EDWARD M. CHEN, District Judge.
I. BACKGROUND ...........................................................727
A. Statutory Background ..............................................727
B. Plaintiff's Allegations ...........................................728
C. SSO Discharge Reporting System ....................................729
D. Procedural Background .............................................729
II. LEGAL STANDARD ......................................................731
III. DISCUSSION .........................................................731
A. Requests for Judicial Notice ....................................731
B. Evidentiary Objections ..........................................732
1. Declarations of Anna Fairbank, Terry Blanchard, Dudley
Kenworthy, and Andrea Kopecky ..............................732
2. Corrected Declaration of Deborah Self ........................735
3. Declaration of Bruce Bell ....................................736 a. Whether the Bell Declaration is Inadmissible as Expert Opinion Testimony ................................................736 i. Whether Dr. Bell's Testimony is Reliable ..............737 ii. Whether Dr. Bell's Testimony is Relevant ..............740 b. Whether the Bell Declaration is Inadmissible as Fact Witness Testimony ................................................741 4. Hearsay Objections ...........................................741 a. Hunt Declaration ..........................................741 b. Lucke Declaration .........................................742 5. Conclusion ...................................................744 C. Threshold Issues: Standing and Notice ................................744 1. Whether the Bay keeper Members Have Suffered an Injury in Fact ....745 2. Whether the Injury is Fairly Traceable to the Challenged Action of Defendant ........................................................748 3. Whether it is Likely that Plaintiffs Injury Will be Redressed by a Favorable Decision ...............................................749 a. Injunctive Relief ..............................................750 b. Civil Penalties ................................................750 4. Whether Plaintiff has Standing as an Organization .................751 5. Whether Plaintiff Provided Adequate Notice ........................752 6. Conclusion ........................................................753 D. Whether There is No Genuine Dispute that Defendant's 68 SSOs Discharged Pollutants to Surface Waters .............................753 1. Discharge .........................................................754 a. SSOs that Plaintiff Alleges Discharged Directly to Surface Waters .......................................................754 i. Spills 41, 51, 52, 61, 61 and 65 ..........................755 ii. Spill 63 ..................................................756 iii. Spills 5, 7, 19, 31, 38, 48, 54, and 59 ...................756 iv. Spills 43, 44, and 47 ......................................756 v. Spills 6 and 32 ............................................757 vi. Spill 9 ....................................................757 vii. Spill 33 ...................................................757 viii. Spill 13 ...................................................757 ix. Spill 1 ....................................................758 x. Conclusion .................................................758 b. SSOs that Plaintiff Alleges Reached the MS4 and Discharged to Surface Waters ...............................................758 i. Whether Plaintiffs Evidence Establishes the SSOs Discharged From the MS4 to Surface Waters ..................758 ii. SSOs That Spilled to the MS4 During or Immediately After a Significant Rain Event ..........................760 iii. SSOs That Spilled to the MS4 Without a Significant Rain Event ...................................................761 iv. Conclusion ................................................762 c. Multiple Spill Days ............................................762 d. Conclusion .....................................................762 2. Waters of the United States ......................................763 a. San Francisquito Creek .........................................764 b. West Point Slough ..............................................765 c. Atherton Channel ...............................................765 d. Los Trancos Creek ..............................................766 e. Corte Madera Creek .............................................767 f. Ravenswood Slough ..............................................767 g. Bayfront Canal .................................................767 h. Redwood Creek ..................................................768 i. Bovet Creek ....................................................768 j. Conclusion .....................................................769
3. NPDES Permit ......................................................769 a. MS4 Permit .....................................................770 b. Waste Treatment System Exemption ...............................773 IV. CONCLUSION ..........................................................773
Before the Court is Plaintiff San Francisco Baykeeper's ("Plaintiff") Motion for Partial Summary Judgment. Pl.'s Mot. for Partial Summ. J. ("Pl.'s Mot."), Dkt. No. 71. In its motion, Plaintiff seeks judgment against Defendant West Bay Sanitary District ("Defendant") on the grounds that Defendant discharged pollutants into Waters of the United States in violation of the Clean Water Act. Pl.'s Mot. 1, Dkt. No. 71. Also before the Court are the parties' Requests for Judicial Notice, (Dkt. Nos. 82, 103), and Defendant's Objections to Evidence Submitted in Support of Plaintiff's Motion, (Dkt. No. 104).
Plaintiff is a nonprofit corporation dedicated to protecting and enhancing the water quality of the San Francisco Bay-Delta Estuary and its tributaries for the benefit of its ecosystems and the surrounding communities. Self Decl. ¶¶ 2, 4, Dkt. No. 96. Defendant is the political entity that owns and operates the sewage collection system (the "Collection System") serving some 55,000 people in the City of Menlo Park and parts of East Palo Alto, Redwood City, Atherton, Woodside, Portola Valley, and unincorporated San Mateo and Santa Clara Counties. Compl. & Answer ¶¶ 21-24, Dkt. Nos. 1, 11. The Collection System, which is made up of 210 miles of sewer line, conveys sewage to the Menlo Park Pumping Station and from there to the South Bayside System Authority ("SBSA") Wastewater Treatment Plant, which is jointly owned and operated by Defendant and three municipalities—Belmont, San Carlos, and Redwood City. Compl. & Answer ¶¶ 24-25, 28-29, Dkt. Nos. 1, 11.
The Clean Water Act ("CWA"), 33 U.S.C. § 1251-1376, is intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In pursuit of this goal, section 301(a) of the Act prohibits the "discharge of any pollutant" into navigable waters from any "point source" without a permit. 33 U.S.C. § 1311(a) (except as otherwise provided in the Act, the discharge of any pollutant by any person shall by unlawful). "Discharge of a pollutant" is defined broadly to include "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12)(A); Rapanos v. United States, 547 U.S. 715, 723, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). And "navigable waters" means "Waters of the United States." 33 U.S.C. § 1362(7). "The phrase `the waters of the United States' includes only those relatively permanent,
The EPA is also required to regulate stormwater discharges "to protect water quality." 33 U.S.C. § 1342(p)(6). The EPA's stormwater discharge regulations, 40 C.F.R. § 122.26, define a Municipal Separate Storm Sewer ("MS4") as a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) owned or operated by a public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, used for collecting or conveying storm water. 40 C.F.R. § 122.26. Unlike a sanitary sewer system, which transports municipal sewage for treatment at a wastewater facility, or a combined sewer system, which transports sewage and stormwater for treatment, MS4s contain and convey only untreated stormwater. See 40 C.F.R. § 122.26(a)(7), (b)(8).
CWA § 402 provides for the issuance of a permit under the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C § 1342(a). A NPDES permit allow the holder to discharge pollutants notwithstanding the general prohibition imposed by § 301(a). Id. The NPDES permitting program is the "centerpiece" of the CWA and the primary method for enforcing the effluent and water-quality standards established by the EPA and state governments. Natural Res. Def. Council, Inc. v. Cnty. of Los Angeles, 636 F.3d 1235 (9th Cir.2011) (citations omitted). NPDES permits may be issued by the EPA or by state agencies that have been duly authorized by the EPA. Id. § 1342(a)-(b). In California, the NPDES program is administered by the State Water Resources Control Board. Cal. Water Code § 13267(b)(1); Pl.'s Req. for Judicial Notice ("RJN") Ex. B.
Plaintiff initiated this suit against Defendant under the citizen suit provisions of the CWA, 33 U.S.C. § 1365. Plaintiff's Complaint seeks a judgment declaring that Defendant has discharged pollutants from its Collection System without a permit, in violation of the CWA, an injunction preventing Defendant from discharging pollutants without a NPDES permit, and civil penalties for the alleged discharges. Compl. ¶ 123, Dkt. No. 1.
In its Complaint, Plaintiff alleges that Defendant discharges sewage (commonly referred to as "sanitary sewer overflows" or "SSOs") to San Francisco Bay and its tributaries without a permit. Plaintiff alleges that SSOs from the Collection System result in the discharge of pollutants into "waters of the United States" directly, as well as indirectly via the MS4 owned and operated by the cities and counties Defendant serves. It is undisputed that the Collection System has overflowed and discharged raw or partially treated sewage at least 162 times since September 28, 2004. Compl. & Answer ¶¶ 34, 101, Dkt. Nos. 1, 11.
Plaintiff alleges that Defendant self-reported hundreds of SSOs from its Collection System between October 3, 2004 and the present, spilling at a rate of over 30 SSOs per 100 miles of sewer line per year.
Of these alleged spills, the present motion for partial summary judgment focuses on 68. For identification purposes, Plaintiff provided a table listing the 68 SSOs at issue in the present motion. Hunt Decl. ¶ 4, Ex. A, Dkt. No. 83. The table has columns containing an identifying number for each specific SSO, as well as each SSO's location, date, and reported volume in gallons, and a column for the name of related surface waters. Plaintiff alleges that these SSOs discharged for 79 days, in two categories: (1) 23 SSOs that Defendant reported discharged to surface waters and (2) 45 SSOs of 100 gallons or more reported as reaching the MS4 and into surface waters. Bell Decl. ¶¶ 21-22, Attach. 5, Dkt. No. 73. Plaintiff alleges that this spill rate demonstrates serious problems with Defendant's operation and maintenance of the Collection System. Self Decl. ¶ 17, Dkt. No. 96; Compl. ¶¶ 34, 39-42, Dkt. No. 1.
The EPA has authorized the State of California to develop water-quality standards and issue NPDES permits. Under the Porter-Cologne Water Quality Control Act, California state law designates the State Water Resources Control Board and nine regional boards as the principal state agencies for enforcing federal and state water pollution law and for issuing permits. See Cal. Water Code §§ 13000, 13001, 13140, 13240, 13370, 13377. Pursuant to the California Water Code section 13267, the California Regional Water Quality Control Board, San Francisco Region (the "Regional Board") has the authority to require any person who has discharged or is suspected of discharging to furnish, under penalty of perjury, technical or monitoring program reports. Cal. Water Code § 13267(b)(1). Defendant has been required to report all SSOs under one of two reporting systems during the five-year statutory period. Since May of 2007, Defendant has reported all SSOs to the California Integrated Water Quality System ("CIWQS") online database pursuant to the California State Water Resources Control Board Order No. 2006-0003-DWQ. Pl.'s RJN Ex. B at 13, 15, 25; Ex. C at 34-39. Prior to May of 2007, Defendant filed its SSO reports pursuant to a November 15, 2004 letter issued by the Regional Board, which required Defendant to file spill reports for all SSOs of 100 gallons or more and to report all spills, including those under 100 gallons, in an Annual Report. Id. Ex. D at 43-44.
Defendant also keeps internal records of individual SSOs and spreadsheets summarizing SSOs by year. Bell Decl. ¶¶ 19-20, Dkt. No. 73; Hunt Decl. Ex. D, Dkt. Nos. 85-87, 89-90, 92-94. These reports include the date and address of the pertinent SSO, the SSO volume, whether the overflow was contained, whether any of the SSO was retrieved and returned to the Collection System, and whether the SSO discharged to a creek, channel, culvert, or drainage system, and if so the estimated volume that discharged. Hunt Decl. Ex. D, Dkt. Nos. 85-87, 89-90, 92-94.
Plaintiff filed its Complaint on December 2, 2009, alleging three causes of action. Count I asserts that Defendant is in violation of the CWA for discharging pollutants into waters of the United States without a permit; Count II asserts that Defendant
On November 17, 2010, Defendant filed a Motion for Judgment on the Pleadings. Def.'s Mot. for J. on the Pleadings ("Def.'s Mot."), Dkt. No. 43. In its motion, Defendant sought judgment on portions of the CWA claims raised in Count I as well as Plaintiff's state law claims. Alternatively, Defendant requested that the Court decline to exercise supplemental jurisdiction over the state law claims.
As to Plaintiff's CWA claims, Defendant challenged those portions of Count I related to discharges from its Collection System that did not reach waters of the United States, but instead entered MS4s. Def.'s Mot. 5, Dkt. No. 43. However, at the December 22, 2010 hearing on Defendant's motion, Plaintiff agreed that any SSO discharges into MS4s that did not go on to reach "waters of the United States" would be outside the scope of this lawsuit, though Plaintiff did not concede that such discharges could never be actionable as a matter of law. Accordingly, because Defendant did not contend and did not proffer any evidence that none of the SSOs reached waters of the United States, the Court denied Defendant's motion as to this cause of action. Order Granting in Part and Denying in Part Def.'s Mot. for J. on the Pleadings ("Order"), Dkt. No. 70.
As to the state law claims, Defendant argued that no private right of action for citizens exists to enforce the relevant municipal laws, and that Plaintiff's cause of action seeking to do so was not appropriately brought under state law, or in federal court through supplemental jurisdiction. Def.'s Mot. 8, Dkt. No. 43. Alternatively, Defendant argued that the Court should decline to exercise supplemental jurisdiction over the claims because they were not part of the same case or controversy, and because the claims raised novel or complex issues. Def.'s Mot. 13-14, Dkt. No. 43. The Court agreed that Plaintiff's cause of action raised novel and complex issues of state law, finding that there appears to be little precedent in the area and neither party cited any case authority akin to the circumstances in the present case. Order at 7-10, Dkt. No. 70. Further, the Court found that resolution of Count III would involve the expenditure of substantial additional judicial time and effort because it encompassed a larger subset of spills than the remaining counts, and that each discharge into the MS4s would be relevant, even if the discharge is not shown to have reached "waters of the United States." Order at 10, Dkt. No. 70. Accordingly, the Court declined to exercise supplemental jurisdiction over Count III. Order at 10, Dkt. No. 70.
On January 31, 2011, Plaintiff filed the present motion for summary judgment. Dkt. No. 71. Defendant filed its Opposition on February 16, 2011, (Dkt. No. 97), and Plaintiff filed a Reply on February 23, 2011 (Dkt. No. 105). Both parties also filed Requests for Judicial Notice. Dkt. Nos. 82, 103. Defendant has also filed Objections to certain evidence submitted by Plaintiff in support of its motion, (Dkt. No. 104), to which Plaintiff filed a response on February 23, 2011. (Dkt. No. 107).
On November 18, 2010, the Court granted the parties' stipulation to dismiss Plaintiff's second cause of action. Dkt. No. 46.
On March 9, 2011, the Court held a hearing on the matter. Daniel Cooper appeared on behalf of Plaintiff, and Melissa
Pursuant to Federal Rule of Civil Procedure ("FRCP") 56(a), the Court shall grant summary judgment as to any claim or defense if the movant, by citing to particular parts of materials in the record, shows that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a), (c)
The party moving for summary judgment has the initial burden of citing to particular parts of materials in the record, including portions of the pleadings, discovery and disclosures on file, and affidavits, that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the nonmoving party has the burden of proof at trial, the movant need point out only "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. If the movant meets this initial burden, the non-moving party must go beyond the pleadings and-by its own affidavits or discovery-set forth specific facts showing a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the non-moving party does not produce evidence to show a genuine dispute as to a material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In ruling on a motion for summary judgment, inferences drawn from the underlying facts are viewed in the light most favorable to the non-moving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
Plaintiff and Defendant both filed Requests for Judicial Notice. Dkt. Nos. 82, 103, 118, 120. Neither party raised any objections to the requests.
Plaintiff requests that the Court take judicial notice of Defendant's sewer system management plan; public records and orders from the Regional Board; provisions from the San Mateo County and Santa Clara County Ordinances; municipal code sections from East Palo Alto, Atherton, Menlo Park, Woodside Portola Valley, and Redwood City; and website pages from the South Bay Salt Pond Restoration Project, which is managed by an Executive Leadership Group that is comprised of employees of federal, state, and local government agencies. Pl.'s RJN Exs. A-O, Dkt. No. 82. In support of supplemental briefing, Plaintiff also requests that the Court take judicial notice of a hearing transcript from this case, excerpts from certain NPDES permits, and a response to written comments related to a NPDES permit. Dkt. 120.
Federal Rule of Evidence ("FRE") 201(b) provides the criteria for judicially noticed facts: "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." It is well established that records, reports, and other documents on file with administrative agencies—such as the State Water Resources Control Board—are judicially noticeable. Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir.2001); see also al-Kidd v. Ashcroft, 580 F.3d 949, 954 fn. 6 (9th Cir.2009); Marsh v. San Diego Cnty., 432 F.Supp.2d 1035, 1043-45 (S.D.Cal. 2006). City ordinances are also proper subjects for judicial notice. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 fn. 2 (9th Cir.2006).
As neither party has raised any objections to the requests for judicial notice, and the requests are not subject to reasonable dispute in that they are capable of accurate and ready determination, the Court GRANTS the parties requests for judicial notice.
On February 16, 2011, Defendant filed Objections to Evidence Submitted in Support of Plaintiff's Motion for Partial Summary Judgment. Dkt. No. 104. The Court shall consider each objection in turn.
Defendant first objects to the declarations of three of its standing witnesses— Anna Fairbank, Terry Blanchard, and Dudley Kenworthy—and the declaration of fact witness Andrea Kopecky on the grounds that Plaintiff failed to identify these witnesses through initial or supplemental disclosures, or by signed disclosures required by FRCP 26(a), (e) and (g). Defendant states that Plaintiff did not list these witnesses in its initial disclosures, nor has it supplemented its initial disclosures to later identify them. Defendant argues that it had no notice that these witnesses even existed until Plaintiff filed its motion for partial summary judgment.
In response, Plaintiff maintains that the declarations and supporting exhibits were timely disclosed with their motion, and that FRCP 26(e) specifies no particular timeframe for supplementation. Plaintiff argues that identifying witnesses willing to subject themselves to the rigors of litigation takes time, yet it was able to provide Defendant with the names of two other standing witnesses, Robert Fairbank and Deborah Self, in its initial disclosures sent in March of 2010. Plaintiff states that it continued to investigate potential standing witnesses as it prepared
Pursuant to FRCP 26(a), a party must, without awaiting a discovery request, provide to the other party the name of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses. Fed. R.Civ.P. 26(a)(1)(A)(i). "May use" includes any use to support a pretrial motion. See Adv. Comm. Notes to 2000 Amendment to Fed.R.Civ.P. 26(a)(1). However, this mandatory early disclosure is limited to information reasonably available to the party. Fed.R.Civ.P. 26(a)(1)(E). "Reasonably available" covers information known to a party, its agents and counsel, as well as information obtainable through reasonable investigation. See Adv. Comm. Notes to 1993 Amendment to Fed.R.Civ.P. 26(a). Parties have an ongoing duty to supplement their initial disclosures "in a timely manner" upon determining that the initial disclosures are materially incomplete or inaccurate. Fed.R.Civ.P. 26(e)(1)(A).
A party who fails to make the required initial disclosure "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial," except where the failure to comply was "substantially justified" or "harmless." Fed.R.Civ.P. 37(c)(1); Hoffman v. Constr. Protective Serv., Inc., 541 F.3d 1175, 1179 (9th Cir.2008). In determining whether to preclude introduction of evidence pursuant to FRCP 37, courts consider "(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the nondisclosing party's explanation for it failure to disclose the evidence." Dey, L.P v. Ivax Pharm., Inc., 233 F.R.D. 567, 571 (C.D.Cal.2005) (citing S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir.2003)).
Here, the Court finds that Plaintiff's failure to disclose these four witnesses prior to filing its motion was substantially justified and harmless. As to the first factor, the purpose of Anna Fairbank, Terry Blanchard, and Dudley Kenworthy's declarations is to establish Plaintiff's standing to bring the present claim. Although Plaintiff did not provide Fairbank, Blanchard, and Kenworthy's individual names as part of its initial and supplemental disclosures, Defendant cannot say it is surprised that Plaintiff would submit declarations from its members stating their use of the waters of the Bay and its tributaries. Further, Plaintiff provided Defendant with the names of two other standing witnesses, Robert Fairbank and Deborah Self, in its initial disclosures sent in March of 2010. As all five declarations serve the same purpose—to establish standing—the Court finds that the first factor weighs in favor of allowing the witnesses' declarations.
As to the second factor, the ability of the proponent of sanctions to cure the surprise, the Court finds that this factor is neutral. The Court recognizes that, given the timing of the declarations, Defendant has had limited time to cure any surprise. However, Defendant has not identified any prejudice it has suffered by the timing of the declarations. As discussed above, the declarations address standing issues, which cannot be considered a surprise, and photographs that Defendant obtained in supplemental disclosures. Further, Plaintiff states that it made all of its standing witnesses available for deposition before Defendant's opposition was due, yet Defendant has taken none of these witnesses' depositions. Cooper Reply Decl. ¶¶ 10-12, Exs. E & F, Dkt. No. 106.
For similar reasons, the third factor— the likelihood that introduction of evidence will disrupt the trial—weighs against preclusion. For purposes of standing, Plaintiff has submitted five declarations, and Defendant has provided no objections to two of them. While Defendant objects to the timeliness of three of the declarations, its opposition to Plaintiff's motion raises no issues related to the statements made in those declarations. As to Andrea Kopecky's declaration, the Court finds that her declaration goes directly establishing a dispute issue in this case—precise locations of the SSOs—and addresses omissions in the maps of the storm sewers within Defendant's service area. Thus, there is no indication that the introduction of this evidence will disrupt the proceedings.
The final two factors—the importance of the evidence and the proponent's explanation for failure to offer it earlier—also weigh against preclusion. First, the Court finds that the declarations are important to Plaintiff's case. As to the standing witnesses, these witnesses provide additional support for Plaintiff's standing. As to fact witness Andrea Kopecky, her declaration is directed toward alleged omissions in the maps of the storm sewers within Defendant's service area, which Plaintiff states did not arise until Plaintiff's engineer determined that there were omissions in the maps of the storm sewers within Defendant's service area. While the location methods described therein are discussed below, see Section III(D)(1)(b)(I), infra, the Court finds the location of spills within the MS4 is important to the Court's consideration of this case.
Second, the Court finds that Plaintiff's timing on disclosing these witnesses and documents was substantially justified because its investigation into the elements of the case was ongoing while preparing the summary judgment motion. Plaintiff states that identifying witnesses willing to subject themselves to the rigors of litigation takes time, and that it continued to investigate potential standing witnesses throughout the course of this litigation. As another judge in this district has recognized, supplemental disclosure of declarations with a summary judgment motion is, in certain instances, acceptable: "As the deadline for summary judgment nears in any civil case, it is customary for counsel to solicit declarations. . . . In this process, it would be unreasonable and burdensome (and rarely, if ever, done in practice) to require all sides to augment any . . . disclosure lists each and every time they obtain
Finally, the Court notes that if the timing of Plaintiff's disclosure was a serious concern to Defendant, it could have moved under FRCP 56(d) for more time to oppose the motion and seek to obtain discovery in the interim. See Fed.R.Civ.P. 56(d) ("If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: . . . (2) allow time to obtain affidavits or declarations or to take discovery.") Defendant made no such request. Defendant did not do so.
Based on this analysis, the Court DENIES Defendant's request that it disregard the declarations of Anna Fairbank, Terry Blanchard, Dudley Kenworthy, and Andrea Kopecky.
As part of its motion for partial summary judgment, Plaintiff filed the Declaration of Deborah Self in support thereof. Dkt. No. 76. On February 9, 2011, Plaintiff filed a corrected version of Ms. Self's declaration. Dkt. No. 96. In so doing, Defendant argues that Plaintiff violated the Court's Civil Local Rules, which provide that a motion must be accompanied by affidavits or declarations. Civil L.R. 7-2(d), 7-5. Based on these local rules, Defendant argues that it follows that an affidavit or declaration must be filed concurrently with the motion, and that Plaintiff is attempting to circumvent the local rules by filing the corrected version of Ms. Self's declaration. Defendant also points out that Plaintiff filed the revised declaration one-and-a-half weeks after it filed its motion and just five business days before Defendant's opposition was due, arguing that this delay is a tactic used by Plaintiff to gain a litigation advantage. Defendant argues that the corrected declaration contains substantive changes, and it provides a redlined version comparing the original declaration with the corrected version. Thorme Decl. ¶ 13m Ex. H, Dkt. No. 99.
In response, Plaintiff states it did not discover that it filed a draft version of Deborah Self's Declaration until February 8, 2011, when it was preparing for her deposition. Plaintiff argues that it complied with the rules and appropriately corrected the error and provided ample time for Defendant to inquire into the correction. Plaintiff points out that Defendant conducted no inquiry into the differences during Ms. Self's deposition.
Upon review of the parties' arguments, the Court finds no reason to preclude the corrected declaration. First, Plaintiff properly submitted Ms. Self's original declaration with its motion pursuant to Civil Local Rules 7-2 and 7-5. Although Defendant appears to argue that the Court can only consider a declaration if it is submitted concurrently with the motion, this would not allow for any corrections to be made once a motion has been filed. Defendant provides no authority for this argument, and the Court is aware of none. Second, Plaintiff filed and served the corrected declaration in compliance with the ECF procedures for correcting errors. Cooper Suppl. Decl. ¶ 4, Dkt. No. 95. Third, Defendant identifies no substantive dispute with the corrections. Finally, Plaintiff served the corrected declaration five days prior to Ms. Self's deposition, yet Defendant did not inquire into the corrections, either before or during the deposition. Defendant suffered no prejudice. Accordingly, the Court DENIES Defendant's request that it disregard the corrected declaration of Deborah Self.
Defendant next objects to the declaration of Bruce Bell, Ph.D., Plaintiff's expert, Dkt. No. 73, on the grounds that the declaration fails to comply with Federal Rules of Evidence 402, 403, and 702. Defendant cites generally to these rules and provides no specific case law in support of its arguments. In the alternative, West Bay objects to Dr. Bell's declaration on the grounds that Plaintiff failed to identify him as a fact witness through initial or supplemental disclosures, or by signed disclosures required by FRCP 26(a), (e) and (g), and that as a fact witness, his declaration fails to meet the requirements of Civil Local Rule 7-5.
Defendant's first argument is that Dr. Bell's declaration is inadmissible as expert opinion testimony. Defendant breaks down its objections into groups of paragraphs contained in Dr. Bell's declaration; however, Defendant's objections can be summarized as follows: (1) Dr. Bell fails to provide sufficient data to support his conclusions; and (2) Dr. Bell fails to utilize reliable principles.
Federal Rule of Evidence ("FRE") 702 governs the admissibility of expert testimony. Pursuant to FRE 702, a witness qualified as an expert in "scientific" knowledge may testify thereto if: "(1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods to the facts of the case." Fed. R.Evid. 702. The trial court acts as a gatekeeper to the admission of expert scientific testimony under FRE 702. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Daubert, the Court must conduct a preliminary assessment to "ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable." Id. at 589, 113 S.Ct. 2786. This two-step assessment requires consideration of whether (1) the reasoning or methodology underlying the testimony is scientifically valid (the reliability prong); and (2) whether the reasoning or methodology properly can be applied to the facts in issue (the relevancy prong). Id. at 592-93, 113 S.Ct. 2786; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir.1998).
Reliable testimony must be grounded in the methods and procedures of science and signify something beyond "subjective belief or unsupported speculation." Daubert, 509 U.S. at 590, 113 S.Ct. 2786. The inferences or assertions drawn by the expert must be derived by the scientific method. Id. In essence, the court must determine whether the expert's work product amounts to "`good science.'" Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) ("Daubert II") (quoting Daubert, 509 U.S. at 593, 113 S.Ct. 2786). In Daubert, the Supreme Court outlined factors relevant to the reliability prong, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.
The relevancy or "fit," prong requires that the testimony be "relevant to the task at hand, . . . i.e., that it logically advances a material aspect of the proposing party's case." Daubert II, 43 F.3d at 1315 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). Relevancy requires opinions that would assist the trier of fact in reaching a conclusion necessary to the
The proponent of the evidence must prove its admissibility by a preponderance of proof. Daubert, 509 U.S. at 593 n. 10, 113 S.Ct. 2786.
First, the Court must determine whether Dr. Bell's testimony "is the product of reliable principles and methods." Fed.R.Evid. 702. Expert opinion testimony is deemed sufficiently reliable if the expert has "good grounds" for his testimony—i.e., if the expert's conclusions are based on the knowledge and experience of his discipline rather than on "subjective belief or unsupported speculation." Daubert, 509 U.S. at 589, 113 S.Ct. 2786; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The proponent need not prove that the expert's testimony is correct, but he or she must prove by a preponderance of the evidence that the testimony is reliable. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Here, Dr. Bell sets out his background and qualifications in paragraphs 1-6 of his declaration, to which Defendant has filed no objections. Dr. Bell holds bachelors and masters degrees in civil engineering and a Ph.D. in environmental engineering, and he has over 40 years experience in environmental engineering. Bell. Decl. ¶ 3, Dkt. No. 73. His experience includes design and evaluation of wastewater treatment plants and collection systems and infiltration and inflow reduction studies. Id. He has been recognized as an expert in environmental engineering over ten times by federal courts, including two cases regarding SSOs. Id. ¶ 4. Dr. Bell also has experience in designing storm sewers, preparing stormwater management plans, and evaluating the adequacy of stormwater management systems. Id. ¶ 5. He has designed storm sewers, storm sewer systems, and prepared stormwater management plans for facilities ranging from residential development to a 6,500 acre U.S. Army laboratory. Id. He also has extensive experience in evaluating the impacts of pollutants contained in municipal wastewaters on receiving waters, including water quality monitoring to determine the allowable amount of pollutants that may be discharged without exceeding water quality standards; determining the impact of pollutants discharged to receiving waters; and determining the distance that bacterial and organic pollutants travel prior to dying or being consumed. Id. ¶ 6. Based on this background, the Court finds no reason to question Dr. Bell's qualifications to act as an expert witness in this case.
Despite Dr. Bell's qualifications, Defendant argues that his testimony is inadmissible because it fails to provide sufficient facts and data to support his opinion about the composition of Defendant's sewage. Specifically, in paragraphs 7-15, Dr. Bell provides a background on SSOs, including common pollutants contained therein, and states that Defendant's SSOs contain pollutants. Id. ¶¶ 7-15. In support of his testimony, Dr. Bell refers to Defendant's own Sewer System Management Plan, analytical data of samples of the sewage waste stream to which Defendant contributes, a report to Congress prepared by the EPA, a scientific article on pathogen survival, and his over 40 years of experience as a scientist and engineer. Id. n. 7-21. Defendant does not object to the reliability of the information on which Dr. Bell relies to support his opinion. The Ninth Circuit has indicated that independent research, rather than research conducted for the purposes of litigation, carries with it the indicia of reliability. Daubert II, 43 F.3d
Defendant also argues that Dr. Bell's specific methods are unreliable, directing the Court's attention in particular to paragraphs 16-22 and 39-56. In these paragraphs, Dr. Bell discusses Defendant's SSO reporting and explains the spill identification and mapping of SSOs that he completed related to this case. In its objections, Defendant acknowledges that Dr. Bell reviewed reports on Defendant's SSOs, MS4 system maps provided by relevant municipalities, historical information about area water bodies downstream of these SSOs, and examined photographs of the locations of these SSOs. Def.'s Objections at 6:6-8, Dkt. # 104. However, Dr. Bell also states that he examined maps of the storm drain systems prepared by government agencies, requested field investigation of the path of the discharges when the documentary evidence was incomplete, and did not make conclusions regarding the discharge of pollutants in SSOs when the available information was incomplete. Bell Decl. ¶¶ 39-46, Dkt. # 73. For example, in paragraph 46, which refers to an SSO in Menlo Park, Dr. Bell states that the SSO path and the surface water pollutants discharged to "could not be traced with the information made available to me. I did not include this SSO in my analysis."
Upon review of the parties' arguments and the evidence presented by Dr. Bell, the Court finds that this portion of his testimony raises at least questions about the reliability of his methodology. In his declaration, Dr. Bell makes a number of assumptions based on generalized data (e.g. from the EPA) about rainfall and flow, but he does not make any calculations particular to the MS4 characteristics in this case. For instance, he did not calculate the amount of SSO flowing into MS4 for each SSO intake, the length of the MS4 pathway to surface waters, the slope of the MS4 pipes, etc., in concluding the SSO reached surface waters.
In addition, where there were no maps, there are serious questions about the qualifications of those that conducted field investigations, as well as their methodologies, especially with respect to the pathways between the MS4 intake and surface water outfall. For example, Plaintiff states that Defendant reported SSOs entering the MS4 where the location of the relevant storm drains was missing from the MS4 data that Plaintiff obtained. For these spills, Plaintiff states that its "field investigation confirmed the GPS location or address of each spill and then, using GPS, identified the storm drains where the SSO entered the MS4." Pl.'s Mot. at 12:12-16. For an explanation of the field investigation, Plaintiff cites to the Declaration of Andrea Kopecky, a Legal Associate
The Court concludes nonetheless that for purposes of this motion, Dr. Bell's declaration survives Daubert. The issues discussed above go to the weight of the opinion testimony and are not so fundamental as to bar its threshold admissibility.
In paragraphs 23-27, Dr. Bell addresses Defendant's SSO reports and states that Defendant under-reports the volume of SSOs. Defendant argues that Dr. Bell fails to offer sufficient facts to support his conclusions. However, Dr. Bell explains the principles he utilizes to demonstrate estimation of spill volumes and how they can be under-reported, see Bell Decl. ¶¶ 23-24, Dkt. # 73, and provides specific examples of how he determined that Defendant's methods underestimate spill volume. Bell Decl. ¶¶ 25-27, Dkt. # 73. For instance, in paragraph 25, Dr. Bell states as follows:
Id. ¶ 25. In reaching this conclusion, Dr. Bell utilized Defendant's own overflow report. The Court finds no reason to determine that this testimony is unreliable.
Paragraphs 28-38 offer generalized summaries of various bodies of water that Dr. Bell states are surface waters that received discharges from Defendant's SSOs. Defendant argues that his conclusions regarding whether or not Defendant's SSOs reached these areas are unsubstantiated, and that he provides descriptions regarding these areas without any supporting references or documentation. However, Defendant fails to provide any specific instances of statements that it contends are unsubstantiated. A review of Dr. Bell's declaration shows that he does, in fact, support his conclusions with numerous documents, both historical and current, regarding the waters. Bell Decl. fn. 32-72, Dkt. No. 73. For example, in paragraph 32, Dr. Bell states that "Corte Madera Creek discharges into San Francisquito creek after passing through Searsville Lake and spilling over Searsville Dam. [Defendant's] SSOs and the pollutants contained therein reaching Corte Madera Creek impact the chemical/biological integrity of Corte Madera Creek, San Francisquito Creek, and San Francisco Bay." Bell Decl. ¶ 32, Dkt. No. 73. In support of this testimony, Dr. Bell provides a United States geological survey detail report for Corte Madera Creek, the Oakland Museum's Guide to San Francisco Bay Area Creeks, and a San Francisquito Creek Joint Power Authority, San Francisquito Creek Watershed, July 2002 map. Hunt Decl. Exs. J, K, Dkt. No. 88. Defendant does not object to any of the documents utilized by Dr. Bell. And, given Dr. Bell's qualifications
Finally, Defendant argues that paragraphs 57-83, which contain Dr. Bell's conclusions regarding which of Defendant's SSOs reached surface waters, are objectionable because he reached those conclusions through an unreliable methodology. Without providing any specific examples or legal authority in support of its argument, Defendant requests that the Court disregard paragraphs 57-83. However, as discussed above, Dr. Bell's declaration establishes his qualifications to make these determinations, he has provided uncontested documentation supporting his testimony, and Defendant provides nothing more than generalized one-line arguments regarding why his methodology is unreliable. As Dr. Bell's conclusions are based on the knowledge and experience of his discipline rather than on "subjective belief or unsupported speculation," the Court finds his testimony admissible. Daubert, 509 U.S. at 589, 113 S.Ct. 2786; Kumho Tire Co., 526 U.S. at 147-48, 119 S.Ct. 1167. And, once again, while Defendant might disagree with the conclusions Dr. Bell reached, Plaintiff need not prove that his conclusions are correct. Moore, 151 F.3d at 276.
Based on this analysis, the Court determines that Dr. Bell's testimony is the product of reliable principles and methods pursuant to FRE 702.
Second, the Court must determine whether Dr. Bell's opinion assists in understanding or determining a fact in issue. As stated above, the relevancy, or "fit," prong requires that the testimony be "relevant to the task at hand, . . . i.e., that it logically advances a material aspect of the proposing party's case." Daubert II, 43 F.3d at 1315 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). Relevancy requires opinions that would assist the trier of fact in reaching a conclusion necessary to the case. Kennedy, 161 F.3d at 1230. Defendant's objections include references to FRE 402, yet it fails to explain why it cites to this rule. FRE 402 provides that all relevant evidence is admissible, and evidence which is not relevant is not admissible. Fed.R.Evid. 402. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. A review of Dr. Bell's declaration shows that his testimony meets this standard.
Paragraphs 7-15 provide information on the constituents of sewage, both generally and specifically as to the sewage conveyed by Defendant. The composition of sewage is relevant to the question of the types of pollutants discharged to waters of the United States. Paragraphs 23-27 provide Dr. Bell's opinions on the accuracy of Defendant's reporting of the volume of its SSOs. Given that Defendant disputes that its SSOs reached surface waters, Dr. Bell's determinations are relevant. Paragraphs 28-38 provide facts that support Dr. Bell's conclusion that Defendant's SSOs reach surface waters, and his conclusion that these surface waters are waters of the United States. This conclusion relates to an element of Plaintiff's case, and Dr. Bell's testimony related to this issue is therefore relevant. Paragraphs 57-83 provide facts demonstrating which surface waters received discharges from Defendant's SSOs. As Plaintiffs' summary judgment motion is focused on proving that certain of Defendant's SSOs resulted in
Based on this analysis, the Court finds that Dr. Bell's opinion is relevant to material aspects of Plaintiff's case. Accordingly, because Dr. Bell's testimony is both relevant and reliable under Daubert, the Court DENIES Defendant's request that it disregard the declaration of Bruce Bell as inadmissible expert witness testimony.
In the alternative, Defendant argues that Dr. Bell's declaration is also unavailable as fact witness testimony because he was not formally identified as a fact witness until February 11, 2011, (Thorme Decl. ¶¶ 14-16, Ex. C, Dkt. No. 98), over two weeks after Plaintiff filed its motion for partial summary judgment. Defendant argues that his declaration must therefore be excluded pursuant to FRCP 37(c)(1). Defendant also maintains that Dr. Bell's declaration is replete with unsupported conclusions and lacking personal knowledge, and should be disallowed on these grounds as well.
In response, Plaintiff argues that Dr. Bell is its expert witness and it properly disclosed him as its expert when it filed its motion for partial summary judgment on January 31, 2011. Thus, Plaintiff argues that Dr. Bell is a properly disclosed expert whose personal knowledge is irrelevant to the admissibility of his expert declaration.
As discussed above, the Court finds that Dr. Bell's declaration is properly admitted as expert witness testimony; therefore, his testimony is not that of a fact witness. Pursuant to FRCP 26, a party must make its expert witness disclosures at the times and in the sequence that the court orders. Fed.R.Civ.P. 26(a)(2)(D). Here, the Court ordered that experts be disclosed and reports provided by April 29, 2011. Case Mgmnt. Order ¶ 2(c), Dkt. No. 36. Thus, Plaintiff's disclosure is timely under the Court's case management order. Furthermore, as noted above, Defendant could have moved under Rule 56(d) to defer its opposition and take Dr. Bell's deposition. Defendant failed to do so. Thus, Plaintiff properly disclosed Dr. Bell under FRCP 26 and the Court's case management order. Defendant's argument is without merit.
Finally, Defendant objects on hearsay grounds to two exhibits submitted by Plaintiff in support of its motion. Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R.Evid. 801(c). FRE 802 prohibits the admission of hearsay statements, subject to certain exceptions. The Court shall discuss each objection in turn.
Defendant objects to Exhibit A to the Declaration of Drevet Hunt, which is a table listing Defendants' 68 SSOs that allegedly reached surface waters. Dkt. No. 83. The table has columns containing an identifying number for each specific SSO, as well as each SSO's location, date, and reported volume in gallons, and a column for the name of related surface waters. Hunt Decl. Ex. A, Dkt. No. 83. Defendant argues that this document is an out-of-court statement offered to prove the truth of the matter asserted—that the listed SSOs actually reached surface waters.
In response, Plaintiff argues that the spill table is not offered as evidence but is instead provided for the Court's reference under FRE 1006 as an index of the SSOs at issue in this Motion. Plaintiff explains that the table lists each spill by number and thus refers to the numbered exhibits
Pursuant to FRE 1006, "[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation." "When considering the admissibility of exhibits of this nature, it is critical to distinguish between charts or summaries as evidence and charts or summaries as pedagogical devices." United States v. Wood, 943 F.2d 1048, 1053 (9th Cir.1991) (citation omitted). Charts and summaries as evidence are governed by FRE 1006. In contrast, charts or summaries of testimony or documents already admitted into evidence are merely pedagogical devices, and are not evidence themselves. Id. (citation omitted). "[S]uch pedagogical devices should be used only as a testimonial aid, and should not be admitted into evidence." Id. (citations omitted).
Here, Plaintiff's spill table is a summary of the documents contained in Mr. Hunt's declaration; thus, as it is based on evidence submitted by Plaintiff in support of its motion, the Court shall construe the table as merely a pedagogical device from which no part of Plaintiff's case may be established. For instance, the table contains a column titled "Name of Surface Water," implying that each SSO reached the surface water listed in that column. The Court will not consider such evidence to the extent it asserts the truth of the matter asserted in that column. Further, Plaintiff states that it obtained the underlying documents from Defendant, and that the table is based on Defendant's own reports. As Defendant objected to the table and not the underlying documents, the Court has no reason to find that the underlying documents are inadmissible. Accordingly, the Court finds no reason to strike the spill chart, and will consider it as a summary and not evidence and thus DENIES Defendant's request to disregard Exhibit A to Mr. Hunt's declaration.
Defendant also objects to Exhibit A, page 84, to the Declaration of Justin Lucke. Dkt. No. 81. This document is a "Contact Report," dated November 3, 1977, from the State Water Resources Control Board, Division of Water Rights, prepared by Division Personnel PJ Conroy. The handwritten report refers to a "New Appl. in San Mateo Co." and shows that PJ Conroy contacted "Clifford Chernick, attorney for applicants" and "Town of Atherton City Hall" by telephone. Lucke Decl. Ex. A, p. 84, Dkt. No. 81. Based on the phone conversations, PJ Conroy provided the following "Conversation Description": "(1) Mr. Chernick confirmed location of point of diversion on unnamed stream or creek just south of Walsh Rd. He stated that this stream is locally known as the Atherton Channel. (2) City Hall stated that the Atherton Channel empties into San Francisco Bay." Id. At the bottom of the report, under a "Decision" heading, PJ Conroy wrote: "Make above change on appl. & code accordingly." Id. Under the "Action Items" heading, PJ Conroy wrote: "Accept appl." Id. Defendant argues that the report discusses out-of-court statements made by nonparty individuals and offered to prove the truth of the matter asserted—that Atherton Channel empties into San Francisco Bay.
In response, Plaintiff states that it obtained the document as part of a request for documents it sent to the California State Water Resources Control Board ("SWRCB"), pursuant to the California
Pursuant to FRE 803(8), records, in any form, of public offices or agencies, setting forth "factual findings resulting from an investigation made pursuant to authority granted by law," are not excluded by the hearsay rule, "unless the sources of information or other circumstances indicate lack of trustworthiness." Fed.R.Evid. 803(8). "Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record." Fed.R.Evid. 803(8) advisory committee's note. A plaintiff "must show that the factual findings resulted from an investigation made pursuant to authority granted by law. If [the plaintiff] meets this burden, the factual findings will be presumed to be sufficiently trustworthy to overcome the hearsay bar unless [the defendant] . . . establishes that the sources of information or other circumstances indicate lack of trustworthiness." Gibson v. Cnty. of Riverside, 181 F.Supp.2d 1057, 1070 (C.D.Cal.2002) (citing Keith v. Volpe, 858 F.2d 467, 481 (9th Cir.1988)).
Here, to establish that the factual findings resulted from authority granted by law, Plaintiff directs the Court's attention to California Water Code section 1275. This section, which addresses applications to appropriate water, provides as follows: "After an application has been perfected, the board may request additional information reasonably necessary to clarify, amplify, correct, or otherwise supplement the information required to be submitted." Cal. Water Code § 1275. Plaintiff states that the Contact Report indicates that PJ Conroy was confirming that the water source was Atherton Channel and that Atherton Channel empties into San Francisco Bay. Thus, Plaintiff argues, a SWRCB official was making the required factual findings—that Atherton Channel empties into San Francisco Bay—resulting from an investigation made pursuant to authority granted by law—California Water Code section 1275. FRE 803(8) "is designed to allow admission of official records and reports prepared by an agency or government office for purposes independent of specific litigation." United States v. Stone, 604 F.2d 922, 925 (5th Cir.1979). The rule calls for "[a] broad approach to admissibility" that "assumes admissibility in the first instance," Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). Based on this authority, the Court finds that Plaintiff has shown that the factual findings resulted from an investigation made pursuant to authority granted by law, and that the investigation was made for purposes independent of specific litigation. See also Fed.R.Evid. 803(8) advisory committee's note (Rule 803(8)(c) "assumes admissibility [of 803(8)(c) reports] in the first instance but with ample provision for escape if sufficient negative factors [regarding trustworthiness] are present.").
As Plaintiff has met its minimal burden, Defendant must establish that the sources of information or other circumstances indicate lack of trustworthiness. In its objections, Defendant does not establish a lack of trustworthiness; instead, it merely states that the document is hearsay to which no exception applies because it contains multiple levels of hearsay—the report is an out-of-court statement made by PJ Conroy that discusses out-of-court statements made by non-party individuals. Despite Defendant's anemic showing, the Court finds that the report warrants closer scrutiny. The advisory committee proposed a nonexclusive list of four factors
Here, the Court is concerned that it knows nothing about PJ Conroy's level of skill or experience. More importantly, even if the Court were to find PJ Conroy's statements trustworthy (and, at this juncture, it has no reason not to), more troubling is the fact that the report repeats statements from an attorney and an unnamed individual, and there is no indication that those individuals were under an official duty to report the matters addressed in their statements. Rule 803(8) deems a public report admissible based on the notion that its official author knows what he is talking about and will state the facts accurately. That presumption does not attach to the statements of third parties who themselves bear no public duty to report what they observe. Thus, the statements in the report would be hearsay even if the author of the report were present in court. United States v. Chu Kong Yin, 935 F.2d 990, 999 (9th Cir.1991) ("the public documents exception to the hearsay rule is only the substitute for the appearance of the public official who made the record"); see also United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983) ("It is well established that entries in a police report which result from the officer's own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not."). Further, no type of formal investigative hearing was held; the report indicates that the SWRCB employee simply called two people.
Accordingly, the Court finds that the report is not admissible under the public records hearsay exception because it contains hearsay-within-hearsay. Therefore, the Court SUSTAINS Defendant's objection to page 84 of Exhibit A to the Lucke declaration.
Based on the analysis above, the Court OVERRULES Defendant's objections to the declarations of fact witnesses Anna Fairbank, Terry Blanchard, Dudley Kenworthy, and Andrea Kopecky; OVERRULES Defendant's objection to the corrected declaration of Deborah Self; OVERRULES Defendant's objection to the declaration of expert witness Bruce Bell; OVERRULES Defendant's objection to Exhibit A to Mr. Hunt's declaration; and SUSTAINS Defendant's objection to page 84 of Exhibit A to the Lucke declaration.
The Ninth Circuit has held that the "CWA's citizen suit provision extends standing to the outer boundaries set by the `case or controversy' requirement of Article III of the Constitution." Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir.2000). Thus, the first consideration is whether Plaintiff has standing under Article III. Id. To bring this action in federal court, Plaintiff has the burden of showing that: "(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. TOC, Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). "The relevant showing
As a membership organization, Plaintiff has standing to bring suit on behalf of its members when "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693 (citing Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). In its motion, Plaintiff maintains that it has standing because at least four of its members— Terry Blanchard, Dudley Kenworthy, Robert Fairbank, and Anna Fairbank ("Baykeeper Members")—have standing to bring the action independently. Pl.'s Mot. for Partial Summ. J. 7, Dkt. No. 71.
In response, Defendant maintains that Plaintiff has failed its burden to prove standing to bring this action.
To establish standing, Plaintiff must first show that its members have suffered an injury in fact. "[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Friends of the Earth, 528 U.S. at 182, 120 S.Ct. 693 (internal quotations and citations omitted).
Here, in support of its motion, Plaintiff submitted declarations of the Baykeeper Members in which they attest that they have suffered an injury in fact because they heavily use the waters of the San Francisco Bay and its tributaries for aesthetic and recreational enjoyment, and that their use and enjoyment is harmed because the Bay is impaired by pollution, which they believe is caused in part by Defendant's SSOs. Self Decl. ¶¶ 22-24, Dkt. No. 96; R. Fairbank Decl. ¶¶ 4-10, Dkt. No. 79; A. Fairbank Decl. ¶¶ 4-8, Dkt. No. 78; Blanchard Decl. ¶¶ 4-10, Dkt. No. 77; Kenworthy Decl. ¶¶ 4, 6-7, Dkt. No. 80.
In its opposition, Defendant responds that Plaintiff failed to disclose three of its declarants—Terry Blanchard, Anna Fairbank, and Dudley Kenworthy—as witnesses through initial or supplemental disclosures. Thus, Defendant argues that FRCP 37(c)(1) prohibits the use of these three witnesses' declarations. However, as discussed above, the Court finds that Plaintiff's failure to disclose these three witnesses prior to filing its motion was substantially justified and harmless. See Section III(B)(1), supra.
Next, Defendant argues that Plaintiff has failed to meet its burden of proving an injury in fact because, rather than identifying the specific creeks and tributaries that the Baykeeper Members claim to use, they only vaguely assert that they use the "sloughs of South San Francisco Bay," the "Bay," or "Bay Waters." In its Reply brief, Plaintiff argues that it is not necessary for the Baykeeper Members to identify the precise section of waters allegedly receiving SSOs.
Upon review of the Baykeeper Members' declarations, the Court finds that the locations provided are more specific than Defendant contends: "I did a lot of kayaking and canoeing on Alviso Slough and around the Don Edwards Wildlife Recreation Area," Blanchard Decl. ¶ 4, Dkt. No. 77; "I travel to many parts of the Bay on my boat for my own personal recreation, south from the Dumbarton Railroad Bridge to north past San Francisco," Id. ¶ 5; "I still occasionally go out on my
Further, the United States Supreme Court has found sufficient injury where the plaintiff's declarations were not as precise as Defendant would like to require. In Friends of the Earth, the Supreme Court looked to affidavits in which members provided geographic identifiers such as that they "lived a half-mile from [the defendant's] facility," used "the river between 3 and 15 miles downstream from the facility," "lived two miles from the facility," "lived one-quarter mile from [the defendant's] facility," and one member that "had canoed approximately 40 miles downstream of the [defendant's] facility." Friends of the Earth, 528 U.S. at 181-83, 120 S.Ct. 693. The Court found that the plaintiff had demonstrated sufficient injury to establish standing because its members averred in affidavits that they used the river near the defendant's facility, but had stopped using it because they were concerned that the water was polluted with discharges. Friends of the Earth, 528 U.S. at 181-82, 120 S.Ct. 693.
In contrast, the Supreme Court in Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), addressed an environmental organization's allegations that the Bureau of Land Management's "land withdrawal review program," a program covering millions of acres, illegally opened up public lands to mining activities. The Court held that the plaintiff could not survive a summary judgment motion merely by offering "averments which state only that one of [the organization's] members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action." Lujan, 497 U.S. at 889, 110 S.Ct. 3177.
Here, the Court finds that the Baykeeper Members' declarations more closely resemble those of the affiants in Friends of the Earth. In fact, there is no indication that the Baykeeper Members' descriptions are more than 15 miles from specific creeks and tributaries, let alone 40 miles. Rather than a case in which a plaintiff presents mere general averments and conclusory allegations like those found inadequate in Lujan, Plaintiff here has provided declarations related to specific geographical areas.
Moreover, each of the Baykeepers Members declarations provide specific evidence regarding their use of the areas that Plaintiff contends are affected by Defendant's alleged discharges. In his declaration, Robert Fairbank attests that his use of San Francisco Bay waters began after he moved to the Bay Area in 1978, including sailing on Bay waters and walking and biking along the water's edge on the Peninsula. Fairbank Decl. ¶ 4, Dkt. No. 79. Mr. Fairbank states that through his work as a member of San Francisco Baykeeper,
Terry Blanchard attests that he and his wife are civilian volunteers with the U.S. Coast Guard Auxiliary, and that he goes out on patrols in one of his power boats on behalf of the Coast Guard about once a week. Blanchard Decl. ¶ 5, Dkt. No. 77. He states that he travels all around the Bay as part of these patrols, and also goes out on boat rides with my wife for their own enjoyment, usually once a week, traveling many parts of the Bay for personal recreation, south from the Dumbarton Railroad Bridge to north past San Francisco. Id. On March 26, 2007, he was on patrol for U.S. Coast Guard and came to the assistance of power boat. Id. ¶ 7. In the process, the palm of his left hand was slit open by the bottom of the anchor of the other boat. Id. Once onshore, he was taken to the Kaiser Emergency Room in Redwood City where, in the course of getting treatment for the injury, he was told by medical professionals, including two ER doctors and an orthopaedic surgeon, that he was at risk for an infection due to the Bay's poor water quality. Id. He received both tetanus and wide-range antibiotics shots and was prescribed additional antibiotics to insure that he would not get an infection. Id. Since this incident, Mr. Blanchard states that has became even more concerned about the water quality of San Francisco Bay and that, while boating, he now wear gloves when working on deck because he worries that he could get a cut that would become infected. Id. ¶ 8. Mr. Blanchard also states that he worries about bacteria in the water and tries not to inhale or ingest the water spray to avoid getting sick. Id. He is also concerned about coming into contact with pathogens in the Bay sediments like when cleaning his boat, and therefore makes sure to wash thoroughly after being exposed to Bay water or mud due to these concerns. Id.
Anna Fairbank attests that she began to recreate on San Francisco Bay in 1979, when she first learned to sail, and that she still sails frequently on the Bay with my husband, family, and friends. Fairbank Decl. ¶ 4, Dkt. No. 78. She owns a sailboat with her husband and spends a fair amount of time on or near San Francisco Bay either sailing, doing maintenance work on the boat, or at the South Beach Yacht Club. Id. She states that she has seen evidence of pollution and unnatural substances in the Bay, and knowing that the Bay's ecosystem is degraded by sewage spills and other pollutants makes for a much less enjoyable experience. Id. Ms. Fairbank states that she has learned from media accounts and her involvement as a member of Baykeeper that contaminated discharges into the Bay, including raw sewage, and that eating fish from the Bay could be a health hazard. Id. ¶ 6. Her
Dudley Kenworthy attests that his ability to use and enjoy San Francisco Bay, its tributaries and the surrounding areas for recreation and enjoyment has been harmed because he is aware that these areas are ecologically degraded. Kenworthy Decl. ¶ 7, Dkt. No. 80. Specifically, he used to recreate directly on the water by windsurfing near Foster City and sailing in the Redwood City and Palo Alto harbor areas, but now most of his recreational activities involve walking and riding his bicycle along creeks and the Bay shoreline. Id. He walks or ride his bicycle along San Francisquito Creek and Arastradero Creek, a tributary to Los Trancos Creek. Id.
Deborah Self attests that she has visited Alviso Slough, Mallard Slough and Coyote Creek, Newark Slough, and Ravenswood Regional Open Space within San Francisco Bay to enjoy the tidal wetlands and observe shorebirds and water birds. Self Decl. ¶ 22, Dkt. No. 96. Ms. Self is a kayaker and has been learning about tides so she can enjoy paddling the sloughs in South San Francisco Bay. Id. ¶ 24. She states that knowing about the sewage contamination is a serious emotional hurdle to get over, and she definitely would not kayak anywhere near Defendant's Collection System following a rain event because of fear of bacterial infections. Id. She is afraid that she will be unable to use the waters in South San Francisco Bay for kayaking enjoyment without running the risk of getting sick due to exposure to raw sewage, and she finds repulsive the thought that she might pass through sewage-contaminated water. Id. ¶ 30.
Thus, because the Baykeeper Members aver that they use the San Francisco Bay and its tributaries including areas proximate to the alleged SSOs, and are persons for whom the aesthetic and recreational values of the area are lessened by the challenged activity, and because Defendant has failed to raise any genuine dispute with respect to this showing, the Court finds that Plaintiff has adequately established that it has suffered an injury in fact that is concrete and particularized and actual or imminent.
Next, Plaintiff must show that the injuries to its members are fairly traceable to Defendant's discharges. "The issue in the causation inquiry is whether the alleged injury can be traced to the defendant's challenged conduct, rather than to that of some other actor not before the court." Ecological Rights Found., 230 F.3d at 1151, 1152 (citations omitted). However, "to prove an injury is fairly traceable, `rather than pinpointing the origins of particular molecules, a plaintiff must merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern.'" Natural Res. Defense Council v. Sw. Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000) (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir.2000)). "Thus, the causal connection put forward for standing purposes cannot be too speculative, or rely on conjecture
As in Pacific Lumber, Plaintiff's standing witnesses claim that their use and enjoyment of the Bay and its tributaries is lessened due to Defendant's alleged violations of the CWA. The areas they use are downstream from Defendant's SSOs. Under Pacific Lumber, this is enough to establish causation.
To be sure, in Pacific Lumber, there was no indication of intervening pollution caused by third parties. Here, Defendant argues that Plaintiff has failed to demonstrate that its alleged injuries were caused by Defendant's SSOs and not some other entity. Defendant's attempt to break the chain of causation by blaming other polluters is not sufficient for summary judgment purposes. "[T]he threshold requirement of traceability does not mean that plaintiffs must show to a scientific certainty that defendant's effluent . . . caused the precise harm suffered by the plaintiffs in order to establish standing." Sw. Marine, 236 F.3d at 995 (internal citations and quotations omitted). To satisfy this requirement, "rather than pinpointing the origins of particular molecules, a plaintiff must merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern." Id. (internal citations and quotations omitted) (emphasis added). Where more than one potential discharger is part of the same system, a plaintiff need not show that the discharge came from a specific user. Cmty. Ass'n for Restoration of the Env't v. Henry Bosma Dairy, 65 F.Supp.2d 1129, 1141 (E.D.Wash.1999) (citing Pub. Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir.1990)). Plaintiff has submitted substantial evidence that Defendant's SSOs have "contributed" to the injuries suffered.
Defendant cites no authority that Plaintiff lacks standing under the CWA if third parties are also causing pollution. The argument, carried to its logical extent, would mean that where there are many polluters, none could be held liable. Thus, for purposes of standing, the Court finds that Plaintiff has established that the injury is fairly traceable to the challenged action of Defendant.
Finally, Plaintiff must show that it is likely, rather than merely speculative, that
Plaintiff seeks to enjoin Defendant "from discharging SSOs to waters of the United States without a NPDES permit, in violation of section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a)." Compl. ¶ 123(b), Dkt. No. 1. "A plaintiff who seeks injunctive relief satisfies the requirement of redressability by alleging a continuing violation . . . of an applicable statute or standard." Sw. Marine, 236 F.3d at 995. Here, Plaintiff alleges that Defendant has and continues to discharge sewage and its associated pollutants to waters used by Plaintiff's members. Bell Decl., ¶¶ 28-29, Dkt. No. 73. Therefore, it would appear that an injunction prohibiting the alleged discharges would redress Plaintiff's members' injuries.
Defendant argues that injunctive relief is not appropriate in this case for several reasons. First, it argues that an injunction would require coverage by a NPDES permit, which is problematic because the issuance of such a permit depends upon the discretionary action of an independent third party, either the Regional Board or the EPA. Defendant further argues that because of its status as a satellite system, it could not obtain a NPDES permit authorizing it to discharge sewage from its Collection System.
Second, Defendant argues that, as a result of permit and regulatory requirements since 2007, it has seen a steady decline in the total number of SSOs, increased recovery of SSOs, and several years of substantially reduced SSO volumes. Simonetti Decl. ¶¶ 2-4, Exs. A-1, A-2, Dkt. No. 100. Defendant further argues that an injunction would not completely alleviate Plaintiff's concerns about SSOs reaching the Bay because discharges would continue from other SSO dischargers. As noted above, Plaintiff need not establish that Defendant is solely responsible for the pollutant at issue; rather, Plaintiff must merely show that Defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern. See Section III(C)(2), supra. Moreover, Defendant does not argue SSOs discharges has stopped, and Plaintiff contends that Defendant continues to violate the CWA. Plaintiff thus seeks an injunction to end Defendant's alleged discharges. Accordingly, Defendant's argument is without merit; and the Court finds that Plaintiff's requested injunctive relief satisfies the redressability requirement.
Plaintiff also requests that the Court assess civil penalties against Defendant "of up to $32,500 per day per violation for all Clean Water Act violations occurring between September 28, 2004 and January 12, 2009, and up to $37,500 per day per violation for all Clean Water Act violations occurring since January 12, 2009." Compl. ¶ 123(c), Dkt. No. 1. Civil penalties are authorized under the CWA pursuant to 33 U.S.C. § 1319(d). However, Defendant argues that civil penalties are only authorized
In support of its argument, Defendant cites to Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Pursuant to Gwaltney, citizens may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation: "the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past." Id. at 59, 108 S.Ct. 376. However, this standard has no bearing on the present case, where Plaintiff alleges continuous violations. First, while Gwaltney stressed the prospective nature of citizen suits, that prospective nature was stressed only as a limitation on the jurisdictional basis of those suits. "When a citizen suit is properly commenced, . . . Gwaltney does not limit the relief which § 1319(d) affords the citizen group to only present and prospective penalties." Atl. States Legal Found. v. Tyson Foods, Inc., 897 F.2d 1128, 1136 (11th Cir.1990). Penalties are proper for past violations as well as present and future violations. Second, Defendant attempts to impose the Gwaltney standard for entitlement to injunctive relief on a spill-by-spill basis, rather than for the system-wide violations from Defendant's Collection System that Plaintiff alleges. Specifically, Defendant argues that Plaintiff has failed to demonstrate that each of these alleged point source discharges are "ongoing and continuous" and not "wholly past." Def.'s Opp'n at 10:3-4, Dkt. No. 97. Defendant points out that, in the five-year plus time frame for this case, Plaintiff alleges only one discharge to West Point Slough, one discharge to Redwood Creek, and one discharge to Bovet Creek. Defendant contends that, by definition, each of these single discharges from different parts of the sewer system does not constitute an ongoing and continuous discharge warranting injunctive relief. Id. at 10:5-11. However, Defendant provides no citation in Gwaltney, and the Court is aware of none, that prevents the Court from addressing systemwide relief. Defendant's argument ignores the point of Plaintiff's lawsuit-it is the Collection System itself and not each individual spill that is at issue. Where the SSOs area alleged to be manifestations of a systemic pattern or practice, entitlement to injunctive relief likewise should be judged on a systemic basis. See Sw. Marine, 236 F.3d at 995 (finding that the plaintiffs satisfied the requirement of redressability where the plaintiffs alleged that the defendant was continuing to violate its permits and they sought an injunction to halt those continuing violations).
Based on this analysis, the Court finds that it is likely that Plaintiff's injury will be redressed by a favorable decision.
Based on the analysis above, the Court finds that Plaintiff has met its burden of showing that its members have suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of Defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. As a membership organization, Plaintiff has standing to bring
Plaintiff is a nonprofit corporation dedicated to protecting and enhancing the water quality of the San Francisco Bay-Delta Estuary and its tributaries for the benefit of its ecosystems and the surrounding communities. Self Decl. ¶¶ 2, 4, Dkt. No. 96. In its Complaint, Plaintiff seeks a judgment declaring that Defendant has discharged pollutants from its Collection System into the San Francisco Bay and its tributaries without a permit, in violation of the CWA, and an injunction preventing Defendant from discharging pollutants without a NPDES permit. Compl. ¶ 123, Dkt. No. 1. As Plaintiff's purpose is protecting the water quality of the San Francisco Bay and its tributaries, the interests in this suit are germane to the organization's purpose.
As to whether Plaintiff's claim requires the participation of individual members in this lawsuit, the Court finds no reason to require individual members here. First, Defendant does not challenge Plaintiff's standing to bring suit on behalf of its members. Second, even if Defendant did challenge Plaintiff's standing as an organization, there is no indication that the relief Plaintiff seeks—declaratory judgment and an injunction—is the type of relief that requires individual members' participation. Where, as here, associational plaintiffs do not seek individualized relief for their members that would require individualized proof, the participation of individual members is not required. Hunt, 432 U.S. at 343-44, 97 S.Ct. 2434; see also Natural Res. Defense Council, Inc. v. Cnty. of Los Angeles, 2010 WL 761287, *5 (C.D.Cal. 2010).
Based on this analysis, the Court finds that Plaintiff has standing to bring suit on behalf of its members as a membership organization.
Finally, Defendant argues that Plaintiff failed to provide notice of all the alleged spills addressed in its motion. Before an action is commenced under the CWA, the citizen must give a 60-day notice of intent to sue. 33 U.S.C. § 1365(b)(1)(A). When a party does not fulfill this threshold requirement, "the district court must dismiss the action as barred by the terms of the statute." Hallstrom v. Tillamook Cnty., 493 U.S. 20, 33, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). Pursuant to the requirements adopted by the EPA, notice of the alleged violation must include sufficient information to permit the recipient to identify the standard or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible, the location, the date or dates, and contact information for the person giving notice. 40 C.F.R. § 135.3(a).
Here, Defendant argues that Plaintiff's motion includes nine spills that were not included in the notice of intent to sue letter, and no supplemental notice letter was provided. Thus, Defendant requests that the Court dismiss Spills 60-68 for lack of adequate notice. In response,
In Bosma Dairy, the plaintiff listed dates of violations in its notice letter and then added additional dates of similar violations in its complaint. Bosma Dairy, 305 F.3d at 951-52. Because the additional violations were "from the same source, were of the same nature, and were easily identifiable," the court found the plaintiff's notice adequate. Id. at 953. Therefore, the Court holds in this case that, in addition to the specific dates of violations listed in its notice letter, Plaintiff can pursue claims for such violations on other dates after the notice letter was sent. Accordingly, the Court DENIES Defendant's request to dismiss Spills 60-68.
Based on the analysis above, the Court finds that Plaintiff has standing to bring this lawsuit. Specifically, Plaintiff has shown that: (1) it has suffered an "injury in fact" that is concrete and particularized, and actual or imminent, (2) the injury is fairly traceable to the challenged action of Defendant; and (3) it is likely that the injury will be redressed by a favorable decision. Further, Plaintiff has standing to bring suit on behalf of its members as a membership organization. Finally, the Court also finds that Plaintiff provided adequate notice pursuant to 33 U.S.C. § 1365. Having established that Plaintiff has standing to sue, the Court now turns to the merits of Plaintiff's motion.
In its motion, Plaintiff argues that there is no genuine dispute that 68 SSOs from Defendant discharged pollutants to surface waters. Specifically, Plaintiff maintains that Defendant's own certified and internal reports establish that Defendant discharged 23 SSOs, lasting a total of 34 days, to surface waters, and that it spilled 45 SSOs that reached the MS4 and subsequently discharged to surface waters. Plaintiff argues that Defendant did not and cannot capture and return all pollutants from SSOs because it is not possible to completely eliminate all pollutants from SSOs once they reach the storm drain.
In response, Defendant argues that there are material factual issues because it denies that the spills reached waters of the United States. In addition, Defendant argues that several of the surface waters at issue are considered to be part of the area's MS4 and, as such, discharges from the MS4 would be considered a permitted discharge under the October 14, 2009 jurisdiction-wide NPDES permit issued by the Regional Board. Defendant further argues that, based on Plaintiff's own expert, a genuine issue exists as to whether a spill can be fully captured and returned to the sanitary sewer system. Finally, Defendant argues that Plaintiff has provided
To establish a violation of the Act's NPDES requirements, a plaintiff must prove that (1) a person (2) discharged (3) a pollutant (4) to navigable waters of the United States (5) from a point source (6) without a permit. Comm. to Save Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir.1993) (internal citation omitted). Three of the elements— (1) Plaintiff is a person under the CWA, (2) sewage is a pollutant, and (3) Defendant's Collection System and the MS4 are point sources—are not in dispute. Specifically, it is undisputed that Plaintiff is a person under the CWA. "The term `person' means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 33 U.S.C. § 1362(5). It is also undisputed that sewage is a pollutant. See 33 U.S.C. § 1362(6) (The term pollutant includes sewage). It is also undisputed that Defendant's Collection System and the MS4 are point sources. "Point source" is defined as: "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit . . . from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). Paragraph 25 of Plaintiff's Complaint alleges: "The Collection System consists of pipes and other manmade conveyances, and is a point source under the Clean Water Act." Compl. ¶ 25, Dkt. No. 1. In its Answer, Defendant admits this allegation. Answer ¶ 25, Dkt. No. 11. Paragraph 37 of Plaintiff's Complaint alleges: "The MS4s owned and operated by the County and the Municipalities are point sources under the Clean Water Act." Compl. ¶ 37, Dkt. No. 1. Defendant also admits this allegation. Answer ¶ 37, Dkt. No. 11. Accordingly, this element is undisputed.
The remaining elements are contested.
Plaintiff must show no genuine dispute of fact exists that Defendant's SSOs discharged pollutants to surface waters. Pursuant to the CWA, "[t]he term `discharge of a pollutant' and the term `discharge of pollutants' each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." 33 U.S.C. § 1362(12). Thus, the discharge of sewage would satisfy this element.
Plaintiff argues that 23 of Defendant's SSOs discharged pollutants directly into surface waters. Specifically, Plaintiff contends that the CIWQS reports Defendant submitted under penalty of perjury and Defendant's own internal reports provide conclusive evidence of these discharges. Plaintiff alleges that Defendant's certified reports and admissions prove that 6 spills (Spills 41, 51, 52, 61. 64, and 65) discharged to San Francisquito Creek. Next, Plaintiff alleges Defendant's certified reports prove the following SSOs reached surface waters: 1 spill (Spill 63) to West Point Slough; 8 spills (Spills 5, 7, 19, 31, 38, 48, 54, and 59) to Atherton Channel; 3 spills (Spills 43, 44, 47) to San Francisquito Creek; 2 spills (Spills 6 and 32) to Corte Madera Creek; and 1 spill (Spill 9) went to Los Trancos Creek. Finally, Plaintiff allege that Defendant's internal reports establish that 3 spills reached surface waters: 1 spill (Spill 33) to Atherton Channel; 1 spill (Spill 13) discharged to
Defendant's arguments in its opposition are generalized and do not address each specific SSO; accordingly, the Court shall address these arguments first prior to a review of the individual SSOs. As to its certified reports, Defendant argues that genuine disputes exist because the CIWQS reporting system allows entities to modify their reports based on new or corrected information. However, Defendant fails to raise any genuine issue of dispute. Notably, Defendant does not challenge the certification of the reports, nor does it show that the reports were in fact changed. "A monitoring report that shows a water sample with pollutant discharges in excess of permit limits is conclusive evidence of a violation." Inland Empire Waterkeeper v. Uniweb, Inc., 2008 WL 6098645, *9 (C.D.Cal.2008) (citing Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491 (9th Cir.1987), vacated on other grounds, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988), reinstated with minor amendment, 853 F.2d 667 (9th Cir.1988)). "A defendant may not impeach its own publicly filed reports which are `submitted under penalty of perjury.'" Id. (quoting Save Our Bays & Beaches v. City & Cnty. of Honolulu, 904 F.Supp. 1098, 1138 (D.Haw.1994)). Thus, the Court finds that Defendant's certified reports are properly considered.
Defendant further argues that its internal reports are merely for internal tracking and not submitted to any outside entity or certified as accurate. However, internal reports may be considered admissions. Commercial Credit Group, Inc. v. Falcon Equip., LLC, 2010 WL 144101, *12 (W.D.N.C.2010) (finding that the defendant's invoices, which contained statements made by the defendant's employees, constitute an admission by a party opponent); see also Fed.R.Evid. 801(d)(2)(A), 801(d)(2)(c), 803(6). Defendant offers no reason not to do so here.
Finally, Defendant states that it has "inadequate space to go into detail about each of the spills," but directs the Court's attention to the Declaration of John Simonetti, paragraphs 7-15 and the Declaration of John Larson, paragraphs 7-12. The Court has also reviewed these declarations, and finds that neither declaration contradicts the evidence submitted by Plaintiff related to the actual content of the reports. Neither Mr. Larson nor Mr. Simonetti challenges the certification of the reports or the reports' statements that the spills reached waters. As to evidence other than certified reports, the Court shall address the Larson and Simonetti declarations as relevant below.
The Court shall now consider each set of spills in turn.
Plaintiff argues that Defendant's certified reports establish that between October 3, 2004 and the present, Defendant discharged 6 SSOs to San Francisquito Creek. Plaintiff further argues that Defendant's responses to Plaintiff's Requests for Admission establish these discharges.
The Court finds that Defendant's certified reports establish without dispute discharges to San Francisquito Creek for all six SSOs-Spills 41, 51, 52, 61, 64, and 65. Hunt Decl. Exs. D-41 at 988, Dkt. No. 92 (overflow into private storm system which flows to San Francisquito Creek); D-51 at 1117, Dkt. No. 94 (Final spill destination: San Francisquito Creek to San Francisco Bay); D-52 at 1175, Dkt. No. 94 (Final spill destination: SSO down hillside into the San Francisquito Creek); D-61 at 1374, Dkt. No. 93 (Final spill destination: Storm drainage system to a drainage ditch to San Francisquito Creek); D-64 at 1427, Dkt. No. 93 (Final spill destination: San Francisquito Creek which flows to the San
As noted above, Defendant argues that genuine disputes exist because the CIWQS reporting system allows entities to modify their reports based on new or corrected information. Notably, Defendant does not challenge the certification of the reports, nor does it show that the reports were in fact changed. Further, as stated above, Defendant may not impeach its own publicly filed reports which are submitted under penalty of perjury. Inland Empire, 2008 WL 6098645, at *9. In any event, with respect to this and many other SSOs, Defendant has submitted no contrary evidence rebutting Plaintiff's evidence. Mere denial in response to an RFA is not evidence.
The Court finds that no genuine dispute exists as to SSOs 41, 51, 52, 61, 64, and 65, and that these spills discharged to San Francisquito Creek.
Plaintiff argues that Defendant's certified reports establish that it discharged one SSO (Spill 63) to West Point Slough. As Defendant's report states that the final destination of the spill was "West Point Slough then to the SF Bay," Hunt Decl. Ex. D-63 at 1418, Dkt. No. 93, the Court finds that no genuine dispute exists as to SSO 63, and that this spill discharged into West Point Slough.
The Court also finds that Defendant's reports establish that eight SSOs discharged to Atherton Channel: Spills 5, 7, 19, 31, 38, 48, 54, and 59. Hunt Decl. Ex. D-5 at 565, Dkt. No. 85 (SSO flowed into the Atherton Channel); D-7 at 620, Dkt. No. 85 (same); D-19 at 801, Dkt. No. 87 (same); D-31 at 889, Dkt. No. 91 (same); D-38 at 948, Dkt. No. 91 (same); D-48 at 1062, Dkt. No. 92 (same); D-54 at 1224, 1226, 1229, 1232, Dkt. No. 94 (same); D-59 at 1326, 1331, Dkt. No. 94 (same).
The Court finds that no genuine dispute exists as to SSOs 5, 7, 19, 31, 38, 48, 54, and 59, and that these spills discharged to Atherton Channel.
Plaintiff also contends that Defendant's reports establish that SSOs 43, 44, and 47 discharged to San Francisquito Creek. For all three of these SSOs, on the portion of the report that requires the preparer to determine whether there was an "Overflow to creek," all three reports have an "x" in the box next to this question. Decl. Exs. D-43 at 1021, D-44 at 1030, D-47 at 1053, Dkt. No. 92. However, none of the reports specify which creek received the overflow. Further, the written portions of the reports seem somewhat contradictory. As to SSO 43, Plaintiff cites to the Hunt Declaration at pages 1016 and 1021. However, both pages state that the overflow
Thus, based on the evidence before it, the Court cannot determine as a matter of law that SSOs 43, 44 and 47 spilled to San Francisquito Creek.
As to SSOs 6 and 32, the Court finds that Defendant's reports establish that these spills discharged to Corte Madera Creek. Hunt Decl. Ex. D-6 at 580, 584, Dkt. No. 85 (Receiving waters: Corte Madera Creek); Ex. D-32 at 902, Dkt. No. 91 (Receiving waters: Tributary to Corte Madera Creek). Hunt Decl. Ex. D-6 at 580. There is no evidence to the contrary.
The Court finds that no genuine dispute exists as to SSOs 6 and 32, and that these spills discharged to Corte Madera Creek and/or its tributaries.
The Court also finds that Defendant's reports establish that SSO 9 discharged to Los Trancos Creek. Hunt Decl. Ex. D-9 at 650, 655, Dkt. No. 86 (Receiving waters: Los Trancos Creek to San Francisquito Creek). Accordingly, the Court finds that no genuine dispute exists as to SSO 9 and that this spill discharged to Los Trancos Creek.
As to SSO 33, the Court finds that Defendant's reports establish that it discharged to Atherton Channel. Hunt Decl. Ex. D-33 at 913, 915, Dkt. No. 91 (receiving waters: Atherton Channel). Accordingly, the Court finds that no genuine dispute exists as to SSO 33 and that this spill discharged to Atherton Channel.
As to SSO 13, Plaintiff argues that it is undisputed that it discharged to Redwood Creek. In support of this claim, Plaintiff cites to a handwritten informal report from Defendant. In the note, the preparer provided the following information: "Troy [from the] town of Atherton was on site. He told me this section of the storm drain ran into Redwood City Creek." Hunt Decl. Ex. D-13 at 699, Dkt. No. 86. Internal reports may also be admissible as an official record and in this instance as a party admission. Commercial Credit Group, 2010 WL 144101, at *12; see also Fed.R.Evid. 801(d)(2)(A), 801(d)(2)(c), 803(6). However, the note repeats a statement from an unknown individual that does not appear to be an agent of Defendant, and there is no indication as to the trustworthiness or reliability of this individual. The statement constitutes hearsay-within-hearsay, and thus the Court will not consider this handwritten report admissible for purposes of this motion. The report thus fails to establish as a matter of law that SSO 13 discharged to Redwood Creek.
Plaintiff also directs the Court's attention to page 708 of the Hunt Declaration but, while that page contains a table of SSOs including SSO 13, it says nothing of Redwood Creek. Thus, based on the evidence before it, the Court cannot determine as a matter of law that SSO 13 discharged into Redwood Creek.
As to SSO 1, the Court finds that Defendant's reports establish that it discharged to Corte Madera Creek. Hunt Decl. Ex. D-1 at 530, 535, Dkt. No. 85 (Receiving waters: Corte Madera Creek). Accordingly, the Court finds that no genuine dispute exists as to SSO 1 and that this spill discharged to Corte Madera Creek.
Based on the analysis above, the Court finds that: (1) no genuine dispute exists as to SSOs 41, 51, 52, 61, 64, and 65, and that these spills discharged to San Francisquito Creek; (2) no genuine dispute exists as to SSO 63, and that this spill discharged into West Point Slough; (3) no genuine dispute exists as to SSOs 5, 7, 19, 31, 38, 48, 54, and 59, and that these spills discharged to Atherton Channel; (4) a genuine dispute exists as to whether SSOs 43, 44 and 47 spilled to San Francisquito Creek; (5) no genuine dispute exists as to SSOs 6 and 32, and that these spills discharged to Corte Madera Creek and/or its tributaries; (6) no genuine dispute exists as to SSO 9, and that this spill discharged to Los Trancos Creek; (7) no genuine dispute exists as to SSO 33, and that this spill discharged to Atherton Channel; (8) a genuine dispute exists as to whether SSO 13 discharged into Redwood Creek; and (9) no genuine dispute exists as to SSO 1, and that this spill discharged to Corte Madera Creek.
Plaintiff next argues that Defendant's certified reports establish that 45 SSOs entered the MS4. And, as it is undisputed that the MS4 constitutes a "point source," Compl. & Answer ¶¶ 25, 37, Dkt. No. 1, 11, Plaintiff further argues that there is no reasonable dispute that these 45 SSOs ultimately discharged from the MS4 to surface waters.
In response, Defendant argues that a genuine dispute of fact exists as to whether or not there was an actual discharge from the MS4 to surface waters. Defendant argues that the data created by Plaintiff's engineer and through its field investigation, as well as the opinions reached by Dr. Bell as a result of that data, are not reliable. Further, they are not conclusive because Defendant secured rebuttal opinions that confirm the existence of genuine disputes. Defendant argues that a genuine dispute exists as to whether a spill can be fully captured and returned to the sanitary sewer system.
As an initial matter, although Plaintiff discusses 45 SSOs in this section of its motion, one of those SSOs—Spill 63—is also listed in the section regarding discharges to surface waters. Thus, as the Court addressed SSO 63 above, see D(1)(a)(ii), supra, it need not address it here.
Further, the Court notes that there seems to be no dispute that the 44 remaining SSOs entered the MS4. In its opposition, Defendant admits that "most of these spills reached the MS4." Def.'s Opp'n at 14:26, Dkt. No. 97. And, even though its concession is qualified by the use of "most," Defendant fails to present any specific evidence that any of the 44 SSOs did not enter the MS4.
To establish that these 44 SSOs discharged from the MS4 to the waters of the United States, Plaintiff states that it
Defendant argues that Dr. Bell's opinion is based on assumptions, not actual facts. Thus, Defendant argues that it would be improper to accept his opinions at the summary judgment stage. For the reasons stated above, (see Section III(B)(3)(a)(i), supra, the Court agrees). Even though Dr. Bell's testimony in this regard is admissible under Daubert, on its face there are substantial factual questions about the reliability of his conclusions and completeness of his data and reasoning that all of these SSOs which entered the MS4 found their way to surface waters. Dr. Bell's conclusions are based in part upon supposition and inferences. Because on a motion for summary judgment, all reasonable inferences must be drawn against the moving party, the Court cannot find as a matter of law that all SSOs which entered the MS4 reached waters of the United States.
There are additional reasons for denying partial summary judgment. In his declaration, Mr. John Larson states that Dr. Bell's opinion regarding the routes the SSOs flowed or were transported through the MS4 ignores the contemporaneous records and the results of subsequent detailed investigations made by Defendant that indicate that some of the SSOs were completely contained and did not reach surface waters. Larson Decl. ¶ 8, Dkt. No. 102. Of the 44 SSOs at issue here, Larson states that the SSOs that were completely contained include SSOs 3, 26, 27, 29, 30, 42, 46, 50, 55, 56, 57, 60, 66, 67, and 68.
A review of Defendant's records shows that this is true for some, not all, of the SSOs listed by Mr. Larson. The reports for SSOs 3, 26, 55, 56, 57, 66, 67, and 68 all indicate that the entire overflow was contained. Hunt Decl. Ex. D-3, Dkt. No. 85; D-26, Dkt. No. 90; D-55, D-56, D-57, Dkt. No. 94; D-66, D-67, D-68, Dkt. No. 93. Plaintiff argues that it is not feasible for Defendant to completely capture and return all the sewage spilled during an SSO. However, Defendant's reports and the declaration of its expert create a disputed issue of fact. Thus, given that Defendant's reports for these eight SSOs appear to contradict Plaintiff's argument and the method described in its motion, the Court finds that a genuine dispute exists as to containment, at least for SSOs 3, 26, 55, 56, 57, 66, 67, and 68.
Nonetheless, Plaintiff contends that Defendant's own reports conclusively establish
Plaintiff addresses the 44 SSOs in two categories: (1) 24 SSOs that spilled to the MS4 during or immediately after a significant rain event; and (2) 20 SSOs that reached the MS4 without a significant rain event. A "significant rain event" occurs if more than 0.1 inches of rain accumulated during the calendar day, more than 0.5 inches fell on the previous day, or more than 1.0 inch fell two days before. Bell Decl. ¶ 50, Dkt. No. 73 (citing EPA, NPDES Storm Water Sampling Guidance Document, July 1992; Nat'l Climatic Data Center, Palo Alto Weather Station, Station 046646, Dec. 19, 2010 ("EPA Guidance Document")). The EPA established these criteria as part of its sampling requirements to ensure that adequate flow would be discharged and to ensure that the resulting data will accurately portray the most common conditions for each site. EPA Guidance Document at pp. 15-18 (available at nepis.epa.gov/Exe/Zy-PURL.cgi?Dockey=20012RVG.txt, last viewed on March 11, 2011). Plaintiff states that it utilized these categories because pollutants contained in SSOs that reached storm sewers or ditches when stormwater was flowing would have been discharged to surface water. Bell Decl. ¶ 51, Dkt. No. 73. Plaintiff also contends that if sufficient flow was not occurring at the time an SSO reached the storm sewer/ditch, the pollutants would ultimately discharge to surface waters when sufficient flow later occurred in the storm sewer/ditch to carry those pollutants to the surface water. Id. ¶ 52.
Of the SSOs that spilled to the MS4 during or immediately after a significant rain event, Plaintiff argues that Defendant's certified reports establish that the following SSOs spilled to the MS4 and discharged to San Francisquito Creek, Ravenswood Slough, Atherton Channel, Los Trancos Creek, or Bayfront Canal ("the Surface Waters"): Spills 10, 15, 16, 37, 40, 49, 50, and 62. While these reports might otherwise be sufficient to establish a discharge to surface waters, the Court finds that Defendant's reports do not in this instance. While the reports indicate that the spills overflowed to a creek, channel, or culvert, they do not name any creek or channel which the Court finds (see Section III(D)(2), infra) constitutes surface waters.
Furthermore, Defendant contends that certain discharges into a MS4 did not reach surface waters because they were contained. Defendant cites to the State Water Resources Control Board's Statewide General Waste Discharge Requirements for Sanitary Sewer Systems, which provides that, "In the event of an SSO, the Enrollee shall take all feasible steps to prevent untreated or partially treated wastewater from discharging from storm drains into flood control channels or waters of the United States by blocking the storm drainage system and by removing
Plaintiff also argues that Defendant's internal (as opposed to certified) reports establish that the following SSOs spilled to the MS4 and discharged to the Surface Waters: Spills 2, 4, 8, 11-12, 14, 17-18, 20-25, 27, and 34. Of these, the Court finds that Defendant's reports establish that SSO 14 discharged to surface water identified below as waters of the United States. Hunt Decl. Ex. D-14 at 710, Dkt. No. 86 ("Vacuumed portion of the Atherton Channel where overflow entered the channel.") Defendant's report serves as an admission, and there is no evidence that SSO 14 was contained before it reached Atherton Channel.
As to all other SSOs listed in this section, the Court finds that Defendant's internal reports do not establish, on their own, that the spills discharged into the Surface Waters listed above. While the reports may state that the spills overflowed to a creek, channel, or culvert, they do not name any creek or channel which constitutes surface waters.
Accordingly, the Court finds that no genuine dispute exists as to SSO 14, and concludes that this spill discharged to Atherton Channel. As to SSOs 2, 4, 8, 11-12, 17-18, 20-25, 27, and 34, the Court finds that a genuine dispute of fact exists.
As to the SSOs that spilled to the MS4 without a significant rain event, Plaintiff argues that Defendant's certified reports establish that the following SSOs spilled to the MS4 and discharged to the Surface Waters listed above: Spills 29, 35, 39, 42, 45-46, 53, 58, and 60. However, the Court finds that Defendant's certified reports do not establish, on their own, that the spills discharged into the Surface Waters listed above. While the reports may state that the spills overflowed to a creek, channel, or culvert, they do not name any of the Surface Waters.
Plaintiff also argues that Defendant's internal reports establish that the following SSOs spilled to the MS4 and discharged to the Surface Waters: Spills 28 and 30. However, the Court finds that Defendant's internal reports do not establish, on their own, that the spills discharged into the Surface Waters listed above. While the reports may state that the spills overflowed to a creek, channel, or culvert, they do not name any of the Surface Waters.
Plaintiff argues that an SSO that reaches the MS4 even in a dry period must be presumed to reach surface waters because subsequent rain event will wash the pollutants through the MS4 to surface waters. Bell Decl. ¶ 52, Dkt. No. 73. However, Plaintiff provides no persuasive case law establishing such proposition. While Plaintiff cites to Sierra Club, 813 F.2d at 1490-91, and Hawaii's Thousand Friends v. City & Cnty. of Honolulu, 821 F.Supp. 1368, 1392 (D.Haw.1993), those cases merely recognize that the CWA imposes strict liability for NPDES violations and does not excuse "de minimis" or "rare" violations. They do not establish that once an SSO hits an MS4, it is presumed to reach surface waters even e.g., in the face of a clean up effort. Accordingly, absent clear authority on this issue, the Court is disinclined to grant summary judgment based on this theory.
Based on the analysis above, the Court finds that (1) a genuine dispute exists as to whether the following SSOs spilled from the MS4 and discharged into surface waters: 2-4, 8, 11-12, 17-18, 20-30, 34-35, 39, 42, 45-46, 53, 55-58, 60, and 66-68; and (2) no genuine dispute exists that SSO 14 discharged to Atherton Channel.
Finally, Plaintiff argues that five of the SSOs discharged for more than one day based on the total overflow time listed in Defendant's reports: SSOs 7 (approx. 57 hours), Hunt. Decl., Ex. D-7 at 620, Dkt. No. 85; 38 (approx. 26.5 hours), Ex. D-38 at 948, Dkt. No. 91; 51 (approx. 33 hours), Ex. D-51 at 1118, 1125, Dkt. No. 94; 54 (approx. 24.5 hours), Ex. D-54 at 1225, Dkt. #94; 64 (approx. 2 hours, but over two calendar days), Ex. D-64 at 1428, Dkt. No. 93.
In its opposition, Defendant argues that there is no permit or statutory definition of "day," and thus there is a legal and factual dispute over the definition of a "day" for spills that occurred over multiple calendar days. Defendant's argument appears to be directed only at SSO 64, which took place over two calendar days—beginning on April 30, 2010 at 10:54 p.m. and ending on May 1, 2010 at 12:53 a.m.—but only lasted approximately two hours. Defendant argues that the Court should count only each 24-hour period as a day, instead of each calendar day.
While neither party provided legal citations defining a "day" in this context, Defendant directs the Court's attention to Sierra Club v. City and County of Honolulu, 2008 WL 3850495, at *11 (D.Haw.2008). In that case, the court considered the definition of a "day" in the context of the CWA. Id. The Court noted, like here, that the parties provided no legal authority on the definition, but it counted only each 24 hour period, rather than a calendar day, in favor of the non-moving party. Id. The Court finds this standard appropriate. Based on the hours listed above, the Court finds as a matter of law that SSO 64 occurred in one day, SSO 7 occurred over three days, SSO 38 occurred over two days, SSO 51 occurred over two days, and SSO 54 occurred over two days.
Based on this analysis, the Court finds that no genuine dispute of fact exists that 21 SSOs discharged for a total of 26 days. These SSOs are summarized as follows:
SSO Discharge Location Days ---------------------------------- 1 Corte Madera Creek 1 ---------------------------------- 5 Atherton Channel 1 ---------------------------------- 6 Corte Madera Creek 1 ---------------------------------- 7 Atherton Channel 3 ---------------------------------- 9 Los Trancos Creek 1 ---------------------------------- 14 Atherton Channel 1 ---------------------------------- 19 Atherton Channel 1 ---------------------------------- 31 Atherton Channel 1 ---------------------------------- 32 Corte Madera Creek 1 ---------------------------------- 33 Atherton Channel 1 ---------------------------------- 38 Atherton Channel 2 ---------------------------------- 41 San Francisquito Creek 1 ---------------------------------- 48 Atherton Channel 1 ---------------------------------- 51 San Francisquito Creek 2 ---------------------------------- 52 San Francisquito Creek 1 ---------------------------------- 54 Atherton Channel 2 ---------------------------------- 59 Atherton Channel 1 ---------------------------------- 61 San Francisquito Creek 1 ----------------------------------
63 West Point Slough 1 ---------------------------------- 64 San Francisquito Creek 1 ---------------------------------- 65 San Francisquito Creek 1 ----------------------------------
Next, Plaintiff must show that no genuine dispute exists that the surface waters which received Defendant's discharges are jurisdictional waters of the United States. Plaintiff argues that nine bodies of water are all waters of the United States under the CWA: San Francisquito Creek, West Point Slough, Atherton Channel, Los Trancos Creek, Corte Madera Creek, Ravenswood Slough, Bayfront Canal, Redwood Creek, and Bovet Creek.
In response, Defendant provides little in the way of quantitative or even specific qualitative evidence to dispute Plaintiff's evidence related to the individual bodies of water. The Court shall address that evidence below in its analysis of each body of water. However, Defendant argues generally that evidence shows portions of the creeks were dry at the time of some spills, and that some of the creeks regularly run dry. Based on this, Defendant argues that a genuine dispute exists as to the duration and flow of that water at the time of the alleged spills, and thus the classification of particular bodies as waters of the United States are genuinely disputed.
Pursuant to EPA regulations, "Waters of the United States" means "all waters which are subject to the ebb and flow of the tide; waters from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or tributaries of waters identified as [waters of the United States]." 40 C.F.R. § 122.2 ("Definitions") (defining "Waters of the United States," 33 U.S.C. § 1362(7)). Thus, "a body of water need not, itself, be navigable in order to be one of the waters of the United States." United States v. Moses, 496 F.3d 984, 988 (9th Cir.2007). Instead, the CWA includes "[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams) ... [and][t]ributaries of [such] waters." 33 C.F.R. § 328.3(a). Further, "a tributary of waters of the United States is itself a water of the United States." Moses, 496 F.3d at 989 n. 8. And, "a seasonally intermittent stream which ultimately empties into ... a water of the United States can, itself, be a water of the United States." Id.; see also Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208 (Scalia, J.) ("We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months."). Thus, even a creek which is dry for months may constitute a tributary that is a Water of the United States.
Contrary to Defendant's argument, the CWA does not require that a body of water have a continuous flow for it to be a Water of the United States. As stated above, the CWA includes intermittent bodies of water. 33 C.F.R. § 328.3(a); see also Moses, 496 F.3d at 989 ("a seasonally intermittent stream which ultimately empties into ... a water of the United States can, itself, be a water of the United States"); Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208 (Scalia, J.) ("We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months."). Defendant cites to Rapanos for the proposition that it creates a "genuine
As to San Francisquito Creek, Plaintiff presents evidence that the existing beneficial uses of San Francisquito Creek include both warm and cold freshwater habitats, fish migration, fish spawning, and wildlife habitat. Bell Dec., ¶ 30, Dkt. No. 73; Hunt Dec, Exh. F at 1484-85 (Basin Plan). Plaintiff also offers evidence that San Francisquito Creek has a monthly mean discharge five miles downstream of Searsville Lake that ranges between 0.11 cubic feet per second ("cfs") and 86.7 cfs, is tidally affected as far upstream as East Bayshore Road. Id.; Hunt Decl. ¶ 14, Ex. I, Dkt. No. 88 (citing United States Geological Survey, Water Data Report 2009, 11164500 San Francisquito Creek at Stanford University, CA). The creek supports steelhead trout, thereby requiring continuous water flow during spawning season. Id. ¶¶ 30, 33. In addition, Defendant admits in its responses to Plaintiff's requests for admission ("RFA") that the state and federal governments consider San Francisquito Creek to be waters of the United States. Hunt Dec., Ex. B at 7-8, RFA Resp. No. 10, 14, Dkt. No. 83.
In response, Defendant argues that its responses to Plaintiff's requests are not an admission that San Francisquito Creek is a water of the United States. Defendant also argues that Plaintiff's allegations that a portion of this creek is tidally affected and may seasonally support steelhead trout does not provide proof that the segment of the creek into which an SSO may have flowed is a water of the United States. Defendant further argues that evidence shows that portions of the San Francisquito Creek were dry at the time of some spills at issue here.
First, as to Plaintiff's requests for admission, the Court finds that Defendant's responses are not an admission that San Francisquito Creek is a water of the United States. Plaintiff cites to Defendant's responses to RFA Numbers 10 and 14. RFA No. 10 requests: "Please admit that San Francisco Bay is a WATER OF THE UNITED STATES." Bell Decl. Ex. B at 6:19, Dkt. No. 83. Defendant responded that it "admits that the state and federal government may consider the San Francisco Bay to be a `water of the United States.'" Id. at 6:23-24. RFA No. 14 requests: "Please admit that San Francisquito Creek is a WATER OF THE UNITED STATES." Id. at 7:22. Defendant responded that it "admits that the state and federal government may consider the San Francisquito Creek or portions thereof to be a `water of the United States.'" Id. at 7:26-28. An admission that state and federal governments may consider the
As to Defendant's other arguments, the Court finds that they do not create a genuine dispute of fact. Regarding Defendant's argument disputing whether portions of the creek are tidally affected and may seasonally support steelhead trout, Defendant offers no evidence to support its argument or to challenge the evidence Plaintiff has presented. The point about the steelhead trout is that it establishes a connection at least seasonally between San Francisquito Creek and the Bay. While San Francisquito Creek may sometimes run dry, that does not establish that it cannot be considered a Water of the United States. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208. Moreover, Defendant points to no evidence showing that the creek was dry for SSOs 41, 51, 52, 61, 64, and 65, which are the six SSOs that Plaintiff has established discharged to the creek.
Plaintiff has provided specific evidence showing that San Francisquito Creek is a tributary that regularly empties into the Water of the United States and is thus itself a water of the United States under the CWA.
As to West Point Slough, Plaintiff provided evidence that it is subject to the ebb and flow of the tides, and it is capable of fish and shellfish harvest. Bell Decl. ¶ 37, Dkt. No. 73 ("Westpoint Slough is tributary to San Francisco Bay and is [subject to] tidal ebbs and flows year round.") (citing California Regional Water Quality Control Board, San Francisco Bay Region, San Francisco Bay Basin (Region 2), Water Quality Control Plan (Basin Plan), Section 2.2.1, Dec. 31, 2010; Hunt Decl. ¶ 11, Ex. F at 1484, Dkt. No. 88).
Defendant does not dispute Plaintiff's evidence. In fact, its only challenge related to Westpoint Slough is the generalized argument discussed above that it "may" run dry for part of the year. However, the fact that it may sometimes run dry does not establish that it cannot be considered a Water of the United States. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208. And, even if it does run dry, Defendant provides no evidence that it ran dry at the time of SSO 63.
Accordingly, as Plaintiff has provided specific evidence showing that West Point Slough is a Water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Westpoint Slough is a Water of the United States under the CWA.
As to Atherton Channel, Plaintiff provides the following evidence: the lower portion of Atherton Channel is subject to the ebb and flow of the tides in San Francisco Bay, and this tidal connection is demonstrated by three tide gates controlling tidal flow between Atherton Channel and West Point Slough. Bell Decl. ¶ 35, Dkt. No. 73. Plaintiff also points out that there is no reasonable dispute that Atherton Channel is tributary to San Francisco Bay because it flows east into a series of tidal waters and then to San Francisco Bay. Id. Finally, Atherton Channel has a significant nexus with West Point Slough and San Francisco Bay in that it is hydrologically connected with West Point Slough and San Francisco Bay, thus affecting the chemical, physical, and biological integrity of those waters. Id. See River Watch, 496 F.3d at 1001 (finding that a "nexus" existed to confer jurisdiction where the body of water at issue affects the physical, biological and chemical integrity of the Russian River, a
In response, Defendant again argues that Atherton Channel "may" run dry for part of the year. However, the fact that it may sometimes run dry does not establish that it cannot be considered a Water of the United States. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208. And, even if it does run dry, Defendant provides no evidence that it ran dry at the time of SSOs 5, 7, 14, 19, 31, 33, 38, 48, 54, and 59.
Defendant also argues that Atherton Channel has man-made tidal gates that can shut off flow to the next waterway. Without any evidence specific to Atherton Channel or related to the spills at issue, Defendant argues that tidal gates can shut off flow to the next waterway. However, "the very purpose of a tidal floodgate is to control the ebb and flow of the tide," Am. Dredging Co. v. Selleck, 556 F.2d 180, 181 (3d Cir.1977); see also Moses, 496 F.3d at 989 (man-made diversion altering stream flow does not change stream's status as water of the United States): Jones v. Rose, 2008 WL 552666, at *31 (D.Or. Feb. 28, 2008) (installation of tide gates restricted flow). "[J]urisdiction may be asserted under the CWA if there is a hydrological connection between a source of pollutants and navigable waters, even in circumstances where that connection is `artificial' rather than `natural.'" United States v. Adam Bros. Farming, Inc., 369 F.Supp.2d 1166, 1174 (C.D.Cal.2003); Cal. Sportfishing Prot. Alliance v. Diablo Grande, Inc., 209 F.Supp.2d 1059, 1076 (E.D.Cal.2002) ("The fact that an underground pipeline conveys the water from one point to the other does not create a hydrological disconnect....").
Accordingly, as Plaintiff has provided specific evidence showing that Atherton Channel is a Water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Atherton Channel is a Water of the United States under the CWA.
As to Los Trancos Creek, Plaintiff states that it is undisputed that Los Trancos is a tributary of San Francisquito Creek and San Francisco Bay in that it flows into San Francisquito Creek after passing over a diversion dam. Bell Decl. ¶ 31, Dkt. No. 73 (citing California Regional Water Quality Control Board, San Francisco Bay Region, San Francisco Bay Basin (Region 2), Water Quality Control Plan (Basin Plan), Section 2.2.1, December 31, 2010; Hunt Decl. ¶ 11, Ex. F at 1484, Dkt. No. 88). Plaintiff further notes that Los Trancos Creek supports habitat for steelhead trout. Id. (citing San Francisquito Watershed Council, Adult Steelhead Passage in the Bear Creek Watershed, July 2001, Hunt Decl. ¶ 13, Ex. H at 1513, Dkt. No. 88).
Defendant does not challenge Plaintiff's evidence. In fact, its only challenge related to Los Trancos Creek is the generalized argument discussed above that it "may" run dry for part of the year. Again, the fact that it may sometimes run dry does not establish that it cannot be considered a Water of the United States. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208. And, even if it does run dry, Defendant provides no evidence that it ran dry at the time of SSO 9.
Accordingly, as Plaintiff has provided specific evidence showing that Los Trancos Creek is a Water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Los Trancos Creek is a Water of the United States under the CWA.
As to Corte Madera Creek, Plaintiff contends that there is no genuine dispute it is a Water of the United States because it flows into San Francisquito Creek. Bell Decl. ¶ 32, Dkt. No. 73 (citing United States Geological Survey, Geographic Names Information System, Feature Detail Report for: Corte Madera Creek, January 12, 2011; Hunt Decl. at ¶ 15, Ex. J, Dkt. No. 88; The Oakland Museum of California, Guide to San Francisco Bay Area Creeks, Watershed Information Source, http://www.museumca.org/creeks/ 1460-OMSFrancisquitoUpr.html#, last accessed January 23, 2011; Joint Powers Authority, San Francisquito Creek Watershed, July 2002; Hunt Decl. at ¶ 16, Ex. K, Dkt. No. 88). Plaintiff also points out that third party studies show that Corte Madera Creek supports habitat for steelhead trout. Id. (citing San Francisquito Watershed Council, Adult Steelhead Passage in the Bear Creek Watershed, July 2001; Hunt Decl. at ¶ 13, Ex. H at 1513, Dkt. No. 88).
In response, Defendant again argues that Corte Madera Creek "may" run dry for part of the year. Given the evidence above, that assertion is insufficient to raise a genuine issue of fact. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208. And, even if it does run dry, Defendant provides no evidence that it ran dry at the time of SSOs 1 and 32. Defendant also argues that Corte Madera Creek flows into a reservoir that is dammed. However, as with the Atherton Channel, man-made obstructions do not change the status of what would otherwise be a Water of the United States. Moses, 496 F.3d at 988 ("[I]t is doubtful that a mere man-made diversion would have turned what was part of the waters of the United States into something else and, thus, eliminated it from national concern.").
Accordingly, as Plaintiff has provided specific evidence showing that Corte Madera Creek is a water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Corte Madera Creek is a Water of the United States under the CWA.
As to Ravenswood Slough, Plaintiff provides evidence that it has tidal and ebbs and flows year round. Bell Decl. ¶ 36, Dkt. No. 73. Ravenswood begins as a salt marsh and flows along the Bay Trail into San Francisco Bay. Id. Thus, Plaintiff argues that Ravenswood's beneficial uses are identical to those of the San Francisco Bay. Id. (citing California Regional Water Quality Control Board, San Francisco Bay Region, San Francisco Bay Basin (Region 2), Water Quality Control Plan (Basin Plan), Section 2.2.1, Dec. 31, 2010; Hunt Decl. ¶ 11, Ex. F at 1484, Dkt. No. 88).
Defendant nowhere challenges Plaintiff's evidence. In fact, its only challenge related to Westpoint Slough is the generalized argument discussed above that it "may" run dry for part of the year. However, that fact is not sufficiently to raise a genuine issue of fact. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208.
Accordingly, as Plaintiff has provided specific evidence showing that Ravenswood Slough is a Water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Ravenswood Slough is a Water of the United States under the CWA.
As to Bayfront Canal, Plaintiff offers evidence that it is a Water of the United States because it is subject to the ebb and
Defendant nowhere challenges Plaintiff's evidence, except the generalized argument discussed above that Bayfront Canal "may" run dry for part of the year. However, the fact that it may sometimes run dry does not establish that it cannot be considered a Water of the United States. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208. Further, Defendant does not dispute that Bayfront has a tide gate, and "the very purpose of a tidal floodgate is to control the ebb and flow of the tide," Selleck, 556 F.2d at 181; see also Moses, 496 F.3d at 989 (man-made diversion altering stream flow does not change stream's status as water of the United States): Rose, 2008 WL 552666, at *31 (installation of tide gates restricted flow).
Accordingly, as Plaintiff has provided specific evidence showing that Bayfront Canal is a Water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Bayfront Canal is a Water of the United States under the CWA.
As to Redwood Creek, Plaintiff provides the following evidence to establish that it is a Water of the United States. Redwood Creek is both a tributary creek and an inlet of San Francisco Bay. Bell Dec., ¶ 34 & Fig. 2, Dkt. No. 73. It is located northwest of Atherton Channel, and drains to San Francisco Bay at Redwood Point after the confluence of Redwood Creek and Arroyo Ojo de Agua, a major tributary to Redwood Creek. Id. The upper portions of Redwood Creek have dams that form small lakes, and is subject to the ebb and flow of the tide in San Francisco Bay up to a dam in the upper reaches of the creek. Id. It has a continuous flow of water, with a monthly mean discharge at Menlo Country Club ranging from 0.31 to 3.8 cfs. Id. Finally, Redwood Creek has a significant nexus with San Francisco Bay: Redwood Creek is hydrologically connected with San Francisco Bay, and its flows affect the chemical, physical, and biological integrity of those waters. Id.; see also River Watch, 496 F.3d at 1001 (finding that a "nexus" existed to confer jurisdiction where the body of water at issue affects the physical, biological and chemical integrity of the Russian River, a water of the United States, thereby warranting protection as a Water of the United States under the CWA).
Defendant nowhere challenges Plaintiff's evidence, except the generalized argument discussed above that Redwood Creek "may" run dry for part of the year. However, the fact that it may sometimes run dry does not establish that it cannot be considered a Water of the United States. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208. Further, Defendant's assertion is speculative. Plaintiff has presented evidence that it has a continuous flow of water, with a monthly mean discharge at Menlo Country Club ranging from 0.31 to 3.8 cfs, and Defendant does not dispute this evidence.
Accordingly, as Plaintiff has provided specific evidence showing that Redwood Creek is a Water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Redwood Creek is a Water of the United States under the CWA.
As to Bovet Creek, Plaintiff presents the following evidence. Beneficial uses of Bovet Creek include use as habitat for steelhead trout, thereby requiring continuous water flow during spawning season. Bell Dec., ¶ 33, Dkt. No. 73. There is a biological nexus because Bovet Creek is in the San Francisquito Creek Watershed and
Defendant nowhere challenges Plaintiff's evidence, except the generalized argument discussed above that Bovet Creek "may" run dry for part of the year. Again, the fact that it may sometimes run dry does not establish that it cannot be considered a Water of the United States. See 33 C.F.R. § 328.3(a); Moses, 496 F.3d at 989; Rapanos, 547 U.S. at 732-33 n. 5, 126 S.Ct. 2208.
Accordingly, as Plaintiff has provided specific evidence showing that Bovet Creek is a Water of the United States, and Defendant has failed to set forth specific facts showing a genuine issue for trial, the Court finds that Bovet Creek is a Water of the United States under the CWA.
Based on the analysis above, the Court finds that no genuine dispute exists, and that the following are all Waters of the United States under the CWA: San Francisquito Creek, West Point Slough, Atherton Channel, Los Trancos Creek, Corte Madera Creek, Ravenswood Slough, Bayfront Canal, Redwood Creek, and Bovet Creek.
Under the CWA, discharges to Waters of the United States violate Section 301(a) unless authorized by Permit. 33 U.S.C. §§ 1311(a), 1342. Compliance with a NPDES permit is deemed compliance with the CWA. 33 U.S.C. § 1342(k). Here, it is undisputed that there is an NPDES permit for wastewater treatment issued by the Regional Board under SBSA's name. Pl.'s RJN Ex. O, Dkt. No. 82. Pl.'s RJN Ex. A at 3, Dkt. No. 82 ("The Menlo Park Pumping Station and all downstream facilities are owned and operated by [SBSA]. SBSA is a joint power authority of which [Defendant] is a member."). SBSA operates the treatment plant, while Defendant operates the Collection System that conveys wastewater to the SBSA treatment plant. Compl. & Answer ¶¶ 21-23, 28-30, Dkt. Nos. 1, 11. The SSOs at issue in this case were reported by Defendant from its Collection System, and Defendant admits that it does not have a NPDES permit for its Collection System. See Def.'s Opp'n at 11:18-25, Dkt. No. 97 ("Baykeeper itself has alleged that `[b]ecause of West Bay's status as a satellite system' West Bay does not have, nor could it obtain, a [NPDES] Permit authorizing it to discharge sewage from its Collection System.... Thus, an injunction requiring West Bay to receive an NPDES permit is not relief that can be feasibly granted and complied with."); see also, Thorme Decl. Ex. D at 32:14-15 (Dep. of Deborah Self by Melissa Thorme, counsel for Defendant. Self: "West Bay does not have an NPDES Permit." Thorme: "Right.").
Plaintiff argues that Defendant does not have a NPDES permit authorizing sewer discharge from its Collection System because the NPDES permit is held by SBSA and because the SBSA permit does not apply to Defendant's Collection System. Further, SBSA is the permit holder, not
In response, Defendant argues that discharges from the MS4 which originated from the Collection System are NPDES-permitted discharges. Specifically, Defendant argues that the MS4 is regulated by the NPDES permit—a Municipal Regional Stormwater NPDES permit, separate and distinct from the SBSA waste treatment permit—issued by the Regional Board. It contends that several of the surface waters at issue (although it does not name any specifically) are considered to be part of the MS4, and, as such, a discharge from the MS4 (including pollutants originating from the Collection System) are covered by the MS4 permit. The MS4 permit is issued to a number of municipalities and counties, but Defendant is not a named permittee. See Docket No. 120 (Ex. E) (permit). Defendant additionally argues that the MS4 is part of a municipality's waste treatment system for stormwater and is therefore not considered Waters of the United States under the waste treatment system exemption. The Court considers each argument in turn.
Defendant contends that it is a permittee under the general MS4 NPDES permit, which makes any SSO discharged through and from the MS4 a "permitted discharge" so long as it is within the limits set by the permit. Def.'s Opp'n 15:13-17:6, Dkt. No. 97. At the March 9 hearing, Defendant clarified its position that the MS4 permit tolerated some pollution and, so long as the SSO did not violate the terms of the MS4 permit, it is a permitted discharge and thus not violative of the CWA.
At the March 9, 2011 hearing on Plaintiff's motion, the Court informed the parties that their arguments on this issue had not been fully briefed. Further, on March 10, 2011, Defendant filed a "Notice of New Authority," attaching a copy of the Ninth Circuit opinion, Natural Res. Defense Council v. Cnty. of Los Angeles, 636 F.3d 1235. Dkt. No. 112. For these reasons, Plaintiff requested that the Court permit the parties to each file a supplemental brief addressing the following issues: (1) Whether the permit for the MS4 owned and operated by local municipalities applies to Defendant's discharges into the MS4; and (2) Whether Defendant's discharges of raw sewage into the MS4 are covered by the Waste Treatment System Exemption. Dkt. No. 113. The Court granted Plaintiff's request on March 15, 2011. Dkt. No. 114.
On March 25, 2011, the parties filed their supplemental briefing.
In its supplemental briefing, Defendant argues that the MS4 Permit applies to its discharges into the MS4 because pollutants such as sewage are identified in the MS4 permit as being potentially discharged from the MS4, and measures were imposed to minimize the impacts of such discharges. Dkt. No. 116. Defendant further argues that Plaintiff cannot reasonably claim the contrary since it has argued in other cases that MS4 owners/operators are responsible for all pollutants conveyed, no matter the source.
As to the last point, it is true that dischargers are not insulated from liability merely because they make illegal discharges via a system owned and operated by other entities. For example, in United States v. Ortiz, 427 F.3d 1278, 1284 (10th Cir.2005), investigators traced an illegal discharge from the Colorado River, up a storm drain owned and operated by a separate municipality, and to the defendant's facility. The court held that the defendant violated the CWA by discharging pollution through the storm drain, even though it was owned and operated by another entity. Id. In United States v. Velsicol Chemical Corp., 438 F.Supp. 945, 947 (D.C.Tenn. 1976), the court held that "[t]he fact that defendant may discharge through conveyances owned by another party does not remove defendant's actions from the scope of [the CWA]." Id. The CWA "does not distinguish between those who add and those who convey what is added by others—the Act is indifferent to the originator of water pollution." Id. at 1252-53. In fact, the CWA bans "the discharge of any pollutant by any person" regardless of whether that "`person' was the root cause or merely the current superintendent of the discharge." NRDC, 636 F.3d at 1253. (internal quotations and citation omitted). So long as the MS4 is "the means by which the pollutants are ultimately deposited into a navigable body of water," Defendant can be held liable for those discharges, regardless of any permit. Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45-46 (5th Cir. 1980). In Rapanos, the Supreme Court noted that the discharge of any pollutant into intermittent channels violates section 301(a) of the Clean Water Act even if the pollutant discharged from a point source does not emit "directly into" waters, but passes "through conveyances" in between. See Rapanos, 547 U.S. at 743-44, 126 S.Ct. 2208 (citation omitted).
The question here is whether Defendant can obtain the vicarious benefit of the MS4 permit issue to entities other than itself. As noted above, the CWA generally prohibits the discharge of any pollutant into navigable waters from any point source is covered by a NPDES permit. See NRDC, 636 F.3d at 1238-40. Plaintiff asserts that only the permit holder is entitled to the benefit of the permit, and it is undisputed that Defendant is not a permittee on the NPDES MS4 permit at issue.
The Court acknowledges that Defendant's argument is not necessarily foreclosed by the literal language of the CWA. The relevant provision of the Act does not explicitly state that a permit covers only the permit holder and not other dischargers. See 33 U.S.C. § 1342(a) (noting that "the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant" upon certain conditions). But Defendant's position ultimately fails for several reasons.
First, as Plaintiff argues, the Ninth Circuit's recent decision in NRDC indicates that a NDPES permit should be interpreted like a contract. See id. at 1245 (stating that "[w]e review a permit's provisions and
Second, there is no authority to support Defendant's position. Indeed, the case law strongly suggests that Plaintiff's position is the correct one—that a permit covers only permittees. As the Supreme Court stated in Milwaukee v. Illinois, 451 U.S. 304, 318, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981), "Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals." (Emphasis added.) The Court appears to assume that the "discharger" must hold a permit. In Piney Run Preservation Association v. County Commissioners of Carroll County, 268 F.3d 255 (4th Cir.2001), the Fourth Circuit likewise noted that, "as long as a permit holder complies with the CWA's reporting and disclosure requirements, it may discharge pollutants not expressly mentioned in the permit." Id. at 268 (emphasis added). "The legislative history makes clear that Congress intended the NPDES permit to be the only means by which a discharger from a point source may escape the total prohibition of [§] 301(a)." Id. at 265 (emphasis added).
Third, there are sound policy reasons why a permit holder only, and not other dischargers, should be allowed to claim the benefit of the permit. When a discharger becomes a permit holder, it "directly subjects [itself] to the administrative apparatus established by Congress to achieve its goals." Milwaukee v. Illinois, supra, 451 U.S. at 318, 101 S.Ct. 1784. The permit holder is permitted to discharge some pollutants because of the permit—the benefit—but then is obligated to assume corresponding burdens as a result, including, but not limited to, monitoring and reporting obligations. See NRDC, 636 F.3d at 1239 (noting that a "NPDES permit requires its holder—the `permittee'—to follow the requirements of numerous [CWA] provisions, which include effluent limitations, water-quality standards, water monitoring obligations, public reporting mechanisms, and certain discharge requirements"). As the Supreme Court noted in Milwaukee, supra, the permit is the means by which regulators exercise detailed control over the discharger; the permit typically addresses the specific context and situation of the permit holder/discharger. 451 U.S. at 320-23 and n. 15, 101 S.Ct. 1784. Defendant's position that a non-permittee can assume the benefit and protection of a permit is incompatible with the CWA's quid pro quo scheme; under Defendant's position, a discharger would be allowed to pollute and obtain the benefit of a permit without assuming the
Defendant also claims that the MS4 is exempted from the definition of waters of the United States because it constitutes a waste treatment system, and is therefore part of the "Waste Treatment System Exemption." Pursuant to 33 C.F.R. § 328.3(a)(8) and 40 C.F.R. § 122.2, "Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA ... are not waters of the United States." "Claims of exemption, from the jurisdiction or permitting requirements, of the CWA's broad pollution prevention mandate must be narrowly construed to achieve the purposes of the CWA." N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007) (citations omitted). Defendant has the burden to prove that this exception applies. Id. (citations omitted). Here, the Court finds that the waste treatment system exemption is irrelevant because it is intended to "exempt either water systems that do not discharge into waters of the United States or waters that are incorporated in an NPDES permit as part of a treatment system." Id. (citations omitted). Defendant does not contend that the MS4 is a water system that does not discharge into waters of the United States. Nor is it part of a "treatment system." The MS4 system in Defendant's service area provides no treatment. See Pl.'s Req. for Judicial Not. Ex. A at 11:13-19, Dkt. No. 120. The waste treatment exception was meant to require dischargers "to meet effluent discharge standards for discharges into their own closed system treatment ponds." Id. at 1002. As discussed above, there is no genuine dispute that SSO 14 reached Atherton Channel, and therefore discharged into waters of the United States and not into a closed treatment pond or system.
Furthermore, as noted, the waste treatment permit at issue does not cover Defendant's Collection System, and Defendant is not a named permittee.
The Court finds that Defendant's discharges occurred without a permit.
The Court finds that no genuine dispute exists that Defendant's SSOs # s 1, 5-7, 9, 14, 19, 31-33, 38, 41, 48, 51-52, 54, 59, 61, and 63-65 were are discharges of a pollutant (sewage) to navigable waters of the United States from a point source without a permit.
The Court
For the reasons stated above, the Court hereby
This Order disposes of Docket Nos. 71, 82, 103, 104, 118 and 120.
IT IS SO ORDERED.
