United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Plaintiff Waste Action
Project's (“WAP”) motion for summary
judgment, Dkt. 62, and Defendant Port of Olympia's
(“Port”) cross motion for summary judgment, Dkt.
80. The Court has considered the pleadings filed in support
of and in opposition to the motions and the remainder of the
file and hereby grants in part and denies in part WAP's
motion and denies the Port's motion for the reasons
12, 2017, WAP filed a complaint against the Port asserting
two claims for violation of the Clean Water Act,
(“CWA”) as amended, 33 U.S.C. § 1365.
August 21, 2019, WAP filed a motion for summary judgment.
Dkt. 62. On September 9, 2019, the Port responded and filed a
cross motion for summary judgment. Dkt. 80. On September 30,
2019, WAP replied to its motion and responded to the
Port's motion. Dkt. 109. On October 4, 2019, the Port
replied to WAP's response. Dkt. 118. On October 8, 2019,
WAP filed a surreply requesting the Court strike certain
material contained in the Port's reply. Dkt. 123.
Port owns a marine terminal facility that operates as both a
log yard and a marine cargo transportation facility (SIC
Codes 4491 and 2411). Dkt. 63-1 at 8. The site is approximately 67
acres, mostly paved, located on the Port Peninsula, jutting
north into Budd Inlet from downtown Olympia. Id. at
11. The Facility is covered by National Pollutant Discharge
Elimination System (“NPDES”) Industrial
Stormwater General Permit (“ISGP”) No. WAR001168.
Id. at 8. The first relevant permit expired on
January 1, 2015, Dkt. 62-3, and the current permit is valid
from January 2, 2015 to December 31, 2019, Dkt. 62-4.
from the facility discharges to Budd Inlet, which is an
impaired waterbody included on Washington's
“303(d)” list for dissolved oxygen and dioxin.
Dkt. 63-2; Pronsolino v. Nastri, 291 F.3d 1123,
1127-29 (9th Cir. 2002) (explaining that 303(d) listed
waterbodies are those areas for which the states must set
more stringent standards to protect water quality).
Stormwater discharges at the Port are monitored from two
drainage basins, Basin A and Basin C, at sampling points A02
and TF1, respectively. Dkt. 63-1 at 13-14, 27-28. Other
industrial stormwater discharges from Basins A and C go
unmonitored, including discharges from points P1-P4, and
discharges from the facility's wharf on the
facility's western edge. Id. at 14.
Prior Suit and Treatment Facility
November 26, 2011, the Court entered a consent decree ending
a CWA citizen's suit against the Port. Olympians for
Pub. Accountability v. Port of Olympia, C09-5756-BHS,
Dkt. 51 (W.D. Wash. Nov. 27, 2011). As part of that decree,
the Port “agreed to design, engineer, and construct a
stormwater treatment facility [(“SWTF”)]. . .
.” Dkt. 80 at 6. The Port spent years developing and
testing various systems, and eventually settled on the
Fenton's Oxidization Process. Dkt. 83, ¶¶ 8-10.
The Port contends that the SWTF was fully operational on
December 31, 2014. Dkt. 85, ¶ 16.
January 28, 2015, the Peroxide Containment System in the SWTF
failed, resulting in a release of nine thousand six hundred
(9, 600) gallons of a fifty percent (50%) Hydrogen Peroxide
Solution. Dkt. 63-11, § 3, ¶ 5. On January 29,
2015, Ecology inspectors Paul Stasch, John Diamant, and Steve
Eberl arrived at the Port and demanded access to inspect the
SWTF. Dkt.85, ¶ 18. The Port denied the inspectors
access contending that the area was under the control of the
Port's emergency control contractor. Id. ¶
19. “Testing of downstream storm drain lines, catch
basins, and a pumping station indicated that no material left
the site and entered Budd Inlet via the storm drain
system.” Dkt. 81-6 at 4.
10, 2016, Ecology and the Port entered Agreed Order #13316.
Dkt. 81-6. The order identified two violations of the
Port's ISGP, which were the containment requirement for
the chemical liquid and a failure to report a change to its
engineering report regarding the design of the containment
area. Id. at 4-5. Pursuant to the order, the Port
agreed to submit adequate engineering plans, pay a penalty of
$4, 000, and have the SWTF fully operational by October 31,
2016. Id. at 5.
October 11, 2016, the Port requested a two-month extension of
the SWTF deadline. Dkt. 81-10 at 3. In December of 2016,
Ecology and the Port entered Agreed Order #13881, which
granted that extension. Id. In the cover letter
granting that order, Ecology stated that no further
extensions would be granted and that “effective January
1, 2017, all benchmarks that are exceeded will need to be
addressed through the Corrective Actions required by
Industrial Stormwater General Permit Condition S8.”
Id. at 2.
March 17, 2017, Ecology issued the Port a notice of
compliance with Agreed Order #13316 as amended by Agreed
Order #13881. Dkt. 81-11.
Current Suit and Enforcement Action
April 2017, WAP sent the Port a notice of intent to sue
letter. Dkt. 1 at 21-63. The letter alleges numerous
violations of the Port's ISGP. Id. On June 12,
2017, WAP filed the instant complaint. Id. at 1-20.
The Court granted numerous stipulated extensions of the trial
date and pretrial deadlines while the parties engaged in
settlement negotiations. See Dkt. 29, 38.
the Port exceeded the benchmark for Chemical Oxidation Demand
(“COD”) for three quarters during 2017, which
triggered a Level 3 Corrective Action under ISGP Condition
S8. Dkt. 63-11, § 3, ¶ 8. On May 11, 2018, the Port
sought a modification of coverage under the permit requesting
a 24-month extension of the Level 3 Corrective Action
deadline to September 21, 2020. Dkt. 81-12. The Port stated
that it was continuing to work with its consultants to
improve the SWTF so that it could meet the COD benchmarks
going forward. Id. On August 1, 2018, Ecology denied
the request stating that the Port has not met the intent of
the permit. Dkt. 81-13.
September 25, 2018, the Port submitted an engineering design
report addendum for Ecology's review. Dkt. 81-15. On
October 21, 2018, Ecology responded recommending upgrades to
the Port's plans. Dkt. 81-16. Based on the Port's
improvements to its SWTF, it met the COD benchmarks for the
first two quarters of 2019. Dkt. 63-11, § 3, ¶ 17.
On July 30, 2019, Ecology and the Port entered Agreed Order
#16584. Id. The Port agreed to four categories of
corrective actions “in order to consistently meet the
permit benchmarks beginning July 1, 2020, ” which are
(1) an alternatives analysis evaluation, (2) an engineering
report and implementation of improvements, (3) the
implementation of best management practices
(“BMPs”) and other improvements, and (4) permit
compliance. Id. at 6-8.
Motions to Strike
reply/response, WAP moves to strike Dkts. 81-7, 81-15, 82-1,
82-2, 82-4, 82-5, 82-6. Dkt. 109 at 28-29. The Court denies
the motion as moot because the Court does not rely on any of
these documents in considering the parties' motions.
surreply, WAP moves to strike the Second Declaration of
Christopher Waldron and arguments regarding whether WAP may
enforce this citizen suit. Dkt. 123. The Court denies the
motion as moot because it does not rely on that declaration
and it rejects the Port's arguments on the issue of
Subject Matter Jurisdiction
Port argues that the Court lacks jurisdiction over this suit
because (1) “Ecology is diligently prosecuting permit
compliance, ” (2) WAP's claims are for wholly past
violations, and (3) ...