Sierra Club v. Port Townsend Paper Corp.

No. C87-316C (W.D. Wash. May 2, 1988)

The court holds that plaintiff in a citizen suit under the Federal Water Pollution Control Act (FWPCA) has provided sufficient evidence on defendant's motion for summary judgment to show that defendant "is in violation" of its national pollutant discharge elimination system (NPDES) permit. Plaintiff alleged that defendant violated its permit at least three times since the suit was filed and defendant admitted that it was likely to violate its permit again. Even though defendant's recent permit violations are less numerous than in the past, the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, emphasizes that an intermittent polluter is just as much "in violation" as a continuous polluter. The court holds that plaintiff is not limited to alleging the particular types of violations that continue to recur at defendant's facility. The court then holds that the FWPCAhs citizen suit provision does not violate the separation of powers principle. The court holds that plaintiff has standing to pursue this action, since two of its members claim that they regularly use the affected bay and that their enjoyment of this use has been diminished by the pollution. The court holds that FWPCA citizen suits are governed by a five-year statute of limitations. The court holds that defendant may assert an upset defense, since the defense was included in its NPDES permit. The court holds that it cannot assess damages for alleged permit violations that are the subject of a state administrative enforcement action, since the state law is "comparable" to the federal law pursuant to FWPCA § 309(g)(6)(A).

[On October 28, 1988, the court approved a consent judgment requiring defendant to comply with its NPDES permit, pay $ 137,500 to The Nature Conservancy for acquisition of wetlands around Puget Sound, and pay $ 55,000 to cover plaintiff's attorneys fees.]

Counsel for Plaintiff
Victor M. Sher, Todd D. True, Corrie J. Yackulic
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Henry C. Jameson, Steven R. Loitz
Ferguson & Burdell
2900 One Union Square, Seattle WA 98101
(206) 622-1711

[19 ELR 20532]

Coughenour, J.:

Order on Cross Motions for Summary Judgment

THIS MATTER is before the court on the parties' cross motions for summary judgment. No party has requested oral argument.

This is an action brought by the Sierra Club ("SC") against the Port Townsend Paper Corporation ("PTPC") for violation of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. §§ 1251-1387. The SC contends that the PTPC exceeded the discharge limits set in its National Pollutant Discharge Elimination System ("NPDES") permit issued by the Washington State Department of Ecology ("DOE"). When the PTPC received its permit, it became obligated to maintain certain discharge limits and to monitor the concentrations of various substances in its effluents. It was also required to file with the DOE monthly reports of test results from effluent samples. The Discharge Monitoring Reports (DMRs) form a record of the PTPC's compliance with its permit.

These cross motions raise seven major issues. In its motion, the PTPC asserts that the Court lacks jurisdiction over this action because the PTPC was not "in violation" of its permit when the suit was filed, as required by 33 U.S.C. § 1365(a)(1). The plaintiff raises six attacks on the PTPC's defenses. The plaintiff contends that the defendant cannot prevail on its claims that the citizen suit provision of the FWPCA is unconstitutional, that the SC lacks standing to pursue this action, that the state's failure to test effluent samples is a valid defense, that the statute of limitations bars this action, that the operational upset defense applies to certain exceedances, and that enforcement actions by the DOE preclude the plaintiff from succeeding on some of its claims.

Ongoing Violations

The FWPCA limits citizen suits to actions "against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation. . . ." 33 U.S.C. § 1365(a)(1). In Gwaltney of Smithfield v. Chesapeake Bay Foundation, __ U.S. __, 108 S. Ct. 376 [18 ELR 20142] (1987), the Supreme Court considered the scope of FWPCA citizen suits and concluded that the language in § 1365 creates jurisdiction over citizen suits "when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation," Id. at 385, but the provision "does not permit citizen suits for wholly past violations." Id. at 384-385.

The Court refused to adopt the position, originally urged by the defendant in this case, that a plaintiff must prove its allegations before jurisdiction attaches. Instead, the Court noted that a defendant could successfully challenge the allegations of continuing violations in a motion for summary judgment if the defendant could prove that "the allegations were a sham and raised no issue of fact." Id. at 386 (quoting United States v. SCRAP, 412 U.S. 669, 689, 93 S. Ct. 2405, 2417 [3 ELR 20536] (1973)). "If the defendant fails to make such a showing after the plaintiff offers evidence to support the allegation, the case proceeds to trial on the merits, where the plaintiff must prove the allegation in order to prevail." Gwaltney, 108 S. Ct. at 386.

Thus, the plaintiff in a citizen suit need only allege that a defendant is in violation of the FWPCA in order for a court to obtain jurisdiction over the matter. If the defendant moves for summary judgment, the plaintiff must provide sufficient evidence to create an issue of fact concerning whether the defendant was in violation of the statute when the case was filed.

Although the Gwaltney decision does not define the phrase "is in violation," the court did state that a case could not be dismissed [19 ELR 20533] for mootness unless it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. at 386 (emphasis in original). This standard for mootness is strong evidence that the Supreme Court would also narrowly interpret the circumstances in which a motion for summary judgment on the "is in violation" issue should be granted.

The plaintiff has provided sufficient information to demonstrate that the defendant continues to violate its permit. First, the SC states that the PTPC has violated its permit at least three times since this suit was filed, and nine times since the required notice of intent to sue was sent to the defendant. Second, the defendant itself admitted that it was likely to violate its permit again in the future. Kassebaum Affidavit, Exhibit A, Defendant's Response to Interrogatory No. 35 ("[I]t is probable that there will be occasional exceedances in the future.") Third, the Supreme Court emphasized in Gwaltney that "an intermittent polluter — one who violates permit limitations one month out of every three — is just as much 'in violation' of the Act as a continuous violator." Gwaltney, 108 S. Ct. at 384. Therefore, even though defendant's recent permit violations have not been as numerous as they apparently were in the past, the PTPC still is in violation of the permit.

In its motion, the PTPC also contends that the plaintiff can only pursue this action for the types of violations that continue to recur at a defendant's facility. Specifically, the PTPC argues that the plaintiff cannot succeed on its claims for violations at certain outfalls where there have been no permit violations since this suit was filed. There is no basis in either the FWPCA or in judicial interpretations of the Act to justify the defendant's position. The FWPCA permits citizen suit actions against entities that are in violation of their permits, and it does not limit such actions to the particular types of violations that continue to occur. As the plaintiff points out, NPDES permits "apply to polluters, not to Outfalls." Furthermore, the Supreme Court has emphasized that intermittent violators are as significant a threat to water quality as are continuous violators. See Gwaltney, 108 S. Ct. at 384. Finally, the defendant has admitted that it is likely to continue to violate its permit, not merely specific parts of its permit.

Constitutionality of Citizen Suit Provision

As a blanket defense to its liability, the PTPC asserts that the citizen suit provision of the FWPCA is unconstitutional because it violates the principle of separation of powers. It asserts that in the FWPCA Congress improperly delegated to private citizens the executive branch's power to enforce the law. This theory was carefully considered and rejected in Chesapeake Bay Foundation v. Bethlehem Steel Corp., 652 F. Supp. 620 [17 ELR 20623] (D. Md. 1987). The Chesapeake Bay court noted that the Supreme Court cases relied on by the defendant, Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976), and Bowsher v. Synar, __ U.S. __, 106 S. Ct. 3181 (1986), concerned the limitation of Congress' ability to usurp traditional executive powers by delegating to itself or others under its control a duty to enforce the law. Clearly, Congress did not maintain such control over citizen suits. The Chesapeake Bay court also noted that Congress legitimately may determine who will enforce statutory rights it creates. Chesapeake Bay, 652 F. Supp. at 625-26. The court agrees with the conclusions and analysis in Chesapeake Bay.

Standing

The defendant asserts that the SC lacks standing to pursue this action. The citizen suit provision of the FWPCA permits "any citizen" to commence an action against an alleged violator of the Act. 33 U.S.C. § 1365(a). "Citizen" is defined as "a person or persons having an interest which is or may be adversely affected." 33 U.S.C. § 1365(g). The Supreme Court has held that this definition permits suits by anyone who has standing under Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361 [2 ELR 20192] (1972). Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 16, 101 S. Ct. 2615, 2624 [11 ELR 20684] (1981). Under that standard, standing is created if members of the plaintiff organization assert that they have been or will be harmed by the defendant's actions. Sierra Club v. Morton, 405 U.S. 727, 740, 92 S. Ct. 1361, 1368 [2 ELR 20192] (1972). Two Sierra Club members, Darlene Schanfald and Dr. M. Pat Wennekens claim that they regularly use the Port Townsend Bay and that their enjoyment and use of the Bay have been diminished by the pollution of the Bay. Yackulic Affidavit, Exhibit 7. Thus, the plaintiff has standing to pursue this action.

Failure to Monitor

As a defense to liability for six instances of noncompliance with the permit limits for fecal coliform concentrations, the defendant claims that the state failed to process samples that the defendant sent for testing. The plaintiff claims that the defendant cannot assert this defense because the permit and the FWPCA regulations obligate dischargers, not the state, to monitor and test effluents. The defendant has not contested the plaintiff's motion for summary judgment on this issue.

Statute of Limitations

In its answer to the plaintiff's complaint, the defendant asserted that the plaintiff improperly included claims for violations that occurred before February 23, 1985 because a two-year statute of limitations applies to FWPCA suits. The Ninth Circuit recently held that FWPCA suits are governed by a five-year statute of limitations. Sierra Club v. Chevron, U.S.A., Inc., 834 F.2d 1517, 1522 [18 ELR 20237] (1987).

Operational Upset Defense

The plaintiff requests summary judgment on the issue of whether numerous violations are excused by the "upset defense." The FWPCA regulations define an upset as an "exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee." 40 C.F.R. § 122.41(n)(1). The plaintiff asserts that the defense is unavailable to the defendant because the State of Washington has not adopted the defense as part of its NPDES program. In response, the defendant contends that it can avail itself of the defense because it was incorporated into the PTPC's NPDES permit. See Yackulic Affidavit, Exhibit 3, paragraph G12. The court concludes that the inclusion of this defense in the defendant's permit grants the defendant a right to employ the defense. The plaintiff has not provided any specific authority for its proposition that the DOE was prohibited from inserting the defense into the permit unless the state expressly adopted the defense through legislation or administrative regulations.

The plaintiff further asserts that even if the defense is available in this state, the defendant cannot use it because the violations were not "upsets" and the procedural requirements for use of the defense were not fulfilled. However, the definition of an "upset" and the issue of whether certain violations are properly characterized as "upsets" invites a factual inquiry that cannot be resolved in this motion. Furthermore, 40 C.F.R. § 122.41(n)(3) lists four procedural requirements with which a defendant must comply before the defense is available. There are factual disputes concerning whether the defendant has met those requirements.

Prior Enforcement Actions by the Department of Ecology

The PTPC contends that the court cannot assess damages for eighty-two of the claimed permit exceedances because those violations have been or are the subject of DOE enforcement actions. 33 U.S.C. § 1365(b)(1)(B) precludes citizen suits in situations where "the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court." The Ninth Circuit recently interpreted this language strictly, and held that agency action outside of a court does not preclude a citizen enforcement action. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1524-25 [18 ELR 20237] (9th Cir. 1987). It is uncontroverted thatthe DOE has not pursued any court enforcement actions against the defendant.

However, the 1987 amendments to the FWPCA further limit the ability of citizens to pursue private actions if a state has taken action against the alleged violator. As amended, 33 U.S.C. § 1319(g)(6)(A) states:

that any violation —

. . . .

(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or

(iii) for which . . . the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, [19 ELR 20534] shall not be the subject of a civil penalty under . . . section 1365 [the citizen suit provision] of this title.

Thus, in order to evaluate whether the plaintiff is precluded from proceeding on its claims pertaining to permit violations for which the DOE has already conducted enforcement activity, the court must determine whether the state law is "comparable" to the federal law. The plaintiff argues that the state and federal law are not comparable because only the federal law requires public notice of enforcement activity and an opportunity for the public to participate in the enforcement proceedings. The court agrees that the absence of public notice and participation are significant omissions from the state procedures. Nevertheless, Congress only required that the state law be "comparable," not "identical," to the federal provisions. Consequently, an exact duplication of even important federal procedures is not required. Furthermore, the court is mindful of the unfair position in which defendants would be placed were they subject to more than one enforcement action for a single permit violation. Apparently, Congress amended § 1319 in order to avoid this spectre of double jeopardy.

Accordingly, the defendant's motion for summary judgment is DENIED. The plaintiff's motion for summary judgment is GRANTED IN PART and DENIED IN PART. The plaintiff's motion is GRANTED on the constitutionality, standing, failure to test, and statute of limitations issues. The motion is DENIED in all other respects.