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ARC Ecology v. United States Maritime Administration

January 20, 2010

ARC ECOLOGY; SAN FRANCISCO BAYKEEPER; AND NATURAL RESOURCES DEFENSE COUNCIL, INC., PLAINTIFFS, AND CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SAN FRANCISCO BAY PLAINTIFF-INTERVENOR,
v.
UNITED STATES MARITIME ADMINISTRATION; SEAN T. CONNAUGHTON, IN HIS OFFICIAL CAPACITY AS MARITIME ADMINISTRATOR; UNITED STATES DEPARTMENT OF TRANSPORTATION; AND MARY E. PETERS,*FN1 IN HER OFFICIAL CAPACITY AS SECRETARY OF TRANSPORTATION, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER ON CROSS MOTIONS FOR REGION, PARTIAL SUMMARY JUDGMENT

The parties' cross-motions for partial summary judgment were heard on November 9, 2009. This case concerns the operation and management of the Suisun Bay Reserve Fleet ("SBRF"). Plaintiffs Arc Ecology, San Francisco Baykeeper, and Natural Resources Defense Council, Inc. ("Plaintiffs") and Plaintiff-Intervenor, the California Regional Water Quality Control Board, San Francisco Bay Region ("Plaintiff-Intervenor") have moved for partial summary judgment on Plaintiffs' Seventh Claim and Plaintiff-Intervenor's First Claim for Relief. These claims allege Defendants' liability under section 301(a) and 505(a) of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1311(a), 1365(a), for discharge of pollutants from the non-retention vessels of the SBRF to navigable waters.

Plaintiffs have also moved for partial summary judgment on the Fifth and Sixth Claims in their First Amended Complaint. Plaintiffs' Fifth Claim alleges Defendants' liability under sections 7002(a)(1)(a) and 6001(a) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6972(a)(1)(a), 6961(a), and the California Hazardous Waste Control Law, Cal. Health & Safety Code §§ 25201(a), 25189.2, and 25189, for unlawful disposal and/or storage of hazardous waste. Plaintiffs' Sixth Claim alleges Defendants' liability under Sections 7002(a)(1)(a), 4005, and 6001(a) of RCRA, 42 U.S.C. §§ 6972(a)(1)(a), 6945, 6961(a), for open dumping.

Defendants have cross-moved for summary judgment on each of these claims. However, during the course of briefing, Defendants informed the Court that their cross-motion was moot except as to Plaintiffs' Sixth Claim, which involves open dumping.

After consideration of the moving and opposition papers, and all other matters presented to the Court, this order issues.

The Clean Water Act Claims (Plaintiffs' Seventh Claim and Plaintiff-Intervenor's First Claim)

1. The non-retention vessels of the SBRF are "point sources" subject to the permitting requirements of the CWA. 33 U.S.C. §§ 1362(14), 1311(a).

2. Suisun Bay is a "navigable water" within the meaning of the CWA. Id. § 1362(7).

3. Exfoliated paint and other materials discharged from the SBRF non-retention vessels to Suisun Bay are "pollutants" under the CWA. Id. § 1362(6).

4. Since at least October 5, 2007, Defendants have been and continue to be in violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a), by discharging pollutants from each SBRF non-retention vessel into the waters of Suisun Bay without a valid National Pollutant Discharge Elimination System permit.

5. Summary judgment on liability is hereby GRANTED to Plaintiffs and Plaintiff-Intervenor and DENIED to Defendants on Plaintiffs' Seventh Claim and Plaintiff-Intervenor's First Claim.

The Hazardous Waste Claim (Plaintiffs' Fifth Claim)

6. Each SBRF non-retention vessel contains exfoliated paint that constitutes hazardous waste. CAL. CODE REGS., tit. 22, ยง ...


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