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Natural Resources Defense Council v. Southwest Marine, Inc.

ELR Citation: 31 ELR 20329
Nos. 99-56532, -56545, 236 F.3d 985/51 ERC 1865/(9th Cir., 12/19/2000) Aff'd

The court upholds a $799,000 civil penalty and an injunction imposed against a shipyard operator for failing to implement its stormwater pollution prevention plan (SWPPP) and monitoring plan for its discharges to the San Diego Bay in violation of its stormwater permit and the Clean Water Act (CWA). The court first holds that the district court did not err in holding that environmental groups had standing to bring this action against the operator. The groups showed an injury-in-fact because their members testified that the recreational and aesthetic enjoyment they derive from the use of the bay has been curtailed due to their concerns about pollution, contaminated fish, and the like. Moreover, the groups presented evidence that their injury was fairly traceable to the shipyard operator's conduct. Further, because the groups alleged that the operator was continuing to violate its permit and because they sought an injunction to halt the operators' continuing violations, the groups satisfied the requirement of redressibility. The court next holds that the groups' notice letter gave the shipyard operator adequate notice of all claims over which the district court exercised jurisdiction. The notice letter was sufficient, on the date it was mailed, to allow the district court to exercise jurisdiction over the groups' claims that the operator failed to implement an adequate SWPPP that included a "good housekeeping" provision. Although the operator then prepared and implemented a new plan, the groups were not required to send a new notice letter. Such changes do not retroactively divest a district court of jurisdiction under the CWA's citizen suit provision.

The court then holds that the district court did not err in concluding that the shipyard operator committed ongoing violations of requirements in its stormwater permit. The operator failed to make or failed to keep records of the numerous daily inspections that were required under the SWPPPs and, in turn, under the stormwater permit. In addition, the operator's failure to adequately implement its SWPPP led to significant contributions of pollutants to the bay that rendered the operator's marine leasehold devoid of life. Moreover, the district court's finding that the operator failed to implement its plans adequately even after the groups filed their complaint is supported by evidence.

The court further holds that the district court did not abuse its discretion or violate the separation-of-powers doctrine in issuing an injunction against the operator. The injunctive measures are consistent with the terms of the operator's stormwater permits and seek to enforce the requirements of those permits and the relevant plans. Thus, because the district court merely enforced the permits, it did not "usurp" the authority of the executive branch. Last, the court holds that the district court did not abuse its discretion in imposing a civil penalty of $799,000. The penalty was not excessive, unreasonable, or unsupported by evidence.

Prior decisions in this litigation are published at 27 ELR 20564 and 29 ELR 20273 and 21189.]

Counsel for Plaintiffs
Charles S. Crandall
Milberg, Weiss, Bershad, Hynes & Lerach
1800 One America Plaza
600 W. Broadway, San Diego CA 92101
(619) 231-1058

Counsel for Defendant
David L. Mulliken
Latham & Watkins
701 B. St., Ste. 2100, San Diego CA 92101
(619) 236-1234

Before Kozinski and Fisher, JJ.

Graber, J.: