A November 5, 2015 notice addressed to all three parties by Coast Law Group (Encinitas, CA law firm) on behalf of the Coastal Environmental Rights Foundation (CERF, a San Diego County based non-profit active in CA coastal matters) alleges an "anticipated future non-permitted discharge of pollutants from firework displays into Alamitos Bay and the Pacific Ocean, in violation of the [federal] Clean Water Act."

[Scroll down for further.]

The notice is a step required 60 days prior to filing a lawsuit in federal court under the federal Clean Water Act. It urges the parties to "cease their unlawful discharges into Alamitos Bay" and states that "moving forward with the annual July 3rd display will subject the Responsible Parties to enforcement action and civil liability."

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The notice indicates in pertinent part:

[Coast Law Group Nov. 5, 2015 notice text, footnotes omitted] The Clean Water Act prohibits the "discharge of any pollutant," unless otherwise allowed by permit. A National Pollutant Discharge Elimination System (NPDES) permit must be issued before any pollutant is discharged into Waters of the United States from a point source. "Any discharge of pollutants not allowed by a NPDES permit is illegal." Under the Act, an NPDES permit is required when a discharger has (1) discharged (2) a pollutant (3) to waters of the United States (4) from a pointsource.

The Responsible Parties have violated and will continue to violate section 1342(1) of the Clean Water Act unless and until they obtain an NPDES for their firework discharges. Because the Responsible Parties' Event has been, and will continue to be a continuous point source of pollution to Alamitos Bay and the Pacific Ocean, the Clean Water Act mandates that an NPDES permit be obtained...

...When the Responsible Parties discharge fireworks in Alamitos Bay, chemicals contained in fireworks fall into the Pacific Ocean, as does paper trash (potentially laden with chemicals) encasing the fireworks. Fireworks that are launched but which do not explode, so-called "dud" fireworks, also discharge into the ocean. This satisfies the first element requiring an NPDES permit.

Discharge is defined in the Act as "any addition of any pollutant to navigable waters from any point source." Fireworks generally include the following chemicals: perchlorate salts, aluminum, magnesium, titanium, barium copper, chloride, and potassium nitrates. Other hazardous chemical compounds often associated with fireworks include, but are not limited to: arsenic salts, strontium salts, lithium salts, calcium salts, sodium, barium, cadmium, copper, aluminum, titanium, lead, mercury and magnesium. Many of these compounds are often constituents of fireworks for the purpose of creating color and light effects. These constituents have a potential to adversely impact and contribute to degradation of water and sediment quality in Alamitos Bay and the Pacific Ocean. Of particular concern are arsenic, mercury and lead. These metals are extremely poisonous to human and marine life, and can lead to serious long-term illnesses such as cancer...

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The notice indicated that during the 60-day notice period CERF "is willing to discuss effective remedies" for the violations it alleges (detailed in its notice below) but if "good faith negotiations are not being made, at the close of 60-day notice period, CERF will move forward expeditiously with litigation."

[Coast Law Group Nov. 5, 2015 notice text] CERF's action will seek all remedies available under the Clean Water Act §1365(a)(d). CERF will seek the maximum penalty available under the law which is $37,500 per day. CERF may further seek a court order to prevent the Responsible Parties from discharging pollutants. Lastly, section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), permits prevailing parties to recover costs, including attorneys' and experts' fees. CERF will seek to recover all of its costs and fees pursuant to section 505(d).

The notice concludes: "In light of the numerous legal repercussions to moving forward with the Big Bang on the Bay, CERF urges the Responsible Parties to give considerable weight to the prospect of legal enforcement."

LBREPORT.com provides the full notice's text (with attachments) below.

Coastal Environmental Rights Foundation Notice to City of Long Beach (Nov. 2015)

It's not certain exactly what has or hasn't taken place during the now roughly 90+ days since the notice date, but Coast Law Group attorney Marco Gonzalez told LBREPORT.com on Feb. 17 that he and co-counsel Livia Borak are currently drafting a complaint aiming for filing in federal court in the coming week if they don't receive a response from the City different than what they're received thus far.

Following the Feb. 16, 2015 closed City Council session, LB City Attorney Charles Parkin told LBREPORT.com that no legally reportable action (under the Brown Act) had taken place.

LBREPORT.com separately sought comments last night (Feb. 17) via email directed to Boathouse on the Bay General Manager John Morris and Action Sports Kids Foundation Founder/Exec. Dir Mike Donelon. Mr. Donelon replied via email [bracketed material by LBREPORT.com]: "Since no lawsuit has been filed we have not retained counsel. We along with John have been in consultations with [coastal law expert / former Coastal Commission chair / current Long Beach attorney] Mel Nutter."

Source: Boathouse on the Bay 2015 ad / annoucement

The City of Long Beach's stance on the Clean Water Act issues is noteworthy apart from the potential litigation trajectory. Long Beach city officials (including Mayor Garcia and Vice Mayor Suja Lowenthal) have regularly cited the City's commitment to cleaner shoreline waters. Actions included a Council-enacted plastic bag ban; installing storm drain devices to prevent trash from entering the L.A. River leading to the ocean and pressuring upriver cities to reduce their stormwater trash entering the L.A. River. In January 2016, LB city officials held a photo op to highlight a cost sharing agreement enabling the U.S. Army Corps of Engineers to begin a study of possible modifications to the federal breakwater that may improve water quality by increasing water circulation and possibly restore some currently unknown amount of wave activity to benefit the East San Pedro Bay ecosystem and recreational uses.

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In addition to the Clean Water Act issues, CERF's attorneys allege that the "Big Bang on the Bay" fireworks display requires a Coastal Development Permit from the CA Coastal Commission and review by the City under the CA Environmental Quality Act. The CEQA allegations state that the event "results in significant individual and cumulative effects in the following impact areas: (i) water quality; (ii) wildlife and marine life, specifically marine mammals and birds; (iii) air quality; (iv) noise and (v) traffic."

[Coast Law Group Nov. 5, 2015 notice text] Despite its annual review of the Event, the City has never conducted the requisite CEQA analysis prior to its approval of the Special Event Permit or allocation of financial resources to the Event. This is improper. [citations omitted here]...Indeed, though the Long Beach Municipal Code requires the City Manager first determine a proposed event "will not have a significant adverse environmental impact" prior to issuing a Special Event Permit, the City has never undertaken such review. (Long Beach Municipal Code §5.60.040.1.12). Because the City has systematically failed to conduct the requisite CEQA review prior to approving the Special Event Permit and allocating financial resources to the Event, it has failed to comply with not only CEQA, but its Municipal Code as well.

CERF's website lists its Executive Director as Marco Gonzalez and Livia Borak as its Legal Advisor. Coast Law Group's website lists Marco Gonzalez as the law firm's co-founder and managing partner and lists Ms. Borak as an associate attorney with the firm [both co-signed the Nov. 5, 2015 notice to the City, Boathouse and Action-Kids Foundation.]

In San Diego, CERF and its Coast Law Group attorneys prevailed in legal actions involving July 4th fireworks displays in La Jolla and other city special events that the City of San Diego appealed to a CA Court of Appeal before settling on terms described in a CA Court of Appeal Oct. 16, 2014 ruling ["unpublished," not legal precedent binding in other cases]:

[Court of Appeal text]...The parties' settlement agreement was approved in a noticed, public city council hearing, with no objection to the approval. The agreement provides for the City's "environmental review pursuant to CEQA for special event and discretionary park use permits on a project-by-project basis"; environmental mitigation measures by LJCFF [La Jolla Community Fireworks Foundation]; vacation of the judgments and dismissal of the three cases and a related trial court case (case No. 37-2010-00102574-CU-TT-CTL); and the City's payment to CERF of $250,000 as attorneys' fees and costs.

Settlement was a time-consuming and complicated process, and the parties' reasons for entering into the agreement were to avoid "the unnecessary exhaustion of resources" and continued litigation and to obtain an outcome satisfactory to the parties and the public. According to the stipulation, the City's previous practice was to issue special use permits without environmental review, even though such permits typically require discretionary approval. The amendments to the San Diego Municipal Code will stand; those amendments clarify park use permitting procedures and allow a majority of park use permits to be issued on a ministerial basis and over the counter, provided certain requirements are met. The settlement agreement affords certainty, provides for environmental review and mitigation measures and preserves the resources of the parties and the judicial system.

Just weeks ago, the issue of fireworks and water quality came up in San Francisco following the recent Super Bowl. See SFGate.com [SF Chronicle online] coverage (SFGate.com headline: "New permits may be required after Super Bowl show trashed beach")

Asked by LBREPORT.com about the Queen Mary fireworks display, attorney Gonzalez indicated it would ultimately be covered by the National Pollutant Discharge Elimination System (NPDES) permit CERF alleges is legally required in Long Beach.

Asked how he'd respond if Long Beach area residents who enjoy the fireworks voice dismay on learning of CERF's pending legal action here, attorney Gonzalez replied: "There's nothing more patriotic than clean water."

Developing. LBRPEPORT.com will continue to follow this story.