NRDC v. Southwest Marine (9th Cir. 2000)

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE
COUNCIL; SAN DIEGO BAYKEEPER,                              Nos. 99-56532
KENNETH J. MOSER,                                                   9-56545
Plaintiffs-Appellees,
                                                                                   D.C. No.
v.                                                                                CV-96-01492-RMB

SOUTHWEST MARINE, INC., OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, District Judge, Presiding

Argued and Submitted
August 10, 2000--Pasadena, California

Filed December 19, 2000

Before: Alex Kozinski, Susan P. Graber, and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Graber

_________________________________________________________________

COUNSEL

David L. Mulliken and Dorn G. Bishop, Latham & Watkins,
San Diego, California, for the defendant-appellant.

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Charles S. Crandall, San Luis Obispo, California, for the
plaintiffs-appellees.

Eric L. Garner, Best Best & Krieger LLP, Riverside, Califor-
nia, for amicus curiae.

_________________________________________________________________

OPINION

GRABER, Circuit Judge:

Defendant Southwest Marine, Inc., appeals from the district
court's judgment for Plaintiffs Natural Resources Defense
Council (NRDC), San Diego Baykeeper, and Kenneth J.
Moser, in their citizen enforcement action underS 505(a) of
the Clean Water Act (CWA), 33 U.S.C. S 1365(a). In
response to Defendant's challenge, we hold: Plaintiffs have
standing to bring this action, Plaintiffs' notice letter was ade-
quate, Defendant's violations were ongoing, the district
court's injunctive measures were not an abuse of discretion,
and the district court's civil penalty was not an abuse of dis-
cretion. Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Defendant operates a large shipyard on San Diego Bay. Its
principal business is repairing and maintaining marine ves-
sels. Among other things, Defendant's shipyard removes old
paint from ships and then repaints them. Defendant com-
monly removes old paint by blasting the ships' hulls with
abrasive grit, composed primarily of particles of copper, that
is conveyed on streams of compressed air. Defendant uses
about 4 million pounds of copper grit per year for blasting old
paint from ships and generates about 4,800 pounds of paint
waste per year.

Defendant repaints ships with "antifouling paints," which
are paints that are formulated to prevent the growth of aquatic

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organisms, such as barnacles and algae, on the bottoms of
ships. Those paints contain compounds that are toxic to
aquatic life.

Defendant's shipyard contains five piers, at which ships are
moored while they are being repaired, and two floating dry-
docks, on which ships rest, out of the water, to allow repair,
blasting, and repainting of parts that are normally underwater.
When Plaintiffs filed their complaint, Defendant also was
operating a marine railway, which is a device that is used to
pull ships onto the shore for repair.

Shipyards like Defendant's generate large amounts of
wastes and pollutants, including paint chips and abrasive grit.
Those wastes and pollutants are discharged into adjacent
waters through -- among other means -- storm water runoff,
tidal action, leaks, spills, and overspray. A 1993 report by the
California Regional Water Quality Control Board showed ele-
vated concentrations of copper, tributyltin, and zinc -- all of
which are present in the materials used and the wastes gener-
ated at Defendant's shipyard -- in the sediments adjacent to
the shipyard. The report concluded that Defendant appeared
to have discharged copper, tributyltin, and zinc into San
Diego Bay, that Defendant's management practices appeared
to be inadequate to prevent such discharges, and that the dis-
charges might have long-term negative effects on the water
quality of the Bay and on its suitability for human use.

Defendant had applied for and received a National Pollu-
tant Discharge Elimination System (NPDES) permit from the
California Regional Water Quality Control Board in 1983. In
1992, Defendant had obtained coverage under the State Water
Resources Control Board's 1991 General Industrial Permit for
storm water discharges. That permit supplemented Defen-
dant's NPDES permit; the storm water permit applied to dis-
charges of pollutants through storm water, and the NPDES
permit applied to other discharges.

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Both permits required Defendant to develop and implement
plans to limit its discharges of pollutants into the Bay. Rather
than relying on specific numerical effluent limitations, the
permits required Defendant to create and follow "Best Man-
agement Practices" (BMPs).1 Defendant adopted a written
BMP plan on January 15, 1992.

The storm water permit also required Defendant to develop
and implement a Storm Water Pollution Prevention Plan
(SWPPP) and a Storm Water Pollution Monitoring Plan
(SWPMP). The permit specified that the SWPPP was required
to include, among other things:

<!BUL> a description of sources that might add significant
quantities of pollutants to storm water discharges;

<!BUL> a detailed site map;

      <!BUL> a description of materials that had been treated,
      stored, spilled, disposed of, or leaked into storm
      water discharges since November 1988;

<!BUL> a description of the management practices that
Defendant employed to minimize contact
_________________________________________________________________
1 BMPs are

      schedules of activities, prohibitions of practices, maintenance
      procedures, and other management practices to prevent or reduce
      the pollution of "waters of the United States. " BMPs also include
      treatment requirements, operating procedures, and practices to
      control plant site runoff, spillage or leaks, sludge or waste dis-
      posal, or drainage from raw material storage.

40 C.F.R. S 122.2. As described in Defendant's current NPDES permit,
BMPs may be "structural" (e.g., tarpaulins and shrouds to enclose work
areas, retention ponds, devices such as berms to channel water away from
pollutant sources, and treatment facilities) or "non-structural" (e.g., good
housekeeping, preventive maintenance, personnel training, inspections,
and record-keeping).

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between storm water and pollutants from vehi-
cles, equipment, and materials;

      <!BUL> a description of existing structural and non-
      structural measures to reduce pollutants in storm
      water discharges;

<!BUL> a description of methods of on-site storage and
disposal of significant materials;

<!BUL> a description of outdoor storage, manufacturing,
and processing activities;

      <!BUL> a list of pollutants likely to be present in signifi-
      cant quantities in storm water discharges and an
      estimate of the annual amounts of those pollu-
      tants in storm water discharge;

<!BUL> a record of significant leaks or spills of toxic or
hazardous pollutants to storm water;

<!BUL> a summary of existing data describing pollutants
in storm water discharge;

      <!BUL> a description of Defendant's storm water man-
      agement controls, including good housekeeping
      procedures, preventive maintenance, and mea-
      sures to control and treat polluted storm water;
      and

<!BUL> a list of the specific individuals responsible for
developing and implementing the SWPPP.

Defendant submitted its SWPPP in December 1992. The
SWPPP required Defendant, among other things, (1) to per-
form daily inspections to ensure that its shipyard was comply-
ing with the requirements of its BMP plan, and (2) to maintain
records of those inspections.

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On April 30, 1996, Plaintiffs sent Defendant a notice letter,
as required by 33 U.S.C. S 1365(b)(1)(A), advising Defendant
that it was violating the CWA and that Plaintiffs intended to
sue under the CWA's citizen enforcement provisions. A copy
of the notice letter and its attachments appears as an Appendix
at the end of this opinion.

As discussed below, a party who wishes to sue under the
CWA's citizen enforcement provisions may not commence an
action until at least 60 days after giving notice of intent to sue.
On August 27, 1996, more than 60 days after sending their
notice letter, Plaintiffs filed this action. Four days earlier, on
August 23, 1996, Defendant had submitted a revised SWPPP
and SWPMP. Those revised plans addressed, and attempted
to correct, many of the shortcomings described in Plaintiffs'
notice letter.

In September 1996, Defendant moved to dismiss this
action, arguing that Plaintiffs' notice letter did not comply
with the CWA's requirements and, in particular, that the letter
was not specific enough to inform Defendant of what stan-
dards it allegedly had violated. The district court denied
Defendant's motion in a published opinion. Natural Res. Def.
Council, Inc. v. Southwest Marine, Inc., 945 F. Supp. 1330
(S.D. Cal. 1996).

Defendant then moved for summary judgment, arguing (1)
that the district court lacked subject matter jurisdiction
because Plaintiffs' allegations of ongoing violations were nei-
ther made in good faith nor based on reasonable investigation;
(2) that, even if the district court had subject matter jurisdic-
tion, summary judgment was appropriate because Plaintiffs
could not prove ongoing violations at trial; and (3) that Plain-
tiffs' claims were moot.

After continuing the motion to allow more time for discov-
ery, the district court denied summary judgment in an unpub-
lished order. In denying Defendant's motion, the court

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concluded (1) that it had subject matter jurisdiction because
Plaintiffs had alleged continuing violations in good faith; (2)
that there were disputed issues of material fact as to whether
Defendant (a) had developed an adequate SWPPP and moni-
toring plan, as required by its storm water permit, and (b) had
adequately implemented or was adequately implementing
such plans; and (3) that Plaintiffs' action was not moot.

While district court proceedings were pending, Defendant's
permits were revised twice. First, Defendant's storm water
permit was superseded by a new storm water permit, which
took effect May 1, 1997. Second, both the storm water permit
and Defendant's NPDES permit were superseded by a new
NPDES permit. That permit was issued on October 15, 1997,
but was stayed on March 27, 1998, by the Superior Court of
the County of San Diego. The superior court lifted that stay
later in 1998, and the revised permit became effective at that
time.2

Defendant also revised a number of its practices related to
storm water while this matter was before the district court.
Among other things, Defendant revised its BMP plan, as
required by its most recent NPDES permit; installed a storm
water diversion system covering most (but not all) of its facil-
ity; hired a new environmental compliance manager; installed
a roof to prevent storm water from reaching hazardous materi-
als; and removed polluted sediments from the area of its
marine railways.

This action was tried to the court between November 3 and
December 3, 1998. Both sides presented evidence and expert
testimony about conditions at Defendant's facility, and the
district court made three visits to the facility.
_________________________________________________________________
2 Defendant has operated under three storm water permits during the
pendency of this litigation. The provisions of those permits that Defendant
was found to have violated, and to which we refer in this opinion, have
remained essentially consistent in all three permits.

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On March 2, 1999, the district court found in Plaintiffs'
favor in an unpublished order. After reaffirming its earlier rul-
ings that Plaintiffs had standing and that the notice letter was
adequate, the court concluded (1) that Defendant's SWPPP
and monitoring plan, as revised in August 1996, were ade-
quate; but (2) that Defendant had failed to implement those
plans adequately, thereby violating its permit and the CWA.
The court imposed injunctive relief and a civil penalty of
$799,000.

The district court then asked Plaintiffs to prepare proposed
findings of fact and conclusions of law. Plaintiffs submitted
proposed findings on May 7, 1999, and Defendants filed
objections thereto. The district court held hearings on July 13
and August 19, 1999, to consider Defendant's objections.
Defendant argued, among other things, that the district court's
proposed injunction was too broad and too costly. To address
those arguments, the district court asked the parties to submit
additional evidence concerning the proposed injunction.

On September 7, 1999, the district court issued its findings
of fact and conclusions of law. The court found: (1) that
Plaintiffs had presented "convincing evidence " that Defendant
had not made the required inspections that it claimed to have
made; (2) that, even accepting Defendant's statement that it
had made the required inspections, Defendant had not main-
tained adequate records of those inspections, with the result
that a large number of inspection reports were missing; (3)
that the reports that Defendant had provided demonstrated a
pattern of poor housekeeping at Defendant's facility and
showed that violations, when reported, were not always reme-
died in a timely manner; (4) that Defendant's inadequate
implementation of its plans had led to "significant contribu-
tions of pollutants to Defendant's leasehold"; (5) that Defen-
dant's leasehold within the Bay was "devoid of life"; (6) that
the evidence conclusively demonstrated that substantial quan-
tities of pollutants from Defendant's paint-blasting operations
had entered San Diego Bay in Defendant's storm water dis-

16157

charges; (7) that Defendant's failure to implement its storm
water plans adequately was contributing to and perpetuating
the contamination of its marine leasehold; and (8) that the
harm to Defendant's leasehold "could be remedied by Defen-
dant with improved practices." Based on those findings, the
court concluded: (1) that it had subject matter jurisdiction
over the action; (2) that Plaintiffs had standing; (3) that
Defendant had violated, and was continuing to violate, the rel-
evant permits and plans; and (4) that Defendant's failure to
implement its plans adequately was the result of "systemic
problems" and "overall inadequacies" in implementation,
rather than mere "snapshots" of isolated violations.

The district court's findings of fact and conclusions of law
also reiterated the injunctive relief and civil penalties that the
court had imposed in its earlier order. In response to Defen-
dant's objections, the court entered a limited stay governing
several provisions of the injunction, to allow the parties to
submit further studies and evidence. On March 6, 2000, the
district court held its final hearing regarding the limited stay.
After making minor changes to the injunction, the court lifted
the stay in an unpublished order dated March 7, 2000.

In its injunction, the court ordered Defendant (1) to test its
storm water discharges for significant pollutants before
releasing them into the Bay; (2) to sweep, after every shift,
uncontained areas in which operations may have caused
deposits of debris and to provide mats and air hoses so that
workers could clean their shoes after leaving such areas; (3)
to make daily inspections of its facilities (except when the
shipyard is not operating) and keep records of those inspec-
tions; (4) to test the water column around each vessel that is
being blasted or painted to determine if those operations are
contributing to pollution in the Bay; (5) to correct conditions
that might allow pollutants to enter the Bay, within four hours
if feasible; (6) to repair or replace shrouds that are in poor
repair; (7) to capture all storm water coming off its piers (the
district court allowed Defendant 18 months to comply with

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this condition); and (8) to erect and maintain concrete berms
in areas of the facility from which runoff might enter the Bay.
The court rejected Plaintiffs' argument that Defendant should
be required to remediate the contamination of the sediments
in its marine leasehold.

This timely appeal followed.

DISCUSSION

Defendant challenges the district court's rulings on (1)
standing, (2) the adequacy of Plaintiffs' notice letter, (3)
ongoing violations, (4) the terms of the injunction, and (5) the
civil penalty. We will address each of those issues in turn.

I. Standing

First, Defendant argues that the district court erred in hold-
ing that Plaintiffs had standing to bring this action. We review
de novo the question whether a party has standing to bring an
action. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir.
2000).

[1] In order to satisfy Article III's standing requirements in
a CWA citizen enforcement action, "a plaintiff must show (1)
it has suffered an `injury in fact' that is (a) concrete and par-
ticularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the chal-
lenged action of the defendant; and (3) it is likely. . . that the
injury will be redressed by a favorable decision. " Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120 S. Ct. 693,
704 (2000). An association like NRDC "has standing to bring
suit on behalf of its members when its members would other-
wise have standing to sue in their own right, the interests at
stake are germane to the organization's purpose, and neither
the claim asserted nor the relief requested requires the partici-
pation of individual members in the lawsuit." Id..

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Defendant argues that Plaintiffs cannot satisfy any of the
three requirements for Article III standing. We disagree.

[2] First, Plaintiffs showed "injury in fact." The Supreme
Court has held that "environmental plaintiffs adequately
allege injury in fact when they aver that they use the affected
area and are persons `for whom the aesthetic and recreational
values of the area will be lessened' by the challenged activi-
ty." Id. at 705 (quoting Sierra Club v. Morton, 405 U.S. 727,
735 (1972)). Here, members of the plaintiff organizations, and
individual plaintiff Kenneth Moser, testified that they have
derived recreational and aesthetic benefit from their use of the
Bay (including areas of the Bay next to Defendant's ship-
yard), but that their use has been curtailed because of their
concerns about pollution, contaminated fish, and the like.
Those averments are sufficient to satisfy the "injury in fact"
component of Article III standing.

[3] Second, the injury is "fairly traceable" to the challenged
activity. This requirement, more precisely, is that there must
be "a causal connection between the injury and the conduct
complained of -- the injury has to be `fairly .. . trace[able]
to the challenged action of the defendant, and not .. . th[e]
result [of] the independent action of some third party not
before the court.' " Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (quoting Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 41-42 (1976)). Plaintiffs presented evi-
dence that the sediments in Defendant's marine leasehold
contained elevated concentrations of pollutants, that Defen-
dant had discharged the same pollutants, and that Defendant's
marine leasehold was "devoid of life." That evidence was suf-
ficient to demonstrate that Plaintiffs' injury was "fairly trace-
able" to Defendant's conduct. As the Fourth Circuit has
noted, the threshold requirement of "traceability does not
mean that plaintiffs must show to a scientific certainty that
defendant's effluent . . . caused the precise harm suffered by
the plaintiffs" in order to establish standing. Friends of the
Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149,

16160

161 (4th Cir. 2000) (en banc) (citations and internal quotation
marks omitted). To satisfy this requirement, "[r]ather than
pinpointing the origins of particular molecules, a plaintiff
must merely show that a defendant discharges a pollutant that
causes or contributes to the kinds of injuries alleged in the
specific geographic area of concern." Id. (citation and internal
quotation marks omitted); see also Sierra Club v. Cedar Point
Oil Co., 73 F.3d 546, 558 (5th Cir. 1996) (to the same effect);
Public Interest Research Group of New Jersey, Inc. v. Powell
Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990)
(same). Plaintiffs made that showing in this case.

[4] Third, Plaintiffs demonstrated that a favorable decision
would redress their injuries. A plaintiff who seeks injunctive
relief satisfies the requirement of redressability by alleging a
continuing violation or the imminence of a future violation of
an applicable statute or standard. See Steel Co. v. Citizens for
a Better Env't, 523 U.S. 83, 108 (1998). Plaintiffs alleged that
Defendant was continuing to violate its permits; what is more,
as discussed below, they proved continuing violations at trial.
Because they sought an injunction to halt those continuing
violations, Plaintiffs satisfied the requirement of redressa-
bility.

In sum, the district court did not err in holding that Plain-
tiffs had standing to bring this action.

II. Notice -- Subject Matter Jurisdiction

Next, Defendant argues that Plaintiffs' notice letter was
insufficient. Under the CWA,

No action may be commenced--

(1) under subsection (a)(1) of this section--

(A) prior to sixty days after the plaintiff has given
notice of the alleged violation (i) to the Administra-

16161

      tor, (ii) to the State in which the alleged violation
      occurs, and (iii) to any alleged violator of the stan-
      dard, limitation, or order . . . .

33 U.S.C. S 1365(b). The applicable regulation provides that
the notice

      shall include sufficient information to permit the
      recipient to identify the specific standard, limitation,
      or order alleged to have been violated, the activity
      alleged to constitute a violation, the person or per-
      sons responsible for the alleged violation, the loca-
      tion of the alleged violation, the date or dates of such
      violation, and the full name, address, and telephone
      number of the person giving notice.

40 C.F.R. S 135.3(a).

If a party seeking to bring a citizen enforcement action has
not complied with the CWA's notice requirement, then the
district court in which that action is brought lacks subject mat-
ter jurisdiction and must dismiss the action. Washington Trout
v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995);
see also Hallstrom v. Tillamook County, 493 U.S. 20, 26
(1989) (requiring strict compliance with notice requirement
for citizen enforcement action under the Resource Conserva-
tion and Recovery Act). "In practical terms, the notice must
be sufficiently specific to inform the alleged violator about
what it is doing wrong, so that it will know what corrective
actions will avert a lawsuit." Atlantic States Legal Found.,
Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819 (7th Cir.
1997). We review de novo the district court's conclusion that
Plaintiffs' notice was adequate. See Washington Trout, 45
F.3d at 1353.

The district court treated Plaintiffs' notice letter as alleging
two separate, but related, violations concerning the pollution
prevention plans required by its permits and the CWA. The

16162

first was Defendant's failure to prepare adequate plans; the
second was Defendant's failure to implement adequate plans.

With regard to those issues, Plaintiffs' notice letter clearly
satisfies some of the requirements of notice. The letter was
mailed to the appropriate entities. See 40 C.F.R. S 135.3(a). It
identified the persons giving notice and the persons responsi-
ble for the alleged violation. Although the letter did not iden-
tify a specific date, or a specific location within Southwest
Marine's facility, it nevertheless satisfied those requirements
as well. See id. Plaintiffs were not alleging that a particular
discharge from a particular pipe on a particular day had vio-
lated the CWA. Rather, they were alleging that Defendant had
failed to prepare and implement plans that were required by
its permit. As the district court correctly noted, the failure to
develop and implement pollution prevention plans are viola-
tions "occurring at the facility in general." Southwest Marine,
945 F. Supp. at 1333. Moreover, "the deficiencies in these
plans are ongoing, so there is no specific date that can be
alleged as the date of the violation." Id.

The parties' dispute before us centers on the specificity of
the notice letter. See 40 C.F.R. 135.3(a) (requiring that a
notice letter "include sufficient information to permit the
recipient to identify the specific standard, limitation, or order
alleged to have been violated, [and] the activity alleged to
constitute a violation"). The notice letter generally raises the
issues of the preparation and implementation of an adequate
SWPPP. Our first question is whether the notice letter raised
those issues adequately to satisfy the requirements of the
CWA.

As to the alleged failure to prepare an adequate plan, the
notice letter was clearly adequate, and we do not understand
Defendant to argue otherwise. The letter charged, among
other things, that Defendant had failed to prepare an SWPPP
that complied with the specific requirements of Defendant's
storm water permit; identified the source of the requirement

16163

that Defendant prepare an adequate SWPPP; and explained
the ways in which Defendant's then-existing SWPPP did not
comply with the storm water permit.

Defendant argues, however, that the notice letter was not
sufficient with regard to Plaintiffs' allegation that it failed to
implement an adequate plan. Specifically, Defendant asserts
that the district court lacked jurisdiction to consider Plaintiffs'
allegations of "poor housekeeping." The notice letter alleges
that Defendant failed to implement an adequate SWPPP,
including a "good housekeeping" provision."Good house-
keeping" was required under Defendant's storm water per-
mits. Defendant acknowledges that the court's reference to
"poor housekeeping" does "arguably correspond" to Plain-
tiffs' reference to storm water controls and good housekeep-
ing in Attachment 2 of the notice letter. See Appendix A at
Attachment 2, page 1.

Nevertheless, Defendant argues that Plaintiffs failed to
refer to, or identify, the "good housekeeping " provision of its
revised SWPPP and, thus, failed to provide any information
about how Defendant had violated that specific plan provi-
sion. The difficulty with that argument is that the notice letter
predates the plan provisions to which Defendant refers. Plain-
tiffs mailed their notice letter in April 1996. The "good house-
keeping" provision to which Defendant refers, and which
Defendant cites in its brief, is contained in Defendant's
revised SWPPP, which was filed in August 1996. Although
we require strict compliance with the CWA's notice require-
ment, we do not require citizen-plaintiffs to refer to provisions
of plans that do not exist.

We hold that the notice letter was sufficient, on the date it
was mailed, to allow the district court to exercise jurisdiction
over Plaintiffs' "good housekeeping" claims. Defendant was
operating under a storm water permit that was designed to
prevent discharges of toxic pollutants through storm water.
That permit required Defendant to prepare and implement an

16164

SWPPP that included a "good housekeeping" provision. The
permit explained that "[g]ood housekeeping requires the
maintenance of clean, orderly facility areas that discharge
storm water. Material handling areas shall be inspected and
cleaned to reduce the potential for pollutants to enter the
storm water conveyance system." Plaintiffs' notice letter suf-
ficiently alleged that Defendant had failed to prepare and
implement such a plan.

And Defendant obviously understood at least some of the
alleged violations. In response to Plaintiffs' letter, Defendant
completely revised its SWPPP and SWPMP within four
months, adding sections that specifically made reference to
the requirements that Plaintiffs had identified. See Atlantic
States, 116 F.3d at 820 (concluding that notice was suffi-
ciently specific where the defendant, after receiving notice,
took immediate steps to cure the problems identified in the
notice letter). And, as noted, Defendant made substantial
changes to its facility and operations during the pendency of
this litigation, concededly in an attempt to remedy some of
the inadequacies of which Plaintiffs had complained.

The second and more theoretical question that Defendant's
argument raises is what, if any, effect Defendant's post-notice
alterations of its plans and facilities had on the adequacy of
the notice letter. If a defendant receives a proper notice letter
alleging that it has failed to prepare and implement an ade-
quate plan and, in response, prepares a new plan and begins
to implement it before the complaint is filed, is the otherwise
proper notice letter defective for failing to identify and dis-
cuss the new plan and its implementation? In those circum-
stances, must a citizen-plaintiff send a new notice letter? We
think not. Subject matter jurisdiction is established by provid-
ing a notice that is adequate on the date it is given to the
defendant. The defendant's later changes to its operations and
plans may affect standing, see Steel Co., 523 U.S. at 105-06;
the question of ongoing violations or remedies, see Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. , 484 U.S.

16165

49, 64 (1987); or mootness, see Laidlaw, 120 S. Ct. at 708.3
But such changes do not retroactively divest a district court of
jurisdiction under 33 U.S.C. S 1365(b).

Defendant also cites Washington Trout and Hallstrom in
support of its argument that notice was inadequate. Those
cases are distinguishable from this one. In Washington Trout
and Hallstrom, the plaintiffs had failed to comply with the
facial requirements for notice set out in the applicable statutes
and regulations.

In Washington Trout, the plaintiffs mailed the defendant a
letter alleging improper discharges of pollutants; however,
"the letter did not provide the address and phone number of
the named plaintiff, nor did it furnish the identity, address,
and phone number of [the other plaintiffs]. " 45 F.3d at 1352.
Further, "the notice failed to specifically identify the dates" of
the allegedly unlawful discharges. Id. This court held that
those failures to comply with 40 C.F.R. S 135.3(a) precluded
the district court from assuming jurisdiction over any part of
the plaintiffs' action. Id. at 1354-55.

In Hallstrom, the plaintiffs filed a citizen enforcement
action under the Resource Conservation and Recovery Act,
which contains a notice provision that is substantively identi-
cal to the CWA's notice provision. See 42 U.S.C. S 6972(b).
The Supreme Court held that the district court lacked subject
matter jurisdiction over the plaintiffs' action because the
plaintiffs had failed to give any notice to the EPA or to the
appropriate state agency as S 6972(b) requires. See Hallstrom,
493 U.S. at 33.
_________________________________________________________________
3 Using Defendant's corrective actions as evidence of its understanding
of Plaintiffs' letter might seem to suggest a strategy of avoiding remedial
measures so as not to create unfavorable evidence. Such corrective
actions, however, would benefit a defendant on issues of standing, moot-
ness, and remedy, as illustrated by the cases cited in the text.

16166

Those cases establish that the CWA's notice requirement is
strictly construed and that compliance with the notice require-
ment is a prerequisite to a citizen enforcement action. But this
case presents a different problem. Unlike in Washington Trout
and Hallstrom, the question in this case is not whether the dis-
trict court had subject matter jurisdiction over any part of
Plaintiffs' action; Defendant does not contest that the notice
was adequate as to the allegation that it had failed to prepare
an adequate SWPPP. Rather, the question is whether the dis-
trict court exercised jurisdiction over particular issues that
were not raised in the notice letter and, thus, were beyond the
scope of the court's jurisdiction.

We have resolved that question in Plaintiffs' favor. As dis-
cussed above, we hold that Plaintiffs' letter gave Defendant
adequate notice of all the claims over which the district court
exercised jurisdiction. Accordingly, the district court did not
err in concluding that Plaintiffs' notice letter satisfied the
requirements of 33 U.S.C. S 1365(b).

III. Evidence of Ongoing Violations

Next, Defendant argues that the district court erred in con-
cluding that it had committed "ongoing violations " of require-
ments in its storm water permit. We review findings of fact
for clear error and conclusions of law de novo. Russian River
Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136,
1140 (9th Cir. 1998). We review de novo a district court's
interpretation of an NPDES permit when its terms are unam-
biguous. Id. at 1141.

[5] The CWA "does not permit citizen suits for wholly past
violations"; rather, the statute "confers jurisdiction over citi-
zen suits when the citizen-plaintiffs make a good-faith allega-
tion of continuous or intermittent violation." Gwaltney, 484
U.S. at 64. Here, the district court properly concluded that
Plaintiffs had made such good-faith allegations and thereby

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had satisfied Gwaltney's threshold requirement for jurisdic-
tion.

[6] To prevail at trial, a citizen-plaintiff must prove that
ongoing violations actually have occurred. "[A ] citizen plain-
tiff may prove ongoing violations `either (1) by proving viola-
tions that continue on or after the date the complaint is filed,
or (2) by adducing evidence from which a reasonable trier of
fact could find a continuing likelihood of a recurrence in
intermittent or sporadic violations.' " Sierra Club v. Union
Oil Co., 853 F.2d 667, 671 (9th Cir. 1988) (quoting Chesa-
peake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844
F.2d 170, 171-72 (4th Cir. 1988)). This court also has adopted
the Fourth Circuit's conclusion that " `[i]ntermittent or spo-
radic violations do not cease to be ongoing until the date
when there is no real likelihood of repetition .' [Chesapeake
Bay Found., 844 F.2d] at 172 (emphasis added)." Id.

[7] Defendant groups three arguments under this heading.
First, Defendant argues that the district court erred in holding
that it had violated any condition of its storm water permit.
We disagree. As noted, the district court found that Defendant
had failed to make -- or had failed to keep records of --
numerous daily inspections of its facility. Those daily inspec-
tions -- and records of the inspections -- were required by
Defendant's 1992 and 1996 SWPPPs. The SWPPPs, in turn,
were required by Defendant's storm water permit, which con-
templated that Defendant would inspect its facility and keep
records of its inspections. The district court also found that
the inspection reports that Defendant did produce revealed "a
pattern of poor housekeeping." Defendant's own inspection
reports showed that the "good housekeeping" standard was
not met uniformly and that violations were not always reme-
died quickly.

[8] Moreover, the district court found that Defendant's fail-
ure adequately to implement its SWPPP "led to significant
contributions of pollutants" to the Bay from Defendant's dis-

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charges. The court further found that those discharges contrib-
uted to the contamination of Defendant's marine leasehold
and that the leasehold is "devoid of life." Those findings are
supported by evidence and, accordingly, are not clearly erro-
neous. Each of Defendant's successive storm water permits
has specifically prohibited discharges that cause adverse
effects on the environment. For example, Defendant's current
storm water permit prohibits discharges that degrade marine
communities, cause adverse effects on the environment, or
result in harmful concentrations of pollutants in marine sedi-
ments. Because the district court found that Defendant's fail-
ure to implement its storm water plans led to discharges that
violated those standards, the court's conclusion that Defen-
dant violated its storm water permit was not error.

Second, Defendant argues, "[e]ven assuming arguendo that
Southwest Marine did not, at some point in time, implement
its stormwater plans adequately, it was legal error for the dis-
trict court to find an ongoing violation of that permit require-
ment." (Emphasis in original.) As a threshold matter, we
reject Defendant's argument that we review this question for
legal error. The district court's conclusion that Defendant's
violations were ongoing was a finding of fact, which we must
affirm unless clearly erroneous. See Union Oil , 853 F.2d at
671 (stating that a plaintiff could prove a continuing violation
"by adducing evidence from which a reasonable trier of fact
could find a continuing likelihood of a recurrence in intermit-
tent or sporadic violations").

[9] Here, the district court found that Defendant had failed
to implement its plans adequately even after Plaintiffs filed
their complaint. As the district court noted, there is evidence
of incidents of poor housekeeping during the pendency of this
action. Defendant argues that the district court's finding of an
ongoing violation "improperly combines several discrete and
unrelated workplace incidents." But the district court found
that the ongoing violations "present[ed] a picture of overall
inadequacies," not mere "snapshots." Notwithstanding Defen-

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dant's argument, we may not disturb that finding if it is sup-
ported by evidence. And it is; the evidence on which the
district court relied was sufficient to permit a reasonable trier
of fact to find "a continuing likelihood of a recurrence in
intermittent or sporadic violations." Union Oil, 853 F.2d at
671. Accordingly, the district court's finding of a continuing
violation was not clearly erroneous.

Third, Defendant argues that, even if there is sufficient evi-
dence in the record to establish an ongoing violation of the
permit, we should nevertheless remand for the district court
to explain further the factual and legal basis for its decision.
Because we conclude that the district court has provided suffi-
cient factual and legal support for its decision, we do not
agree that remand is necessary or appropriate.

IV. The Injunction

[10] Next, Defendant argues that the injunction was
improper. District courts have "broad latitude in fashioning
equitable relief when necessary to remedy an established
wrong." Alaska Ctr. for the Env't v. Browner , 20 F.3d 981,
986 (9th Cir. 1994). We review a district court's decision to
issue an injunction under the CWA, and its determination of
the scope of that injunction, for abuse of discretion. See Natu-
ral Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc., 906
F.2d 934, 937 (3d Cir. 1990) (so holding); see also Weinber-
ger v. Romero-Barcelo, 456 U.S. 305, 320 (1982) (describing
decision to award or deny injunction as an exercise of a dis-
trict court's equitable discretion).

Defendant contends that the district court abused its discre-
tion by imposing requirements that are not contained in
Defendant's permits or plans. By so doing, Defendant argues,
the district court essentially overrode the existing permits.
According to Defendant, that was improper for two reasons:
(1) it was an abuse of discretion, and (2) it violated principles
of separation of powers by usurping the authority of the

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executive-branch agencies that issued the permits. Because
those arguments both turn on the underlying question whether
the district court overrode Defendant's existing permits, we
address the arguments together.

[11] Defendant is correct that a district court's equitable
powers under the CWA are limited to enforcing standards,
limitations, and orders that have been violated. 33 U.S.C.
S 1365(a). That enforcement authority does not allow equita-
ble measures that are wholly unrelated to a violation of an
existing standard, limitation, or order. Nor may a district court
exercise its general equitable authority to override the terms
of a properly issued permit. See City of Milwaukee v. States
of Illinois & Michigan, 451 U.S. 304, 320 (1981) ("Federal
courts lack authority to impose more stringent effluent limita-
tions under federal common law than those imposed by the
agency charged by Congress with administering this compre-
hensive scheme.").

[12] But here the district court permissibly found violations
of extant permits. The key question is what a district court
may do, pursuant to its equitable powers, in aid of enforcing
standards, limitations, and orders that have been violated.

According to Defendant, a court may do little more than
tell the violator to comply with the applicable requirements.
Thus, Defendant says, the district court in this case should
have "simply order[ed] Southwest Marine to comply with
specifically-identified pollution plan provisions."

[13] We do not agree that a district court's equitable
authority is so cramped. The authority to "enforce" an exist-
ing requirement is more than the authority to declare that the
requirement exists and repeat that it must be followed. So
long as the district court's equitable measures are reasonably
calculated to "remedy an established wrong," they are not an
abuse of discretion. Alaska Ctr., 20 F.3d at 986.

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[14] We conclude that the injunctive measures satisfy that
standard. Those measures all are consistent with, and comple-
mentary to, existing permit requirements. The requirement
that Defendant's employees sweep open areas where debris
may have accumulated (or certify that there was no debris to
sweep) and wipe their feet on mats after leaving such areas is
a good housekeeping measure designed to remove pollutants
from areas where storm water accumulates, as contemplated
in Defendant's permits; the requirement that Defendant fix
and maintain its shrouds is consistent with the permit require-
ment for structural BMPs, such as shrouds, that provide over-
head coverage; the requirement that Defendant install
concrete berms is consistent with the requirement for struc-
tural BMPs, such as berms, that channel or route storm water
away from sources of pollutants; the requirement that Defen-
dant conduct water-column testing around each vessel that is
being blasted or painted is consistent with the permit require-
ments for storm-water monitoring; the requirement that
Defendant make daily inspections and keep records of those
inspections is consistent with numerous permit requirements
requiring monitoring and record-keeping (and, further, is
almost identical to a provision in Defendant's original BMP
plan); the requirement that Defendant correct potentially dan-
gerous conditions within four hours, if feasible, is consistent
with permit requirements for prompt response in cases of
leaks and spills; and the requirements that Defendant capture
storm water coming off piers and test storm water discharges
before releasing them into the Bay are consistent with the
requirement that Defendant not discharge storm water that
adversely affects the environment or degrades marine com-
munities on Defendant's leasehold, which the district court
found had been rendered devoid of life by (among other
things) Defendant's discharges.

The injunctive measures are consistent with the terms of
Defendant's storm water permits and seek to enforce the
requirements of those permits and the relevant plans. They are
not identical to the requirements of the plans and permits, but

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complement those requirements. In imposing those injunctive
measures, the district court did not override agency determi-
nations or supersede existing permit requirements. Rather, it
properly exercised its equitable authority to enforce existing
requirements with which Defendant had failed to comply.

Our conclusion that those provisions of the injunction were
consistent with Defendant's storm water permit also disposes
of Defendant's separation-of-powers argument. Because the
district court merely enforced the permits, it did not "usurp"
the authority of the executive branch.

Defendant also argues that the district court failed to bal-
ance the equities or make the necessary findings before issu-
ing its injunction. We are unpersuaded. The district court
considered Defendant's testimony concerning the cost and
difficulty of the various injunctive measures. The district
court also heard testimony throughout the trial about the
extreme degree of environmental degradation in the Bay in
general, and on Defendant's leasehold in particular. The court
temporarily stayed the injunction to allow further argument
and evidence, and eventually modified the original injunction
with respect to testing, containment of runoff, and cleanup.
Finally, in its order lifting the temporary stay, the court noted
that it was mindful of the cost that it was imposing on Defen-
dant, but concluded that the cost was outweighed by the need
for swift corrective action and the fragility of the local marine
environment. The district court's findings and balancing of
the equities were adequate to justify its injunction.

[15] In sum, we conclude that the district court's injunction
was not an abuse of discretion. We also conclude that the
injunction did not violate the separation-of-powers doctrine.
Therefore, we affirm the injunction in its entirety.

V. Civil Penalties

Finally, Defendant argues that the district court abused its
discretion in imposing a civil penalty of $799,000, because

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the penalty is excessive, unreasonable, and unsupported by
evidence. We review for abuse of discretion the amount of a
civil penalty under the CWA. Leslie Salt Co. v. United States,
55 F.3d 1388, 1397 (9th Cir. 1995).

The district court imposed the penalty pursuant to 33
U.S.C. S 1319(d), which provides, as relevant:"Any person
who violates . . . any permit condition or limitation . . . shall
be subject to a civil penalty not to exceed $25,000 per day for
each violation." If a district court finds a violation, then civil
penalties under 33 U.S.C. S 1319(d) are mandatory. Leslie
Salt, 55 F.3d at 1397. A district court has discretion to set the
amount of a penalty (up to the statutory maximum) and is
instructed to consider the seriousness of the violation, any
economic benefit that resulted from the violation, any history
of violations by the party to be penalized, that party's good-
faith efforts to comply with the applicable requirements, the
economic effect of the penalty on the violator, and "such
other matters as justice may require." 33 U.S.C.S 1319(d).

The district court found that Defendant had been in viola-
tion of the CWA for 799 days when the trial began and, after
considering the statutory factors, imposed a penalty of $1,000
for each of the 799 days of violation. However, the court also
ordered that the penalty will be reduced by the amount of the
cost of any actions that Defendant takes to improve its storm
water diversion system and any changes that Defendant
makes to its facilities to comply with the court's injunction.

Thus, the amount of the penalty actually is $799,000 minus
the cost of such physical alterations. In challenging the
injunction, Defendant presented evidence that one such alter-
ation -- the installation of a storm-water diversion system --
would cost more than $1 million by itself. Accordingly, antici-
pated alterations, when offset against the $799,000 civil pen-
alty, will reduce the penalty to zero. In the circumstances, we
cannot agree that the penalty is excessive, and we hold that
the district court did not abuse its discretion.

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CONCLUSION

For the reasons stated, we AFFIRM the district court's
judgment in favor of Plaintiffs, the injunction, and the civil
penalty.

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