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Waste Action Project v. Astro Auto Wrecking, LLC

United States District Court, W.D. Washington, Seattle

April 4, 2017

WASTE ACTION PROJECT, Plaintiff,
v.
ASTRO AUTO WRECKING, LLC, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          John C. Coughenour UNITED STATES DISTRICT JUDGE

         This matter was tried to the Court from February 27, 2017, to March 2, 2017. The claim presented for adjudication was whether Defendant Astro Auto Wrecking was in violation of sections 301(a) and 402 of the Clean Water Act (CWA), 33 U.S.C. §§ 1311(a) and 1342, for failing to comply with the terms and conditions of its National Pollutant Discharge Elimination System (NPDES) permits. After the bench trial and pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the following findings of fact and conclusions of law:

         I. FINDINGS OF FACT

         1. This is a Clean Water Act (CWA) citizen lawsuit in which Plaintiff Waste Action Project (WAP) alleges that Defendant Astro Auto Wrecking (Astro) violated and continues to violate federal law by failing to comply with numerous provisions of its NPDES permit.

         2. Plaintiff Waste Action Project is a non-profit corporation organized under the laws of the State of Washington. It is a membership organization dedicated to protecting and preserving the environment of Washington State, especially the quality of its waters.

         3. Defendant Astro Auto Wrecking operates a 5.15 acre auto wrecking, recycling, and storage facility in Western Washington, at 37307 Enchanted Parkway South, near Federal Way, Washington. The facility comprises a shop with indoor repair areas and two roofed but open-air vehicle bays, a mobile outdoor car crusher, auto fluid storage areas, scrap piles, and vehicle storage. The entry to the facility is paved with asphalt, and the roofed vehicle bays are concrete. The other outdoor areas of the facility are bare soil. Some areas are partially covered by quarry spalls. As part of its typical activities, Astro processes, dismantles, drains, stores, and crushes vehicles. Astro has operated the facility since 2000.

         4. The facility's western property line runs along the top of a ravine. At the bottom of the ravine is the east fork of Hylebos Creek, which is a tributary to the Hylebos Waterway and Commencement Bay of Puget Sound. Testimony at trial established that water flows in the east fork approximately nine months of the year.

         5. The east fork of Hylebos Creek is listed as impaired for copper, bacteria, and dissolved oxygen under section 303(d) of the CWA. The copper and bacteria listings are in Category 5, the most advanced classification, indicating that data show violations of the relevant state water quality standard that must be addressed with a total maximum daily load (“TMDL”) specification or a water quality improvement project.

         6. Plaintiff presented two witnesses who testified that there are known sources of zinc and copper associated with Astro Auto's operations, including automotive chassis, engines, and other metallic vehicle parts handled and stored outdoors, petroleum products which often contain copper additives, brake pads, and tires.

         7. The Washington Department of Ecology (Ecology) granted Astro coverage under the Washington Industrial Stormwater General Permit (ISGP) for discharges of stormwater associated with industrial activity from the facility. General permits were issued in 2010 and 2015.

         8. Astro completed its first stormwater pollution prevention plan (SWPPP) in April 2011, which was the effective SWPPP for the facility until it was replaced by the May 2015 SWPPP.

         9. The statute of limitations in this case extends to March 22, 2010.

         10. Waste Action Project satisfied the CWA's pre-suit notice of intent to sue requirement to maintain this case.

         11. Prior to trial, the parties stipulated to injunctive relief.

         12. On December 6, 2016, this Court issued an order granting in part Plaintiff's motion for summary judgment. The Court held that:

a. WAP had standing to bring suit, including fulfillment of the notice and ongoing violation requirements,
b. Astro failed to implement the BMPs of a secondary containment for fluid storage from May 18, 2015, onward; a stormwater recycling system from October 31, 2015, onward; and keeping the hoods closed on stored junk vehicles from September 1, 2015, onward,
c. Astro failed to sample stormwater discharge in the first and fourth quarters of 2015 and the first quarter of 2016,
d. Astro failed to indicate compliance status on 40 monthly inspection reports,
e. Astro failed to prepare 26 reports of non-compliance and remedial actions,
f. Astro failed to prepare accurate and complete annual reports in 2011 and 2014, and
g. Astro failed to fulfill corrective action requirements in 2011 and 2014.

         13. In that order, the Court declined to grant summary judgment as to Astro's alleged

a. Failure to implement Best Management Practices (BMPs) of a bermed concrete containment pad for the vehicle crusher, cover and containment for waste and scrap piles, grading and containment pads to reduce pollutant exposure, and contaminated stormwater conveyance and treatment,
b. Failure to submit Discharge Monitoring Reports (DMRs) in 15 ...

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