at 56 (“This ERA process provides Dischargers with an adaptive management-based process to develop and implement cost-effective BMPs that are protective of water quality and compliant with this General Permit. This General Permit’s ERA process is designed to have a well-defined compliance end-point.”) The ERA program contains three status levels – baseline, Level 1, and Level 2. Id. at 49-52, Section XII. A discharger begins at “Baseline” status; a Discharger’s Baseline status for any given parameter shall change to Level 1 status if sampling results indicate an NAL exceedance for that parameter. Id. at 49. A Discharger’s Level 1 status for any given parameter shall change to Level 2 status if sampling results indicate an NAL exceedance for that parameter while the Discharger is in Level 1. See id. at 50, Section XII. Here, CERF acknowledges that LKQ is currently enrolled in the ERA program at Level 1, submitting an ERA plan on December 7, 2016. Dkt. No. 1 at ¶ 157. If LKQ can be held liable under CERF’s first cause of action without being Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.72 Page 22 of 35 - 20 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 given an opportunity to return to Baseline status through the ERA or an opportunity to achieve compliance at level 2, it would obliterate the ERA proviso set forth in the GIP and allow citizen suits to hold dischargers liable for entirely lawful discharges that can otherwise be remedied through the ERA. See also RJN, Exh. A, GIP at 11, ¶ 63 (“NAL exceedances defined in this General Permit are not, in and of themselves, violations of this General Permit.” Only when “a [d]ischarger [] does not fully comply with the Level 1 status and/or Level 2 status ERA requirements, when required by the terms of this General Permit, is [the discharger] in violation of this General Permit.”) In other words, finding LKQ liable for GIP/CWA violations because of a discharge that exceeded NALs/WQSs would circumvent the purpose of the ERA program. Fourth, two prior district court decisions – Santa Monica Baykeeper v. Int'l Metals Ekco, Ltd. (Ekco), 619 F. Supp. 2d 936 (C.D. Cal. 2009); Kramer Metals, Inc., 619 F. Supp. 2d 914 – that have held WQSs such as the California Toxics Rule are enforceable receiving water limits applicable to storm water discharges are not germane to this case because the GIP has since undergone substantial revisions that render these holdings inapplicable. In Kramer and Ekco, the discharger was subject to the Old GIP. Here, LKQ is only subject to the current GIP and CERF has not alleged to the contrary. See generally, Dkt. No. 1 at ¶¶ 102-165 (alleging all claims based on “New Industrial Permit” only). Significantly, the GIP now contains provisions not found in the Old GIP. The GIP defines WQS as “consisting of beneficial uses, water quality objectives to protect those uses, an antidegradation policy, and policies for implementation. Water quality standards are established in Regional Water Quality Control Plans (Basin Plans) and statewide Water Quality Control Plans. U.S. EPA has also adopted water quality criteria (the same as objectives) for California in the National Toxics Rule and California Toxics Rule.” RJN, Exh. A, GIP, Attachment C at 8. The GIP Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.73 Page 23 of 35 - 21 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 then clarifies that “[WQS] apply to the quality of the receiving water, not the quality of the industrial storm water discharge.” Id. at 5, ¶ 37 (emphasis added). The emphasized language is not present in the Old GIP. See generally, Old GIP, RJN, Exh. B. Directly contradicting Kramer and Ekco, both of those cases likely would have held WQSs are not enforceable discharge limits had this language been found in the Old GIP. See also San Francisco Baykeeper v. Levin Enterprises, Inc., 12 F. Supp. 3d 1208, 1224 (N.D. Cal. 2013) (noting that “Plaintiff acknowledges that an exceedance of [Water Quality Standards] is not a per se General Permit violation.”) Accordingly, Plaintiff’s first cause of action, that LKQ’s storm water discharges violate the GIP’s discharge prohibitions and receiving waters limitations and thus constitute CWA/GIP violations, has no basis in law and should be dismissed with prejudice. 2. CERF’s second cause of action is not cognizable as a matter of law because numerical effluent limits play no role under the GIP in determining whether a discharger’s BMPs meet Best Available Technology/Best Control Technology standards (“BAT/BCT”), as required in Section V of the GIP; alternatively, to the extent CERF is alleging LKQ’s BMPs are generally inadequate, LKQ’s enrollment in the ERA requires that this claim must fail. CERF’s second cause of action, alleging that LKQ is in violation of effluent limitations of the GIP by failing to develop and/or implement BMPs that achieve compliance with BAT/BCT requirements of the GIP and the CWA, see Dkt. No. 1 at ¶¶ 114-17, also fails as a matter of law. As an initial matter, CERF’s second cause of action only alleges in conclusory fashion that LKQ has “failed to develop and/or implement BMPs that achieve compliance with BAT/BCT requirements of the Industrial Permit and the CWA.” Id. at ¶ 114. CERF’s Complaint is devoid of Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.74 Page 24 of 35 - 22 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any factual allegations that suggest how LKQ has failed to develop and/or implement BMPs that achieve compliance with BAT/BCT requirements. Without more, CERF’s conclusory allegation that LKQ has failed to implement BMPs that achieve compliance with BAT/BCT is subject to dismissal. See Iqbal, 556 U.S. at 678 (“nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’”). But to the extent CERF’s second cause of action is premised on the contention that LKQ is in violation of the “Effluent Limitations” section of the GIP (Section V), CERF’s legal theory fails. CERF appears to contend that because LKQ’s storm water discharges exceeded EPA benchmarks and/or WQSs, it has violated the “Effluent Limitations” section of the GIP. See Dkt. No. 1 at ¶¶ 58, 77- 81, 86. But the GIP has made it clear that storm water discharge data/numeric effluent data plays no role in evaluating whether a discharger’s BMPs are BAT/BCT-compliant. See RJN, Exh. A, GIP at 5, ¶ 33. (“It is not feasible for the State Water Board to establish numeric technology based effluent limitations for discharges authorized by this General Permit at this time… Therefore, this General Permit requires Dischargers to implement minimum BMPs and applicable advanced BMPs as defined in Section X.H (collectively, BMPs) to comply with the requirements of this General Permit”); see also id. at 11, ¶ 63 (“The NALs are not intended to serve as technology-based or water quality-based numeric effluent limitations.”) Furthermore, the GIP specifically elaborates that so long as the discharger implements the “minimum BMPs and applicable advanced BMPs [outlined] in Section X.H [of the GIP],” the discharger is in compliance with the “Effluent Limitations” section of the GIP. Id. at 5, ¶ 33. In other words, whether a discharger’s BMPs meet BAT/BCT requirements is based on whether the discharger has implemented the minimum BMPs set forth in Section X.H of the GIP, irrespective of whether any numeric limit, benchmark, or WQS is exceeded. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.75 Page 25 of 35 - 23 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, Kramer Metals, a case cited by CERF itself, lends support to LKQ’s argument. The Kramer Metals court, relying on the Old GIP, expressed skepticism that numeric standards such as EPA Benchmarks should be used to evaluate a discharger’s BMPs to the extent they achieve BAT/BCT. See Kramer Metals, 619 F. Supp. 2d at 925 (“while effluent limitations are inextricably linked with BAT/BCT, as far as the Court can tell, EPA Benchmarks are not so linked. Without a direct link to BAT/BCT, it would be problematic to use the Benchmark levels to conclusively determine whether a facility's ‘BMPs achieve BAT/BCT.’”) While ultimately, the Kramer court found that EPA benchmarks could potentially be used as guidance to determine if BMPs are achieving BAT/BCT, the language in the new GIP completely severs the propriety of using numeric limits such as EPA benchmarks to evaluate BMPs in achieving BAT/BCT. First, the GIP now evaluates whether BMPs are meeting BAT/BCT by assessing whether the discharger has implemented the minimum BMPs or applicable advanced BMPs set forth in Section X.H of the GIP. See RJN, Exh. A, GIP at Section X.H. This “checklist” approach towards evaluating the GIP’s “Effluent Limitation” section did not exist in the Old GIP. See generally, RJN, Exh. B, Old GIP. Second, numeric discharge limits are now used to evaluate the efficacy of a discharger’s BMPs8 via NALs – in fact, the same EPA benchmarks at issue in Kramer Metals are now used to set NALs. See RJN, Exh. A, GIP at 11, ¶ 62 (“the 8 To clarify, whether a discharger’s BMP’s are: (1) achieving BAT/BCT or (2) are sufficiently effective, appear to be two separate and distinct questions under the GIP. BAT/BCT compliance is evaluated by reviewing a discharger’s BMPs with the checklist set forth in Section X.H. NALs are used to evaluate BMPs for effectiveness. If NALs are exceeded, the discharger enrolls in the ERA program to revise its BMPs which allows the discharger to reach compliance with the NALs. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.76 Page 26 of 35 - 24 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 annual NALs are established as the 2008 MSGP benchmark values.”) And because NALs “are not derived directly from… BAT/BCT requirements”, the use of NALs/EPA Benchmarks to evaluate BMPs for BAT/BCT would be inappropriate. Id. at ¶ 63. Accordingly, CERF’s second cause of action must be dismissed with prejudice for failing to allege a cognizable legal theory. To the extent CERF’s second cause of action alleges that LKQ’s BMPs were generally inadequate, this claim must similarly fail.9 LKQ is already currently enrolled in the ERA level 1 program, as Plaintiff avers. Dkt. No. 1 at ¶ 157. Its ongoing participation in the ERA provides it with an opportunity to develop appropriate BMPs compliant with the GIP. See RJN, Exh. A, GIP at 11-12, ¶ 64 (noting that the ERA is a program that sets dischargers on a course towards developing BMPs that “achieve compliance with this General Permit”); see also id., Section XII (outlining participant’s ERA program requirements). To impose CWA/GIP liability on LKQ for inadequate BMPs when the GIP authorizes LKQ to develop its BMPs through the ERA would essentially authorize the court to penalize LKQ for participating in the ERA program authorized by the GIP, which provides a participant with a “pathway towards full compliance.” 3. CERF’s third cause of action fails to sufficiently plead a cognizable claim for relief and should be dismissed. CERF’s third cause of action pleads, without any supporting allegations, that “Defendant has failed to develop and/or implement an adequate SWPPP for the LKQ Facility that meets the requirements set out [sic] Section X of the New 9 While it does not appear CERF is making this claim, see Dkt. No. 1 at 32 (“development of an Exceedance Response Action Plan pursuant to Permit Section XII neither addresses nor alleviates the aforementioned violations of Effluent Limitation V.A.”), to the extent CERF is making such a claim, LKQ responds accordingly. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.77 Page 27 of 35 - 25 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Industrial Permit.” Dkt. No. 1 at ¶ 123. Although Fed. R. Civ. P. Rule 8 “does not require ‘detailed factual allegations,'...it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (alteration in original). Here, CERF’s claim consists of nothing but a conclusory label that LKQ has “failed to develop and/or implement an adequate SWPPP” in accordance with Section X of the GIP. Without more, this claim is subject to dismissal. 4. CERF’s fourth, fifth and sixth causes of action should be dismissed because CWA citizen suits do not remedy wholly past violations and LKQ remedied the claims prior to the filing of CERF’s Complaint; CERF’s forth cause of action should also be dismissed for incorrectly alleging LKQ is required to sample for phosphorus. CERF’s fourth, fifth, and sixth causes of action should be dismissed because these claims are premised on actions that are “wholly past” and no longer ongoing. Therefore, this Court does not have jurisdiction to hear them. A citizen plaintiff may not sue to remedy “wholly past” violations of the Clean Water Act; the Act confers jurisdiction only over citizen suits where the plaintiff can allege in good faith continuous or intermittent violations. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57-64 (1987).10 Defendants have the 10 The concurrence in Gwaltney suggests that the majority opinion created a jurisdictional analysis for CWA citizen suits that does not clearly comport with traditional subject-matter jurisdiction analysis. See Gwaltney, 484 U.S. at 67 (Scalia) (“I believe [the majority opinion] misreads the statute to create a peculiar Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.78 Page 28 of 35 - 26 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 capacity to challenge the truthfulness of the allegations of ongoing violations. Sierra Club v. Union Oil Co. of California, 853 F.2d 667, 669 (9th Cir. 1988) (citing Gwaltney, 484 U.S. at 66). Federal courts can also lose jurisdiction over citizen suits if plaintiff’s CWA claims are moot. Id. Such claims are moot if “there is no reasonable expectation that the wrong will be repeated.” Id. Indeed, when the alleged conduct underlying the plaintiff’s CWA claims have been discontinued prior to the complaint being filed, courts will find “mootness.” See, e.g., San Francisco Baykeeper, Inc. v. Moore, 180 F. Supp. 2d 1116, 1122 (E.D. Cal. 2001). In the Ninth Circuit, “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.” Union Oil, 853 F.2d at 671 (internal quotations omitted). In this vein, a court may evaluate the defendant's remedial efforts to determine if a continuing violation has indeed ceased. Id. Courts have found they lack jurisdiction when the defendant has cured allegations of CWA violations prior to the plaintiff filing its complaint. For example, in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 403 (4th Cir. 2011), the Fourth Circuit determined that the district court lacked jurisdiction to hear plaintiff’s claim that defendant failed to comply with its new form of subject-matter jurisdiction.”) Accordingly, LKQ styles its challenge to CERF’s fourth, fifth, and sixth causes of action as a Rule 12(b)(6) argument as opposed to a Rule 12(b)(1) lack of subject matter jurisdiction. See also San Francisco Herring Ass'n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847, 860 (N.D. Cal. 2015) (noting that defendant challenged plaintiff’s claims that it believed were “wholly past” based on a Rule 12(b)(6) motion.) Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.79 Page 29 of 35 - 27 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discharge permit’s submission requirements when the defendant had come into compliance with these requirements by the time the plaintiff filed its complaint. Similarly, in San Francisco Baykeeper, Inc. v. Moore, 180 F. Supp. 2d 1116, 1122 (E.D. Cal. 2001), the district court found it lacked jurisdiction to hear a citizen plaintiff’s CWA claims when the noticed allegations that defendant sprayed herbicide which discharged into a body of water without an NPDES permit were cured prior to the filing of plaintiff’s complaint. These cases stand for the proposition that CWA allegations become “wholly past” if they are cured by the defendant prior to plaintiff filing the complaint. CERF’s fourth, fifth, and sixth claims are premised on the allegation that LKQ failed to sample storm water discharges (taking at least two storm water samples during each half of a year) and that these violations are ongoing. See Dkt. No. 1 at ¶¶ 97, 98, 99, 100, 133, 141, 142, 146, 148, 14911. CERF’s claims are also premised on the contention that LKQ has failed to submit reports that identify inadequacies in its SWPPPs and BMPs. See Dkt. No. 1 at ¶¶ 101, 134, 147. But these allegations are moot because LKQ has ceased the offending conduct prior to CERF filing its complaint. See RJN, Exhibit C (storm water data collected in 2017). LKQ sampled for storm water discharges on January 9 and January 19, 2017. Id. In other words, LKQ has come into compliance with the sampling and analysis procedures in the GIP. See RJN, Exh. A, GIP, Section XI.B (requiring dischargers to sample for at least two QSEs (qualifying storm events) during each half of the year). Thus, CERF cannot allege in good faith that LKQ is in violation 11 CERF’s allegation of false reporting is premised on the contention that LKQ falsely claimed in its 2015-2016 annual report that it did not adequately sample and report storm water discharges because it did not know it was required to do so under the GIP. See Dkt. No. 1 at 35. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.80 Page 30 of 35 - 28 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the GIP by failing to sample storm water discharges in accordance with the GIP’s sampling procedures, mooting these claims. Similarly, CERF’s claims that LKQ’s 2015-2016 Annual Report falsely states that LKQ failed to sample, on a semi-annual basis, two storm water discharges and report them within 30 days to SMARTS because it was unaware of the GIP monitoring requirements are now moot. See Dkt. No. 1 at ¶¶ 146, 148, 149. Because “there is no reasonable expectation that the wrong will be repeated,” i.e. that LKQ would again claim it was unaware that it was required to sample at least two storm water discharges semi-annually, this claim is subject to dismissal for lack of jurisdiction. Union Oil, 853 F.2d at 671. Along these lines, this Court lacks jurisdiction to hear CERF’s claims that LKQ has failed to submit reports that identify inadequacies in its SWPPPs and BMPs. This allegation is plainly contradicted by LKQ’s Level 1 ERA Plan referenced by CERF in its Complaint. See Dkt. No. 1 at ¶ 158; RJN, Exhibit D (“ERA Plan”). The ERA Plan clearly identifies additional BMPs and SWPPPs that address their potential deficiencies. RJN, Exh. D at 3. As a result, those moot claims must be dismissed as well. See McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1187–88 (E.D. Cal. 1988) (“even where there is a good-faith allegation of a continuing [CWA] violation, the claim might be moot where that allegation turns out to be in error.”) Lastly, CERF’s claim that LKQ failed to sample for phosphorus is not supported by the GIP’s plain language and should be dismissed as a matter of law. See Dkt. No. 1 at ¶ 96. LKQ is not required to sample for phosphorus. See RJN, Exh. A, GIP Section XI.B.6. Moreover, phosphorous was not identified as an industrial pollutant present at the LKQ Facility that could be causing or contributing to an exceedance of a WQS in the San Luis Rey River (the LKQ Facility’s “receiving waters”). See also RJN, Exh. A, GIP Section XI.B.6.e (“[a Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.81 Page 31 of 35 - 29 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discharger is only required to sample for] additional applicable industrial parameters related to receiving waters with 303(d) listed impairments... based on the assessment in [GIP] Section X.G.2.a.ix”). And based on this Section X.G.2.a.ix assessment, LKQ determined that phosphorus was not identified as an industrial pollutant related to the receiving waters. See RJN, Exhibit E, (September 2016 SWPPP) at 10, Section H.2 (“the following parameters, for which the receiving water is listed as a 303(d) water way, have been determined to not be present at the facility through knowledge of processes… phosphorus”) (emphasis added). CERF’s claims to the contrary should therefore be dismissed. 5. CERF’s seventh cause of action should be dismissed because the GIP does not require LKQ’s Level 1 ERA Plan to include an evaluation of copper and zinc NALs or an evaluation of BMP and SWPPP revisions to address copper and zinc NALs. CERF’s seventh cause of action – that LKQ’s Level 1 ERA Plan “fails to note or include an evaluation of the Facility's exceedances of copper and zinc numeric action levels” and fails to adequately evaluate BMPs and SWPPP revisions necessary to prevent future numeric action level exceedances for zinc and copper, in violation of GIP Section XII.A-C – is not supported by the GIP and fails as a matter of law. Dkt. No. 1 at ¶ 158-159. LKQ was not required to evaluate its storm water discharges for copper and zinc. Section XI.B.6 only requires LKQ to sample storm water discharges for TSS, Oil and Grease, pH, and metals related to its SIC code (5015) – iron (Fe), lead (Pb), and aluminum (Al). See RJN, Exh. A, GIP at Section XI.B.6.d, Table 1. Furthermore, at the time LKQ submitted its Level 1 ERA plan, LKQ’s SWPPP did not identify copper or zinc as additional parameters it was required to sample for in accordance with GIP Section XI.B.6.c. See RJN, Exh. E (September 2016 SWPPP) at 21, Section B.6; see also RJN, Exh. A, GIP Section X.G.2.d. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.82 Page 32 of 35 - 30 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“Dischargers shall identify [in their SWPPPs] any additional parameters, beyond the required parameters in Section XI.B.6 that indicate the presence of pollutants in industrial storm water discharges.”) Because LKQ did not identify either zinc or copper as parameters in its SWPPP that was in effect when the Level 1 ERA plan was submitted, it was not required to sample for them. CERF’s claim that LKQ was required to submit both an evaluation of copper and zinc and SWPPP and BMP revisions to address copper and zinc in its December 7, 2016 ERA Level 1 report is therefore unavailing. Because LKQ was not required to sample for either parameter, it would be absurd to require LKQ’s ERA Level 1 report to address copper or zinc when LKQ was not responsible for them. See Fabi Const. Co. v. Sec'y of Labor, 508 F.3d 1077, 1086 (D.C. Cir. 2007) (holding that an interpretation of a regulation provision was impermissible when that provision, read in the context of the entire regulation, “fail[ed] to make sense.”) Accordingly, CERF’s claims should be dismissed as a matter of law for imposing an unfounded GIP requirement on LKQ. IV. CONCLUSION For the following reasons, LKQ respectfully requests that Court dismiss CERF’s complaint for lack of subject matter jurisdiction or in the alternative, for failing to state a claim upon which relief can be granted. Dated: April 24, 2017 NOSSAMAN LLP BYRON P. GEE HUBERT T. LEE By: /s/ Byron P. Gee Byron P. Gee Hubert T. Lee Attorneys for defendant AMERICAN RECYCLING INTERNATIONAL, INC. Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.83 Page 33 of 35 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE The undersigned declares: I am employed in the County of Los Angeles, State of California. I am over the age of 18 and am not a party to the within action; my business address is c/o Nossaman LLP, 777 S Figueroa St 34th Fl Los Angeles, CA 90017. On April 24, 2017, I served the foregoing DEFENDANT AMERICAN RECYCLING INTERNATIONAL, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. R. CIV. P. RULE 12(b)(1) and RULE 12(b)(6) on parties to the within action as follows: See Attached Service List  (By U.S. Mail) On the same date, at my said place of business, Copy enclosed in a sealed envelope, addressed as shown on the attached service list was placed for collection and mailing following the usual business practice of my said employer. I am readily familiar with my said employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service, and, pursuant to that practice, the correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid, on the same date at Irvine, California.  (By Facsimile) I served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), to the number(s) listed on the attached sheet. Said transmission was reported complete and without error. A transmission report was properly issued by the transmitting facsimile machine, which report states the time and date of sending and the telephone number of the sending facsimile machine. A copy of that transmission report is attached hereto.  (By Overnight Service) I served a true and correct copy by overnight delivery service for delivery on the next business day. Each copy was enclosed in an envelope or package designated by the express service carrier; deposited in a facility regularly maintained by the express service carrier or delivered to a courier or driver authorized to receive documents on its behalf; with delivery fees paid or provided for; addressed as shown on the accompanying service list.  (By Electronic Service CM/ECF) by filing the above-titled document on CM/ECF, a true and correct copy of the above-titled document was served through the Notice of Electronic Filing that is automatically generated by the Court’s Electronic Filing System; this constitutes service of the filed document on Filing Users in accordance with Local Rule 5.4(c). I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on April 24, 2017. /s/ Mina Munoz Mina Munoz Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.84 Page 34 of 35 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Livia Borak Beaudin, Esq. COAST LAW GROUP LLP 1140 South Coast Highway 101 Encinitas, California 92024 Tel. 760.942.8505 x118 Fax 760.942.8515 Email: livia@coastlawgroup.com Attorney for Plaintiff Coastal Environmental Rights Foundation Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.85 Page 35 of 35