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ECOLOGICAL RIGHTS FOUNDATION v. PACIFIC LUMBER CO.

August 19, 1999

ECOLOGICAL RIGHTS FOUNDATION AND MATEEL ENVIRONMENTAL JUSTICE FOUNDATION, PLAINTIFFS,
v.
PACIFIC LUMBER COMPANY AND DOES 1 THROUGH 20, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Patel, Chief Judge.

MEMORANDUM AND ORDER

On January 28, 1997, plaintiffs Ecological Rights Foundation ("ERF") and Mateel Environmental Justice Foundation ("Mateel") filed this action against Pacific Lumber Co. ("PALCO") alleging violations of the Federal Water Pollution Control Act of 1972 ("Clean Water Act," "CWA," or the "Act"), as amended, 33 U.S.C. § 1311 et seq., California Health & Safety Code section 25249.5 ("Proposition 65"), and California Business & Professions Code sections 17200 et seq. Plaintiffs seek declaratory and injunctive relief as well as the imposition of civil monetary penalties for PALCO's alleged violations of the Clean Water Act and state law.

PALCO now seeks summary judgment on several threshold jurisdictional issues. Plaintiffs likewise seek summary judgment on the issue of standing and on PALCO's liability under the CWA. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND*fn1

Plaintiffs are Humboldt County-based environmental organizations whose purpose is to educate citizens about environmental issues concerning harm to their health, the environment and other resources. Verick Decl., Exh. A, at 1; Evenson Decl., Exh. A, at 1. Plaintiffs allege that their members have spent varying amounts of time in and around Yager Creek and the Eel River watershed in Humboldt County. See, e.g., Fir Decl.; Verick Decl. Plaintiffs assert that PALCO has injured their members by discharging contaminated non-storm water and storm water containing carcinogenic pollutants and high levels of sediment from two logging facilities, Yager Camp and Carlotta Sawmill, owned and operated by PALCO. Both facilities are situated along the banks of Yager Creek, which is part of the Eel River watershed and flows into the Van Duzen River approximately one mile downstream from Carlotta mill. Both Yager Camp and Carlotta mill are located about twelve miles from the point at which the Eel River flows into the Pacific Ocean.

PALCO purchased Yager Camp and Carlotta mill from the Louisiana Pacific Corporation ("Louisiana Pacific") on May 16, 1986. The Yager Camp truck shop complex and log deck area consists of a wood waste recovery and composting area, log decks, a truck shop and a fish hatchery. Carlotta mill, which is located approximately two miles downstream from Yager Camp, consists of a sawmill, a planer, log decks, lumber storage facilities, truck shops, an aggregate crusher, stockpile and a loading area. Louisiana Pacific's operations at the two facilities included the production and use of stain control chemicals, including PCP and copper-8-quinolinolate. Prevost Decl., Exh. A-2 (Regional Water Quality Control Board ("RWQCB") Clean-up and Abatement Order No. 97-106). Plaintiffs allege that these wood treatment chemicals contain dioxins and furans, both of which are carcinogenic substances. Compl., at ¶ 35. Although PALCO discontinued the use of these stain control chemicals when it purchased Yager Camp and Carlotta mill from Louisiana Pacific, plaintiffs maintain that these chemicals and other pollutants have been detected in samples of non-storm water and storm water discharges at levels greater than that authorized. Prevost Decl., Exh. A-2 at 5 (RWQCB Clean-up and Abatement Order No. 97-106); see Compl., at ¶¶ 34-35.

Plaintiffs contend that as storm water flows across PALCO's facilities into Yager Creek it picks up chlorophenic wood treatment chemicals such as PCP, as well as tannin, sediment, and used motor oil containing carcinogenic polycyclic aromatic hydrocarbons. Compl., at ¶¶ 34-35. According to plaintiffs, the discharged pollutants degrade the water quality of Yager Creek by increasing sedimentation and turbidity, lowering its pH, and by being absorbed into the fatty tissues of animal organisms and causing a wide range of maladies in the animals into which the chemicals are absorbed and their predators. Id. at ¶ 35. Although PALCO contends otherwise, these alleged contaminated discharges appear to have been unabated. For example, the RWQCB issued a Clean-up and Abatement Order ("Abatement Order") to PALCO for its Carlotta mill operations on September 10, 1997. See Prevost Decl., Exh. A-2. In the Abatement Order, the RWQCB noted that although PALCO had taken steps to eliminate non-storm water related discharges PALCO had caused or threatened to cause the discharge of pollutants and further ordered PALCO to cease such discharges. Id. at 7. Moreover, laboratory tests on water samples from Carlotta mill discharges have shown varying amounts of pollutants. For example, lab tests of a sample taken of discharges from Carlotta mill's sawmill sump on January 31, 1997, showed 1.3 (micro)g/L pentachlorophenol, 17,000 (micro)g/L motor oil, and 2.5 (micro)g/L toluene. Jt. Stmt. Undisp. Facts, at ¶¶ 76-77. Similarly, lab tests of a discharge sample taken from Carlotta mill's MW-4 and MW-3 on October 14, 1997, showed .34(micro)g/L pentachlorophenol and 55 (micro)g/L total petroleum hydrocarbons, 9.7 (micro)g/L benzene and .76 (micro)g/L toluene. Id. at ¶¶ 79-81.

A brief description of the various regulations and facts relating to PALCO's alleged discharges from these facilities is helpful in resolving the jurisdictional issues presented herein.

A. Legal Framework

The Clean Water Act was enacted in 1972 "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In order to achieve these goals, section 301(a) of the Act flatly prohibits the discharge of any pollutant into navigable waters except as authorized by the Act. 33 U.S.C. § 1311(a); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 52, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Any person wishing to discharge limited amounts of pollutants must obtain a National Pollutant Discharge Elimination System ("NPDES") permit from either the United States Environmental Protection Agency ("EPA") or an equivalent state government permitting program. In an effort to remedy the threat of pollution carried by storm water runoff into drainage systems, streams and reservoirs, Congress amended the Clean Water Act in 1987 to also require persons discharging storm water to obtain a NPDES permit. See 33 U.S.C. § 1342(p).

The Clean Water Act requires the EPA to administer the NPDES permit program under which the EPA may issue permits for the discharge of pollutants into waters of the United States in accordance with conditions imposed by the Act. 33 U.S.C. § 1342(a). The Act allows state governments to assume NPDES permitting responsibilities upon approval by the EPA. 33 U.S.C. § 1342(b). States may also request authority to issue general permits for similar dischargers with the same or similar effluent limitations. See 40 C.F.R. § 122.28. Pursuant to this authority, the California State Water Resources Control Board ("SWRCB") administers a federally-approved state NPDES permit program. See 54 Fed.Reg. 40664 (October 3, 1989); 40 C.F.R. § 122.28 & 122.62. In 1991, the SWRCB issued General Permit No. CAS000001, Water Quality Order No. 91-13-DWQ, and subsequently amended it with SWRCB Water Quality Order 92-12 DWQ ("1992 Permit"). Compl., Exh. C, at 1.

In order to satisfy NPDES permitting requirements and to obtain authorization for non-storm and storm water discharges, facility operators are required to either submit a Notice of Intent ("NOI") to comply with the general permit conditions or apply for an individual NPDES permit. Jt. Stmt. of Undisp. Facts, at § 3; Evenson Declaration, Exh. A, at VIII. On March 25, 1992, PALCO filed separate NOIs to be bound to the provisions of the 1992 Permit for its operations at Yager Camp and Carlotta mill. D's Exh. to Jt. Stmt., Exh. C-6 ("Storm Water Pollution Prevention Plan Yager Camp Facility, November 1996"), at 1; Evenson Decl., Exh. A ("Storm Water Pollution Prevention Plan Carlotta Sawmill, February 1997"). The NOI for Carlotta mill was approved on October 24, 1992, and the Yager Camp NOI was approved on January 19, 1993. Id.

The SWRCB is also permitted to modify, revoke, reissue or terminate NPDES general permits under several enumerated conditions and as authorized by 40 C.F.R. sections 122.62 et seq. The 1992 Permit expired on November 19, 1996. Evenson Decl., Ex A-1, at 4 ¶ 7. The 1992 Permit, however, "continues in force and effect until a new general permit is issued or the State Water Board rescinds the general permit." Evenson Decl., Exh. A-1, at 24 ¶ 18. Only those dischargers authorized to discharge pollutants under the expiring general permit were covered by the continuing general permit. Id. On April 17, 1997, the SWRCB issued a revised General Permit No. CAS000001, Water Quality Order No. 97-03-DWQ ("1997 Permit"), effective July 1, 1997, and at the same time, rescinded the 1992 Permit. See Evenson Decl., Exh. A-2, at 13. The 1997 Permit provides for no natural expiration date, but rather, "continues in force and effect until a new general permit is issued or the State Water Board rescinds the General Permit." Id. at 65. However, as with the 1992 Permit, facility operators subject to the reissued general permit are required to file a revised NOI upon the permit's reissuance by the SWRCB or to apply for an individual NPDES permit. Id. at 4 ¶ 7. PALCO subsequently submitted a NOI to comply with the 1997 Permit for Yager Camp and Carlotta mill.

NPDES general permits provide for detailed specifications on the types and quantities of pollutants that a permit holder may discharge and impose monitoring and testing requirements to ensure compliance with the permit. See 33 U.S.C. § 1342 & 1318(a); 40 C.F.R. § 122.41(j) & 122.48. In broad terms, the 1992 Permit imposes three requirements on facility operators. Section A of the 1992 Permit requires facility operators to develop and implement by October 1, 1992, a storm water pollution prevention plan ("SWPPP"), including the implementation of BMPs, according to requirements set forth in the permit. Section B requires facility operators to implement a monitoring program by January 1, 1993. See Evenson Decl., Exh. A-1 at 11; Jt. Stmt. of Undisp. Facts, at ¶ 63. The monitoring program requires that facility operators perform visual observations for the presence of unauthorized non-storm water discharges during the wet and dry seasons, conduct an annual inspection to determine compliance with permit conditions, and implement a sampling and analysis program. Id. at 11. Finally, facility operators are required to halt most non-storm water discharges and discharges containing hazardous substances in storm water in excess of reportable quantities established at 40 C.F.R. § 117.3 and 40 C.F.R. § 302.4. Evenson Decl., Exh. A-1 at 9. In accordance with section "A" of the 1992 Permit conditions, PALCO completed a SWPPP and monitoring plan for Carlotta mill in January 1993 and revised it in March 1994. Evenson Decl., Exh. J ("Storm Water Pollution Prevention Plan Carlotta Sawmill February 1997"), at 318. Although also required by the 1992 Permit to develop and implement a SWPPP for the Yager Camp by October 1, 1992, PALCO had not finalized and submitted a Yager Camp SWPPP containing a monitoring plan to the North Coast Regional Water Quality Control Board ("RWQCB") until November 8, 1996. Jt. Stmt. of Undisp. Facts., at ¶ 6. PALCO revised the SWPPP in response to comments from the RWQCB on January 27, 1997, and it was subsequently certified.

Although the 1997 Permit requires facility operators to adhere to essentially the same guidelines and prohibitions of the 1992 Permit, the 1997 Permit includes several revisions to the 1992 Permit. Id. at 1-3. For example, the 1997 Permit provides for fixed deadlines for facility operators to implement revisions to SWPPPs, requires best management practices ("BMPs") for authorized non-storm water discharges, increases the number of visual observations required for the presence of authorized and unauthorized non-storm water discharges from twice per year to quarterly observations, and imposes several new sampling and testing requirements. Id. Facility operators such as PALCO which submitted a NOI pursuant to the 1992 Permit are required to continue to implement their existing SWPPP and monitoring program and "implement any necessary revisions" to the SWPPP and monitoring program "in a timely manner, but in no case later than August 1, 1997." Id. at 16 & 34. PALCO submitted a fourth revision of the Carlotta mill SWPPP on July 31, 1997, to ensure compliance with the "reissued General Permit" in 1997.

B. The Present Action

Private citizens may sue to enforce effluent limitations or standards, which are defined to include violations of NPDES permits. 33 U.S.C. § 1365 & 1342(k). A prospective plaintiff must provide the alleged violator, the EPA Administrator, and the State in which the alleged violation occurs with written notice of the alleged violations at least sixty days before bringing suit. 33 U.S.C. § 1365(b); see 40 C.F.R. Pt. 135. The 60-day notice must

  include sufficient information to permit the
  recipient to identify the specific standard,
  limitation or order alleged to have been violated,
  the activity alleged to constitute a violation, the
  person or persons responsible for the alleged
  violation, the location of the alleged violation, the
  date or dates of such violation, and the full name,
  address, and telephone number of the person giving
  notice.

40 C.F.R. § 135.3(a).

  (1) contaminated storm water discharges in violation
      of the General Permit by failing to implement
      necessary BMPs during each rainfall of more than
      0.1 inch of rain at the Yager Camp log deck;
  (2) failure to prepare and implement an adequate
      SWPPP, which complies with "best available
      technology economically achievable" ("BAT") and
      "best conventional pollution control technology"
      ("BCT") standards, by October 1, 1992, as
      required by sections A(1) and A(2) of the General
      Permit;
  (3) failure to prepare and implement adequate
      monitoring plans by October 1, 1992, as required
      by section B(2) of the General Permit;
  (4) failure to conduct visual observations at all
      storm water discharge locations on ...

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