Resurrection Bay Conservation Alliance et al v. City of Seward, Alaska

Filing 66

Order on Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

RESURRECTION BAY CONSERVATION
ALLIANCE, et al.,
Plaintiffs,

Case No. 3:06-cv-0224-RRB

vs.
ORDER RE CROSS-MOTIONS
FOR SUMMARY JUDGMENT

CITY OF SEWARD, ALASKA,
Defendant.

I.

INTRODUCTION
Before

the

Court

are

Plaintiffs

Resurrection

Bay

Conservation Alliance (“RBCA”) and Alaska Community Action on
Toxics (“ACAT”) (collectively “Plaintiffs”) and Defendant City of
Seward, Alaska (“City”) with cross motions for summary judgment at
Docket 23 and Docket 25, respectively.
Plaintiffs argue that the City illegally discharges
polluted storm water into waters of the United States in violation
of the Clean Water Act (“CWA” or the “Act”).1
order

1

requiring

the

City

to

apply

for

33 U.S.C. § 1251 et seq.

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 1
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a

Plaintiffs seek an
National

Pollution

Discharge

Elimination

System

(“NPDES”)

permit,

an

injunction

against further discharges until the NPDES permit is obtained, and
civil

fines.

The

City

denies

that

it

operates

industrial

facilities subject to the Act and asserts that there are no
discharges as alleged.
The Court heard oral argument on November 20, 2007.
Based on the motions, supplemental briefing, and oral arguments,
the

Court

concludes,

for

the

reasons

set

forth

below,

that

Plaintiffs have standing to sue under the citizen enforcement
provisions of the CWA and that the City must apply for an NPDES
permit, but that civil penalties are not appropriate.
II.

BACKGROUND
Section

301(a)

of

the

CWA

prohibits

discharges

of

pollutants into waters of the United States, unless the discharges
are

authorized

by

permit.2

The

CWA

requires

a

permit

for

“discharge[s] associated with industrial activity.”3 A storm water
discharge associated with industrial activity is defined as a
“discharge from any conveyance” that is related to industrial
activity at a facility.4

This definition is purposefully broad.5

2

33 U.S.C. §§ 1311(a), 1342.

3

33 U.S.C. § 1342(p)(2)(B); 40 C.F.R § 122.26(a)(ii).

4

40 C.F.R § 122.26(b)(14).

5

Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1304
(9th Cir. 1992).
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Unlike

traditional

CWA

point

source

discharges,

“it

is

not

necessary that storm water be contaminated or come into direct
contact

with

pollutants;

only

association

with

any

type

of

industrial activity is necessary.”6
The EPA has promulgated regulations setting forth the
NPDES permit application requirements for storm water discharges.7
These regulations require each person with a point source of “storm
water discharge associated with industrial activity” to apply for
an

individual

permit,

apply

for

a

permit

through

a

group

application, or seek coverage under a promulgated storm water
general permit.8
Plaintiffs allege that the City illegally discharges
pollutants without a NPDES permit at two locations: the Seward
Small Boat Harbor (“Small Boat Harbor”) on the northwest shore of
Resurrection Bay and the Boat Storage Area at Mile 7 Nash Road
(“Boat Storage Area”).
III. SUMMARY JUDGMENT
Summary judgment is appropriate when the “pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine

6

Id.

7

See 40 C.F.R. § 122.26.

8

33 U.S.C. § 1324(p)(2)(B); 40 C.F.R § 122.26(a)(ii).

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 3
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issue of material fact and that the moving party is entitled to
judgment as a matter of law.”9

The moving party has the burden of

showing that material facts are not genuinely disputed.10

The

moving party is not required to present evidence, but should
identify areas where there is a lack of any genuine dispute as to
material fact.11
Once the moving party meets its burden, the nonmoving
party must demonstrate that a genuine issue of fact exists by
presenting evidence indicating that certain facts are disputed so
that a fact finder must resolve the dispute at trial.12

There is

no genuine issue of material fact when the relevant facts, “taken
as a whole, indicate[] that a reasonable fact-finder could not find
for the nonmoving party.”13
IV.

DISCUSSION
The parties stated at oral argument that the Court has

all the information necessary to enter judgment on the merits.
Other than disagreeing about whether the storm water discharges
contain

contaminants,

the

parties

do

not

appear

to

be

in

9

Fed. R. Civ. P. 56(c).

10

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

11

Id. at 323-325.

12

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

(1986).
13

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 4
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disagreement as to the material facts underlying this matter.

The

issues before the Court are therefore entirely legal. Accordingly,
the Court rules as follows:
A.

Plaintiffs Have Standing
The citizen enforcement provisions of the CWA authorize

any person having an interest which may be affected to commence a
civil action on his or her own behalf against any person violating
Section 301(g) of the CWA.14

While “[t]he citizen suit provision

of the Clean Water Act (“CWA”) ‘extends standing to the outer
boundaries set by the “case or controversy” requirement of Article
III of the Constitution’”,15 standing is not so broad a concept that
anyone can bring such an action.

In order to satisfy Article III

standing requirements for a CWA citizen enforcement action, a
plaintiff must establish that “(1) it has suffered ‘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
. . . that the injury will be redressed by a favorable decision.”16
“An association . . . ‘has standing to bring suit on behalf of its

14

See 33 U.S.C. §§ 1362(5), 1365(a)(1), (f), (g).

15

Ecological Rights Found. v. Pacific Lumber Co., 230 F.3d
1141, 1147 (9th Cir. 2000).
16

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc.,
528 U.S. 167 (2000); see also Natural Res. Def. Council v. Sw.
Marine, Inc., 236 F.3d 985 (9th Cir. 2000), cert. denied sub nom.
Sw. Marine v. San Diego Bay Keeper, 533 U.S. 902 (2001).
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 5
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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.”17
Plaintiffs have made a minimal but sufficient showing of
standing.
suffered

In support of their argument that Plaintiffs have
injury

in

fact,

Plaintiffs

submit

declarations

from

various ACAT and RBCA members, including ACAT Executive Director
Pamela Miller, RBCA President Mark Luttrell, RBCA board member and
ACAT member Russell Maddox, and RBCA/ACAT member Carol Griswold
(collectively “Declarants”), who have visited Resurrection Bay and
its beaches, Spring Creek, and Fourth of July Creek, as often as
five times a month over the past 20 years.18

Declarants use these

areas along with their families, children, and pets, for a variety
of

recreational

and

aesthetic

pursuits,

including

kayaking,

walking, camping, fishing, wildlife viewing, and education.

They

express concern about the potential contamination of storm water
runoff with oil and grease, antifreeze, paint chips, sandblast
waste, and other toxic materials, and the effect of storm water
runoff on people, fish, wildlife, vegetation, and recreational

17

Sw. Marine, 236 F.3d at 995 (citing Laidlaw, 528 U.S. at

18

See Docket 60, Exs. A-D.

181).

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values as it enters the water table and streams which flow into
Resurrection Bay.19
Declarants

have

Since learning about these potential impacts,
curtailed

or

ceased

their

activities

and

discouraged others from using these areas.
The central basis for the City’s argument that Plaintiffs
lack standing is that Plaintiffs’ briefing and oral argument at the
November 20, 2007, hearing focused exclusively on storm water
runoff and presented no evidence of contamination as previously
alleged in their Complaint.

The City argues that Plaintiffs’

failure to support allegations of contamination in their Complaint
requires dismissal for lack of standing.20 
This argument, however, is unpersuasive under the current
doctrines of CWA standing embraced by the Supreme Court and the
Ninth Circuit.

In Friends of the Earth v. Laidlaw Environmental

Services, Inc., the Supreme Court announced: “The relevant showing

for purposes of Article III standing . . . is not injury to the
environment but injury to the plaintiff.”21

The Ninth Circuit has

similarly explained that “requiring a plaintiff to demonstrate

19

Two of the Declarants claim to have actually witnessed
storm water discharges clouded with sediment and paint chips from
the Boat Repair Area in ditches that flow to the creeks and the
beaches of Resurrection Bay, Docket 60, Ex. A at 3, ¶ 10 & Ex. B at
3, ¶ 7, although none are aware of scientific studies of the area.
See Docket 60, Ex. C at 4, ¶ 15.
20

Docket 63 at 1-2.

21

528 U.S. at 181.

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actual environmental harm in order to obtain standing would, in
many Clean Water Act lawsuits, compel the plaintiff to prove more
to show standing than she would have to prove to succeed on the
merits.”22
is

based

As discussed below, Plaintiffs’ success on the merits
on

demonstrating

that

the

City

is

responsible

discharges of storm water, contaminated or not.

for

Evidence of

contamination, therefore, is not necessary to prevail on the
threshold issue of standing.
The

Ninth

Circuit

has

held

that

under

Laidlaw

“an

individual can establish ‘injury in fact’ by showing a connection
to the area of concern sufficient to make credible the contention
that the person’s future life will be less enjoyable – that he or
she really has or will suffer in his or her degree of aesthetic or
recreational satisfaction – if the area in question remains or
becomes environmentally degraded.”23

Declarants’ concerns over

storm water discharges are reasonable because storm water is
recognized as a significant potential source of pollution.24

After

thoroughly reviewing Plaintiffs’ submitted declarations, the Court

22

Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d
1141, 1151 (9th Cir. 2000) (citing Laidlaw, 528 U.S. at 181).
23

Id. at 1149.

24

64 Fed. Reg. 68722, 68724-26 (Dec. 8, 1999); see Natural
Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1295 & n.3 (9th Cir.
1992).
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 8
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finds that Plaintiffs have met this standard for demonstrating
injury in fact.25
There has been no serious dispute that the storm water
discharges into Resurrection Bay emanate from the City’s Boat
Repair Area and Small Boat Harbor.

The parties have presented the

Court with physical descriptions of the area and the path of storm
water runoff through conveyances maintained by the City at the
facilities.26

The

Court,

therefore,

finds

that

the

“injury”

discussed above is fairly traceable to the City.
Finally,
satisfies

the

a

“plaintiff

requirement

of

who

seeks

injunctive

redressability

by

relief

alleging

a

continuing violation or the imminence of a future violation of an
applicable

statute

or

standard.”27

Plaintiffs

at

bar

seek

injunctive and declaratory relief and sufficiently allege the

25

The City’s citation of Stanford Ranch, Inc. v. Maryland
Cas. Co., 89 F.3d 618 (9th Cir. 1996) provides scant guidance for
the standing issue at bar. While the Ninth Circuit in Standford
Ranch briefly recited the general requirements for standing, the
case was a contract case, not a citizen suit under the CWA where
standing was contested.
Moreover, in 2000, the Supreme Court
(Laidlaw) and the Ninth Circuit (Pacific Lumber) provided guidance
that is more on point.
26

See Docket 31 at 11-18; Docket 40 at 8-9; Docket 42 at

12-14.
27

Natural Res. Def. Council v. Sw. Marine, Inc., 236 F.3d
985, 995 (9th Cir. 2000).
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 9
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likelihood of continuing violations.

Therefore, Plaintiffs have

satisfied the redressability requirement for standing.28
B.

The City Must Apply for a NPDES Permit
Plaintiffs argue that the Boat Repair Area and the Small

Boat Harbor are “industrial facilities” subject to NPDES permits
under Section 402(p)(2)(B) of the CWA.29

Specifically, Plaintiffs

assert that the Small Boat Harbor is an industrial facility within
Standard Industrial Classification (“SIC”) Code 44 which includes
marinas and passenger ship docking.30

Plaintiffs assert that the

Boat Repair Area falls within SIC Code 37, which includes ship and
boat building and repair activities such as welding, powerwashing,
blasting,

sanding,

and

painting.31

Plaintiffs

have

submitted

evidence of these activities occurring at the Boat Repair Area and
Small Boat Harbor.32 The Court has carefully reviewed the SIC Codes
and the documented activities and concludes that the Boat Repair
Area and the Small Boat Harbor are industrial facilities under SIC
Codes 37 and 44, respectively.

28

See Docket 63 at 10.

29

33 U.S.C. § 1324(p)(2)(B).

30

40 C.F.R. § 122.26(b)(14)(viii); MSGP § 6.Q, 65 Fed. Reg.
64746, 64841-42.
31

40 C.F.R. § 122.26(b)(14)(xi); MSGP § 6.R, 65 Fed. Reg.
64746, 64843.
32

Docket 31, Ex. A, ¶¶ 6, 26 & 29-31, Ex. C, ¶¶ 8-9, Ex. D
(SMIC Policy at 1, attached to Ex. D as Ex. 2), Ex. G at 8-10 & 15,
Ex. H at 8-11 & 17.
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The above conclusion does not appear to be in dispute.
Rather, the City argues that the activities of the City are not
“industrial.”

In other words, the City argues that although it

owns the facilities, it is not the “operator” of the facilities.33
This distinction is significant because under the CWA regulations,
“[w]hen a facility or activity is owned by one person but is
operated by another person, it is the operator’s duty to obtain a
permit.”34
The CWA defines "owner or operator" as "any person owning
or operating" a facility.35 As the parties at bar observe, however,
this definition is circular.

The parties do not cite, and the

Court has not found, any mandatory authority to further guide the
Court in deciding whether or not the City is the operator of an
industrial facility.

Case law outside of the Ninth Circuit

“specifically defining ‘operator’ under the CWA is sparse at
best.”36
Plaintiffs urge the Court to adopt a definition of
operator that emphasizes the amount of involvement and control of
the City.

Plaintiffs point to the EPA’s permit applications which

33

Docket 26 at 6.

34

40 C.F.R. § 122.21(b).

35

33 U.S.C. § 1321(a)(6) (1986).

36

See Beartooth Alliance v. Crown Butte Mines 904 F. Supp.
1168, 1175 (D. Mont. 1995).
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 11
3:06-CV-0224-RRB

explain that “an operator is the ‘person responsible for the
overall operation of a facility.’”37

Plaintiffs further rely on a

decision of the U.S. District Court for the District of Montana in
Beartooth Alliance v. Crown Butte Mines, which set forth a test for
deciding operator status under the CWA: “An entity is an operator
of a facility where it has power or capacity to (i) make timely
discovery of discharges, (ii) direct the activities of persons who
control the mechanisms causing the pollution, and (iii) prevent and
abate the damage.”38
Plaintiffs also urge the Court to look to the State of
Washington’s
indirectly

stormwater
defines

discharge

operator.

permitting

According

to

scheme
the

which

Washington

Department of Ecology’s Industrial Stormwater General Permit, the
entity with “legal authority to manage the facility under the terms
and conditions of this permit, including the authority to make
capital improvements as necessary” and “day-to-day operational
control to assure compliance” is responsible for obtaining the

37

See Docket 42, Ex. A (EPA Form 3510-1, Application Form
1 – General Information, Consolidated Permits Program (1990), at 18), Ex. B (EPA Form 351-2F, Application for Permit to Discharge
Storm Water Discharges Associated with Industrial Activity (1992)).
38

904 F. Supp. at 1175 (citing Apex Oil Co. v. United
States, 530 F.2d 1291, 1293 (8th Cir. 1976), cert. denied, 429 U.S.
827 (1976); United States v. Mobil Oil Corp., 464 F.2d 1124, 1127
(5th Cir. 1972); State of Idaho v. Bunker Hill, 635 F. Supp. 665,
672 (D. Idaho 1986)).
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 12
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permit.39

The General Permit further declares: “The owner is the

Permittee if they are also the operator of the industrial facility.
If the owner and the operator (or tenant) of an industrial facility
are not the same, the operator is typically the Permittee and the
owner may choose to be a co-Permittee.”40

Thus, in Washington, an

“operator” is the entity with legal authority to manage the
facility, make capital improvements, and exert operational control
sufficient to assure day-to-day compliance with the terms of the
permit.
The City, on the other hand, urges the Court to look to
the “ordinary or natural meaning” of the term “operator” as the
Supreme Court did in United States v. Best Foods when faced with
interpreting that term in the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”).41

The Supreme Court

defined CERCLA’s “operator” term as “someone who directs the
workings of, manages, or conducts the affairs of a facility. . . .
[and] must manage, direct, or conduct operations specifically
related to pollution, that is, operations having to do with the

39

Industrial Stormwater General Permit, State of Washington
Department
of
Ecology,
p.
9,
available
at
http://www.ecy.wa.gov/programs/wq/stormwater/industrial/final%20I
SWGP%20Permit%20modification%20after%20comment.pdf.
40

Id. (emphasis added).

41

524 U.S. 51, 66 (1998).

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leakage

or

disposal

of

hazardous

waste,

or

decisions

about

compliance with environmental regulations.”42
The City also relies on the Alaska Supreme Court’s
decision in Parks Hiway Enterprises, LLC v. CEM Leasing, Inc.,
which cited Bestfoods in interpreting Alaska’s strict liability
hazardous substances statute to mean someone involved in running
the facility “typically on a day-to-day managerial basis.”43
Neither Best Foods, nor Parks Hiway, however, involved
interpretation of the CWA.

In other cases cited by the City which

do involve the CWA, the identity of the operator was not in
dispute.44

Rather, these cases simply restate the owner/operator

distinction set forth in EPA regulations.45
More importantly, the Court need not reconcile these
various standards. Whether under Beartooth Alliance or Best Foods,
the Court finds that the City retains sufficient involvement in,
and control of, both the SMIC Boat Repair Area and the Small Boat
Harbor.

42

Plaintiffs

have

presented

evidence

of

the

City’s

Id. at 66-67.

43

995 P.2d 657, 662-63 (Alaska 2000) (interpreting Alaska
Stat. § 46.03.822).
44

See Newton County Wildlife Ass’n v. Rogers, 114 F.3d 803,
810 (8th Cir. 1998); Sierra Club v. Martin, 71 F. Supp.2d 1268,
1304 n.5 (N.D. Ga. 1996); Sun Co., Inc. (R&M) v. Penn. Turnpike
Comm’n, 708 A.2d 875, 880 (Pa. Cmwlth. 1998).
45

See 40 C.F.R. § 122.21(b) (“When a facility or activity
is owned by one person but is operated by another person, it is the
operator’s duty to obtain a permit.”).
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT - 14
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activities at the facilities, which include: snow removal, steaming
ditches and culverts to facilitate flow of storm water, cleaning up
and disposing of residual water, such as oil, and hauling boats to
and from the facilities.46
It further appears that the City is the only entity that
possesses control over the facilities in question.47

Certainly the

individual boat owners do not for they lack the authority over, and
knowledge

of,

applications.48

the

facilities

Moreover,

needed

without

to

submit

sufficient

NPDES

permit

involvement

and

control over drainage, outfall improvements, materials storage, and
disposal areas, individual boat owners lack the authority and
knowledge needed to implement storm water prevention plans and best
management practices.49
The City’s arguments that it cannot be held strictly
liable for discharges of third parties (i.e., individual boat
owners),

or

that

the

enactment

and

enforcement

of

harbor

regulations are discretionary municipal functions within the scope
of governmental immunity, miss the mark.50

Plaintiffs neither seek

to hold the City liable for third party boat owners’ conduct, nor

46

Docket 31, Ex. G at 4-5, 8, 11-15, Ex. H at 4-12, 16.

47

Docket 42 at 8.

48

Id. at 9.

49

Id.

50

Docket 38 at 6-11.

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for enacting and enforcing harbor regulations.

Rather, the issue,

as discussed at length above, is whether the City is the operator
for purposes of the CWA.
Finally, the City’s argument the Multi-Sector General
Permit (“MSGP”) which expired in October 2005 and has not yet been
renewed is unavailing.51

Expiration of the MSGP does not relieve

a discharger of storm water from the obligation of obtaining an
individual storm water discharge permit.

The EPA regulations

require industrial storm water dischargers to obtain individual
NPDES storm water permits in the absence of an applicable general
permit.52

Further, the EPA encourages facilities that did not

receive coverage under the MSGP to implement and develop storm
water pollution plans pursuant to the MSGP until such time as the
MSGP is reissued.53
The Court finds that, for purposes of the CWA, the City
is an operator of industrial facilities which discharge storm water
into waters of the United States.

Accordingly, the City is

required to apply for an NPDES permit.

51

See Docket 26 at 12 & Ex. E; Docket 38 at 21-23.

52

40 C.F.R. § 122.26(c)(1)(“Dischargers of storm water
associated with industrial activity and with small construction
activity are required to apply for an individual permit or seek
coverage under a promulgated storm water general permit.”).
53

See Docket 26, Ex. B.

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C.

The Court Declines to Award Civil Fines
Section 309(g)(3) of the CWA authorizes the Court to

assess civil penalties up to $25,000 per day per violation.

In

determining the amount of penalties, if any, the Court will
consider: (1) the seriousness of the violation; (2) if, and how
much economic benefit the violator gained from the violation; (3)
if the violator has violated the CWA in the past; (4) if the
violator showed any effort to comply with the enforcement action
brought upon it by the citizen suit; and (5) how much of an
economic impact the civil penalty will have on the violator.54
After considering these factors in the context of this
case, the Court concludes that civil penalties are not appropriate.
Evidence of actual pollution is not overwhelming and the EPA has
not determined that the City needs a permit.

Although these facts

do not negate Plaintiffs’ standing, they lessen the seriousness of
any violation.
benefit,

or

Similarly, there is no evidence regarding economic

of

past

violations

violations in this suit.55

beyond

Plaintiffs’

tally

of

To the City’s credit, it has sought an

opinion from the EPA and taken steps to obtain the General Permit
which is no longer available.
required

to

have

a

NPDES

The City, although technically

permit,

54

33 U.S.C. 1319(g).

55

could

See Docket 31 at 24-25.

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3:06-CV-0224-RRB

not

have

reasonably

understood this to be the case.

Further, the City appears to have

long acted conscientiously in maintaining these facilities.
Moreover, Plaintiffs’ requested penalties would have a
severe economic impact on the City.

This impact is undeserved in

light of evidence that the City has a reputation for having
management practices which exceed most Alaskan harbors56 and that
no similar harbor in Alaska has an NPDES permit.
Finally, it must been noted that although caution and
legitimate concern for the environment justify the permitting
process mandated by the Clean Water Act, it was not intended to
prohibit responsible use of the resource or to make such use cost
prohibitive.

Plaintiffs’ request for civil penalties is therefore

denied.
V.

CONCLUSION
Plaintiffs’ Motion for Summary Judgment at Docket 23 is

hereby GRANTED IN PART and DENIED IN PART consistent with the text
of this Order. The City’s Motion for Summary Judgment at Docket 25
is DENIED.
The City shall proceed in due course to apply for an
NPDES permit and shall begin such efforts within 90 days hereof.

56

See Docket 28 at 3, ¶ 13.

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Final Judgment shall enter consistent herewith with each
party to bear its own costs and fees.
IT IS SO ORDERED.
ENTERED this 21st day of February, 2008.
s/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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