Northwest Envtl. Advocates v. City of Portland

No. 91-339-PA (D. Or. December 13, 1991)

The court holds that Portland, Oregon, did not violate the Federal Water Pollution Control Act (FWPCA) by discharging pollutants through combined sewer overflows (CSOs) into the Willamette River and the Columbia Slough, and that a reference to water quality standards in a 1984 national pollutant discharge elimination system (NPDES) permit issued to the city by the Oregon Department of Environmental Quality (DEQ) does not establish an enforceable control limit within the meaning of § 505(a)(1). The court first holds that the discharges of CSOs into the rivers, resulting from the city treatment plant's inundation with storm runoff and sewage flows, are covered by the 1984 NPDES permit, because the permit and its 20-year course of corrective action have been approved by the DEQ and the U.S. Environmental Protection Agency. Moreover, though the 1984 permit never specifically referenced the CSO outfall numbers, when the permit's language is examined in light of older permits issued to the city, and submitted affidavits indicating that the permit covered the entire sewer system are considered, it is "obvious" that the 1984 permit covered the CSOs. Therefore, the court holds that plaintiff environmental group is not entitled to injunctive relief or civil penalties. The court next holds that the group is not entitled to relief on its claim that the city violated the FWPCA by violating state water quality standards in the receiving waters, because the city's permit does not require compliance with the Oregon water quality standards. Though FWPCA § 505(a)(1) authorizes citizen suits for violations of effluent standards, violations of water quality standards may be actionable in a citizen suit only if they are incorporated into a NPDES permit through effluent limitations. The 1984 permit referred to state water quality standards, however, those standards were not incorporated in the permit through any effluent limitations on the CSOs. The mere reference to water quality standards in a NPDES permit does not make them effluent standards or limitations.

Counsel for Plaintiffs
Paul Fortino, Mary C. Wood
U.S. Bancorp Tower, 111 S.W.5th Ave., Ste. 2500
Portland OR 97204
(503) 295-4400
Patrick A. Parenteau
700 N.E. Multnomah St., Ste. 400, Portland OR 97232
(503) 295-4400

Counsel for Defendant
Jan L. Betz, Linda Meng, Terence L. Thatcher
315 City Hall, 1220 S.W. 5th Ave., Portland OR 97204
(503) 823-4000

[22 ELR 21347]

Panner, J.:

Opinion

Plaintiffs Northwest Environmental Advocates (NWEA) and Nina Bell, NWEA's Executive Director, bring this action against defendant City of Portland under the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. Plaintiffs seek to end defendant's discharge of raw sewage and other wastes into the Willamette River and the Columbia Slough, a tributary of the Willamette.

Pursuant to the parties' stipulation, I considered all materials filed in support of defendant's motion to dismiss and motion for summary judgment, and plaintiffs' cross motion for partial summary judgment, as submissions for a court trial on liability only with final argument on November 25, 1991. Having considered all such materials and the arguments presented, I find for defendant. These are my findings of fact and conclusions of law. Fed. R. Civ. P. 52(a).

Findings of Fact

The City's sewer system is antiquated. The majority of the system is a "combined sewer," carrying both sanitary waste and storm runoff. Sanitary waste is untreated raw sewage. Because it carries storm runoff, volume carried by the sewer system increases when it rains. Before 1947, the combined sewers dumped all flow directly into the Willamette River and the Columbia Slough.

In 1947 defendant began building interceptors in the sewer lines. The interceptors are designed to divert the sewer flow from entering the waterways and pipe the waste to a sewage treatment plant. The treated effluent from that facility is then discharged into the Columbia River. This is how the system operates today.

The interceptors, however, do not have unlimited capacity. They were designed to divert, or "intercept," three times the average dry weather flow. They can carry the anticipated flow of sanitary sewage, plus the storm water runoff from light rain storms.

Today, when more storm runoff and sewage flows through the system than the interceptors and the treatment plant can handle, the pipes that formerly discharged directly into the Willamette River and the Columbia Slough, do exactly that: discharge the excess flow directly into those bodies of water, without treatment. The actual discharge from these points, and sometimes the pipes themselves, are called "combined sewer overflows" or CSOs.

The CWA establishes the National Pollutant Discharge Elimination System (NPDES), under which permits for discharges into navigable waters are issued by the Administrator of the Environmental Protection Agency (EPA). The permit system may also be administered by a state if the state program is approved by the EPA Administrator. 33 U.S.C. § 1342(b).

Oregon's federally approved NPDES program is administered by the Department of Environmental Quality (DEQ) and DEQ's parent commission, the Environmental Quality Commission (EQC). NPDES permits are issued for five-year periods. DEQ issued NPDES permits to defendant for defendant's sewer system in 1974, 1979, and 1984. A major issue in this case is whether the 1984 permit covered the CSO discharges. As discussed below, I find that the 1984 permit did cover the discharges.

The 1984 permit was due to expire in July 1989. It stayed in effect after that date during the renewal process. Or. Admin. R. 340-14-030. In December 1990, DEQ provided defendant with a preliminary draft permit which incorporated some CSO requirements that EPA had issued in a September 1989 "National Combined Sewer Overflow Control Strategy." DEQ required defendant to complete a facilities plan and time schedules for elimination of CSOs.

Defendant maintained that it could not eliminate the CSOs during the period of the next five-year permit. Defendant and DEQ began discussing the use of a compliance order outside of the permit to provide a longer than five-year schedule for elimination of the CSOs. In August 1991, DEQ issued defendant a renewed NPDES permit for [22 ELR 21348] its sewer system. Simultaneously, the EQC approved a Stipulation and Final Order (SFO) addressing defendant's CSOs.

The SFO requires defendant to develop a plan and institute significant changes in its sewer system. Defendant must have a final facilities plan in 1994. The plan must be designed to attain compliance with applicable water quality standards at all CSOs either by December 1, 2006 or December 1, 2011.

Conclusions of Law

Plaintiffs raise two causes of action: (1) they allege that defendant has violated the CWA by discharging pollutants into navigable waters through the CSOs without an NPDES permit, (the permit claim); and (2) that defendant violated the CWA by violating state water quality standards in the receiving waters, (the water quality claim).

Plaintiffs seek: (1) a declaration that defendant is in violation of the CWA; (2) an injunction setting a date for full compliance with the CWA and establishing a comprehensive schedule with "milestones adequate to ensure that the ultimate goal is met;" (3) civil penalties; and (4) attorney's fees.

I. Permit Claim

A. Injunctive Relief

Plaintiffs filed suit in March 1991, before the August 1991 renewal of the NPDESpermit and the issuance of the SFO. Defendant argues that the request for injunctive relief under this claim is moot because it now discharges waste from the CSOs under a valid NPDES permit.

Plaintiffs concede that the CSOs are covered by the 1991 permit. Thus, the claim for injunctive relief insofar as it seeks to have the CSO discharges covered by a current permit, is moot.

Nonetheless, plaintiffs maintain that their request for injunctive relief on this claim is not completely moot. They contend that a mootness defense is available to defendant regarding injunctive relief only when actual corrective action has been taken to abate the underlying behavior so that it could not reasonably be expected to recur. Because, plaintiffs maintain, the SFO's corrective action will take twenty years, defendant cannot prove that the discharges will not recur.

I agree with defendant. The CSOs are covered by the 1991 permit. The permit has been approved by DEQ and EPA. The corrective action is the SFO. The fact that it will take twenty years is regrettable. However, that is the course of action approved by DEQ. There simply is no present permit violation upon which to fashion injunctive relief.

B. Civil Penalties

Defendant argues that if the injunctive relief request is moot, the civil penalty portion of the permit claim is also moot. Alternatively, defendant argues that plaintiffs are barred from seeking civil penalties because the state commenced an enforcement action regarding the CSOs before plaintiffs initiated this suit, the state is diligently prosecuting the action, and the prosecution is occurring under a state law comparable to the federal penalty scheme found in section 309(g) of the CWA. 33 U.S.C. § 1319(g)(6).

I need not consider these arguments. Even if the request for civil penalties is not moot and section 1319(g)(6) does not bar plaintiffs' claim for penalties, defendant's NPDES permits cover the CSO discharges. There have been no unpermitted CSO discharges.

A five-year statute of limitations period applies to citizen enforcement actions under the CWA. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521 [18 ELR 20237] (9th Cir. 1987). At issue here is the validity of the 1984 permit only. Nonetheless, language from the two earlier permits is relevant.

The 1974 permit allowed the discharge of treated effluent into the Columbia River from the treatment plant. Eimstad Aff., Exh. A. at 1. It also separately stated:

S6. The permittee shall provide interception of at least three times the dry weather flow before discharge shall occur at all diversion structures. Discharge at overflow points 003 through 066 is permitted when the flow at diversion structures exceeds three times the dry weather flow. The overflow from these diversion structures shall be minimized and/or eliminated as much as practicable to coincide with the water recreation season (June 1 to October 31 of each year) and in accordance with the infiltration-inflow plan adopted under Condition S2.

Id. at 2. Overflow points 003-066 are the CSOs. The 1979 permit, after identifying one outfall from the treatment plant as the only "source covered by this permit," contained language similar to the quoted passage from the 1974 permit. Id., Exh. B at 2.

The 1984 permit listed two outlets from the treatment plant as "sources covered by this permit." Id., Exh. C at 1. Unlike the previous two permits, the 1984 permit never referenced any other outfall numbers. Thus, the CSOs were not specifically identified in the permit. The 1984 permit did, however, without mentioning the specific outfall numbers, contain a passage similar to that in the 1974 and 1979 permits:

4. The permittee shall provide interception of at least three times the dry weather flow before discharge shall occur at any diversion structure. The overflow from these diversion structures shall be minimized and/or eliminated as much as practicable during the water recreation season (June 1 to October 31).

Id. at 2. The difference between the 1974 and 1979 permits on the one hand and the 1984 permit on the other is that the older permits specifically cited outfalls 003-066 amidst this nearly identical language.

Defendant argues that the 1984 permit covered the CSO discharges. Defendant acknowledges that the 1984 permit did not, as did the previous permits, reference the CSOs by outfall number. Defendant contends that the prior permits show that DEQ knew what diversion structures were, where they were, and how they worked when the 1984 permit was issued. When the 1984 permit is examined in light of the older permits, defendant maintains it is apparent that the 1984 permit simply used a shorthand method of referring to the same discharges.

Defendant further relies on the affidavit of Harold Sawyer, former Water Quality Division Administrator for DEQ. Sawyer oversaw Oregon's NPDES permit program until 1986. He states that Portland's entire sewer system, including CSO outfalls, was permitted by Portland's 1984 NPDES permit and by its prior NPDES permits. Sawyer Aff. at 2. He also states that combined sewer overflows that occurred after interception of three times dry weather flow were not considered to be violations of Portland's 1984 NPDES permit or any of its prior NPDES permits. Id.

Additionally, the final SFO states that:

[Defendant's] prior NPDES permit, issued on September 18, 1984, did not expressly identify the combined sewer overflow discharge points that are part of the sewer system. Prior to the development of the [DEQ's] final draft "Oregon Strategy for Regulating Combined Sewer Overflows (CSOs)" on February 28, 1991, as a matter of policy the [DEQ] did not always list CSO discharge points in an NPDES permit but, in many instances, issued permits for an entire sewer system. EPA's Region 10 office approved the issuance of such permits.

[Defendant's] 1984 NPDES permit is a permit for the sewer system, which includes CSO outfalls, but did not contain specific effluent limitations for CSOs.

Eimstad Aff., Exh. H at 2 - 3. Defendant argues that this demonstrates DEQ's intent that the 1984 permit covered the CSOs. Plaintiffs argue that because the CSOs were not listed under the "sources covered by this permit" section of the 1984 permit, that the plain language covered only the two outfalls from the treatment plant. Plaintiffs maintain that the subsequent permit language regarding diversion structures and the prohibited flow below three times the dry weather flow, should not override the clear language on the face of the permit setting forth the sources covered by the permit.

Plaintiffs also argue that the fact that the 1984 permit purported to cover defendant's entire sewer system does not mean that it covered the CSOs. Plaintiffs rely on Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 592 [11 ELR 20211] (D.C. Cir. 1980) for the proposition that CSOs are not considered part of a "treatment works." "Treatment works" refers to a device or system used in the treatment of sewage or wastes. Id. at 590 n. 17. It includes sewers, pipes, etc. only if they convey wastewater to a treatment plant. Id. The problem with plaintiff's argument then, is that a sewer system that has CSOs, [22 ELR 21349] which do not convey wastewater to a treatment plant, is broader than a "treatment works." Thus, the fact that CSOs are not considered part of a "treatment works," does not mean that they are not part of a sewer system covered by an NPDES permit.

Plaintiffs rely on two documents suggesting that the 1984 permit did not cover the CSOs. First, they cite a February 1988 letter written by defendant's Bureau of Environmental Services's Chief Engineer W. C. Gaffi in which he states, in part:

The City supports ODEQ's position to permit the CSO outfalls through a modification to the existing treatment plant permit. This approach should achieve the same goal as individual CSO permits and reduce the administrative cost of doing so.

Parenteau Decl., Exh. 16. According to plaintiffs, if the 1984 permit covered the CSOs, there would have been no need to state that they should be permitted through a modification to the "existing treatment plant permit."

Plaintiffs also rely on a February 1991 document entitled "Oregon's Strategy for Regulating Combined Sewer Overflows (CSOs)," written by DEQ in response to EPA's National Combined Sewer Overflow Strategy. It states, in part:

1. The City of Portland: 12 CSOs to the Columbia Slough and 43 to the Willamette River. None of these outfalls are covered by a permit, however, all are proposed to be addressed in the Portland Columbia Blvd STP permit renewal.

Parenteau Decl., Exh. 13 at 5. Plaintiffs rely on this language to argue that the CSOs were not covered by the 1984 permit.

To refute this argument, defendant submits the affidavit of Barbara Burton, the author of the Oregon strategy document. She states that the language "none of these outfalls are covered by a permit" meant only that the CSOs were not individually listed and assigned effluent limitations. Burton Affidavit at 2. Her understanding was that the 1984 permit was for the entire sewer system including the CSOs. Id.

Plaintiffs' strongest argument rests with Gaffi's letter. A fair reading of the letter suggests that at least Gaffi himself did not view the 1984 permit as covering the CSOs. Nonetheless, I agree with defendant that the 1984 permit covered the CSOs.

First, the permit covered the entire sewer system which, as explained above, includes the CSOs. Additionally, to construe the permit as plaintiffs suggest would render the language limiting the discharges in summer and prohibiting discharges of less than three times the average the dry weather flow, entirely meaningless. It is obvious from the 1974 and 1979 permits that this language was meant to address CSO discharges. I am also persuaded by Sawyer's affidavit as well as Burton's explanation that "none of these outfalls are covered by a permit" meant only that none of the CSOs was covered by an individual permit.

Gaffi's letter, though capable of suggesting that the permit did not cover the discharges, is not persuasive enough in the face of the common sense reading of the permit, which when examined in context with the older permits and when construed to give the language limiting discharges meaning, directs a conclusion that the 1984 permit covered the CSO discharges.

II. The Water Quality Claim

In this claim, plaintiffs argue first that defendant violated the CWA because the unpermitted CSO discharges violated Oregon water quality standards. Alternatively, plaintiffs maintain that even if the CSOs were discharging pursuant to the 1984 permit, defendant violated the permit conditions because the permit itself required compliance with Oregon water quality standards. Because the 1984 permit covered the CSO discharges, I need only consider plaintiffs' alternative argument.

The CWA authorizes citizen suits "(1) against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter. . . ." 33 U.S.C. § 1365(a)(1) (emphasis added). According to defendant, plaintiffs cannot maintain their water quality claim because water quality standards do not equal "effluent standards or limitations under this chapter."

Generally, the term "effluent limitation" means "any restriction established by a State . . . on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters,. . . ." 33 U.S.C. § 1362(11). The Ninth Circuit has described water quality standards as follows:

States establish water quality standards that specify the uses to be made of a body of water and the maximum levels of pollutants allowable in view of those uses. Water quality standards are designed to ensure the survival of wildlife in navigable waters and to protect recreational activities in and on the water. 33 U.S.C. § 1312(a). . . . [W]ater quality-based limitations relate to the environmental effects of different effluent levels.

Sierra Club v. Union Oil Co. of Calif., 813 F.2d 1480, 1489 [17 ELR 20547] (9th Cir. 1987), vacated on other grounds, 485 U.S. 931 (1988).

As described by the Second Circuit in a case discussing the EPA's approval of state water quality standards, water quality standards were the "keystone of the federal pollution control program" prior to the 1972 enactment of amendments to the Federal Water Pollution Control Act (now known as the Clean Water Act). Bethlehem Steel v. Environmental Protection Agency, 538 F.2d 513, 515 [6 ELR 20597] (2d Cir. 1976). "If wastes discharged into receiving waters reduced the quality below permissible standards, legal action could be commenced against the discharger." Id. (citation omitted).

Dissatisfaction with the water quality standards as a method of adequate pollution control enforcement led to their replacement with "effluent limitations." Id. "Instead of indirectly measuring discharges by their effect on water quality, monitoring equipment would directly measure discharges at their source." Id. (citation omitted) (emphasis in original). The court noted that althoughwater quality standards and effluent limitations are related, they are entirely different concepts. Id.

The 1984 permit provided that "[n]otwithstanding the effluent limitations established by this permit, no wastes shall be discharged and no activities shall be conducted which will violate Water Quality Standards as adopted in [Oregon Administrative Rule 340-41-445]. . . ." Eimstad Aff., Exh. C at 2.

Plaintiffs argue that they may maintain a suit for water quality violations pursuant to 33 U.S.C. § 1365(f)(6), defining section 1365(a)(1)'s "effluent limitation or standard under this chapter" as a violation of an NPDES "permit or condition thereof." Because, plaintiffs argue, the prohibition on violating water quality standards is a condition of the 1984 permit, defendant may be sued for violations of that condition under section 1365(a)(1).

In 1988, the Eastern District of California held that "a state water quality standard can constitute an effluent standard or limitation enforceable under [section 1365(a)(1)] only if it has been incorporated into an NPDES permit." McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1200 [19 ELR 20124] (E.D. Cal. 1988). Given the distinction between effluent limitations and water quality standards discussed above, and the problems with analyzing violations of water quality standards as opposed to effluent limitations, this holding is best interpreted to mean that state water quality standards can constitute effluent standards, violations of which may be actionable in a citizen suit, only if they are incorporated into an NPDES permit through effluent limitations.

Here, though the 1984 permit referred to state water quality standards, those standards were not incorporated in the permit through any effluent limitations on the CSOs. Contrary to plaintiffs' assertions, the lack of effluent limitations in the permit did not leave plaintiffs without a remedy. They could have challenged the sufficiency of the permit through the appropriate channel — an action filed in state court. See 33 U.S.C. § 1365(a)(1) (no basis for citizen suits to challenge state issued NPDES permits in federal court).

I agree with defendant that the mere reference to water quality standards in a permit does not make them "effluent standards or limitations" for purposes of sections 1365(a)(1) and (f). I also agree with defendant that plaintiffs' argument is nonsensical in that, according to plaintiffs, the 1984 permit allowed the CSO discharges but simultaneously rendered each discharge a violation of the permit through violations of water quality standards. It is extremely unlikely that DEQ would have put defendant in such an impossible position.

Conclusion

I find for defendant on plaintiffs' first and second causes of action.