ENVIRONMENTAL PROTEC. INFO. CTR v. PACIFIC LUMBER CO.
301 F.Supp.2d 1102 (2004)
ENVIRONMENTAL PROTECTION INFORMATION CENTER, a non-profit corporation, Plaintiff,
v.
PACIFIC LUMBER COMPANY, a Delaware corporation; Scotia Pacific Company LLC, a Delaware corporation; Environmental Protection Agency, a federal agency; and Christine Todd Whitman, in her capacity as EPA Administrator, Defendants.
No. C 01-2821 MHP.
United States District Court, N.D. California.
January 23, 2004.
Michael R. Lozeau, Earthjustice Legal Defense Fund, Stanford, CA, Mark A. Rigau, U.S. Dept of Justice Environmental & Natural Resources Div., San Francisco, CA, Deborah A. Sivas, Earthjustice Legal Defense Fund, Stanford, CA, for Environmental Protection Information Cener.
Frank Shaw Bacik, John A. Behnke, Carter Behnke Oglesby & Bacik, Ukiah, CA, Christopher J. Carr, Stoel Rives LLP, San Francisco, CA, Bruce Stewart Flushman, Edgar B. Washburn, Stoel Rives LLP, San Francisco, CA, for Pacific Lumber Co.
Order Motion to DismissPATEL, Chief Judge.
On July 24, 2001, plaintiff Environmental Protection Information Center ("EPIC"), a non-profit environmental organization, brought a citizen-suit action under section 505(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a), against Pacific Lumber Company and Scotia Pacific Lumber Company (collectively "PALCO"), the Environmental Protection Agency ("EPA"), and Christine Todd Whitman as EPA Administrator.1 EPIC's complaint alleges that PALCO violated the CWA, the Porter-Cologne Act, and California's Unfair Competition Law, Cal. Bus & Prof.Code § 17200 et seq., when it discharged pollutants without a CWA permit. For these alleged violations, EPIC seeks declaratory and injunctive relief, civil remedies, and restitution. On August 16, 2001, the court denied EPIC's motion for a temporary restraining order. PALCO and EPA subsequently filed separate motions to dismiss the action, and EPIC, in response, filed an amended complaint on September 24, 2001, adding a third claim challenging the nonpoint source provision of the relevant regulation. On June 6, 2003, the court denied EPA's motion to dismiss and denied PALCO's motion to dismiss in part, concluding that EPIC could pursue a claim under the Administrative Procedures Act ("APA") in this court and that EPIC's claim was not time-barred. On October 13, 2003, the court denied EPIC's motion for summary judgment on its third claim for relief, granting PALCO's and EPA's cross-motions and construing the relevant EPA regulation in a manner consistent with germane federal law.
Now before the court is PALCO's motion to dismiss EPIC's remaining claims under Federal Rule of Civil Procedure 12(b)(6). The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows.
In its opinion of October 14, 2003, the court set forth in significant detail the
factual and procedural histories of this action. To give context and shape to the court's consideration of PALCO's motion to dismiss, the court repeats much of this background here.
1. Pursuant to Federal Rule of Civil Procedure 25(d)(1), Michael Leavitt, new Administrator of EPA, automatically replaces his predecessor in this suit. See Fed.R.Civ.P. 25(d)(1).
2. Unless otherwise noted, this fact recitation is culled from the parties' moving papers.
3. Both Pacific Lumber and Scotia Pacific Lumber Company are Delaware corporations; both maintain principal places of business in Scotia, California.
4. EPA delegated its permit-issuing authority to California on May 14, 1973. See 39 Fed.Reg. 26,061 (July 16, 1974). California administers its portion of the NPDES program through the Porter-Cologne Water Quality Control Act ("Porter-Cologne Act"), Cal. Water Code § 13000 et seq., which, in turn, created a group of Regional Water Quality Control Boards charged with the responsibility of issuing Waste Discharge Requirements ("WDRs"). By every relevant measure, WDRs are equivalent to CWA permits, and in every relevant sense for this action, the Porter-Cologne Act imports its definitions from the CWA, including those for "pollutants," "discharge," and "point source." See Cal. Water Code § 13373.
5. EPA has filed a non-opposition to PALCO's motion to dismiss, appending a short memorandum in support. Almost without exception, EPA's memorandum maps the lines of PALCO's motion, presenting a handful of arguments essentially coterminous with PALCO's.
6. EPIC's first claim alleges that PALCO's unpermitted discharge of pollutants runs afoul of section 301; EPIC's second claim alleges that PALCO's failure to apply for an NPDES permit under section 402 derogates a separate CWA duty. Inasmuch as the two claims focus on the same geographic area, the two are plainly related. But inasmuch as the two claims depend on separate provisions of the CWA, claim one and claim two retain distinct legal viability. In arguing that the two claims are redundant, PALCO tacitly asks the court to merge section 301 and section 402 into one CWA provision. The court will not do so, and the court will not find EPIC's first two claims legally identical.
7. PALCO has acknowledged as much, conceding that the discharges at issue do contain non-water elements. But PALCO argues nevertheless that the "composed entirely of stormwater" portion of section 402(p) is satisfied, contending, in the process, that the language of the section does not mean — or means something in addition to — what it plainly says. Unless Congress meant to regulate every discrete discharge that somehow mixes with rainwater (even those coming from private gardens), PALCO argues, the "composed entirely of stormwater" term must include even those discharges containing noxious and toxic chemicals; as long as the discharged pollutants mix with some amount of rainwater, PALCO avers, and as long as the pollutants do not emerge from an archetypical pollution "source" (e.g., an industrial pipe), the discharge should be considered to be "composed entirely of stormwater," well within the scope of section 402(p). The court cannot agree. Loath as the court is to read statutory terms unreasonably — e.g., to read "entirely" as synonymous with "not completely" — the court is equally unwilling to provide potential polluters with a "stormwater"-based excuse for non-permitted discharge of pollutants. Were the court to accept PALCO's interpretation of the "entirely of stormwater" term, the court would condone more than an odd, contraindicated construction of plain statutory language; the court would condone polluters' decisions not to seek NPDES permits in all contexts in which the discharged pollutants mixed with rainwater, however small the rainwater quantity. The deleterious consequences of — and perverse incentives inherent in — PALCO's logic are too substantial to countenance, and the court will not find that Congress would sanction such an environmentally and statutorily strange result.
8. To the extent that the alleged "point sources" on or near Bear Creek were previously "unregulated," they were only so because of PALCO's — and EPA's — misinterpretation of section 122.27. The court cured this misinterpretation in its October 14, 2003, opinion. Still, PALCO attempts to revive the thrust of its previous misinterpretation here, treating the silvicultural sources as "unregulated" for the purposes of section 402(p). But the fact that PALCO thinks particular sources "unregulated" does not make it so. As the court's October 14, 2003, makes plain, if a particular source is the type of "point source" EPIC alleges, it must be treated (i.e., regulated) as such. Congress has enacted no rule exempting silvicultural-related "point sources" from the terms of the NPDES, and PALCO's subtle but stubborn attempt to treat such sources as "unregulated" is no surrogate for such legislative action.
9. In their papers, the parties devote a substantial amount of attention to the meaning of "industrial" under section 402(p) and to the effect of the Phase II regulations overall. Because the court finds that section 402(p) does not apply in the first instance, the court need not explore those issues here.