San Francisco BayKeeper v. Vallejo Sanitation & Flood Control District

No. CIV-S-96-1554 DFL (E.D. Cal. May 28, 1998)

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.]

[29 ELR 20618]

Levi, J.:

Plaintiff San Francisco BayKeeper ("BayKeeper") brings suit charging defendant Vallejo Sanitation and Flood Control District (the "District") with violating the Clean Water Act, 33 U.S.C. §§ 1251-1387. BayKeeper alleges that the District has discharged pollutants into the San Pablo Bay and San Francisco Bay Estuary at Mare Island Strait and Carquinez Strait in violation of its NPDES permit. BayKeeper also alleges that the District has violated the permit's reporting requirements. The parties have filed cross motions for summary judgment as to defendant's liability for the alleged violations.

The District operates a Publicly Owned Treatment Works ("POTW") and provides sanitary-sewer and flood protection services for the city of Vallejo. The POTW treats wastewater from the Vallejo area, and discharges effluent through two outfall pipes, one in Carquinez Strait and the other in Mare Island Strait. The Clean Water Act §§ 1311-1342 prohibits the discharge of pollutants into navigable waters except as authorized under a National Pollutant Discharge Elimination System ("NPDES") permit. Such a permit states the terms under which the acquiring party must operate, including types and amounts of pollutant emissions allowed (i.e., effluent limitations), discharge prohibitions, self-monitoring requirements, and reporting requirements. Discharges from the District's POTW are governed by NPDES Permit No. CA0037699 (the "Permit"), which was issued by the California Regional Water Quality Control Board (the "Board") in late 1988.

Violations of an NPDES permit are violations of the Clean Water Act. Hawaii's Thousand Friends v. Honolulu, 821 F. Supp. 1368, 1392 [23 ELR 21380] (D. Haw. 1993). "The Clean Water Act imposes strict liability for NPDES violations and does not excuse 'de minimus' or 'rare' violations." Id. (citing Sierra Club v. Union Oil Co. of Cal., 813 F.2d 1480, 1491 [17 ELR 20547] (9th Cir. 1988), vacated for reconsideration, 485 U.S. 931 (1988), reinstated and amended, 853 F.2d 667 [18 ELR 21299] (9th Cir. 1988)). A plaintiff may establish a violation of an NPDES permit by comparing limitations imposed by the permit with the self-monitoring reports of the discharger. Sierra Club, 813 F.2d at 1492. The data contained in the self-monitoring reports are to be considered "conclusive evidence of an exceedence of a permit limitation." Id. The defendant's "intent" and "good faith" and the degree of the violations are irrelevant to the issue of liability, and are considered only in the penalty phase of the litigation. Hawaii's Thousand Friends, 821 F. Supp. at 1392 (citations omitted).

II.

The court concludes that summary judgment is appropriately granted to BayKeeper for violations by the District of permit effluent limitations and reporting requirements. Whether these violations are significant or merely trivial or technical must await the penalty phase.

The District makes a number of preliminary arguments that purport to identify jurisdictional or constitutional bars to a finding of liability. First, the District claims that BayKeeper may not bring this citizen enforcement action because the Board has declared that the District is in compliance with its NPDES permit. However, the Clean Water Act permits a citizen suit by "any citizen" against "any person" alleged to be in violation of an NPDES permit. 33 U.S.C. § 1365. 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. See, e.g., Citizens for a Better Env't v. Union Oil Co. of Cal., 83 F.3d 1111, 1119-20 [26 ELR 21152] (9th cir. 1996), cert. denied 117 S. Ct. 789 (1997). Thus, while the Board's view of the District's performance is relevant at the penalty stage, the Board's apparently favorable opinion of the District does not bar BayKeeper from bringing this action.

Second, the District claims that if the court imposes the remedies that BayKeeper seeks this would constitute a violation of the District's due process rights and would amount to a taking. This argument is directed particularly to the chlorine and bypass/overflow limits in the permit. According to the District, when these limitations were imposed the Board knew that the District would not be able to avoid violations but nonetheless included these standards in the permit with the comment and assurance that in considering enforcement action the Board would take into consideration the effects of weather and the District's diligence in pursuing various capital improvements. The District did not seek a modification of the permit or challenge the permit in State court and may have waived any right to challenge the permit's limitations in the context of a taking claim.

Assuming that the District has not waived a challenge to the permit and that a citizen suit could be viewed as working a taking, the District's taking contention is not ripe for review. At the penalty stage the [29 ELR 20619] court will determine whether or not the District could have complied with the permit and what penalty, if any, is appropriate. Once these issues have been resolved, the court will return to the taking argument if the District chooses to advance it.

Third, in its reply brief to its motion, apparently as an after-thought, the District claims that the citizen suit provision of the Clean Water Act violates Article II of the U.S. Constitution. This argument appears for the first time in the District's reply brief, is made after the motion filing deadline, and does not allow BayKeeper an opportunity to respond prior to oral argument. Moreover, the untimeliness of the argument also hinders the court's ability to certify the constitutional question to the Attorney General without undue delay to this litigation. See 28 U.S.C. § 2403. The District's claim that its challenge is only to the provision "as applied" is of no force given that the District claims that the citizen suit provision usurps powers allocated to the President in the "take care" and appointments clauses. In these circumstances, the court deems this argument waived.

Fourth, the District seeks to use the "single operational upset defense" — a penalty phase mitigation concept — as the basis for a jurisdictional challenge under Gwaltney of Smithfield v. Chesapeake Bay Foundation, 108 S. Ct. 376 (1987). Section 1319(d) of the Clean Water Act lists the factors that a court should consider in calculating civil penalties for Permit violations:

In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith effort to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require. For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation.

33 U.S.C. § 1319(d) (emphasis added).

By its express terms, the "single operational upset" concept is limited to subsection 1319(d). Thus, it is solely applicable to the fixing of the penalty. As stated by the Third Circuit:

We note initially that the single operational upset ("SOU") defense is not a defense to liability, but relates only to the amount of penalties the district court may impose. [footnote]. The SOU defense is contained in subsections relating to calculation of penalties . . . and by its terms it is limited to the subsection in which it is contained. Thus even if we were to find that [the discharger] was entitled to invoke the SOU defense, this would not preclude summary judgment on liability.

Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 76 [20 ELR 21216] (3d Cir. 1990), cert. denied 498 U.S. 1109 (1991). Furthermore, 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. It follows that multiple days of violation of an effluent limitation need not be considered as a single day of violation, although the court would have discretion to do so in setting a just penalty.

The District argues that many of the violations can be collapsed into one under the single operational upset concept and that when so viewed Bay Keeper has failed to show the jurisdictional prerequisite of ongoing violations, at least as to certain of the effluent limitations, particularly the chlorine limitation. Under the Clean Water Act, in order to prevail on the merits, a citizen plaintiff must prove ongoing violations of the Act. Sierra Club v. Union Oil Co. of Cal., 853 F.2d 667, 670 [18 ELR 21299] (9th Cir. 1988), citing Gwaltney of Smithfield v. Chesapeake Bay Foundation, 108 S. Ct. 376, 386 (1987). In the Ninth Circuit, a citizen plaintiff may prove that a violation is ongoing "either (1) by proving violations 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, 853 F.2d at 671 (citation omitted).

Even assuming that BayKeeper must show that violations are ongoing as to each effluent limitation, BayKeeper has done so by proving violations, parameter by parameter, occurring after the complaint was filed.¹ It need prove no more. Further, the District's attempt to collapse various of the violations into one fails; as noted above, the statute does not deem multiple violations of the same effluent limitations as if it were but one.

The District makes a further preliminary argument, which is not jurisdictional but which is a basic theme to its defense of liability. The Permit expressly gives discretion to the District to decide whether certain violations should give rise to enforcement actions. The District argues tautologically that the exercise of this discretion defines the violation such that there is no violation unless the District concludes that there has been one. This is something of a variation on the argument, addressed above, that the District's finding of compliance will bar a citizen suit.

The Permit lists certain "Discharge Prohibitions" at Section A. These prohibitions forbid bypasses or overflows of untreated or partially treated wastewater "other than during peak wet weather flows in excess of the five-year design storm." In Section B, the Permit includes effluent limitations for various parameters such as chlorine residual and total suspended solids. The numerical limitations are prefaced with the statement that "Effluent discharged shall not exceed the following limits." In Section D, the Permit addresses the District's compliance decisions:

4. In reviewing compliance with Effluent Limitation B.1.a. and B.1.b. for Daily Maximum Limits, and B.2. of this Order, the Board will take special note of difficulties encountered in achieving compliance during wet weather periods when ordinary treatment capabilities are impeded by peak flows and storm-water diluted influent.

5. The Discharger shall achieve full compliance with Prohibitions A.1., A.2., and A.3. of this Order for wet weather flows by completing the proposed Wet Weather Treatment Facilities and the current Infiltration/Inflow Corrections Program improvements in accord with the following time schedule. [The Permit includes two identified construction projects and improvements as well as a completion date for the task]

6. Violations of Prohibitions A.1., A.2. and A.3. of this Order which occur as a result of wet weather flows prior to completion of the collection system and treatment facility improvement projects identified above shall be evaluated by the Board on a case by case basis, taking into account the degree of progress being made by the Discharger toward satisfactory completion of these improvements.

The language quoted above will not sustain the District's contention that there can be no violation unless the Board finds that the District is out of compliance with the District's improvement program. The Permit defines the Board's prosecution policy; it does not define violations or prohibitions according to the District's tautology.²

III.

The District's arguments above are advanced as to all of the limitations in the Permit. In addition, the District makes specific arguments as to particular effluent and bypass/overflow limitations.

A. Chlorine Residual

BayKeeper claims that on numerous occasions, both before and after the filing of the Complaint, the District violated the Permit's chlorine residual limitation of 0.0 mg/l.

The District claims that it would be impossible to comply with the 0.0 mg/l limitation, and that to hold it to that standard would be unconstitutional. For the reasons discussed above, this argument is properly considered at the penalty phase of the litigation.³

[29 ELR 20620]

The District further contends that it is not bound by the 0.0 mg/l standard because the Board's chorine residual enforcement guidelines ("CREG") states that a chlorine residual discharge of 3.3 mg/l is acceptable. However, the CREG is merely an enforcement guideline going to the Board's prosecutorial discretion and does not modify the 0.0 mg/l limitation of the Permit. See, e.g., Citizens for a Better Env't v. Union Oil Co. of Cal., 83 F.3d at 1119-20. Moreover, there are strict federal and state regulations, substantive and procedural, for modifying an NPDES permit. Id. at 1120; see Cal. Code Regs. tit. 23, § 2235.2; 40 C.F.R. §§ 122.62, 122.63, 123.25(22), 124.10-17. A modification requires a finding of cause by an enforcement agency, preparing a draft permit, and public notice requirements. See, e.g., Citizens for a Better Env't v. Union Oil Co. of Cal., 861 F. Supp. 889, 899 n.2 [25 ELR 20216] (N.D. Cal. 1994), aff'd 83 F.3d 1111 [26 ELR 21152] (9th Cir. 1996), cert. denied 117 S. Ct. 789 (1997). The modification requirements "cannot be evaded with the cooperation of compliant state regulatory authorities." Union Oil Co., 83 F.3d at 1120. "Unless properly modified in accordance with these procedures, the permit as originally issued remains in effect, and violations of the permit may be subject to a citizen enforcement suit." Union Oil Co., 861 F. Supp. at 899 n.2 (citations omitted). There is no evidence showing that the District or the Board, by way of the CREG, complied with mandatory modification requirements with respect to the 0.0 mg/l limitation on chlorine residual discharges.

B. Total Suspended Solids

For total suspended solids ("TSS") the Permit provides that discharges must not exceed a daily maximum of 60 mg/l, a weekly average of 45 mg/l, and a monthly average of 30 mg/l. According to the District it did not violate the TSS limitations because the Permit states: "In reviewing compliance with effluent limitations, the Board will take special note of difficulties encountered in achieving compliance during wet weather periods when ordinary treatment capabilities are impeded by peak flows and storm-water diluted influent." However, as already discussed, this provision guides the Board's prosecutorial discretion and does not abrogate the Permit's express effluent limitations as to TSS.

Defendant has violated the TSS effluent limitation on several occasions, and at least on two occasions after the complaint was filed.

C. Copper

At Carquinez Strait, a deep water outfall, the effluent limitation on copper is 200 micrograms(ug)/l. The limit at the Mare Island Strait outfall is 20 ug/l. The District has exceeded the effluent limitation on Copper at Mare Island Strait on numerous occasions before and after the filing of the complaint.

The District concedes that it exceeded the 20 ug/l limitation; however, it claims that on those occasions there was a wet weather condition such that the Mare Island Strait outfall was acting as a deep water outfall and should be held only to the 200 ug/l limitation.⁴ However, the Permit does not state or imply that during wet weather months the 20 ug/l limitation for Mare Island Strait converts into a 200 ug/l limitation. The District bases its argument on material external to the Permit — principally, the draft permit now under consideration. The court may consider the draft permit and the conditions in which the Mare Island outfall copper limits were exceeded at the penalty stage.

D. Settleable Matter

As to settleable matter, the Permit provides that discharges must not exceed an instantaneous maximum of .2 ml/hr and a monthly average of .1 ml/hr. The record indicates that the District has violated these limitations prior and subsequent to the filing of the complaint. Defendant claims that some of the exceedences should not be considered because they were not detected as part of its official monitoring program. Again, the District is making a mitigation argument as if it could define liability. The Permit does not grant safe harbor for violations that are detected in monitoring that exceeds the monitoring required by the Permit. While the District's assiduous monitoring may factor into the penalty decision, a violation is a violation no matter the source of the information.

E. Median and Total Coliform

The Permit imposes a limitation of 240 MPN (Most Probable Number)/100ml for median coliform and 10,000 MPN/100ml for total coliform. The evidence shows that the District has violated these effluent limitations prior to and after the filing of the complaint.

F. Bypass/Overflow Limitations

The Permit prohibits "the bypass or overflow of untreated or partially treated wastewater to waters of the State, either at the treatment plant or from the collection system or pump stations tributary to the treatment plant, other than during peak wet weather flows in excess of the five-year design storm, as defined in the Discharger's Sewer System Evaluation Survey (January 1988)." According to the District's Sewer System Evaluation Survey, a "five-year design storm" is a rain event having a duration of four hours, an intensity of 0.4 inches per hour, and a total volume of 1.6 inches. BayKeeper claims that the District violated this prohibition over 2,000 times, 500 of which occurred after the complaint was filed.

According to the District it has complied with the Permit's bypass and overflow provisions. The District states that at the time that the Permit was issued, the Board implemented a 9-year program for the District to make improvements to its treatment facility that would enable it to address its overflow problems. The Permit required that these improvements be completed by December 15, 1996, and provided that the Board would evaluate violations occurring as a result of wet weather on a "case by case basis, taking into account the degree of progress being made by the Discharger toward satisfactory completion of these improvements." As discussed above, this language of the Permit is directed to the Board's enforcement policies and not to the definition of a violation.

The District also claims that discharges of less than 1,000 gallons are not violations of the Permit because under California law it did not have to report those violations. See 23 CCR §§ 2250, 2260. However, the regulations do not purport to modify NPDES permits. The District's Permit does not exclude discharges of less than 1,000 gallons from the overflow and bypass provisions.

IV.

BayKeeper claims that the District violated the Permit's Follow-Up Letter requirement on 1,109 occasions.⁵ The Permit states that reports of Permit violations must be submitted to the Regional Board:

In the event the discharger violates or threatens to violate the conditions of the waste discharge requirements and prohibitions or intends to experience a plant bypass or treatment unit bypass . . . the discharger shall notify the Regional Board office by telephone . . . and confirm this notification in writing within 7 working days of the telephone notification. The written report shall include time and date, duration and estimated volume of waste bypassed, method used in estimating volume and person notified of the incident. The report shall include pertinent information explaining reasons for the noncompliance and shall indicate what steps were taken to prevent the problem from recurring.

Def.'s Exs., Ex. D, p. 10.

However, the Permit states that the "Regional Board may waive the [written report requirement] on a case-by-case basis."⁶ According to the District, on February 10, 1989 the Board informed the District that bypasses and overflows of 1,000 gallons or more should be reported by telephone and that a written report would be required only if requested by the Board. See Allen Decl., Ex. F. The District argues that the follow-up letter requirement only applies to bypasses and [29 ELR 20621] overflows, and that as to bypasses and overflows, the District has waived the requirement.

The first part of the District's argument founders on the language of the Permit. In A.G.2 the reporting requirement is triggered by a violation of the Permit's "waste discharge requirements and prohibitions or . . . a plant bypass." (Emphasis added). Similarly 10.c. applies to "any upset that exceeds any effluent limitation in the permit: in addition to "any unanticipated bypass that exceeds any effluent limitation in the permit." Thus, 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.

The waiver argument fails because no evidence has been provided that the Regional Board waived the written report on a "case-by-case basis." At best, the evidence shows that Blair Allen, a staff member of the Board, told the District that follow-up written reports were not necessary and that the Board so instructed the 120 public agencies responsible for sewage systems within the Board's area of supervision. Such blanket advice does not amount to a "case by case" waiver as called for by the Permit. Of course, the Board's advice will be taken into consideration at the penalty stage.

The parties dispute what is meant by a "day" of violation. For the reasons stated by BayKeeper the court finds that a "day" of violation as used in 33 U.S.C. § 1319(d) refers to a calendar day and not to any 24 hour period.

VI.

The court declines to decide the precise number of days of violation by the District on the current briefing. With this reservation, BayKeeper's motion for summary judgment on liability is DENIED.

IT IS SO ORDERED.

1. For example, the evidence reveals that after the complaint was filed the District discharged chlorine in excess of the 0.0 mg/l limitation on approximately 212 occasions at Carquinez Strait and on approximately three occasions at Mare Island Strait.

2. It is doubtful whether a Permit could define effluent limitations and other prohibitions in the open-ended fashion advocated by the District and still be consistent with the Clean Water Act's anti-backsliding provisions. See 33 U.S.C. § 1342(o).

3. The court notes that if the District believed its NPDES Permit to be unreasonable, it had at least two remedies. First, within 30 days of the Permit's issuance, the District could have petitioned for review of the permit and ultimately may have sought review of the Permit in state court. See Cal. Water Code §§ 13320, 13324, and 13325. Additionally, as described in text, the District could have sought a modification of its Permit.

Moreover, a challenge to provisions contained in an NPDES permit is a matter for the Water Board, and not for this court. California Pub. Interest Research Group v. Shell Oil Co., 840 F. Supp. 712, 718 [24 ELR 20757] (N.D. Cal. 1993).

4. During dry weather the District discharges its waste into Carquinez Strait. During wet weather the District is permitted to divert certain discharges from Carquinez Strait into the more shallow waters of Mare Island Strait. During wet weather, the District may blend partially treated wastewater with fully treated wastewater when making discharges into Carquinez Strait. However, the District may only discharge fully treated wastewater into Mare Island Strait.

5. Bay Keeper has withdrawn its allegations that the District violated cover letter and monitoring provisions contained in the Permit.

6. The waiver provision appears at C.10.c and is part of a reporting section that addresses noncompliance that may endanger health or the environment. Reports under C.10 must be made orally within 24 hours. A written report must follow within 5 working days. The interplay of the C.10 standard reporting requirements with the particularized reporting requirements in part A.G.2 is confusing, particularly in light of language at part B.IV.C: "Any overflow, bypass or significant non-compliance incident that may endanger health or the environment shall be reported according to sections G.1 and G.2 of Part A."