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denying defendant's motion for summary judgment for failure to demonstrate that the Port's NPDES permit applied to defendant; taking note that “[d]efendant does not point to any place in the Port's NPDES permit stating that it covers defendant's activities”
Summary of this case from S.F. Baykeeper v. W. Bay Sanitary Dist.Opinion
ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
WILLIAM B. SHUBB, District Judge.
Plaintiff California Sportfishing Protection Alliance ("CSPA") filed this action against defendant California Ammonia Company d/b/a Calamco ("Calamco") alleging four causes of action under the Federal Water Pollution Control Act, commonly known as the Clean Water Act, 33 U.S.C. §§ 1251 et seq. ("CWA" or "Act"). Currently before the court are defendant's motion for partial summary judgment on the first and fourth causes of action, or in the alternative summary adjudication, and plaintiff's motion for summary judgment with respect to the second and third causes of action. The court will deny both motions for reasons set forth in this order.
I. Factual and Procedural Background
Plaintiff CSPA is a non-profit public benefit corporation organized under the laws of the State of California. (Compl. ¶ 8.) Plaintiff's mission is to protect the wildlife and natural resources of the waters of California. (Id.) Plaintiff's members reside in the Sacramento-San Joaquin Delta ("Delta") and San Francisco Bay area and use and enjoy the Delta for recreational and other activities. ( Id. ¶ 9.)
Defendant Calamco is a non-profit corporation that operates a facility on twenty-two acres of land leased from the Port of Stockton in Stockton, California. (Pl.'s Statement of Disputed and Undisputed Facts # 1.) Defendant's facility is located in the Port's East Complex, a parcel consisting of some 640 acres. (Id.) Defendant primarily receives and stores ammonia products prior to distribution to its cooperative members. ( Id. # 2). These products include anhydrous ammonia and urea ammonium nitrate (UN-32). (Id.)
Congress enacted the CWA in 1972. The CWA's stated objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Congress created the National Pollutant Discharge Elimination System ("NPDES") permit program as part of the CWA and thereby authorized the Environmental Protection Agency ("EPA" or "Agency") and state agencies with approved water quality programs to "regulate[] point sources of pollution that reach the waters of the United States." 33 U.S.C. § 1342(a)-(b); County Sanitation Dist. No. 2 v. County of Kern , 127 Cal.App.4th 1544, 1562 n.18 (2005). "[O]n May 14, 1973, California became the first state to be approved by the EPA to administer the NPDES permit program." County of Kern , 127 Cal.App.4th at 1565-66; 39 Fed. Reg. 26061 (July 16, 1974).
In 1996, defendant applied for and received a NPDES permit, NPDES Permit No. CA0083968, in connection with its use of water from the San Joaquin River to warm ammonia as it is being processed. (Pl.'s Statement of Disputed and Undisputed Facts # 3.) Defendant's NPDES permit was terminated as of October 27, 2006, when defendant discontinued the use of river water to warm ammonia. Cal. Reg'l Water Control Bd. Order No. R5-2006 (Central Valley Reg'l Oct. 27, 2006).
Defendant's NPDES permit authorized it to discharge contaminants in storm water as long as defendant met several requirements. One, defendant must have implemented Best Available Technology ("BAT") and Best Conventional Pollutant Control Technology ("BCT") to reduce or eliminate industrial storm water pollution. (NPDES permit ¶ 28.) Two, defendant must have developed and administered its Storm Water Pollution Prevention Program ("SWPPP") in accordance with the requirements of Attachment C to the permit. ( Id. ¶ 19.) Three, defendant must have not discharged materials other than storm water, which were not otherwise authorized by the permit, into surface water or surface water drainage courses. ( Id. (A)(3).) Four, defendant must have not caused certain listed conditions in the receiving water. ( Id. (C)(1)-(13).) Five, defendant must have complied with the Monitoring and Reporting Program ("MRP") attached to its permit. ( Id. Monitoring and Reporting Program No. 96-201.)
Defendant captures some of the storm water that falls onto its facility for reuse in its industrial processes. (Pl.'s Statement of Disputed and Undisputed Facts # 6.) The rest of the water flows into the Port's Municipal Separate Storm Sewer System ("MS4"). (Morris Decl. Ex. I 59:1-12.) Defendant's storm water runoff enters the Port's East Complex storm water retention basin through a series of culverts and ditches that serve other tenants of the Port's East Complex and are a part of the MS4. (Pl.'s Statement of Disputed and Undisputed Facts # 8.) This man-made basin ("detention pond"), which is approximately 12.75 acres in area, was added in 1998 as a structural control device. ( Id. # 12). Storm water remains in this basin for some period of time before discharge into the San Joaquin River, allowing for the Port to sample the water and control the discharges into the San Joaquin River, and to allow some pollutants to settle or dissipate. ( Id. # 9-10, 12-20.) Water from the detention pond is discharged via a pipe to a pool. ( Id. # 15.) Water in that pool then flows through an outfall under the levee into the San Joaquin River. (Id.)
Plaintiff notes that prior to the construction of the detention pond in 1998, storm water from the defendant's facility entered the San Joaquin untreated in violation of the NPDES permit. (Pl.'s Statement of Disputed and Undisputed Facts # 12.) Because this action is governed by a five-year statute of limitations, the truth of that assertion is irrelevant. 28 U.S.C. § 2462; Chesapeake Bay Found. v. Bethlehem Steel Corp. , 608 F.Supp. 440, 450 (D. Md. 1985).
On February 24, 2005, plaintiff provided several federal and state agencies with "notice of Defendant's violations of the Act, and of its intention to file suit against Defendant." (Compl. ¶ 2); see also 33 U.S.C. § 1365(b)(1)(A) (requiring plaintiffs to give 60 days notice to designated entities before filing a citizen's suit under the act). Plaintiff alleges that none of the agencies authorized to litigate this matter elected to do so. ( Id. ¶ 3.) Accordingly, plaintiff filed this suit on May 13, 2005, pursuant to the citizen's action provision of the CWA. 33 U.S.C. § 1365. Plaintiff brings four causes of action, alleging violations of sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311, 1342, and the conditions of defendant's NPDES permit. In the first claim, plaintiff alleges that defendant discharged materials other than storm water. In the second claim, plaintiff alleges that defendant failed to develop and implement an adequate SWPPP, BAT, and BCT. In the third claim, plaintiff alleges that defendant violated the terms of its permit by failing to develop and implement an effective monitoring program. In the fourth and final claim, plaintiff alleges that defendant discharged contaminated storm water.
On October 17, 2006, defendant filed a motion for summary judgement, or in the alternative summary adjudication, on plaintiff's first and forth causes of action. Defendant argues that plaintiff's complaint is insufficient because plaintiff has failed to allege what the receiving water is in which defendant supposedly made an unauthorized discharge and plaintiff has not produced any evidence that defendant has caused any exceedances of pollutants in the receiving water. On November 1, 2006, plaintiff filed a motion for partial summary judgment on the second and third causes of action. Plaintiff argues that it is entitled to summary judgment on these claims as a matter of law because defendant's shortcomings in its implementation of SWPPP, BAT, BCT, and the monitoring program violate its NPDES Permit.
II. Discussion
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). Alternatively, the movant can demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the non-moving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The non-movant "may not rest upon... mere allegations or denials of the adverse party's pleading...." Fed.R.Civ.P. 56(e); Valandingham v. Bojorquez , 866 F.2d 1135, 1137 (9th Cir. 1989). However, any inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Additionally, the court must not engage in credibility determinations or weigh the evidence, for these are jury functions. Anderson , 477 U.S. at 255.
Defendant has moved, in the alternative, for summary adjudication. While caselaw exists suggesting that a party may move for summary adjudication of issues, see, e.g., Barker v. Norman , 651 F.2d 1107, 1123 (5th Cir. 1981); First Nat'l Ins. Co. v. Fed. Deposit Ins. Corp. , 977 F.Supp. 1051 (S.D. Cal. 1997), this is not the type of motion originally contemplated by Rule 56. Moreover, motions for summary adjudication of issues request that the court resolve issues that dispose of neither a party nor a claim, and seldom accomplish anything. Importantly, defendants do not distinguish between their general request for summary judgment and particular issues apt for summary adjudication. Therefore the court's following discussion applies to both requests.
The plaintiff movant "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original); see also Arnett v. Myers , 281 F.3d 552, 561 (6th Cir. 2002) ("a substantially higher hurdle must be surpassed, particularly where... the moving party bears the ultimate burden of persuasion... at trial").
A. Plaintiff's Standing
Standing is "an essential and unchanging part" of the Article III case-or-controversy requirement, and is a threshold jurisdictional issue in every federal case. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992); Warth v. Seldin , 422 U.S. 490, 498 (1975). Consequently, to come into federal court, litigants must establish "(1) an injury in fact' that is (2) fairly traceable' to the [defendant's actions] that he challenges, and (3) that is likely [to be] redressed by a favorable decision.'" Jackson v. Cal. Dep't of Mental Health , 399 F.3d 1069, 1071 (9th Cir. 2005) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc. , 528 U.S. 167, 180-81 (2000)). An organization representing its members can meet the first standing requirement if a member can aver specific facts that show he or she has suffered an injury in fact. Laidlaw , 528 U.S. at 181.
Defendant challenges plaintiff's ability to show an injury in fact because plaintiff's affidavits from Messrs. Fries, Holt, and Jennings demonstrate plaintiff would suffer an injury for pollutants in the San Joaquin River, but not for pollutants in the Port's drains, channels, and detention pond. Defendant proffers admissions by plaintiff that no members of CPSA use the Port's detention pond or the ditches and pipes that take defendant's storm water to that pond for recreational or any other purpose. (Morris Reply Decl. Ex. AA.) The Supreme Court has held that "environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Laidlaw , 528 U.S. at 181 (quoting Sierra Club v. Morton , 405 U.S. 727, 735 (1972)). As water from the Port's detention pond is pumped into the San Joaquin River, plaintiff demonstrates an injury by averring that their use and enjoyment of the San Joaquin has been curtailed because of defendant's activities. Natural Res. Def. Council v. Sw. Marine, Inc. , 236 F.3d 985, 994 (9th Cir. 2000).
To establish that the injury is fairly traceable to defendant's activities, plaintiff need only show that defendant "discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern." Id., 236 F.3d at 994. There is no requirement to pinpoint the "origins of particular molecules." Id . If defendant violated the CWA, there is a sufficient relationship between plaintiff's injury and defendant's activities.
Should the court find that defendant failed to comply with the CWA, and impose civil penalties, it is well established that would sufficiently redress the injuries of which plaintiff complains. P.I.R.G. v. Powell Duffryn Terminals, Inc. , 913 F.2d 64, 73 (3d Cir. 1990) ("The general public interest in clean waterways will be served in this case by the deterrent effect of an award of civil penalties.").
Defendant argues at length that plaintiff has failed to conclusively establish standing with respect to the second and third causes of action. (Def.'s Opp'n 9-23.) Defendant specifically argues that even if standing is found for the first and forth causes of action, standing does not automatically extend to the second and third causes of action. (Def.'s Opp'n 10 (citing Parker v. Scrap Metal Processors, Inc. , 386 F.3d 993 (11th Cir. 2004).) In Parker, the Eleventh Circuit conducted separate standing analyses for plaintiff's claims under the CWA and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901. 386 F.3d at 1002-04. The court fails to see how this authority supports the proposition that it must conduct separate standing inquiries for all four causes of action when all four were brought under the same statutory provisions, 33 U.S.C. §§ 1311, 1342. See Natural Res. Def. Council v. Sw. Marine, Inc. , 39 F.Supp.2d 1235, 1240 (S.D. Cal. 1999) ("If a plaintiff has Article III standing to seek at least one remedy [under the CWA], that plaintiff has standing to seek other available remedies even if a court would conclude that that same plaintiff would not have standing with respect to an additional remedy otherwise insufficient."). The court concludes that plaintiff has standing to maintain this action.
B. Defendant's Motion for Summary Judgment
Defendant moves for summary judgment on plaintiff's first and fourth causes of action, or in the alternative summary adjudication. In the first cause of action, plaintiff alleges that defendant discharged materials other than storm water in violation of the CWA. In the fourth cause of action, plaintiff alleges that defendant discharged contaminated storm water.
The CWA makes it unlawful for any person or entity to "discharge any pollutant" without an NPDES permit or in violation of the provisions of an existing permit. 33 U.S.C. § 1311(a), § 1342(a). "Discharge of any pollutant" is defined as "any addition of any pollutant to navigable waters from a point source." § 1362(12)(a). The CWA defines "navigable waters" as "the waters of the United States, including the territorial seas." § 1362(7).
The Agency has further defined "waters of the United States" in its governing regulations at 40 C.F.R. 122.2. Specifically, "Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States." 40 C.F.R. 122.2.
40 C.F.R. 122.2 Reads: Waters of the United States or waters of the U.S. means:
To qualify for the exclusion from the definition of waters of the United states under 40 C.F.R. 122.2, a treatment pond must be designed to meet the requirements of the CWA. Courts have struggled to ascertain exactly what this means. The Second Circuit noted in United States v. TGR Corp. , 171 F.3d 762, 765 (2d Cir. 1999), that the "regulations provide that this exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States.'" (citing 40 C.F.R. 122.2). The TGR Corp. court held that a particular brook could not be considered a "waste treatment system" because it was not a man-made storm water system and was instead a "natural tributary of a navigable water." Id . (affirming the district court's conclusion, which the district court reached after a one-day bench trial).
However, the portion of the regulation to which the Second Circuit cites was suspended by the EPA in 1980. 45 Fed. Reg. 48620 (July 21, 1980) (suspending, "This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States."). The Agency's purpose with that sentence "was to ensure that dischargers did not escape treatment requirements by impounding waters of the United States and claiming the impoundment was a waste treatment system, or by discharging wastes into wetlands." Id . Industry petitioners argued that "the language of the regulation would require them to obtain permits for discharges into existing waste treatment systems, such as power plant ash ponds, which had been in existence for many years." Id . The Agency also had "issued permits for discharges from, not into, these systems." Id . The current regulations continue this suspension. 40 C.F.R. 122.2 n.1.
The United States District Court for the Northern District of California found significance with the word "designed" in the regulations. N. Cal. River Watch v. City of Healdsburg, No. 01-4686, at *33-34 (N.D. Cal. Jan. 23, 2004), aff'd, 457 F.3d 1023 (9th Cir. 2006). In Healdsburg, the City argued that a pond, formed by an old gravel mining pit, acted as percolating filter so that the city was entitled to the waste treatment exception. Id. at *34. After a four-day bench trial, the District Court held that the City was not entitled the exception because the pond "itself was not designed' to meet the requirements of the Clean Water Act or designed' to be part of the waste-treatment system." Id . Because the pond pre-existed the CWA and pre-existed the city's treatment plant, the court found that the pond was not "designed" with sewage disposal in mind. Id.
In affirming, the Ninth Circuit held that the "waste treatment system exemption was intended to exempt either water systems that do not discharge into waters of the United States or waters that are incorporated in an NPDES permit as part of a treatment system." Healdsburg, 457 F.3d at 1031-32 (citing 44 Fed. Reg. 32858 (June 7, 1979)); In the Matter of: Borden, Inc./Colonial Sugars, 1984 1 E.A.D. 895 (E.P.A. 1984)). The Ninth Circuit held that while the pond may be part of a waste treatment system, "it does not fall under the exemption because it is neither a self-contained pond nor is it incorporated in an NPDES permit as part of a treatment system." Healdsburg, 457 F.3d at 1032.
The Ninth Circuit counsels that "this exception was meant to avoid requiring dischargers to meet effluent discharge standards for discharges into their own closed system treatment ponds." Healdsburg, 457 F.3d at 1032 (citing 45 Fed. Reg. 48620 (July 21, 1980)). "Regulations under the CWA, however, still extend to discharges from treatment ponds." Id . This court is bound by the Ninth Circuit and concludes that the waste treatment exemption would apply to waters that are incorporated into an NPDES permit as part of a treatment system. Id. at 1031-32.
The key question is whether the Port's detention pond is a treatment system covered by a valid NPDES permit. Defendant bears the burden to prove that the exception applies to its activities. Healdsburg, 457 F.3d at 1031. Defendant asserts that the Port's detention pond constitutes a treatment system covered by the Port's NPDES permit. (Def.'s Mot. for Summ. J. 12.) The Port's NPDES permit refers to the Port's detention pond as the "East Complex retention basin." (Wall Decl. Ex. A ¶ 9.) The detention pond discharges from a "point source" into the San Joaquin River, a water of the United States. (Id.) The Port's NPDES permit envisions "a cooperative partnership" between the Port and defendant to control pollutants in storm water discharges. ( Id. ¶ 24 (citing 58 Fed. Reg. 61157).) The Port's NPDES permit requires it to apply "best management practices that reflect BAT/BCT to minimize or avoid [discharges of the specified pollutants.]" ( Id. § A.5.)
Plaintiff raises several doubts as to whether defendant has met its burden. Specifically, plaintiff argues that the Port requires its tenants to abide by their own NPDES permits. (Pl.'s Opp'n 15-16.) Evidence submitted by the plaintiff indicates that the Port may not contemplate application of the Port's NPDES permit to defendant's activities. Specifically, a port official testified that "the port requires their tenants to comply with their NPDES permits." (See Lozeau Supp. Dec. Ex. C.) Defendant includes the Port's NPDES permit without explaining its application to defendant. (See Wall Decl. Ex. A.) Defendant does not point to any place in the Port's NPDES permit stating that it covers defendant's activities. Although this is a question of law, "[c]ourts are entitled to assistance from counsel, and an invitation to search without guidance is no more useful than a litigant's request to a district court at the summary judgment stage to paw through the assembled discovery material." Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys. , 309 F.3d 433, 436 (7th Cir. 2002) (citing United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in" the record.)). Accordingly, the court must deny defendant's motion for summary judgment for failure to demonstrate that the Port's NPDES permit applies to defendant.
Moreover, plaintiff raises doubts as to whether the detention pond constitutes a best management practice ("BMP"). The Port's NPDES permit requires use of BMPs reflecting BAT/BCT. (Wall Decl. Ex. A § A.5.) BMPs are defined in the CWA. 33 U.S.C. § 1314(e); see also 40 C.F.R. 122.2. The CWA also gives as guidance for BAT several factors, including "the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, [and] non-water quality environmental impact." 33 U.S.C. § 1314(b)(2)(B) (the factors for assessing BCT are defined at 33 U.S.C. § 1314 (b)(4)(B) and are similar). In order for the Port's detention pond to be a "waste treatment system, " it must comply with the CWA. 40 C.F.R. 122.2. The CWA prohibits discharge of any pollutant in violation of the provisions of an existing NPDES permit. 33 U.S.C. § 1311(a), § 1342 (a). The Port's NPDES permit requires the use of BMPs that reflect BAT/BCT, and the Ninth Circuit has held that for the waste treatment exemption to apply, there must be a treatment system incorporated into an NPDES permit. Healdsburg, 457 F.3d at 1031-32.
BMPs are "schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the United States.'" 40 C.F.R. 122.2 "BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage." Id.
Therefore, to be a waste treatment system as reflected by the terms of the Port's NPDES permit and consequentially for the waste treatment exemption to apply here, the Port's detention pond must be a BMP reflecting BAT/BCT. Defendant cites an Agency publication indicating that a detention pond is an effective BMP. (Wall Decl. Ex. E.) Plaintiff's expert argues that through evaporation, the detention pond may increase the concentration of some pollutants. (Lozeau Supp. Decl. Ex. D.) Further, Thomas Trexler, an expert for the defendant, argues that the grass and weeds in the detention pond reduce oil and grease as those materials would adhere to the grass and weeds. (Lozeau Supp. Decl. Ex. F.) Plaintiff's expert offers photographic evidence that the detention pond is almost completely unvegetated along its sides. (Bond Decl. Exs. F, G.) Plaintiff's evidence raises a disputed material fact as to whether the Port's detention pond is a BMP reflecting BAT/BCT. Since the court has concluded as matter of law that Port's detention pond must meet that requirement under the provisions of its NPDES permit for the waste treatment exception to apply, the court must deny defendant's motion for summary judgment as a disputed question of material fact remains.
Lastly, the EPA's intent in promulgating the waste treatment exemption was to prevent entities from claiming the exemption by simply impounding "waters of the United States." 45 Fed. Reg. 48620. Plaintiff argues that the Port's detention pond is simply that, an impoundment of "waters of the United States." (Pl.'s Opp'n at 25-26.) Specifically, plaintiff argues that the drains and channels that empty into the Port's detention pond are themselves "waters of the United States." The EPA's mandate and logic would dictate that something does not lose its status as a water of the United States by impoundment. See W.Va. Coal Ass'n v. Reilly, 782 F.Supp. 1276, 1289-90 (S.D.W.Va. 1989.) (instream treatment ponds are method for treating pollutants resulting from coal mining in which the flow of a natural stream is interrupted to construct treatment ponds; since the pond interrupts a stream it is a water of the United States); Nat'l Wildlife Fed'n v. Consumers Power Co. , 862 F.2d 580, 589 (6th Cir. 1988) (power company's "facility merely changes the movement, flow, or circulation of navigable waters when it temporarily impounds waters from Lake Michigan in a storage reservoir, but does not alter their character as waters of the United States").
Plaintiff's argument depends on this court concluding that the drains and channels flowing into the Port's detention pond are "waters of the United States." The storm water flowing from defendant's facility to the Port's drains and channels would not be considered "waters of the United States" if the Port's detention pond is a treatment facility covered by a NPDES Permit. Healdsburg, 457 F.3d at 1032 (dischargers need not meet effluent discharge standards for discharges into their treatment ponds but only from them). The situation here is materially different from an instream treatment pond or withdrawing water from a lake. All of the storm water on defendant's facility flows to the detention pond prior to it being pumped into the San Joaquin River. Those waters never obtained the status of "waters of the United States" if the waste treatment exemption applies, distinguishing the cases mentioned above. Although the court will deny defendant's motion for summary judgment, the court does not deny the motion on these grounds.
C. Plaintiff's Motion for Partial Summary Judgment
The CWA imposes a duty on the NPDES holder to comply with the terms of its Permit. 40 C.F.R. 122.41 ("The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application.") Plaintiff moves for summary judgment on the second and third causes of action. In the second cause of action, plaintiff alleges that defendant failed to develop and implement an adequate SWPPP, BAT, and BCT. In the third cause of action, plaintiff alleges that defendant violated the terms of its permit by failing to develop and implement an effective monitoring program.
As previously mentioned, several factors need to be considered to assess BAT-compliance, including "the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, [and] non-water quality environmental impact." 33 U.S.C. § 1314(b)(2)(B). Factors for BCT are similar. 33 U.S.C. § 1314(b)(4)(B). Assessing such factors is often considered a question of fact. Hudson Riverkeeper Fund v. Orange & Rockland Utils. , 835 F.Supp. 160, 165 (S.D.N.Y. 1993) ("Best Technology Available, under the statute, is something which exists, and can be ascertained as fact.") Specifically, in this case, plaintiff argues that defendant did not comply with BAT because it did not install certain measures on its own facility, such as sediment filters and hydrocarbon pads. Plaintiff further argues that defendant's monitoring was defective because it did not sample enough storm drains to accurately represent the quantity and quality of storms water discharging from the facility and did not test for pollutants that it should reasonably have expected to be present in its storm water discharges as required by the defendant's MRP.
Best Technology Available is governed by 33 U.S.C. § 1314(b)(1)(B) and is largely similar to the criteria utilized for BAT and BCT.
Defendant presents a disputed material fact as to whether the Port's detention pond complies with the BAT/BCT requirement in defendant's NPDES permit, thus rendering summary judgment inappropriate as to the second cause of action. Defendant also presents evidence that (1) defendant's monitoring of some, but not all, of its drains satisfies the representativeness requirement of the permit in that the drains tested adequately covered the land from which pollutants could originate, and (2) defendant tested for the constituents enumerated in its MRP, rendering summary judgment inappropriate on the third cause of action. Cf. Sierra Club v. El Paso Gold Mines , 421 F.3d 1133, 1150 (10th Cir. 2005) (conflicting expert testimony raises a genuine issue of material fact). Therefore, the court cannot grant plaintiff's motion for partial summary judgment.
IT IS THEREFORE ORDERED that:
(1) defendant's motion for summary judgment, or in the alternative summary adjudication, be, and the same hereby is, DENIED; and
(2) plaintiff's motion for summary judgment on the second and third causes of action be, and the same hereby is, DENIED.
(a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(b) All interstate waters, including interstate "wetlands;" (c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, "wetlands, " sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:
(1) Which are or could be used by interstate or foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(3) Which are used or could be used for industrial purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the United States under this definition;
(e) Tributaries of waters identified in paragraphs (a) through
(d) of this definition;
(f) The territorial sea; and
(g) "Wetlands" adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition.
Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. [See Note 1 of this section.] Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (emphasis added).
This definition is repeated in a nearly identical form in the definition of "waters of the United States" governing the Army Corps of Engineers. See 33 C.F.R. 328.3 (waste treatment system exception is defined at 33 C.F.R. 328.3 (a)(8)).