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Waste Action Project v. Port of Olympia

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

November 21, 2019



          BENJAMIN H. SETTLE United States District Judge.

         This 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 stated herein.


         On June 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.

         On 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.


         A. The Facility

         The 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.[1] 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.

         Stormwater 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.

         B. Prior Suit and Treatment Facility

         On 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.

         On 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.

         On June 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.

         On 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.

         On March 17, 2017, Ecology issued the Port a notice of compliance with Agreed Order #13316 as amended by Agreed Order #13881. Dkt. 81-11.

         C. Current Suit and Enforcement Action

         In 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.

         Meanwhile, 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.

         On 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.


         A. Motions to Strike

         In its 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.

         In its 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 jurisdiction.

         B. Subject Matter Jurisdiction

         The 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) ...

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