CA Open Lands v. Butte County Dept. of Public Works

Opinion

7 UNITED STATES DISTRICT COURT

10 CALIFORNIA OPEN LANDS, No. 2:20-cv-00123-DJC-DMC

11 Plaintiff, v.

12 ORDER RE SUPPLEMENTAL BRIEFING BUTTE COUNTY DEPARTMENT OF

and ERIC MILLER,

14 Defendants.

17 Pending before the Court is Plaintiff’s Motion for Partial Summary Judgment on

18 its claims that Defendants (1) discharged contaminated storm water from their waste

19 management facility (“Facility”) in 2019, (2) failed to develop and implement an

20 adequate Storm Water Pollution Prevention Plan, and (3) failed to develop and

21 implement an adequate Monitoring Implementation Plan (“MIP”), all in violation of the

22 Clean Water Act, 33 U.S.C. §§ 1251 et seq., and California’s National Pollution 23 Discharge Elimination System permit applicable to all industrial storm water 24 dischargers (“General Permit”). (ECF No. 91.) The Court held a hearing on this Motion 25 on February 29, 2024. (ECF No. 98.) 26 Concerning Plaintiff’s MIP claim, Plaintiff argues, in short, that Defendants have 27 failed to develop and implement an adequate MIP because none of Defendants’ MIPs 28 implemented during the relevant statute of limitations period require landfill 1 wastewater discharged from Defendants’ Facility, which includes contaminated storm

2 water, to be analyzed for certain “Regulated Parameters” set forth in Subchapter N, 40

3 C.F.R. §§ 401–471, i.e., biochemical oxygen demand, ammonia (as nitrogen), α-

4 Terpineol, benzoic acid, or p-Cresol. (ECF No. 91 at 26–28.) Plaintiff argues that such

5 testing is required under the General Permit and the Clean Water Act. (Id. at 26–28.)

6 Plaintiff argues that when the Facility discharged contaminated storm water in 2019,

7 Defendants did not have the water analyzed for the Regulated Parameters. (Id. at 28.)

8 Plaintiff argues that Defendants risk repeating these violations because, “[t]o the

9 extent that the Facility discharges contaminated storm water in the future, the [MIP]

10 would not provide for the analysis of the required Regulated Parameters.” (Id.)

11 “[C]itizen plaintiffs may not sue to remedy ‘wholly past’ violations of the Clean

12 Water Act; the Act confers jurisdiction over citizen suits that allege continuous or

13 intermittent violations.” Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913,

14 921 (9th Cir. 2004); see also Cmty. Ass'n for Restoration of the Env't v. Henry Bosma

15 Dairy, 305 F.3d 943, 953 (9th Cir. 2002) (“To prevail at trial, a citizen-plaintiff must

16 prove an ongoing violation.”); Sierra Club v. Union Oil Co., 853 F.2d 667, 670 (9th Cir.

17 1988) (“[C]itizen plaintiffs must eventually prove the existence of ongoing Clean Water

18 Act violations or the reasonable likelihood of continuing future violations to prevail on

19 the merits of a citizen enforcement action.”). Otherwise stated, “citizens lack statutory

20 standing under the [Clean Water Act] to sue for violations that have ceased by the

21 time the complaint is filed.” S.F. Baykeeper, Inc. v. Moore, 180 F. Supp. 2d 1116, 1122

22 (E.D. Cal. 2001). “[A] citizen plaintiff may prove ongoing violations ‘either (1) by

23 proving violations that continue on or after the date the complaint is filed, or (2) by

24 adducing evidence from which a reasonable trier of fact could find a continuing

25 likelihood of a recurrence in intermittent or sporadic violations.’” Sierra Club, 853 F.2d 26 at 671 (quoting Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 27 171–72 (4th Cir. 1988)). 28 //// 1 The Court has reviewed Defendants’ MIPs. The Court concurs with Plaintiff that

2 the 2015 MIP, which was in place at the time of the alleged storm water discharges in

3 2019, did not require testing for the Regulated Parameters. (See Pl.’s App., Ex. 11

4 (ECF No. 91-3) (“2015 MIP”) at 391-971 (no required testing of biochemical oxygen

5 demand, ammonia (as nitrogen), α-Terpineol, benzoic acid, or p-Cresol).) However,

6 the 2019 and 2021 MIPs appear to require the Facility to test landfill wastewater for

7 the Regulated Parameters. (See Pl.’s App., Ex. 4 (ECF No. 91-2) (“2019 MIP”) at 153–54

8 (stating that “if the Facility discharges landfill wastewater, as defined in Part 445.2(f),

9 then it will be subject to the storm water EGLs” and will analyze samples for

10 biochemical oxygen demand, ammonia (as nitrogen), α-Terpineol, benzoic acid, and

11 p-Cresol); Pl.’s App., Ex. 5 (ECF No. 91-2) (“2021 MIP”) at 202 (same).)

12 The 2019 MIP was implemented on September 30, 2019. (2019 MIP at 121.)

13 Plaintiff’s Complaint was filed on January 16, 2020. (ECF No. 1.) Thus, the 2019 MIP

14 was in effect when this action commenced. Accordingly, the Court is not convinced

15 that the alleged MIP violations are continuous or intermittent; that is, that the 2019

16 and 2021 MIPs do not comply with the General Permit, or that Defendants would not

17 test contaminated storm water for the Regulated Parameters under those MIPs.

18 In accordance with the above, it is hereby ORDERED:

19 1. Plaintiff shall submit a supplemental brief within seven (7) days

20 demonstrating why Defendants’ alleged failures to develop and

21 implement adequate MIPs are continuous or intermittent such that

22 the Court may grant summary judgment on Plaintiff’s claim. Plaintiff’s

23 supplemental brief may not exceed ten (10) pages;

24 2. Defendants shall file an opposition to Plaintiff’s supplemental brief

25 within seven (7) days of the date Plaintiff’s brief is filed. Defendants’ 26 opposition may not exceed ten (10) pages; 27 1 Citations to Plaintiff’s Appendix refer to the page numbering of the Appendix, not the page 28 numbering of the documents themselves. 1 3. Plaintiff is granted leave to file an optional reply to Defendants’ 2 opposition within seven (7) days of the date Defendants’ opposition is 3 filed. Plaintiff's reply may not exceed five (5) pages; and 4 4. Once the Court receives this supplemental briefing, the matter will be 5 deemed submitted. 6 j IT IS SO ORDERED. g | Dated: _March 18, 2024 “Darel A CDbnetto Hon. Daniel alabretta ? UNITED STATES DISTRICT JUDGE 10 11 12 | □□□□□□□□□□□□□□□□□□□□□□ 23.SuppBriefing 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28