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California Sportfishing Protection Alliance v. All Star Auto..., 860 F.Supp.2d 1144...
75 ERC 1628
The FAC alleges that Defendants have failed to perform of the annual reports submitted with the motion to
adequate monitoring and reporting. Plaintiff’s opposition dismiss. Likewise, the Court will not at this time consider
brief offers an example of such failure, contending that the annual reports submitted with the reply brief. Plaintiff
Defendants did not test for iron, lead and aluminum as previously objected to the annual reports, and has not had
required by the permit. *1153 Defendants argue that the the opportunity to challenge the reports accompanying the
records they submitted show that they did test for lead. reply brief. Even if the Court were to consider the annual
Additionally, Defendants contend that their Storm Water reports, it would not grant Defendants’ motion to dismiss
Pollution Prevention Plan does not require them to test for the fourth claim at this early stage of the pleadings, as the
either Iron or Aluminum. Defendants attached a copy of allegations of the FAC are sufficient to state a claim. Lead
the SWPPP to the reply brief. (Doc. # 15, Ex. 14). Though testing, potentially shown by the annual report, is only
Plaintiff stated that Iron, Lead and Aluminum were only one example offered in the opposition brief. The claim
examples of some of the many deficiencies in Defendants itself contains other allegations, sufficient at this stage to
monitoring and reporting, Defendants argue that because state a claim for violation of the General Permit
they have shown that they do test for these chemicals or requirement to develop an adequate Monitoring and
are exempted from testing for them, Plaintiff fails to state Reporting Program. Accordingly, the motion to dismiss
a claim. the fourth claim for relief is denied.
Section 402(p) of the Clean Water Act, 33 USC 1342(p) D. Dismissal For Lack of Pendent Jurisdiction
establishes a framework for regulating pollutants The sixth claim for relief is a claim under California state
associated with industrial activity. Santa Monica law for unlawful discharge of pollutants in violation of
Baykeeper, 619 F.Supp.2d at 940. Pursuant to EPA Proposition 65, California Health & Safety Code Sections
regulations, authorized states may issue general permits or 25249.5, 25249.9 and 25249.11. Defendants’ argue that if
individual permits to regulate storm water discharges. Id., no CWA claims remain in the suit, the Court should
citing 40 CFR 122.26(c), 122.28, 123.25; 60 Fed.Reg. dismiss the state law claim for lack of pendent
50804–01. The General Permit sets forth a number of jurisdiction. However, because the Court has denied
requirements for permitees, including requiring the Defendants’ motion to dismiss the federal claims in this
implementation of a Storm Water Pollution Prevention case, the Court will retain pendent jurisdiction over the
Plan and the development of a Monitoring and Reporting Proposition 65 claim at this time.
Program. Santa Monica Baykeeper, 619 F.Supp.2d at 940.
Here, the parties both agree that Defendants are governed
by the General Permit issued by the State of California.
When determining the sufficiency of the allegations, the *1154 III. ORDER
Court must take the allegations of the FAC as true. For the reasons set forth above, the Motion to Dismiss is
Defendants have attempted to disprove the allegations of DENIED.
the FAC in part by referring the Court to the SWPPP, IT IS SO ORDERED.
arguing that the Court should consider the SWPP because
it is relied upon in the FAC. However, the second claim Parallel Citations
for relief in the FAC, which Defendants do not move to 75 ERC 1628
dismiss under Rule 12(b)(6), alleges that the SWPPP is
inadequate and in violation of the CWA. Thus, the Court © 2015 Thomson Reuters. No claim to original U.S. Government Works.
will not at this time rely on the SWPPP to disprove the
allegations of the FAC regarding reporting and
monitoring, given that the adequacy of the SWPPP is at
issue in the litigation. Defendants also refer the Court to
annual reports submitted with the reply brief. As
discussed above, the Court declines to take judicial notice
End of Document
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8
