ELR Citation: 41 ELR 20337
No(s). C11-2565 (N.D. Cal. Nov 2, 2011) (James, J.)

A district court denied a sand and gravel company's motion to dismiss environmental and citizen groups' CWA action against it for discharging stormwater associated with industrial activity from one or more point sources at its facility to a river without a NPDES permit. The company argued that the court lacked subject matter jurisdiction because the CWA does not include facilities with the SIC code of the type it operates. It claimed that the facility is not an industrial facility under the CWA; rather, it is a distribution facility that simply stockpiles processed materials for a short period of time until they can be distributed to various concrete batch plants or sold to a third party. Thus, none of the stored materials are raw material subject to industrial stormwater permitting under the CWA. But based on the parties' arguments and evidentiary support, the court was unable to determine at this stage of the litigation whether the facility is or is not an industrial facility. Neither CWA §402(p) nor its implementing regulations plainly and unambiguously require that the facility at issue be classified under a particular SIC group.