San Francisco Baykeeper v. Vallejo Sanitation & Flood Control Dist.
Citation: 29 ELR 20618
The court holds the operator of a publicly owned treatment works liable under the Federal Water Pollution Control Act (FWPCA) for reporting and national pollutant discharge elimination system (NPDES) permit violations. The court first holds that summary judgment is granted to the environmental organization bringing suit against the operator for violations of the permit effluent limitations and reporting requirements. Whether the violations are significant or merely trivial or technical, however, must await the penalty phase. Next, the court holds that the local water quality control board's favorable opinion of the operator does not bar the environmental organization from bringing this action. Although a citizen suit may be precluded when state or federal enforcement actions are underway, there is no preclusion or estoppel effect from a regulatory agency's decision not to take an enforcement action. The court then rejects the operator's argument that if the court imposes the remedies the organizations seeks, the operator's due process rights would be violated and it would amount to a taking. The operator may have waived any right to challenge the NPDES permit's limitations in the context of a takings claim because the operator did not seek a modification of its NPDES permit or challenge the permit in state court. Moreover, the operator's taking contention is not ripe for review. The court also rejects the operator's claim that the FWPCA's citizen suit provision violates Article II of the U.S. Constitution. The court further rejects the operator's use of the "single operational upset defense" as the basis for a jurisdictional challenge. The single operational upset concept is limited to FWPCA § 309(d) and, thus, is solely applicable to the fixing of the penalty. Moreover, the single operational upset concept applies only to collapse simultaneous violations of different effluent limitations into a single violation; it does not direct that multiple days of violations of any one parameter should be deemed a single violation if the consequence of an operational upset. In addition, the court rejects the operator's contention that there can be no violation unless the local board finds that the operator is out of compliance.
The court also rejects the operator's specific arguments as to particular effluent and bypass/overflow limitations. Although the board's chlorine residual enforcement guideline states that a chlorine residual discharge of 3.3 milligrams per liter (mg/l) is acceptable, the guideline is merely an enforcement guideline going to the board's prosecutorial discretion and does not modify the permit's 0.0 mg/l limitation. Likewise, the board's prosecutorial discretion does not abrogate the permit's express effluent limitations as to total suspended solids. The operator's argument that its violations of copper effluent violations were due to wet weather conditions and, therefore, should be held to a more lenient limitation is rejected because this argument is based on material external to the permit. Moreover, the permit does not grant a safe harbor for settleable matter violations that are detected in monitoring that exceeds the monitoring required by the permit. And the operator's argument with respect to bypass/overflow limitations violations was rejected because language in the permit granting the board discretion in enforcing such violations is directed to the board's enforcement policies and not to the definition of a violation.
The court then holds that the operator violated the NPDES permit's follow-up letter requirement. The reporting requirement is not limited to bypasses and overflows; any violation of the permit's waste discharge requirements and prohibitions must be followed by a written report. Moreover, no evidence has been provided that the board waived the written report requirement.
[Counsel not available at this printing.]