The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING MOTION TO TERMINATE CONSENT DECREE; and (2) DISMISSING CASE WITH PREJUDICE. [Doc. No. 38]
It has been almost seven years since the Marine Corps Base Camp Pendleton Defendants entered into the Consent Decree with Plaintiffs resolving the Clean Water Act claims that Plaintiffs filed against them. Since then, the United States has spent hundreds of millions of dollars on capital improvements at Camp Pendleton, resulting in a state-of-the-art tertiary treatment facility. As a result, with the exception of one outlier month, Defendants were able to achieve a compliance rate between 95% and 100% as to each category of the Consent Decree over the past 12 months. Accordingly, Defendants now move the Court to terminate the Consent Decree and dismiss the case with prejudice. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS the motion, TERMINATES the Consent Decree, and DISMISSES WITH PREJUDICE this action.
Plaintiffs filed the complaint in this action on March 15, 2002, alleging violations of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. ("CWA"). The Court entered the Consent Decree ("Decree") in this matter on August 7, 2003. Since then, Defendants have expended over $300 million on capital improvements, resulting in a state-of-the-art tertiary treatment facility. Over this time, Defendants have also filed periodic semi-annual reports as required by the Decree.
I. The Termination Provision of the Consent Decree
Section XV of the Decree sets out the Decree's termination provision. Section XV provides that the Decree's compliance provisions (set out in Section V) shall terminate "upon notification" from Defendants to Plaintiffs and the Court that certain objectives have been satisfied. Section V includes four "Compliance Actions," denominated subsections A, B, C, and D. The parties agree that Section V.A, which addressed Camp Pendleton's collection system spills, terminated in April 2005. [See Doc. No. 23]. Accordingly, the present dispute is over whether subsections B, C, and D have also been satisfied, such that the Decree as a whole can be finally terminated.
Under Section XV.A.2.a of the Decree, Section V.B shall terminate upon Defendants' notification that Camp Pendleton either (1) has initiated discharges from the Federally Owned Treatment Works ("FOTW") to the Pacific Ocean via the Oceanside Outfall and maintained interim compliance for its discharges via such outfall for 9 consecutive months or (2) has "ceased ongoing exceedances" of the Applicable Effluent Standards and Limitations for a period of one year after service of the Operation Notice.*fn1 Section XV.2.a also provides that for purposes of Section XV, "isolated or sporadic exceedances of individual effluent standards or limitations" are excluded from the definition of "ongoing exceedances."
Section V.D pertains to "Compliance Reports" and is linked to exceedances of effluent limits. Under Subsection XV.A.4, this provision terminates upon notification that Camp Pendleton has "ceased ongoing exceedances" of the Applicable Effluent Standards and Limitations as described in Section XV.A.2.a for a period of one year after the service of the Operation Notice.
Finally, Section V.C pertains to "NPDES Monitoring, Reporting, and Record-Keeping." Under Section XV.A.3(b), this provision terminates upon notification that Camp Pendleton has maintained "substantial compliance" with the requirements of Section V.C for a period of one year after service of the Operation Notice.
On January 15, 2010, Defendants provided written notice to Plaintiffs ("Termination Notice") setting forth the reasons why Defendants believe the three remaining subsections have been satisfied in this case. When Plaintiffs refused to join in Defendants' motion to terminate the Decree and to dismiss this action with prejudice, Defendants filed the present motion.
First, with respect to Section V.B, Defendants provide that for the 12-month period from November 2008 to October 2009 (the latest month for which data were then available), there have been only 5 effluent limit exceedances out of 2,592 possible effluent limit exceedances. These exceedances included: (1) November 20, 2008 instance, where the level of settleable solids exceeded the permit limit; and (2) four instances in September and October 2009, where chlorine residual graphs indicated slight exceedances that were very short in duration. Accordingly, because "isolated or sporadic exceedances of individual effluent standards or limitations" are excluded from the definition of "ongoing exceedances" in Section XV.A.2.a, Defendants argue they have satisfied the Decree's requirements for termination of Section V.B.
Second, because they have satisfied the Decree's requirements for termination of Section V.B, Defendants argue they have also satisfied the requirements for termination of Section V.D, which is linked to exceedances of effluent limits.
Finally, Defendants provide that they have substantially complied with the requirements of Section V.C. This subsection encompasses six categories of monitoring, recording, and record-keeping: (1) flow - excess; (2) flow - no meter; (3) flow - not recorded; (4) sample collection; (5) sample analysis; and (6) chlorine analyzer. Taking these in turn, the 12-month record from November 2008 to October 2009 shows no compliance failures relating to the first category (flow - excess) and the second category (flow - no ...