Opinion
Case No.: 2:22-CV-01198-FWS-MRW
2023-11-14
LOS ANGELES WATERKEEPER, Plaintiff, v. SSA TERMINALS, LLC, et al., Defendants.
Christopher A. Sproul, Brian Orion, Stuart Wilcox, Environmental Advocates, San Francisco, CA, Barak Kamelgard, Benjamin Avi Harris, Los Angeles Water Keeper, Los Angeles, CA, Marla S. Fox, Pro Hac Vice, Marla Fox LLC, Carson, WA, for Plaintiff. Grant Richard Olsson, Joshua Todd Rosenbaum, Salem W. Rosenbaum, Varco and Rosenbaum Environmental Law Group LLP, San Diego, CA, for Defendants.
Christopher A. Sproul, Brian Orion, Stuart Wilcox, Environmental Advocates, San Francisco, CA, Barak Kamelgard, Benjamin Avi Harris, Los Angeles Water Keeper, Los Angeles, CA, Marla S. Fox, Pro Hac Vice, Marla Fox LLC, Carson, WA, for Plaintiff.
Grant Richard Olsson, Joshua Todd Rosenbaum, Salem W. Rosenbaum, Varco
and Rosenbaum Environmental Law Group LLP, San Diego, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS [58], [59], AND DENYING AS MOOT PLAINTIFF'S MOTION TO AMEND [73]
Fred W. Slaughter, UNITED STATES DISTRICT JUDGE.
Before the court are three matters: (1) Defendant SSA Terminals, LLC, SSA Pacific, Inc., Pacific Maritime Services, LLC, and SSA Terminals (Pier A) LLC's (collectively, "SSA Defendants") Partial Motion to Dismiss the Complaint and Motion to Strike Defendants SSA Terminals, LLC, SSA Pacific, Inc., Pacific Maritime Services, LLC, and SSA Terminals (Pier A) LLC, (Dkt. 58); (2) Defendant City of Long Beach's Motion to Dismiss, (Dkt. 59); and (3) Plaintiff Los Angeles Waterkeeper's ("Plaintiff") Motion to Amend and Supplement Complaint, (Dkt. 73). All three Motions are fully briefed. (Dkts. 67, 68, 70, 71, 75, 76.) The court found these matters appropriate for resolution without oral argument. See Fed. R. Civ. P. 78(b) ("By rule or order, the court may provide for submitting and determining motions on briefs, without oral hearings."); L.R. 7-15 (authorizing courts to "dispense with oral argument on any motion except where an oral hearing is required by statute"). Based on the state of the record, as applied to the applicable law, the court GRANTS IN PART AND DENIES IN PART the Motions to Dismiss, (Dkts. 58, 59), and DENIES AS MOOT the Motion to Amend, (Dkt. 73).
Defendant City of Long Beach also filed a Notice of Joinder indicating it joins the SSA Defendants in their Partial Motion to Dismiss. (Dkt. 60 at 2.)
I. FACTUAL BACKGROUND
For purposes of the Motion, the court "accept[s] factual allegations in the [First Amended Complaint] as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Plaintiff is a California 501(c)(3) public benefit corporation with an office in Santa Monica, California. (Dkt. 42 ("FAC") ¶ 13.) Members of Plaintiff's organization use the Los Angeles River, Los Angeles Harbor, Long Beach Harbor, San Pedro Bay, other Los Angeles County waterways, the Pacific Ocean, and beaches into which these waters flow for "recreational, educational, aesthetic, and spiritual purposes." (Id.) Members also use these waters "to engage in scientific study through pollution and habitat monitoring and conservation activities." (Id.) Plaintiff alleges the SSA Defendants and Defendant City of Long Beach's discharge of storm water with elevated levels of pollutants impedes and diminishes Plaintiff and their members' ability to enjoy and use these waterways. (Id.)
A. Defendants' Industrial Operations
Plaintiff's claims relate to four industrial facilities located at the Port of Long Beach—Piers A, C, F, and J ("Facilities"). (Id. ¶¶ 6-7.) Defendant City of Long Beach owns Piers A, C, F, and J. (Id. ¶ 6.) The SSA Defendants operate the Facilities: Defendant SSA Terminals (Pier A), LLC and SSA Terminals, LLC operate Pier A; SSA Terminals, LLC, operates Pier C; SSA Pacific operates Pier F; and Pacific Maritime Services operates Pier J. (Id.) The Facilities generate and handle similar pollutants, including the pollutants potentially stemming from the following sources:
[V]ehicle and equipment fueling (e.g., trucks, forklifts), which is conducted throughout each terminal with mobile fuel trucks or at fuel stations; vehicle and equipment maintenance (e.g. trucks, cranes, forklifts) and maintenance liquids storage; vehicle and equipment washing and steam cleaning; high-pressure washing; mobile vehicle fueling equipment; spill cleanup and storage of cleanup material; underground and aboveground storage tanks for diesel and gasoline; outdoor container or materials storage; trash not placed in trash bins throughout the terminal; leaks from vehicles and spills during maintenance; and dust and particulate pollution from vehicle maintenance and equipment cleaning.
(Id. ¶ 17.)
The SSA Defendants and Defendant City of Long Beach also conduct industrial activities that implicate the following potential pollutant sources: "used motor oil, brake fluid (mixed with used motor oil), gasoline, and hazardous materials (including but not limited to, diesel fuel and other oils and grease), used antifreeze, used battery acid, oil containing rags and absorbents, used oil filters, paints, detergents, lubricants and solvents." (Id. ¶ 18.) The Facilities generally lack sufficient berms or structural controls to retain stormwater onsite and do not adequately treat contaminated stormwater prior to discharge. (Id. ¶ 19.)
B. Alleged Clean Water Act and RCRA Violations
Plaintiff alleges the Facilities operated by the SSA Defendants and Defendant City of Long Beach discharge stormwater into the waters of the United States in violation of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, and the State of California's National Pollution Discharge Elimination System General Permit for Storm Water Discharges Associated with Industrial Activities, NPDES Order No. CAS000001, California State Water Resources Control Board Water Quality Order 2014-0057-DWQ, as amended in 2015 and 2018 (Order 2015-0122-DWQ and November 6, 2018 Board Amended Requirements), and as may be amended from time to time ("General Permit"). (Id. ¶ 7.) Plaintiff alleges pollutant-laden stormwater discharges from the Facilities flow directly into the Los Angeles Harbor, the Long Beach Harbor, San Pedro Bay, and the Pacific Ocean. (Id. ¶ 28.) These discharges impede the Los Angeles Harbor's, the Long Beach Harbor's, and San Pedro Bay's beneficial uses as designated by the Regional Board's Region 4 Basin Plan ("Basin Plan"). (Id. ¶¶ 28-34.)
Plaintiff alleges the SSA Defendants' annual reports indicate "discharges of storm-water from the Facilities have been consistently contaminated with higher levels of pollutants than permissible under the General Permit." (Id.) Plaintiff further alleges these elevated pollutant levels are due to the SSA Defendants' and Defendant City of Long Beach's failure to comply with the General Permit, "including but not limited to, [by] developing and implementing adequate Best Management Practices ("BMPs"), complying with all monitoring and reporting requirements, revising and updating the [Stormwater Pollution Prevention Plans ("SWPPPs")], developing an adequate monitoring implementation plan, [and] conducting the requisite storm water sampling." (Id.)
Plaintiff alleges the SSA Defendants and Defendant City of Long Beach have violated the Resources Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), by contributing to the handling, storage, treatment, transportation, and disposal of solid waste, including by failing to install or maintain sufficient controls to retain pollutant-laden storm water
and pollutant-laden non-storm water onsite, failing to treat contaminated water, and discharging water contaminated with elevated levels of pollutants. (Id. ¶¶ 132-33.) Plaintiff alleges the pollutants associated with the Facilities' activities have been and continue to be tracked by vehicles and dispersed throughout the sites; such activity allegedly deposits dust, oil and grease, pH affecting substances, fuel, copper from brake dust, and zinc from tire dust throughout the Facilities. (Id. ¶ 134.) As a result, Defendants stormwater discharges flush these pollutants directly in the Los Angeles Harbor and Long Beach Harbor during rainstorms. (Id.) These discharges harm aquatic-dependent life and presents an imminent and substantial endangerment to the environment. (Id. ¶¶ 134-35.)
Based on these allegations, Plaintiff asserts six claims: (1) discharges in violation of the General Permit's technology-based effluent limitations; (2) discharges in violation of the General Permit's water-quality based effluent limitations; (3) failure to prepare, implement, review, and update an adequate storm water pollution prevention plan as required by the General Permit; (4) violations of the General Permit's monitoring and reporting requirements; (5) violations of General Permit's Exceedance Response Action Requirements; and (6) violations of RCRA, 42 U.S.C. § 6972(a)(1)(B). (See, e.g., id. ¶¶ 138-70.)
The SSA Defendants challenge the sufficiency of Plaintiff's first, second, third, and fourth, and sixth claims, as well as the court's subject matter jurisdiction over the sixth claim. (See generally Dkt. 58.) Defendant City of Long Beach argues the court lacks subject matter jurisdiction over Plaintiff's claims due to inadequate presuit notice and that Plaintiff has otherwise failed to allege CWA or RCRA claims against Defendant City of Long Beach. (See generally Dkt. 59.)
II. REQUEST FOR JUDICIAL NOTICE
The SSA Defendants, Defendant City of Long Beach, and Plaintiff each submitted requests for judicial notice. (Dkts. 58-2, 67-11, 71-1.) The court may take judicial notice of facts that are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Courts cannot take judicial notice of facts subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.11, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Under Federal Rule of Evidence 201(b), a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.") (internal quotation marks omitted).
For example, "courts routinely take judicial notice of letters published by the government ... as well as records and reports of administrative bodies." Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 851 n.10 (9th Cir. 2016) (citations and internal quotation marks omitted). Additionally, courts "may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment," if the material is "physically attached to the complaint." Lee, 250 F.3d at 688 (citations and internal quotation marks omitted). "But a court cannot take judicial notice of disputed facts contained in such public records."
Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).
The SSA Defendants request that the court take judicial notice of the following eight exhibits:
• Exhibit 6: California State Water Resource Control Board ("SWRCB") Emails;
• Exhibit 7: SWRCB Stormwater Multiple Application & Report Tracking System ("SMARTS") Website;
• Exhibit 8: SWRCB Website;
• Exhibit 9: SWRCB SMARTS Website;
• Exhibit 10: SWRCB SMARTS Website;
• Exhibit 11: SWRCB Email;
• Exhibit 12: SWRCB SMARTS Website; and
• Exhibit 13: SWRCB SMARTS Website.
(Dkt. 58-2 at 2.) The SSA Defendants argue Exhibits 6 through 11 are email correspondence from a public agency that is appropriate for judicial notice and Exhibits 11 through 13 are judicially noticeable as public records. (Id. at 3-4.)
The court declines to take judicial notice of Exhibits 6, 7, 9, 10, 11, 12, and 13 because the SSA Defendants offer these exhibits for the truth of the matters asserted therein, or to prove that the SSA Defendants complied with various Exceedance Response Action requirements and deadlines and strike the FAC's allegations to the contrary. (Id. at 3; see also Dkt. 58 at 30-32.) This is an impermissible use of judicially noticed documents on a motion to dismiss for failure to state a claim. See Cal. Sportfishing Protection All. v. Shiloh Grp., LLC, 268 F. Supp. 3d 1029, 1038 (N.D. Cal. 2017) ("[W]hen courts take judicial notice of administrative records, only the existence of the documents themselves including the findings therein are judicially noticeable, and not the contents of the documents for the truth of the matters asserted.") (citation omitted); Coastal Env't Rts. Found. v. Am. Recycling Int'l, 2017 WL 6270395, at *7 (S.D. Cal. Dec. 8, 2017) (declining request for judicial notice based on "evidentiary concerns with [d]efendant's attempt to rely on only judicial notice of administrative filings to establish that it has now complied with Permit requirements"). The court also declines to take judicial notice of Exhibit 8 because it does not rely on this exhibit to decide the Motions. See Cal. Sportfishing Protection All., 268 F. Supp. 3d at 1039 (denying request for judicial notice of documents the court did not consider in deciding the motion); Gerritsen v. Warner Bros Ent. Inc., 112 F. Supp. 3d 1011, 1026-30 (C.D. Cal. 2015) (declining to take judicial notice of documents irrelevant to motion to dismiss); Warner v. Tinder Inc., 105 F. Supp. 3d 1083, 1090 (C.D. Cal. 2015) (declining to incorporate by reference documents because the "court need not consider the exhibits to grant [the] requested relief"). Thus, the SSA Defendants' request for judicial is DENIED.
Defendant City of Long Beach requests the court take judicial notice of Exhibit C, an Excerpt of the California State Regional Water Quality Control Board, Los Angeles Region, Order No. R4-2014-0024, NPDES Permit No. CAS004003, Waste Discharge Requirements for Municipal Separate Storm Sewer System Discharges from the City of Long Beach ("MS4 Permit"). (Dkt. 71-1 at 2.) Defendant City of Long Beach argues the MS4 permit is judicially noticeable as a public record and relevant because "its existence demonstrates that the facts in cases cited by Plaintiff in its Opposition to the City's Motion to Dismiss ... are distinguishable from the facts in this matter." (Id. at 3.) The court GRANTS Defendant City of Long Beach's request for judicial
notice of Exhibit C as a public record and quasi-judicial document. See United States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011) (stating courts make "take judicial notice of matters of public record"); Cal. Sportfishing Protection All. v. River City Waste Recyclers, LLC, 205 F. Supp. 3d 1128, 1136 (E.D. Cal. 2016) (taking judicial notice of NDPES General Permit as quasi-judicial document).
Plaintiff requests judicial notice of the following seven exhibits:
• Exhibit 1: National Pollution Discharge Elimination System (NPDES) Order WQ 20XX-XXXX-DWG Amending General Permit for Storm Water Discharges Associated With Industrial Activities, Order NPDES No. CAS000001 ("General Permit") (excerpted);
• Exhibit 2: SWPPP for SSA Terminal Pier A Long Beach, revised on August 10, 2022 (excerpted);
• Exhibit 3: SWPPP for SSA Terminal Pier C Long Beach, revised on August 10, 2022 (excerpted);
• Exhibit 4: SWPPP for SSA Pacific, Inc. Pier F Long Beach, revised on August 10, 2022 (excerpted);
• Exhibit 5: SWPPP for Pacific Container Terminal Pier J Long Beach, revised on August 10, 2022 (excerpted);
• Exhibit 8: California 2020-2022 Integrated Report (303(d) List/305(b) Report), Appendix A (excerpt) and maps displaying the waterbodies assessed in the 2020-2022; and
• Exhibit 9: NPDES General Permit Fact Sheet for Storm Water Discharges Associated With Industrial Activities NPDES No. CAS000001 ("General Permit Fact Sheet") (excerpted).
(Dkt. 67-11 at 3-4.)
Plaintiff argues Exhibits 1 and 9 are judicially noticeable as quasi-judicial actions by a state agency. (Id. at 4.) Plaintiff also argues Exhibits 2 through 5 and Exhibit 8 are public records not subject to reasonable dispute and thus may be properly judicially noticed. (Id. at 5-7.) The court finds these documents are judicially noticeable as either public records or quasi-judicial documents and GRANTS the request for judicial notice. See Cal. Sportfishing Protection All., 205 F. Supp. 3d at 1136 (taking judicial notice of NDPES General Permit as quasi-judicial document); Coastal Env't Rts. Found., 2017 WL 6270395, at *3 n.5 (taking judicial notice of defendant's "sampling data, response report, and Pollution Prevention Plan" because those documents were "filed with the State Water Board as public records").
III. LEGAL STANDARDS
A. Motion To Dismiss for Lack of Subject Matter of Jurisdiction
"Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute." Gunn v. Minton, 568 U.S. 251, 257, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (citation and internal quotation marks omitted). "Accordingly, 'the district courts may not exercise jurisdiction absent a statutory basis.'" Home Depot U.S.A., Inc. v. Jackson, 587 U.S. 435, 139 S. Ct. 1743, 1746, 204 L.Ed.2d 34 (2019) (quoting Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005)). This threshold requirement "'spring[s] from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception.'" Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)). Because subject matter jurisdiction is a threshold inquiry, a pleading must contain "a short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ. P. 8; see also Harris v. Rand, 682 F.3d 846, 850 (9th Cir. 2012) ("Under Federal Rule of Civil Procedure 8(a), a pleading must contain 'a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support.'").
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a case for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A defendant's challenge to subject matter jurisdiction under Rule 12(b)(1) may be either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack "accepts the truth of plaintiff's allegations but asserts that they 'are insufficient on their face to invoke federal jurisdiction.'" Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone, 373 F.3d at 1039). By contrast, a factual attack "contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside of the pleadings." Id. Generally, dismissal for lack of subject matter jurisdiction should be without prejudice. See Mo. ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) (citing Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004)); Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999) ("Dismissals for lack of jurisdiction should be without prejudice so that a plaintiff may reassert claims in a competent court.").
B. Motion To Dismiss for Failure To State a Claim
Rule 12(b)(6) permits a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). To withstand a motion to dismiss brought under Rule 12(b)(6), a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," a plaintiff must provide "more than labels and conclusions" and "a formulaic recitation of the elements of a cause of action" such that the factual allegations "raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955 (citations and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (reiterating that "recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice"). "A Rule 12(b)(6) dismissal 'can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
"Establishing the plausibility of a complaint's allegations is a two-step process that is 'context-specific' and 'requires
the reviewing court to draw on its judicial experience and common sense.'" Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 995-96 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). "First, to be entitled to the presumption of truth, allegations in a complaint... must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Id. at 996 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). "Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id. (quoting Starr, 652 F.3d at 1216); see also Iqbal, 556 U.S. at 681, 129 S.Ct. 1937.
Plausibility "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). On one hand, "[g]enerally, when a plaintiff alleges facts consistent with both the plaintiff's and the defendant's explanation, and both explanations are plausible, the plaintiff survives a motion to dismiss under Rule 12(b)(6)." In re Dynamic Random Access Memory (DRAM) Indirect Purchaser Antitrust Litig., 28 F.4th 42, 47 (9th Cir. 2022) (citing Starr, 652 F.3d at 1216). But, on the other, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Eclectic Props. E., 751 F.3d at 996 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). Ultimately, a claim is facially plausible where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955); accord Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).
In Sprewell v. Golden State Warriors, the Ninth Circuit described legal standards for motions to dismiss made pursuant to Rule 12(b)(6):
Review is limited to the contents of the complaint. All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.
266 F.3d 979, 988 (9th Cir. 2001) (citations omitted).
IV. DISCUSSION
A. SSA Defendants' Motion to Dismiss
The SSA Defendants move to dismiss Plaintiff's first, second, third, and fourth claims brought pursuant to the CWA for failure to state a claim, and Plaintiff's sixth claim, brought pursuant to RCRA, for lack of subject matter jurisdiction and failure to state a claim. The court first considers Plaintiff's CWA claims against the SSA Defendants.
1. Clean Water Act
The objective of the CWA is "to restore and maintain the chemical, physical, and biological integrity of [the] Nation's waters." Ass'n to Protect Hammersley v. Taylor Res., 299 F.3d 1007, 1009 (9th Cir. 2002) (quoting 33 U.S.C. § 1251(a)). In accordance with that objective, the CWA "prohibits the unregulated 'discharge of any pollutant' from any 'point sources' into the navigable waters of the United States"
unless the discharge is covered by a National Pollution Discharge Elimination System ("NPDES") permit. Ecological Rts. Found. v. Pac. Gas & Elec. Co., 874 F.3d 1083, 1087-88 (9th Cir. 2017) (quoting 33 U.S.C. § 1311(a), (e)); see also 33 U.S.C. §§ 1311(a), 1342. The CWA also authorizes citizen suits "against any person ... who is alleged to be in violation of ... an effluent standard or limitation." 33 U.S.C. § 1365(a)(1). "Effluent standards or limitations" include the unlawful discharge of pollutants under 33 U.S.C. § 1311(a) or a violation of condition of a permit issued under § 1342. Id. § 1365(f)(1).
"Where a permittee discharges pollutants in compliance with the terms of its NPDES permit, the permit acts to 'shield' the permittee from liability under the CWA." Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles, 725 F.3d 1194, 1204 (9th Cir. 2013) (citing 33 U.S.C. § 1342(k)). Thus, "[a]n NDPES permit serves to transform generally applicable effluent limits and other standards ... into the obligations ... of the individual discharger." California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). However, "[a]ny permit noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action." 40 C.F.R. § 122.41. "A party is strictly liable for NPDES Permit violations under the Clean Water Act; and there are no exceptions for minimal violations or mistakes." Cal. Sportfishing Prot. All., 205 F. Supp. 3d at 1151 (citations omitted).
"To state a claim under the CWA, a plaintiff must allege '(1) the ongoing addition of (2) a pollutant (3) to the navigable waters of the United States (4) from a point source (5) without a permit (or in violation of a permit)." S.F. Herring Ass'n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847, 860 (N.D. Cal. 2015) (quoting Woodward v. Goodwin, 2000 WL 694102, at *5 (N.D. Cal. May 12, 2000)). In this case, the SSA Defendants challenge only the fifth element of Plaintiff's CWA claims, arguing Plaintiff has not adequately alleged violations of the General Permit based on: (1) technology-based effluent limitations; (2) receiving water limitations; (3) inadequate stormwater pollution prevention plans; and (4) insufficient monitoring and reporting requirements.
At the motion to dismiss stage, the court must determine "what Plaintiff is 'required to show in order to [allege a violation] of this particular NPDES permit.'" Coastal Env't Rts. Found., 2017 WL 6270395, at *8 (alteration in original) (quoting Nat. Res. Def. Council, 725 F.3d at 1205). This analysis requires the court to interpret the General Permit "like any other contract." Nat. Res. Def. Council, 725 F.3d at 1204. "If the language of the permit, considered in light of the structure of the permit as a whole, 'is plain and capable of legal construction, the language alone must determine the permit's meaning.'" Id. at 1204-05 (quoting Piney Run Pres. Ass'n v. Cty. Comm'rs of Carroll Cty., 268 F.3d 255, 270 (4th Cir. 2001)). "If, however, the permit's language is ambiguous," the court may consider extrinsic evidence in interpreting its terms. See id. at 1205. The court addresses each of the aforementioned General Permit requirements in turn.
a. Claim One: Technology-Based Effluent Limitations
The court first considers the General Permit's technology-based effluent limitations, relevant to Plaintiff's first cause of action. The General Permit defines effluent as "[a]ny discharge of water either to the receiving water or beyond the property boundary controlled by the [d]ischarger." (General Permit Glossary at 2.) An effluent limitation is "[a]ny numeric or narrative
restriction imposed on quantities, discharge rates, and concentrations of pollutants that are discharged from point sources into waters of the United States, waters of the contiguous zone, or the ocean." (Id.) "Technology-based effluent limitations establish discharge standards based on levels of effluent quality achievable by certain pollution treatment technologies for different categories of pollutants." City & Cnty. of S.F. v. U.S. Env't Prot. Agency, 75 F.4th 1074, 1080 (9th Cir. 2023) (citing 40 C.F.R. §§ 122.44(a)(1); 125.3(a)). These limitations are narrative restrictions based on § 301(b) of the Clean Water Act, rather than numeric limitations. (General Permit §§ I.D.31, I.D.33); see also 33 U.S.C. § 1311; 40 C.F.R. §§ 122.44, 125.3.
To comply with the General Permit's technology-based effluent limitations, dischargers must implement certain Best Management Practices ("BMPs"). (General Permit § I.D.33.) The applicable regulations broadly define BMPs as "schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of 'waters of the United States'... includ[ing] treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage." 40 C.F.R. 122.2. Dischargers must "implement minimum BMPs, as well as any advanced BMPs that are necessary to adequately reduce or prevent pollutants in discharges consistent with the [technology-based effluent limitations]." (General Permit § II.D.5.)
Because the General Permit "generally does not mandate the specific mode of design, installation, or implementation for the minimum BMPs at a [d]ischarger's facility," "[i]t is up to the [d]ischarger, in the first instance, to determine what must be done to meet the applicable effluent limits." (Id.) Generally, the BMPS must comply with the Best Available Technology Economically Achievable ("BAT") and Best Conventional Pollutant Control Technology ("BCT") standards of the General Permit in order "to reduce or prevent discharges of pollutants in their storm water discharge." (Id. § V.A.)
The General Permit also incorporates "a multiple objective performance measurement system" that includes Numeric Action Levels ("NALs") and corresponding Exceedance Response Actions ("ERAs"). (Id. § I.N.75.) NALs are numeric parameters for common stormwater pollutants established based on either the benchmark values in the EPA's 2008 Multi-Sector General Permit for Stormwater Discharges or previously gathered California industrial storm water discharge monitoring data. (Id. § I.D.5.) An NAL exceedance "occurs when the average of all sampling results within a reporting year for a single parameter ... exceeds the applicable annual NAL" values as outlined in Table 2. (Id. §§ I.D.5; I.K.2.) Once a discharger exceeds an NAL, the General Permit imposes additional obligations, namely by requiring dischargers to develop and implement ERAs. (Id. § I.D.6.) NAL exceedances, in and of themselves, do not constitute violations of the General Permit. (Id. §§ I.N.77.) However, a discharger's failure to comply with ERA requirements following an NAL exceedance is a violation of the General Permit. (Id.)
These General Permit requirements— that the SSA Defendants implement adequate BMPs and complete additional ERA obligations after exceeding an NAL—underpin Plaintiff's first cause of action. The SSA Defendants argue Plaintiff's first cause of action fails to state claim two reasons. First, the SSA Defendants argue Plaintiff impermissibly relies on NAL exceedances and EPA Benchmark Values to allege technology-based effluent limitation
violations, and the General Permit expressly disallows violations based on these metrics. (Dkt. 58 at 18-20.) Second, the SSA Defendants argue Plaintiff has failed to allege any facts demonstrating the SSA Defendants failed to implement BMPs that did not meet BAT standards for toxic and nonconventional pollutants or BCT standards for conventional pollutants discharged from the Facilities. (Id. at 17.)
Construing the allegations in the light most favorable to Plaintiff, the court finds Plaintiff has adequately alleged a claim based on technology-based effluent limitations. Here, Plaintiff alleges the SSA Defendants exceeded NALs and failed to meet EPA benchmarks over the course of six years and these repeated failures demonstrate that the SSA Defendants have failed to implement adequate BMPs. (See, e.g., FAC ¶¶ 93, 108, 117.) Although NAL exceedances alone do not constitute violations of the General Permit, (see General Permit § I.N.77), a defendant's alleged failure to comply with EPA benchmarks or NALs is relevant to assessing whether their treatment measures achieve BAT and BCT standards. See Santa Monica Baykeeper v. Int'l Metals Ekco, Ltd., 619 F. Supp. 2d 936, 944 (C.D. Cal. 2009) ("While exceedance of a benchmark value does not automatically indicate that violation of a water quality standard has occurred, it does signal that modifications to the SWPPP may be necessary.").
In addition, Plaintiff has pleaded facts "beyond simply NAL exceedances" by alleging the SSA Defendants: (1) did not comply with General Permit's minimum BMPs, including by observing all outdoor areas associated with industrial activity; (2) did not implement BMPs that meet BAT or BCT standards; and (3) were required to adopt more rigorous BMPs based on the prior NAL exceedances, including, for example, by eliminating storm water discharges, installing bioswales or injection wells, moving pollutant-generative activities under cover, or establishing various structural control measures. (See, e.g., FAC ¶¶ 85-117.) The court finds these allegations sufficient to state a claim for violation of technology-based effluent limitations. See, e.g., Ctr. for Cmty. Action & Env't Justice v. Friends of Riverside Airport, 2017 WL 10511577, at *12 (C.D. Cal. Sept. 28, 2017) (finding plaintiff stated a claim for failure to use BAT/BMP by alleging "the storm water management practices are inadequate, including a lack of sufficient structural controls, inadequate sediment basins, and [defendant's] general failure to implement proper technologies"); Coastal Env't Rts. Found., 2017 WL 6270395, at *11 (finding plaintiff stated a claim for inadequate best management practices by alleging defendant's exceeded NALs, failed to implement the minimum BMPs required by the General Permit, and failed to adequately monitor and observe as required in violation of the General Permit). Therefore, the SSA Defendants' Motion is DENIED with respect to Plaintiff's first cause of action.
b. Claim Two: Receiving Water Limitations
In the FAC, Plaintiff refers to these violations as "water-quality based effluent limitations." (See, e.g., FAC ¶¶ 142-48.) However, because water quality standards apply to the quality of receiving waters as opposed to industrial storm water discharges, (General Permit I.E.37), the court refers to these allegations as violations of "Receiving Water Limitations."
The court next considers Plaintiff's second cause of action for violation of the General Permit's receiving water limitations. The General Permit requires compliance with receiving water limitations based on water quality standards. (General Permit Fact Sheet II.E.1.) Thus, dischargers must ensure that industrial storm water
discharges and authorized Non-Storm Water Discharges ("NSWDs") do not: (1) "cause or contribute to an exceedance of any applicable water quality standards in any affected receiving water"; (2) "adversely affect human health or the environment"; or (3) "contain pollutants in quantities that threaten to cause pollution or a public nuisance." (General Permit § VI.)
Water quality standards ("WQS") apply to the quality of the receiving waters as opposed to the industrial storm water discharges. (General Permit I.E.37.) These standards "specify (1) a body of water's 'designated use' (e.g., recreation, water supply, or propagation of fish) and (2) 'water quality criteria' (i.e., numeric or narrative benchmarks to protect a designated use)." City & Cnty. of S.F., 75 F.4th at 1080 (citing 40 C.F.R. §§ 130.2(d), 131.3(b), 131.10(a)). "State-defined WQS are used as the basis for specific effluent limitations in NPDES permits." Id. (citing 33 U.S.C. §§ 1311(b)(1)(C), 1370; 40 C.F.R. §§ 122.4(d), 122.44(d)(1), 131.4(a)). The Basin Plan and the statewide Water Quality Control Plans set the applicable WQS for the Facilities. (General Permit § III.D; id., Glossary at 9.) The EPA has also adopted relevant water quality criteria in the California Toxics Rule ("CTR"), 40 C.F.R. § 131.38, which limits the level of toxic pollutants in storm water discharges in California. (Glossary at 9); see also 40 C.F.R. § 131.38(b)(1).
"Implementation of the BMPs as required by the technology-based effluent limitation in Section V of this General Permit will typically result in compliance with the receiving water limitations." (General Permit Factsheet § II.E.1.) However, the General Permit also specifies that "if any individual facility's storm water discharge causes or contributes to an exceedance of a water quality standard, that [d]ischarger must implement additional BMPs or other control measures that are tailored to that facility in order to attain compliance with the receiving water limitations." (General Permit Factsheet § II.E.1; General Permit § I.E.37.) In some cases, "[c]ompliance with water quality standards may ... require [d]ischargers to implement controls that are more protective than controls implemented solely to comply with the technology-based requirements in this General Permit." (General Permit Factsheet § II.E.1.) General Permit § XX.B further requires a discharger "who determines [its] storm water discharges is causing or contributing to an exceedance of a water quality standard ... comply with the Water Quality Based Corrective Actions," which impose obligations distinct from those of Exceedance Response Actions ("ERAs") discussed above. (Id.; General Permit § XX.B)
In this case, the SSA Defendants argue Plaintiff's receiving waters limitations claim fails for the same reasons as its technology-based effluent limitations claim, namely that: (1) Plaintiff's allegations related to the chemical makeup of the discharges at issue again rely on NAL exceedances, which pertain to the quality of the stormwater discharges rather than the quality of receiving water; and (2) Plaintiff
The court declines to address the SSA Defendants' first argument at the motion to dismiss stage. As one district court explained, "whether Defendant[s]' discharges are contributing to exceedances of Water Quality Standards is ultimately a factual issue." Coastal Env't Rts. Found. v. Am. Recycling Int'l, 2017 WL 6270395, at *14 n.13 (S.D. Cal. Dec. 8, 2017). At the motion to dismiss stage, the court must accept as true Plaintiff's allegation that Defendant's polluted storm water discharges are contributing to or causing exceedances of the Water Quality Standards. Id. Thus, the court declines to decide "what exact evidence Plaintiff will need to introduce to prove this allegation, including potentially sampling results and expert testimony" at this juncture. Id.
has failed to allege facts stating which water quality standard or discharge prohibition the SSA Defendants exceeded or when such violations occurred. (Dkt. 58 at 20-21.)
The court finds Plaintiff sufficiently alleged violations of the General Permit's receiving waters limitations. Relevantly, Plaintiff alleges that the Basin Plan identifies the Los Angeles and Long Beach Harbors, the waters into which the Facilities discharge, as impaired for copper, lead, and zinc within the meaning of section 303(d) of the Clean Water Act. (FAC ¶ 120.) Plaintiff further alleges the Facilities' self-monitoring data indicates that the SSA Defendants' storm water discharges contain levels of total suspended solids, aluminum, lead, copper, zinc, and iron that exceed CTR standards. (Id. ¶¶ 9, 12, 85, 89, 97, 133, 145, 146.) Plaintiff alleges the geographic proximity of the Facilities' discharge points relative to the receiving waters, in tandem with the lack of mixing zones or dilution and the elevated pollutant levels in the storm water discharges, has caused the Los Angeles and Long Beach Harbors to fail to meet both the General Permit's WQS, including §§ VI.A-C and VII.B. and the Basin Plan's designated beneficial uses. (Id. ¶¶ 12, 28, 122, 144-48.) In addition, the SSA Defendants' "alleged lack of compliance with the [General] Permit's [e]ffluent [l]imitations," as discussed above, "supports—although it does not establish —the conclusion that Defendant[s] [are] also violating the [General] Permit's Receiving Water Limitations." Coastal Env't Rts. Found., 2017 WL 6270395, at *11.
The court concludes Plaintiff has stated a claim for violation of the General Permit's receiving water limitations, including by specifying which WQS were violated and when. See, e.g., id. (finding plaintiff stated a claim for violation of receiving water limitations based on allegations that defendant's polluted discharges caused or contributed to the impairment of water quality in the San Luis Rey River); Ctr. for Cmty. Action & Env't Justice, 2017 WL 10511577, at *12 (finding plaintiff plausibly stated a claim for violation of receiving water limitations by alleging "it has collected and analyzed storm water discharged from the Site over the past year and its results show exceedances of water quality standards incorporated into the General Permit"); San Diego Coastkeeper v. Pick-Your-Part Auto Wrecking, 2023 WL 4879832, at *11 (S.D. Cal. July 31, 2023) (finding plaintiff plausibly alleged a claim for violation of receiving water limitations by alleging the facilities' self-report monitoring show their dischargers enter the river with pollutant levels in excess of CTR standards and these toxic metals contribute to the toxicity impairment of the river and impede its beneficial uses). Accordingly, the court also DENIES the Motion as to Plaintiff's second claim.
c. Claim Three: Storm Water Pollution Prevention Plan
Next, the court considers Plaintiff's third claim, alleging the SSA Defendants developed inadequate SWPPPs for the Facilities. The General Permit requires dischargers to develop and implement site-specific Stormwater Pollution Prevention Plans ("SWPPP"). (See generally General Permit § X.) The SWPPPs must include the facility name and contact information, a site map, a list of industrial materials, a description of potential pollution sources, an assessment of potential pollutant sources, minimum BMPs, advanced BMPs, if applicable, a monitoring implementation plan, annual comprehensive facility compliance evaluation, and the date that the
SWPPP or amendment was initially prepared. (Id. § X.A.)
In addition, if the discharger implements a Representative Sampling Reduction, as described in section IV.A.1.d., infra, the SWPPP must also include a "justification in the Monitoring Implementation Plan section of the SWPPP," which includes the following information:
i. Identification and description of each drainage area and corresponding discharge location(s);
ii. A description of the industrial activities that occur throughout the drainage area;
iii. A description of the BMPs implemented in the drainage area;
iv. A description of the physical characteristics of the drainage area;
v. A rationale that demonstrates that the industrial activities and physical characteristics of the drainage area(s) are substantially similar; and,
vi. An identification of the discharge location(s) selected for representative sampling, and rationale demonstrating that the selected location(s) to be sampled are representative of the discharge from the entire drainage area.
(Id. § XI.C.4.)
In this case, the SSA Defendants argue Plaintiff failed to allege facts demonstrating the SWPPPs are inadequately developed or implemented. (Dkt. 58 at 21.) In particular, the SSA Defendants argue that the SWPPPs incorporated the requisite Representative Sampling Reduction analysis and listed the industrial activities that have the potential to generate a significant amount of dust or particulates as required by the General Permit. (Id. at 21-22.)
The court finds Plaintiff has adequately alleged the SSA Defendants failed to comply with the General Permit's SWPPP requirements. Plaintiff alleges numerous deficiencies with the SSA Defendants' SWPPPs, including, but not limited to, failure to identify the discharge locations for all drainage areas pictured on the map, describe the physical characteristics of the drainage areas, list all pollution generating activities, like vehicle fueling, and include an adequate site map. (See, e.g., FAC ¶¶ 20-27, 123-31, 134, 149-52.) Plaintiff also alleges that the SSA Defendants failed to provide adequate justifications for their Representative Sampling Reductions at the Facilities by explaining why the single location chosen for monitoring is representative of the other discharge locations or how the industrial activities are substantially similar. (Id. ¶¶ 20-27, 123-31.) The court concludes these allegations are sufficient to state a claim for violation of the General Permit's SWPPP requirements. See, e.g., Coastal Env't Rts. Found., at *15 (finding plaintiff plausibly alleged an inadequate pollution prevention plan based on defendant's failure to include all discharge and sampling locations on the map, account for scrap metal and industrial activities, and revise the SWPPP when required to do so); Ctr. for Cmty. Action & Env't Justice, 2017 WL 10511577, at *12 (finding plaintiff stated a claim for inadequate SWPPP based on "a lack of sufficient structural controls, inadequate sediment basins, and FRA's general failure to implement proper technologies"). Therefore, the court also DENIES the Motion as to Plaintiff's third claim.
d. Claim Four: Monitoring and Reporting Requirements
Plaintiff's fourth claim alleges that the SSA Defendants failed to implement an adequate Monitoring and Reporting Program by failing to collect all requisite storm water samples or provide an adequate justification for Representative Sampling Reductions. (See, e.g., FAC ¶¶ 123-31,
153-57.) The SSA Defendants generally argue the FAC does not allege sufficient facts to demonstrate a violation of the General Permit's monitoring and reporting requirements and instead relies on legal conclusions. (Dkt. 58 at 23.)
The General Permit mandates that dischargers collect and analyze stormwater samples from four qualifying storm events ("QSEs"), including two samples between July 1 and December 31 and two samples between January 1 and June 30. (General Permit § VI.B.2.) With limited exceptions, dischargers must collect QSE samples from each drainage area at all discharge locations. (Id. § XI.B.4.) The samples collected must be: (a) "representative of storm water associated with industrial activities and any commingled authorized [Non-Storm Water Discharges]"; or (b) "associated with the discharge of contained storm water." (Id.) In addition, the samples must be collected either within four hours of the start of the discharge or within four hours of the start of the facilities' operations if the QSE occurred within the preceding twelve hours. (Id. § XI.B.5.) The dischargers must analyze all sample collected according to various parameters, including, but not limited to, total suspended solids, oil and grease, pH, facility-specific parameters that serve as indicators of the presence of all industrial pollutants identified in the pollutant source assessments. (Id. § XI.B.6.)
The General Permit also authorizes dischargers to "reduce the number of locations to be sampled in each drainage area... if the industrial activities, BMPs, and physical characteristics (grade, surface materials, etc.) of the drainage area for each location to be sampled are substantially similar to one another." (Id. § XI.C.4.) To qualify for a Representative Sampling Reduction, a discharger must provide a "justification in the Monitoring Implementation Plan section of the SWPPP," which includes the following information:
i. Identification and description of each drainage area and corresponding discharge location(s);
ii. A description of the industrial activities that occur throughout the drainage area;
iii. A description of the BMPs implemented in the drainage area;
iv. A description of the physical characteristics of the drainage area;
v. A rationale that demonstrates that the industrial activities and physical characteristics of the drainage area(s) are substantially similar; and,
vi. An identification of the discharge location(s) selected for representative sampling, and rationale demonstrating that the selected location(s) to be sampled are representative of the discharge from the entire drainage area.
(Id.)
Based on these provisions, the court finds Plaintiff adequately alleged violations of the General Permit's monitoring and reporting requirements, including failure to collect all required samples and failure to sample for all pollutants. With respect to storm water sample collections, Plaintiff alleges each of the Facilities has multiple drainage areas and discharge locations, but the SSA Defendants only sample stormwater from a single location at each facility. (See, e.g., FAC ¶¶ 123-31.)
Plaintiff further alleges the SSA Defendants failed to provide adequate justification for these Representative Sampling Reductions as required by General Permit § XI.C.4 in either the 2015 or 2022 SWPPPs. (See, e.g., id. ¶¶ 123, 125, 127, 129.) In particular, Plaintiff alleges the Monitoring Implementation Plan section of
the SWPPPs failed to, inter alia, identify and describe all drainage areas and corresponding discharge locations; describe the BMPs implemented in drainage areas; provide a rationale demonstrating the industrial activities and physical characteristics of the drainage areas are substantially similar; and explain why the sample locations selected are representative of the discharge from the entire drainage area. (See, e.g., id. ¶¶ 123-31.) With respect to the requisite pollutant sampling, Plaintiff alleges the SSA Defendants failed to sample storm water for all pollutants generated in the Facilities, such oil and grease, as required by General Permit § XI.B.6 or assess pollutants contained in discharges where no stormwater sampling was conducted. (See, e.g., id. ¶¶ 124, 126, 128, 131.) The court concludes Plaintiff's allegations plausibly allege that the SSA Defendants have failed to comply with the General Permit's monitoring and reporting requirements. Thus, the Motion is DENIED as to Plaintiff's fourth cause of action.
2. RCRA Claim
Plaintiff's sixth claim alleges the SSA Defendants violated RCRA by discharging solid waste, including pollutant-laden stormwater, into the Los Angeles and Long Beach Harbors. (See, e.g., id. ¶¶ 132-41, 162-70.)
"RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). The statute's primary purpose is "to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, 'so as to minimize the present and future threat to human health and the environment.'" Id. (quoting 42 U.S.C. § 6902(b)). RCRA also authorizes citizen suits against "any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B).
Defendants argue Plaintiff's RCRA claim should be dismissed under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for: (1) failing to comply with RCRA's notice requirement; (2) failing to allege an imminent and substantial endangerment; (3) failing to allege solid waste linked to the imminent and substantial endangerment; and (4) alleging violations of RCRA that are duplicative of Plaintiff's CWA claims. (Dkt. 58 at 23-30.)
Plaintiff counters that its Second Notice of Intent provided sufficient detail to enable Defendants to identify and correct the problem. (Dkt. 67 at 3-14.) Plaintiff also argues that the FAC adequately alleges both a "threatened or potential" imminent and substantial endangerment and solid waste, including pollutants and stormwater. (Id. at 14-20.) Finally, Plaintiff argues Defendants mischaracterize RCRA's anti-duplication provision and Defendants have not identified any specific statutory remedies under the CWA that are inconsistent with the remedies available under RCRA. (Id. at 20-21.)
a. Notice of Intent To Sue
The court first addresses RCRA's notice requirements. A plaintiff asserting present violations of RCRA must provide notice of the imminent and substantial endangerment to: (1) the Environmental Protection Agency; (2) the state in which the alleged violation occurred; and (3) the alleged violator at least ninety days before filing a lawsuit. 42 U.S.C. § 6972(b)(2)(A). These "notice and [90]-day delay requirements are mandatory conditions precedent to commencing a suit under the RCRA citizen suit provision,"
Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), and must be "strictly construed," Wash. Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995). If the plaintiff fails to provide adequate notice, the court lacks subject matter jurisdiction over the RCRA claim. See Covington v. Jefferson Cnty., 358 F.3d 626, 636 (9th Cir. 2004) ("Absent compliance with a required notice provision, we lack subject matter jurisdiction to hear the RCRA claims.") (citations omitted); Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913, 916 (9th Cir. 2004).
"Decisions construing CWA notice requirements are also applicable in the RCRA context because '[t]he 60-day notice provisions under the Resource Conservation and Recovery Act and the Clean Water Act are [both] modeled after § 304 of the Clean Air Amendments.'" City of Imperial Beach v. Int'l Boundary & Water Comm'n, United States Section, 356 F. Supp. 3d 1006, 1019 n.6 (S.D. Cal. 2018) (quoting ONRC Action v. Columbia Plywood, Inc., 286 F.3d 1137, 1146 n.2 (9th Cir. 2002)).
In this case, Plaintiff sent the SSA Defendants the Second Notice of Intent regarding the RCRA claims on September 22, 2022. (Dkt. 58-3.) The SSA Defendants concede that Plaintiff's Second Notice of Intent complied with section 6972's requirements but argue Plaintiff did not strictly comply with the corresponding notice regulations. The SSA Defendants specifically point to 40 C.F.R. § 254.3, which requires that pre-suit notice include:
"When evaluating its jurisdiction, the [c]ourt may consider facts outside of the four-corners of the complaint to assure itself that it does, in fact, have the power to hear this matter." Puget Soundkeeper All. v. Total Terminals Int'l, LLC, 371 F. Supp. 3d 857, 860 (W.D. Wash. Mar. 4, 2019) (citing Americopters, LLC v. Fed. Aviation Admin., 441 F.3d 726, 732 n.4 (9th Cir. 2006)). Thus, the court may properly consider the Second Notice of Intent as part of its jurisdictional analysis. (Dkt. 58-3.)
[S]ufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or person responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice.
"To provide proper notice of an alleged violation, a would-be plaintiff must '[a]t a minimum ... provide sufficient information so that the [notified parties] could identify and attempt to abate the violation." Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 651 (9th Cir. 2015) (alternations in original) (quoting Sw. Ctr. for Bio. Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 522 (9th Cir. 1998)). The plaintiff's notice need not "list every specific aspect or detail of every alleged violation" nor "describe every ramification of a violation." Cmty. Ass'n for Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002) (quoting Pub. Int. Rsch. Grp. of N.J., Inc. v. Hercules, Inc., 50 F.3d 1239, 1239, 1248 (3d Cir. 1995)). Essentially, the pre-suit notice must "tell[ ] a target precisely what it allegedly did wrong, and when." Ctr. For Bio. Diversity v. Marina Point Dev. Co., 566 F.3d 794, 801 (9th Cir. 2009).
As a preliminary matter, the court finds the SSA Defendants attempt to improperly merge the pre-suit notice and pleading requirements, in effect arguing that the pre-suit notice was insufficient because Plaintiff failed to allege imminent and substantial endangerment or solid waste as required to state a RCRA claim. (See, e.g., Dkt. 58 at 25-29.) The court declines to
blend these two standards and evaluates the pre-suit notice requirement separately from the sufficiency of Plaintiff's RCRA allegations. See Paolino v. JF Realty, LLC, 710 F.3d 31, 37 (1st Cir. 2013) ("[T]he appropriate measure of sufficiency under [the Clean Water Act's notice requirements] is whether the notice's contents place the defendant in a position to remedy the violations alleged."); Puget Soundkeeper All. v. Total Terminals Int'l, LLC, 371 F. Supp. 3d 857, 861 (W.D. Wash. Mar. 4, 2019) ("To the extent [defendant] believes the theory of liability [alleged in the pre-suit notice] is not viable, that issue will be analyzed below under Rule 12(b)(6).").
The court finds Plaintiff provided sufficient pre-suit notice. The Second Notice of Intent informed the SSA Defendants that Plaintiff intended to sue based on Defendants' frequent discharge of storm water containing elevated levels of toxic pollutants and total suspended solids. (See generally Dkt. 58-3.) Plaintiff's Second Notice of Intent to Sue characterizes the RCRA violations as follows:
Numerous pollutant-generating activities at the Facilities at the Port of Long Beach occur outdoors in uncovered areas exposed to rainfall and stormwater runoff. As a result, stormwater contaminated with elevated levels of copper, lead, zinc, and total suspended solids runs off the Facilities form the discharge points identified in Your storm-water pollution prevention plans (SWPPPs) and site maps, and discharges directly to the Los Angeles Harbor and Long Beach Harbor in a fashion that is presenting an imminent and substantial danger to health and the environment.
(Id. at 408.)
The Second Notice of Intent further alleges the Facilities' marine cargo handling and associated equipment maintenance activities involve the use of several potential sources of pollutants, including motor oil, brake fluid (mixed with used motor oil), gasoline, and hazardous materials, used antifreeze, used battery acid, oil containing rags and absorbents, used oil filters, paints, detergents, lubricants, and solvents. (Id.) The Facilities also generate dust, sediments, and fine metal particulates from the loading and unloading of containers from cranes onto rail cars, tracks, and track chassis. (Id.) The Second Notice of Intent provides a list of alleged potential sources of pollutants for each Facility; it also indicates the violations occurred simultaneously with each significant local rain event over 0.1 inches. (Id. at 409-11, 415.)
The court concludes the Second Notice of Intent adequately notified the SSA Defendants of the source of the violations (discharge of stormwater), the dates the violations occurred (during every significant local rain event over 0.1 inches), and the harm caused by the violations (human and environmental exposure to harmful pollutants in the Los Angeles Harbor, Long Beach Harbor, and San Pedro Bay). Accordingly, the Second Notice of Intent "provide[d] sufficient information so that the [notified parties] could identify and attempt to abate the violation," and the court has subject matter jurisdiction over Plaintiff's RCRA claim. Klamath-Siskiyou Wildlands Ctr., 797 F.3d at 651; see also S.F. Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th Cir. 2002) ("[A]s long as a notice letter is reasonably specific as to the nature and time of the alleged violations, the plaintiff has fulfilled the notice requirement."). The Motion is DENIED as to Plaintiff's pre-suit notice.
b. Sufficiency of Plaintiff's RCRA Claim
The court next considers whether Plaintiff adequately alleged a RCRA claim. A plaintiff asserting an "imminent and
substantial endangerment" claim under RCRA must allege: (1) "the defendant has been or is a generator or transporter of solid or hazardous waste, or is or has been an operator of a solid or hazardous waste treatment, storage or disposal facility;" (2) "the defendant has 'contributed' or 'is contributing to' the handling, storage, treatment, transportation, or disposal of solid or hazardous waste;" and (3) "the solid or hazardous waste in question may present an imminent and substantial endangerment to health or the environment." Ecological Rts. Found. v. Pacific Gas and Elec. Co., 713 F.3d 502, 514 (9th Cir. 2013) (citing 42 U.S.C. § 6972(a)(1)(B); Prisco v. A&D Carting Corp., 168 F.3d 593, 608 (2d. Cir. 1999)).
Here, the SSA Defendants argue that Plaintiff has failed to allege either a solid waste or an imminent and substantial endangerment. (Dkt. 58 at 25-29.) The court first considers whether Plaintiff has alleged a solid waste.
In their Reply, the SSA Defendants also argue the carrying or conveyance of material by stormwater cannot constitute transportation under the endangerment provision. (Dkt. 70 at 4-5.) The SSA Defendants did not raise this argument in the Motion, and the court declines to address substantive arguments raised for the first time in the Reply. See Est. of Saunders v. Comm'r, 745 F.3d 953, 962 n.8 (9th Cir. 2014) ("Arguments raised only in footnotes, or only on reply, are generally deemed waived.") (citations omitted); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007); United States v. Strong, 489 F.3d 1055, 1060 (9th Cir. 2007); Morales v. Woodford, 388 F.3d 1159, 1168 n.14 (9th Cir. 2004); First Advantage Background Servs. Corp. v. Priv. Eyes, Inc., 569 F. Supp. 2d 929, 935 n.1 (N.D. Cal. 2008); cf. Marceau v. Int'l Bhd. of Elec. Workers, 618 F. Supp. 2d 1127, 1159 n.7 (D. Ariz. 2009).
RCRA defines "solid waste" as "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities." 42 U.S.C. § 6903(27). The Ninth Circuit has stated "the key to whether a manufactured product is a 'solid waste,' then, is whether that product 'has served its intended purpose and is no longer wanted by the consumer.'" Ecological Rts. Found, 713 F.3d at 515 (alterations omitted) (quoting H.R. Rep. No. 94-1491(I), at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241).
Critically, RCRA's solid waste definition excludes "industrial discharges which are point sources subject to permits under section 1342 of [the CWA]." Id.; see also Cmty. Ass'n for Restoration of the Env't Inc. v. Wash. Dairy Holdings LLC, 2019 WL 13117758, at *7 (E.D. Wash. Oct. 24, 2019) ("RCRA excludes from the definition of solid waste 'solid or dissolved material in ... industrial discharges which are point sources' under the Clean Water Act."). "The purpose of the [industrial discharge exclusion] is to avoid duplicative regulation, not to create a regulatory hole through which billions of gallons of hazardous wastes can be pumped into the earth without any controls." San Diego Coastkeeper, 2023 WL 4879832, at *11 (quoting Inland Steel Co. v. EPA, 901 F.2d 1419, 1423 (7th Cir. 1990)). RCRA does not define the term "point source," but the Clean Water Act defines a "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362. The court interprets this definition "broadly." Henry Bosma Dairy, 305 F.3d at 955 (quoting Dague v. City of
Burlington, 935 F.2d 1343, 1354 (2d Cir. 1991)).
The SSA Defendants contend that the stormwater does not constitute a solid waste because: (1) the FAC fails to distinguish between industrial stormwater subject to exclusion under RCRA and non-industrial stormwater; and (2) the storm-water is not "discarded" within the meaning of the statute. (Dkt. 58 at 26-29.) In the Opposition, Plaintiff argues that the SSA Defendants, themselves, concede that not all discharges from the Facilities are subject to the CWA and the General Permit and Plaintiff's RCRA claim pertains to those exempt discharges. (Dkt. 67 at 16.)
The court finds Plaintiff has not adequately alleged a solid waste subject to RCRA. Here, Plaintiff alleges the Facilities are subject to the General Permit and must discharge stormwater in accordance with its requirements. (See, e.g., FAC ¶¶ 7, 83-131.) Although Plaintiff argues that the SSA Defendants "admit[ ] that not all discharges from the [Facilities] are subject to the CWA and General Permit," (Dkt. 67 at 16), the FAC, itself, does not adequately allege that the Facilities discharge non-industrial stormwater constituting solid waste subject to RCRA, as opposed to "solid or dissolved material in ... industrial discharges which are point sources" subject to General Permit under the CWA. Ecological Rts. Found., 713 F.3d at 515. Because Plaintiff has not adequately alleged that the stormwaters at issue fall within the scope of RCRA rather than the CWA, the court concludes Plaintiff has not adequately stated a RCRA claim. See, e.g., San Diego Coastkeeper, 2023 WL 4879832, at *16 (granting motion to dismiss RCRA claim "as to all discharges covered by the General Permit"); Water Keeper All. v. U.S. Dep't of Def., 152 F. Supp. 2d 163, 170 (D.P.R. 2001) (dismissing plaintiff's RCRA claims "only to the extent that they rel[ied] on discharges of solid waste that [were] covered by Defendants' NPDES permit"). Accordingly, the court GRANTS the Motion to Dismiss as to Plaintiff's sixth cause of action. Based on that finding, the court does not reach the SSA Defendants' remaining challenges to Plaintiff's RCRA claim c failure to allege an "imminent and substantial endangerment" or RCRA's anti-duplication provision.
3. Motion to Strike
The SSA Defendants also request that the court strike several allegations in the FAC relating to the timing of the SSA Defendants' submissions of ERA Level 2 Technical Reports as false and therefore immaterial. (Dkt. 58 at 31-32.) Plaintiff argues these allegations are material and pertinent to Plaintiff's fifth cause of actions, which alleges the SSA Defendants violated the General Permit's ERA requirements. (Dkt. 67 at 30-31 (citing FAC ¶¶ 16, 68-70, 89-117, 156-61).)
Under Rule 12(f), the court may strike from a pleading an insufficient defense or redundant, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). "'The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.'" Whittlestone, Inc. v. HandiCraft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). In evaluating a motion to strike, the court accepts the nonmoving party's allegations as true and liberally construes the pleadings in the nonmoving party's favor. Ramachandran v. City of Los Altos, 359 F. Supp. 3d 801, 809 (N.D. Cal. 2019); Romero v. Securus Techs., Inc., 216 F. Supp. 3d 1078, 1095 (S.D. Cal. 2016). Motions to strike "are generally regarded with disfavor." Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) (citations omitted). They "'are generally not granted unless it is clear that the matter sought to be stricken could have no possible bearing on the subject matter of the litigation.'" LockandLocate, LLC v. Hiscox Ins. Co., 549 F. Supp. 3d 1093, 1098 (C.D. Cal. 2021) (quoting Gaines v. AT&T Mobility Servs., LLC, 424 F. Supp. 3d 1004, 1014 (S.D. Cal. 2019)).
The court declines to strike the allegations identified by the SSA Defendants for two reasons. First, the court finds the SSA Defendants' Motion to Strike is not the proper vehicle to prove the falsity of the FAC's allegations, particularly because the court must "accept[ ] the nonmoving party's allegations as true and liberally construe[ ] the pleadings in the nonmoving party's favor." Ramachandran, 359 F. Supp. 3d at 809.
Second, the court finds the FAC's allegations are relevant to Plaintiff's fifth cause of action for violation of the General Permit's ERA Requirements and thus are neither redundant, impertinent, nor scandalous matter within the meaning of Rule 12(f). (See, e.g., General Permit § XII); see also Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 967 (9th Cir. 2014) (describing "[i]mmaterial" as "that which has no essential or important relationship to the claim for relief or the defenses being plead") (quoting Fantasy, 984 F.2d at 1527); Whittlestone, 618 F.3d at 974 ("Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.") (quoting Fantasy, 984 F.2d at 1527); Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005) ("Redundant" refers to "allegations that constitute a needless repetition of other averments or which are foreign to the issue to be denied.") (citations omitted); Consumer Sols. REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1020 (N.D. Cal. 2009) (defining scandalous matters as "allegations that unnecessarily reflect on the moral character of an individual or state anything in repulsive language that detracts from the dignity of the court, and include allegations that cast a cruelly derogatory light on a party or other person") (cleaned up). Accordingly, the Motion to Strike is DENIED.
B. Defendant City of Long Beach's Motion to Dismiss
Defendant City of Long Beach moves to dismiss Plaintiff's FAC on two grounds. First, Defendant City of Long Beach argues that Plaintiff's pre-suit notice was deficient for both the CWA and RCRA claims because Plaintiff did not identify any actions performed by the City of Long Beach. (Dkt. 59 at 7-10.) Second, Defendant City of Long Beach argues that Plaintiff has failed to state a claim against the city under either the CWA or RCRA because Plaintiff does not allege that Defendant City of Long Beach has operational control of the facilities. (Id. at 11-12.)
1. Notice of Intent to Sue
The court first considers the jurisdictional pre-suit notice requirements. As discussed above, the CWA's and RCRA's "notice and ... delay requirements are mandatory conditions precedent to commencing a suit under the RCRA citizen suit provision," Hallstrom, 493 U.S. at 31, 110 S.Ct. 304, and must be "strictly construed," Wash. Trout, 45 F.3d at 1354. If the plaintiff fails to provide adequate notice,
The court analyzes the CWA and RCRA notice requirements together because "[d]ecisions construing CWA notice requirements are also applicable in the RCRA context" and vice versa. City of Imperial Beach, 356 F. Supp. 3d at 1019 n.6 (quoting ONRC Action, 286 F.3d at 1146 n.2).
the court lacks subject matter jurisdiction over the CWA and RCRA claims. See Covington v. Jefferson Cnty., 358 F.3d 626, 636 (9th Cir. 2004) ("Absent compliance with a required notice provision, we lack subject matter jurisdiction to hear the RCRA claims.") (citations omitted); Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913, 916 (9th Cir. 2004); 33 U.S.C. § 1365(a)-(b).
"To provide proper notice of an alleged violation, a would-be plaintiff must '[a]t a minimum ... provide sufficient information so that the [notified parties] could identify and attempt to abate the violation." Klamath-Siskiyou Wildlands Ctr., 797 F.3d at 651 (alternations in original) (quoting Sw. Ctr. for Bio. Diversity, 143 F.3d at 522). The plaintiff's notice need not "list every specific aspect or detail of every alleged violation" nor "describe every ramification of a violation." Henry Bosma Dairy, 305 F.3d at 951 (quoting Pub. Int. Rsch. Grp. of N.J., Inc., 50 F.3d at 1248). Essentially, the pre-suit notice must "tell[ ] a target precisely what it allegedly did wrong, and when." Marina Point Dev. Co., 566 F.3d at 801.
Like the SSA Defendants' Motion to Dismiss, Defendant City of Long Beach's Motion argues Plaintiff's pre-suit notice is deficient based on Plaintiff's purported failure to state RCRA or CWA claims. (See, e.g., Dkt. 59 at 7-10.) The court again declines to apply the CWA and RCRA pleading standards to Plaintiff's pre-suit notice. See Paolino, 710 F.3d at 37; Puget Soundkeeper All., 371 F. Supp. 3d at 861. Thus, the court considers only Defendant City of Long Beach's argument that the pre-suit notice letters did not allege any actions by the Defendant City of Long Beach. (See, e.g., Dkt. 59 at 7-10.)
The court finds both Plaintiff's First Notice of Intent related to the CWA claims and the Second Notice of Intent related to the RCRA claim provided Defendant City of Long Beach with sufficient notice of "what it allegedly did wrong, and when." Marina Point Dev. Co., 566 F.3d at 801. With respect to the CWA claims, the First Notice of Intent names "[b]oth the lessee and operator of each Facility, plus the Port of Long Beach as landowner ... [to] facilitate the progress and/or resolution of the action for the violations alleged herein...." (Dkt. 59-2 at 5.) The First Notice of Intent indicates Defendant City of Long Beach and the SSA Defendants violated the CWA by discharging stormwater with pollutant levels exceeding EPA Benchmark Values and NALs, failing to implement BMPs that constitute BAT or BCT levels of control, causing or contributing to an exceedance of various WQS, failing to adhere to all SWPPP requirements, and failing to conduct all necessary monitoring and reporting. (Id. at 12, 21, 22-26.) The court concludes the First Notice of Intent "provide[d] sufficient information so that the [notified parties] could identify and attempt to abate the violation." Klamath-Siskiyou Wildlands Ctr., 797 F.3d at 651.
The court also considers the First Notice of Intent as part of its jurisdictional analysis. See Puget Soundkeeper All., 371 F. Supp. 3d at 860 ("When evaluating its jurisdiction, the [c]ourt may consider facts outside of the four-corners of the complaint to assure itself that it does, in fact, have the power to hear this matter.") (citing Americopters, LLC, 441 F.3d at 732 n.4).
With respect to the RCRA claim, the Second Notice of Intent indicates Defendant City of Long Beach, "as owner of the Port or Long Beach and acting through its Harbor Department and Board of Harbor Commissioners," is the owner and/or operator of the Facilities. (Dkt. 58-3 at 407.) The Second Notice of Intent also
states that in Defendant City of Long Beach's capacity as owner and/or operator, it has "generated, transported, handled, stored, and/or disposed of solid waste from the Facilities which may present an imminent and substantial endangerment to health or the environment." (Id.) As with the SSA Defendants' pre-suit notice, the court concludes the Second Notice of Intent adequately notified Defendant City of Long Beach of the source of the violations (discharge of stormwater), the dates the violations occurred (during every significant local rain event over 0.1 inches), and the harm caused by the violations (human and environmental exposure to harmful pollutants in the Los Angeles Harbor, Long Beach Harbor, and San Pedro Bay). See, e.g., Puget Soundkeeper All., 371 F. Supp. 3d at 861. Therefore, the Motion is DENIED as to the pre-suit notice requirements.
2. Sufficiency of the CWA and RCRA Claims
The court next considers whether Plaintiff has adequately alleged either CWA or RCRA claims against Defendant City of Long Beach. Defendant City of Long Beach principally argues that the FAC alleges the SSA Defendants, rather than the Defendant City of Long Beach, operate the Facilities. (Dkt. 59-1 at 11-12.) Defendant City of Long Beach contends "[i]t is neither alleged in the FAC nor reasonably inferable from the existing allegations that the City exercises operational control at any of the Terminals." (Id. at 11.)
In the Opposition, Plaintiff argues that it provided sufficient pre-suit notice as to both the CWA and RCRA claims. (Dkt. 68 at 15-20.) Plaintiff also argues that it adequately states CWA and RCRA claims against Defendant City of Long Beach by alleging that the City owns the Facilities and including Defendant City of Long Beach in its general allegations regarding stormwater discharges. (Id. at 21-31.)
The court finds Plaintiff has not adequately alleged CWA or RCRA claims against Defendant City of Long Beach. First, with respect to the CWA, "a plaintiff must allege '(1) the ongoing addition of (2) a pollutant (3) to the navigable waters of the United States (4) from a point source (5) without a permit (or in violation of a permit)." S.F. Herring Ass'n, 81 F. Supp. 3d at 860 (quoting Woodward, 2000 WL 694102, at *5).
Section 301(a) of the CWA states that "the discharge of any pollutant by any person shall be unlawful" unless the discharge complies with the CWA. 33 U.S.C. § 1311(a). As relevant here, discharges from the Facilities would comply with the CWA if the discharges were within the limits imposed by the General Permit. See Ecological Rts. Found., 874 F.3d at 1087-88 (quoting 33 U.S.C. § 1311(a), (e)); section IV.A.1, supra. Plaintiff alleges numerous exceedances of the General Permit standards over the last six years. (See, e.g., FAC ¶¶ 85-117.) In those circumstances, the citizen suit provision of the CWA authorizes a private lawsuit against "any person" that is "alleged to be in violation of... an effluent standard or limitation" under the statute. 33 U.S.C. § 1365(a)(1). This statutory language is broad and "imposes liability on 'any person' who is alleged to be in violation of the permit limitations," not just permitholders. Puget Soundkeeper All., 371 F. Supp. 3d at 862.
The weight of authority among the district courts suggests entities other than permitholders can be held responsible for violations of the effluent standards and limitations specified in the General Permit. See, e.g., Puget Soundkeeper All. v. APM Terminals Tacoma, LLC, 2018 WL 2560995, *5 (W.D. Wash. June 4, 2018) ("[W]hile the regulatory scheme places the
burden on operators to obtain NPDES permit coverage for a facility's discharges of pollutants, the CWA still imposes liability on any person who discharges pollutants from the facility in noncompliance with the permit's terms."); Puget Soundkeeper All., 371 F. Supp. 3d at 863 (collecting cases). "Rather than a bright-line rule allowing or disallowing claims against non-permittees, the majority of courts utilize a fact-based analysis to determine if a non-permittee has, in its own right, acted in such a way that it could reasonably be considered to be in violation of federal pollution control requirements such as the conditions of a permit." Puget Soundkeeper All., 371 F. Supp. 3d at 863; see also Cal. Sportfishing Protection All., 268 F. Supp. 3d at 1043 (denying motion to dismiss for failure to state a claim under the CWA where the FAC alleged defendant landlords owned, operated, maintained, and controlled the facility); APM Terminals Tacoma, LLC, 2018 WL 2560995, *3-4 (rejecting the Port of Tacoma's argument that owner of the marine cargo terminal at issue could not be liable for its tenant's unlawful discharges because it was not the permit holder); Puget Soundkeeper All. v. Cruise Terminals of Am., LLC, 216 F. Supp. 3d 1198, 1206 (W.D. Wash. 2015) (finding both the Port and its lessee, a cruise terminal operator, could be held liable for unpermitted discharges from the facility); Draper v. H. Roberts Family, LLC, 2009 WL 10668404, *12-13 (N.D. Ga. Mar. 30 2009) (stating that "[c]ontrol over the activities in question, coupled with knowledge is sufficient to impose liability under the Clean Water Act" on individual owners and managers of the corporate permitholder).
However, in this case, the FAC does not adequately allege that Defendant City of Long Beach controlled or operated the Facilities. Instead, other than generally grouping Defendant City of Long Beach with the SSA Defendants, the FAC alleges only that Defendant City of Long Beach owns Piers A, C, F, and J at the Port of Long Beach and "is a potentially responsible party for the CWA and RCRA violations identified in the FAC." (FAC ¶ 6.) The court concludes Plaintiff has not plausibly alleged that Defendant City of Long Beach "has, in its own right, acted in such a way that it could reasonably be considered to be in violation of federal pollution control requirements such as the conditions of a permit." Puget Soundkeeper All., 371 F. Supp. 3d at 863. Thus, the court GRANTS the Motion to Dismiss and DISMISSES Plaintiff's CWA claims against Defendant City of Long Beach.
Second, with respect to the RCRA claims, a plaintiff asserting an "imminent and substantial endangerment" claim under RCRA must allege: (1) "the defendant has been or is a generator or transporter of solid or hazardous waste, or is or has been an operator of a solid or hazardous waste treatment, storage or disposal facility;" (2) "the defendant has 'contributed' or 'is contributing to' the handling, storage, treatment, transportation, or disposal of solid or hazardous waste;" and (3) "the solid or hazardous waste in question may present an imminent and substantial endangerment to health or the environment." Ecological Rts. Found., 713 F.3d at 514 (citing 42 U.S.C. § 6972(a)(1)(B); Prisco, 168 F.3d at 608 (2d. Cir. 1999)).
Like the CWA, RCRA authorizes imminent and substantial endangerment suits:
against any person, including the United States and any other governmental instrumentality or agency ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.
"By creating liability in a person who 'contribut[es] to' the "handling, storage, treatment, transportation, or disposal" of hazardous waste,' the statute 'speaks in active terms;' and, in choosing such language, Congress indicated that it intended to connote 'active functions with a direct connection to the waste itself.'" Ctr. for Bio. Diversity, 80 F.4th at 951 (quoting Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011)). Thus, as the Ninth Circuit recently explained, the statute:
[R]equires more than just hypothetical control to establish contributor liability. Rather, the statute requires "control over the waste at the time of its disposal." Hinds, 654 F.3d at 852; see also id. at 851 (rejecting liability for manufacturers who designed the entire waste disposal process because they had engaged in "merely passive conduct"). We think this means "actual control." See Ecological Rts. Found., 874 F.3d at 1101 (rejecting liability where there was no showing that the defendant "actually contributed to the handling, transportation, or disposal of solid waste via vehicle tire-tracking" (emphasis added)); see also Cal. River Watch[v. City of Vacaville], 39 F.4th [624] at 633 [(9th Cir. 2022)] (rejecting liability for incidental transportation of waste through the city's water system).
Ctr. for Bio. Diversity, 80 F.4th at 953.
Here, as was the case with the CWA claims, Plaintiff alleges only that Defendant City of Long Beach owns Piers A, C, F, and J at the Port of Long Beach and "is a potentially responsible party for the CWA and RCRA violations identified in the FAC." (FAC ¶ 6.) Based on these allegations, the court concludes Plaintiff has not plausibly alleged that Defendant City of Long Beach had "actual control" or "actually contributed" to the RCRA violations discussed in section IV.A.2.b, supra. See, e.g., Wash. Dairy Holdings LLC, 2019 WL 13117758, at *5 (granting motion to dismiss where plaintiffs did not allege facts indicating the owner LLCs had "a measure of control over the waste at the time of its disposal or [were] otherwise actively involved in the waste disposal process") (citations omitted). Therefore, the court also GRANTS the Motion to Dismiss and DISMISSES Plaintiff's RCRA claims against Defendant City of Long Beach.
C. Leave to Amend, Plaintiff's Motion to Amend, and the Parties' Stipulation
The court next considers whether the FAC should be dismissed with leave to amend. Plaintiff requests that the court grant leave to amend its claims against the SSA Defendants and Defendant City of Long Beach. (Dkts. 67 at 31-32; 68 at 30-31.) The SSA Defendants argue the court should deny leave to amend because Plaintiff has already made significant amendments in the FAC and "it is unlikely that additional specificity can salvage these claims." (Dkt. 58 at 32.) Defendant City of Long Beach argues Plaintiff should be denied leave to amend because Plaintiff cannot amend the FAC without first sending a new notice, and such notice would be futile. (Dkt. 59 at 12.)
"When justice requires, a district court should 'freely give leave' to amend a complaint." Ctr. for Bio. Diversity v. United States Forest Serv., 80 F.4th 943, 955-56 (9th Cir. 2023) (quoting Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 871 (9th Cir. 2016)). "Leave to amend should be granted 'if it appears at all possible that the plaintiff can correct the defect.'" Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)). A district court may deny leave to amend due to "'countervailing considerations' such as 'undue delay, prejudice, bad faith, or futility.'" Ctr. for Bio. Diversity, 80 F.4th at 956 (quoting Benko v. Quality Loan Serv. Corp., 789 F.3d 1111, 1117 (9th Cir. 2015)). "Amendment is futile when 'it is clear ... that the complaint could not be saved by any amendment.'" Id. (quoting Armstrong v. Reynolds, 22 F.4th 1058, 1071 (9th Cir. 2022)). Finally, a "district court's discretion in denying amendment is 'particularly broad' when it has previously given leave to amend." Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1116 (9th Cir. 2014) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).
Here, the court finds granting leave to amend the FAC with respect to Plaintiff's RCRA claims against the SSA Defendants and CWA and RCRA claims against Defendant City of Long Beach would not be futile. Therefore, the court DISMISSES Plaintiff's RCRA claim against the SSA Defendants and Plaintiff's CWA and RCRA claims against Defendant City of Long Beach WITH LEAVE TO AMEND.
The court notes that subsequent to the SSA Defendants and Defendant City of Long Beach filing the Motions to Dismiss, Plaintiff filed a Motion to Amend. (Dkt. 73.) In the Motion to Amend, Plaintiff requests leave to file a Second Amended Complaint that: (1) "provides more detail regarding the City of Long Beach's ownership, operation, authority, knowledge, and control over the four marine cargo terminals located at the Port of Long Beach;" (2) "adds new information based on site inspections of the Defendants' four terminals on March 10 and 14, 2023, more recent self-monitoring data and other filings that Defendants submitted to a public database, and revisions to the rules regarding civil penalties under the Clean Water Act;" and (3) "clarifies the scope of Plaintiff's Sixth Claim for Relief, brought under the Resource Conservation and Recovery Act." (Dkt. 73 at 3.) Because Plaintiff's Motion to Amend requests leave to amend the same causes of action the court dismissed with leave to amend in this Order, the court DENIES AS MOOT the Motion to Amend.
Finally, although the Motions to Dismiss did not challenge the sufficiency of Plaintiff's fifth cause of action, the court also GRANTS Plaintiff leave to amend this claim consistent with the allegations stricken in the parties' Stipulation, (Dkt. 87), which the court granted on November 13, 2023. (Dkt. 89.) The court ORDERS Plaintiff to file a Second Amended Complaint, consistent with the court's Order, by December 15, 2023.
V. DISPOSITION
For the reasons stated above, the court ORDERS the following:
1. The SSA Defendants' Motion to Dismiss, (Dkt. 58), is GRANTED IN PART AND DENIED IN PART. The Motion is DENIED as to Plaintiff's first, second, third, and fourth claims and pre-suit notice under RCRA. The Motion is GRANTED as to Plaintiff's sixth claim. The sixth claim under RCRA is DISMISSED WITH LEAVE TO AMEND.
2. Defendant City of Long Beach's Motion to Dismiss, (Dkt. 59), is GRANTED IN PART AND DENIED IN PART. The Motion is DENIED as to Plaintiff's pre-suit notice and GRANTED as to Plaintiff's and CWA and RCRA claims against Defendant City of Long Beach. Plaintiff's claims against Defendant City of Long Beach are DISMISSED WITH LEAVE TO AMEND.
3. Plaintiff's Motion to Amend the Complaint, (Dkt. 73), is DENIED AS MOOT.
4. Plaintiff is ORDERED to file a Second Amended Complaint, consistent with the court's Order, by December 15, 2023.
IT IS SO ORDERED.