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ENVIRONMENTAL PROTECTION INFORM. v. PACIFIC LUMBER
469 F.Supp.2d 803 (2007)
ENVIRONMENTAL PROTECTION INFORMATION CENTER, a nonprofit corporation, Plaintiff,
v.
PACIFIC LUMBER COMPANY, a Delaware corporation; Scotia Pacific Company LLC, a Delaware corporation; Environmental Protection Agency; and Christine Todd Whitman, Defendants.
No. C 01-2821 MHP.
United States District Court, N.D. California.
January 8, 2007.
Michael R. Lozeau, Law Office of Michael R. Lozeau, Alameda, CA, Deborah A. Sivas, Stanford Law School, Stanford, CA, Sharon Eileen Duggan, Law Offices of Sharon E. Duggan, Oakland, CA, for Plaintiff.
Bruce Stewart Flushman, Stoel Rives LLP, Christopher J. Carr, Edgar B. Washburn, Shaye Diveley, Morrison & Foerster LLP, Mark A. Rigau, U.S. Dept of Justice, Environmental & Natural Resources Div., San Francisco, CA, Frank Shaw Bacik, John A. Behnke, Carter Behnke Oglesby & Bacik, Ukiah, CA, J. Michael Klise, Crowell & Moring LLP, Washington, DC, for Defendants.
MEMORANDUM & ORDERRe: Parties' Cross-Motions for Summary JudgmentPATEL, District 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. section 1365(a), against Pacific Lumber Company and Scotia Pacific Company (collectively "PALCO"), the Environmental Protection Agency ("EPA"), and Christine Todd Whitman as EPA Administrator.1 Now before the court are PALCO's motion for summary judgment on the issue of
EPIC's standing and EPIC's motion for partial summary judgment regarding its first and second claims for relief.2 The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows. BACKGROUND I. Background Facts
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. Pursuant to the parties' stipulation, PALCO's motion for summary judgment as to EPIC's claims alleging violations of the California Unfair Competition Law is stayed pending a final decision by the California Supreme Court on its review of cases concerning the question of whether the terms of Proposition 64 apply to cases pending at the time Proposition 64 became law. 3. Both Pacific Lumber and Scotia Pacific Lumber Company are Delaware corporations; both maintain principal places of business in Scotia, California. 4. The 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. As the Ninth Circuit has noted, "nonpoint source pollution is not statutorily defined." League of Wilderness Defenders, 309 F.3d at 1184. As the Ninth Circuit has also noted, "nonpoint source pollution . . . is widely understood to be the type of pollution that arises from many dispersed activities over large areas . . . not traceable to any single discrete source." Id. The paradigmatic example of nonpoint source pollution, the Ninth Circuit adds, is automobile residue — whether rubber, metal, oil, or gas — left on the roadways. Id. 6. The CWA's distinct approach to regulation of "nonpoint sources" should not be seen as an indication that "nonpoint sources" constitute an insignificant source of pollution. In fact, quite the opposite is true. As the Ninth Circuit recently observed, nonpoint source pollution from automobile use itself outstrips point source pollution from chemical spills, factories, and sewage plants; indeed, nonpoint source pollution from automobile use is the largest source of water pollution in the United States. See League of Wilderness Defenders, 309 F.3d at 1184 (citation omitted). 7. There appears to be some dispute between the parties as to whether Mr. Mason was presented as a standing witness in his own right. In its moving papers, PALCO acknowledges that Mr. Mason was offered as a standing witness. Des Mot., at 4. For the purposes of asserting representational standing, EPIC initially identified four of its members who claim to have been adversely affected by PALCO's activities: Cynthia Elkins, Craig Bell, William Eastwood, and Paul Gienger. See Diveley Decl., Exh. A, at 6. EPIC subsequently substituted Mr. Mason for Ms. Elkins as a standing witness. See Diveley Decl., Exh. B. PALCO deposed Mr. Mason concerning his alleged injuries. See Mason Tr. at 90:13-20. Therefore, it is clear that EPIC can assert standing on the basis of Mr. Mason's own standing. 8. Section 301(a) of the CWA is codified at 33 U.S.C. § 1311 and reads in its entirety as follows:
§ 1311. Effluent limitations (a) Illegality of pollutant discharges except in compliance with law. Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act [33 USCS §§ 1312, 1316, 1317, 1328, 1342, 1344], the discharge of any pollutant by any person shall be unlawful. 9. In that case, the issue of whether certain devices were point sources was not in dispute. Defendants conceded that the spillway and valve of the dam and reservoir in the dispute were point sources. And the majority "appear[ed] to agree" with that assertion. Id. at 310 (Fernandez, J., concurring). Judge Fernandez noted in his concurrence that the devices deemed point sources were in fact the product of remedial efforts aimed at cleaning up acid mine drainage. Id. 10. Justice Breyer also filed a separate dissent. Id. at 2266. 11. The EPA urges the court not to follow the Kennedy opinion based on the test set out in Marks v. United States,430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977): "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds." In its motion to clarify the court's opinion in Healdsburg, the United States urged the Ninth Circuit to interpret Rapanos to provide two alternative standards for CWA jurisdiction. Motion of the United States as Amicus Curiae to clarify the court's opinion, Northern Cal. River Watch v. City of Healdsburg,457 F.3d 1023 (9th Cir.2006) (No. 04-15442). Stipulation of the Parties, Exh. A. 12. While PALCO's papers and the related expert report submitted are not clear, the court assumes that PALCO does not own or otherwise control the land on which certain observations of alleged discharges occurred. See Def's Opp'n, at 33; Lozeau Dec., Ex. AA, Charles Rep. Ex. D at 1. 13. Section 402(p) of the CWA reads in its entirety:
(p) Municipal and industrial stormwater discharges. (1) General rule. Prior to October 1, 1994, the Administrator or the State (in the case of a permit program approved under section 402 of this Act [this section] ) shall not require a permit under this section for discharges composed entirely of stormwater. (2) Exceptions. Paragraph (1) shall not apply with respect to the following stormwater discharges: (A) A discharge with respect to which a permit has been issued under this section before the date of the enactment of this subsection [enacted Feb. 4, 1987]. (B) A discharge associated with industrial activity. (C) A discharge from a municipal separate storm sewer system serving a population of 250,000 or more. (D) A discharge from a municipal separate storm sewer system serving a population of 100,000 or more but less than 250,000. (E) A discharge for which the Administrator or the State, as the case may be, determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. (3) Permit requirements. (A) Industrial discharges. Permits for discharges associated with industrial activity shall meet all applicable provisions of this section and section 301 [33 U.S.C. § 1311] (B) Municipal discharge. Permits for discharges from municipal storm sewers — (i) may be issued on a system or jurisdiction-wide basis; (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. (4) Permit application requirements. (A) Industrial and large Municipal discharges. Not later than 2 years after the date of the enactment of this subsection [enacted Feb. 4, 1987], the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraphs (2)(B) and (2)(C). Applications for permits for such discharges shall be filed no later than 3 years after such date of enactment [enacted Feb. 4, 1987]. Not later than 4 years after such date of enactment [enacted Feb. 4, 1987], the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit. (B) Other municipal discharges. Not later than 4 years after the date of the enactment of this subsection [enacted Feb. 4, 1987], the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraph (2)(D). Applications for permits for such discharges shall be filed no later than 5 years after such date of enactment [enacted Feb. 4, 1987]. Not later than 6 years after such date of enactment [enacted Feb. 4, 1987], the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit. (5) Studies. The Administrator, in consultation with the States, shall conduct a study for the purposes of — (A) identifying those stormwater discharges or classes of stormwater discharges for which permits are not required pursuant to paragraphs (1) and (2) of this subsection; (B) determining, to the maximum extent practicable, the nature and extent of pollutants in such discharges; and (C) establishing procedures and methods to control stormwater discharges to the extent necessary to mitigate impacts on water quality. Not later than October 1, 1988, the Administrator shall submit to Congress a report on the results of the study described in subparagraphs (A) and (B). Not later than October 1, 1989, the Administrator shall submit to Congress a report on the results of the study described in subparagraph (C). (6) Regulations. Not later than October 1, 1993, the Administrator, in consultation with State and local officials, shall issue regulations (based on the results of the studies conducted under paragraph (5)) which designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality and shall establish a comprehensive program to regulate such designated sources. The program shall, at a minimum, (A) establish priorities, (B) establish requirements for State stormwater management programs, and (C) establish expeditious deadlines. The program may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.
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