Arc Ecology, et al v United States Maritime Administration, et al

Filing 115

ORDER signed by Judge Garland E. Burrell, Jr., on 1/20/10, ORDERING that pltfs' motion for summary judgment on their Sixth Claim for Relief 81 is DENIED, and dfts' cross-motion for summary judgment on pltfs' Sixth Claim for Relief 74 is GRANTED. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ARC ECOLOGY; SAN FRANCISCO BAYKEEPER; and NATURAL RESOURCES DEFENSE COUNCIL, INC.,

) ) ) ) Plaintiffs, ) ) and ) ) CALIFORNIA REGIONAL WATER QUALITY ) CONTROL BOARD, SAN FRANCISCO BAY ) REGION, ) Plaintiff) Intervenor, ) v. ) ) UNITED STATES MARITIME ) ADMINISTRATION; SEAN T. ) CONNAUGHTON, in his official ) capacity as Maritime Administrator;) UNITED STATES DEPARTMENT OF ) TRANSPORTATION; and MARY E. ) PETERS,1 in her official capacity ) as Secretary of Transportation, ) ) Defendants. ) )

2:07-cv-2320-GEB-GGH

ORDER ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT

The parties' cross-motions for partial summary judgment were heard on November 9, 2009. This case concerns the operation and Plaintiffs Arc

management of the Suisun Bay Reserve Fleet ("SBRF").

Ecology, San Francisco Baykeeper, and Natural Resources Defense Council, Inc. ("Plaintiffs") and Plaintiff-Intervenor, the California Regional Water Quality Control Board, San Francisco Bay Region ("Plaintiff-Intervenor") have moved for partial summary judgment on Defendant Mary E. Peters has been replaced by Ray H. LaHood. 1

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Plaintiffs' Seventh Claim and Plaintiff-Intervenor's First Claim for Relief. These claims allege Defendants' liability under section

301(a) and 505(a) of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1311(a), 1365(a), for discharge of pollutants from the non-retention vessels of the SBRF to navigable waters. Plaintiffs have also moved for partial summary judgment on the Fifth and Sixth Claims in their First Amended Complaint. Plaintiffs' Fifth Claim alleges Defendants' liability under sections 7002(a)(1)(a) and 6001(a) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6972(a)(1)(a), 6961(a), and the California Hazardous Waste Control Law, Cal. Health & Safety Code §§ 25201(a),

25189.2, and 25189, for unlawful disposal and/or storage of hazardous waste. Plaintiffs' Sixth Claim alleges Defendants' liability under

Sections 7002(a)(1)(a), 4005, and 6001(a) of RCRA, 42 U.S.C. §§ 6972(a)(1)(a), 6945, 6961(a), for open dumping. Defendants have cross-moved for summary judgment on each of these claims. However, during the course of briefing, Defendants

informed the Court that their cross-motion was moot except as to Plaintiffs' Sixth Claim, which involves open dumping. After consideration of the moving and opposition papers, and all other matters presented to the Court, this order issues. The Clean Water Act Claims (Plaintiffs' Seventh Claim and Plaintiff-Intervenor's First Claim) 1. The non-retention vessels of the SBRF are "point sources" subject

to the permitting requirements of the CWA. 33 U.S.C. §§ 1362(14), 1311(a). 2. Suisun Bay is a "navigable water" within the meaning of the CWA.

Id. § 1362(7). 2

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3.

Exfoliated paint and other materials discharged from the SBRF

non-retention vessels to Suisun Bay are "pollutants" under the CWA. Id. § 1362(6). 4. Since at least October 5, 2007, Defendants have been and continue

to be in violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a), by discharging pollutants from each SBRF non-retention vessel into the waters of Suisun Bay without a valid National Pollutant Discharge Elimination System permit. 5. Summary judgment on liability is hereby GRANTED to Plaintiffs and

Plaintiff-Intervenor and DENIED to Defendants on Plaintiffs' Seventh Claim and Plaintiff-Intervenor's First Claim. The Hazardous Waste Claim (Plaintiffs' Fifth Claim) 6. Each SBRF non-retention vessel contains exfoliated paint that

constitutes hazardous waste. CAL. CODE REGS., tit. 22, § 66261.3 (defining "hazardous waste"). 7. Defendants are generators of hazardous waste at the SBRF site.

Id. § 66260.10 (defining "generator"). 8. Under California's Hazardous Waste Control Law and implementing

regulations, a generator may not accumulate hazardous waste on-site for more than ninety days without a permit, subject to certain exceptions not applicable here. Id. § 66262.34(a), (c). In addition,

"a generator who accumulates hazardous waste for more than 90 days is an operator of a storage facility" and is required to have a permit, subject to certain exceptions not applicable here. 9. Id. § 66262.34(c).

California's Hazardous Waste Control Law prohibits the storage of

hazardous waste for more than ninety days without a permit or other authorization, subject to certain exceptions not applicable here. 3

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CAL. HEALTH & SAFETY CODE §§ 25201(a), 25189.5, 25189.2.

Defendants do

not have a permit or other authorization to store hazardous waste at the SBRF site for more than ninety days. 10. Defendants do not contest that each SBRF non-retention vessel has

accumulated exfoliated paint that is hazardous waste at the SBRF site for more than ninety days. at least October 29, 2002. This accumulation has been ongoing since Defendants have no permit or other Accordingly, since at least

authorization for this accumulation.

October 29, 2002, Defendants have been and continue to be in violation of Cal. Health & Safety Code §§ 25201(a), 25189.5, 25189.2, and 42 U.S.C. § 6961(a). 11. Summary judgment on liability is hereby GRANTED to Plaintiffs and

DENIED to Defendants on Plaintiffs' Fifth Claim. The Open Dumping Claim (Plaintiffs' Sixth Claim) 12. Plaintiffs and Defendants cross move for summary judgment on

Plaintiffs' Sixth claim in which Plaintiffs allege Defendants' maintenance of the SBRF violates RCRA's "open dumping" prohibition; specifically, Plaintiffs allege Defendants are violating the surface water criterion promulgated by the United States Environmental Protection Agency ("EPA") in 40 C.F.R. § 257.3-3(a). 13. This regulation references Section 4004(a) of RCRA, 42 U.S.C. § 6944(a), in its introduction, stating: "[f]or purposes of Section 4004(a) of [RCRA], a facility shall not cause a discharge of pollutants into waters of the United States that is in violation of the requirements of the National Pollutant Discharge Elimination System (NPDES) under Section 402 of the [CWA], as amended." (emphasis added). Although Defendants concede that each SBRF vessel is 4

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discharging pollutants into navigable waters without a Section 402 permit required under the CWA, Defendants argue Plaintiffs are not authorized to bring a citizen suit for enforcement of the EPA's surface water criterion promulgated under Section 4004(a) because this criterion is only enforceable by States. 14. Section 4004(a) of RCRA authorizes the EPA to promulgate criteria determining which facilities are open dumps for State waste planning purposes. Specifically, Section 4004(a) provides that "after

consultation with the States . . . the [EPA] shall promulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills and which shall be classified as open dumps . . . ." 42 U.S.C. § 6944(a). 15. The EPA added the prefatory language, "[f]or purposes of Section

4004(a) of [RCRA]," to 40 C.F.R. § 257.3-3(a) in 1981 to preclude the exact sort of claim Plaintiffs allege in their Sixth Claim for Relief. Guidelines for Development and Implementation of State Solid Waste Management Plans, 46 Fed. Reg. 47048, 47,052 (Sept. 23, 1981)(to be codified at 40 C.F.R. pt. 257). relevant part: Today's amendments also modify the surface-water criterion of § 257.3-3. As originally promulgated, that standard would have made discharges violating requirements under Section 402 or Section 404 of the Clean Water Act open dumping practices as well. A party causing such a violation could simultaneously be subject to penalties under the CWA and a citizen suit to enjoin `open dumping' under RCRA. Today's amendment eliminates this double liability. However, since the open dump inventory classification for purposes of the State planning program does not impose legal sanctions under RCRA, the Criteria retain the provision that a violation of Section 402 or Section 404 makes a facility an open dump. All but one commenter who addressed this issue supported the change. The commenter who opposed 5 The 1981 final rule states, in

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argued that the Government should not limit enforcement options. EPA believes that the CWA enforcement mechanisms are sufficient to handle violations under Sections 402 and 404. Guidelines for Development and Implementation of State Solid Waste

4 Management Plans, 46 Fed. Reg. at 47,050 (emphasis added). 5 discharge of pollutants in violation of the CWA could be addressed 6 under the CWA, the EPA limited enforcement of the surface water 7 criterion promulgated under Section 4004(a) of RCRA to States. 8 Hackensack Riverkeeper, Inc. v. Delaware Ostego Corp., 450 F. Supp. 2d 9 467, 486-87 (D.N.J. 2006)(finding that "[Section] 4004(a) of [RCRA] . 10 . . exists only to guide State governments in the development of solid 11 waste management programs" and agreeing with and citing Long Island 12 Soundkeeper Fund, Inc. v. New York Athletic Club, No. 94-0436, 1996 WL 13 131863, at *11 (S.D.N.Y. Mar. 22, 1996) for the proposition that "the 14 language of the regulations and the accompanying EPA commentary make 15 clear that the EPA did not intend for the surface water criteria 16 promulgated under [S]ection 4004(a) of RCRA (42 U.S.C. § 6944(a)) to 17 authorize citizen suits for open dumping practices in violation of 18 [S]ection 4005(a) of RCRA (42 U.S.C. § 6945(a)).") 19 16. 20 amendments in 1996 by adding language to the "Scope and purpose" of 21 the EPA's regulations in 40 C.F.R. §§ 257.1(a)(1) and (a)(2), arguing 22 the amendments authorize their citizen suit. 23 17. 24 introduction to the "Scope and purpose" of the EPA regulations states 25 in Section 257.1(a) that "[u]nless otherwise provided, the criteria in 26 §§ 257.1 through 257.4 are adopted for determining which solid waste 27 disposal facilities and practices pose a reasonable probability of 28 adverse effects on health or the environment under sections 1008(a)(3) 6 The 1996 amendments do not support Plaintiffs' argument. The However, Plaintiffs contend the EPA reversed itself with See Since a

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and 4004(a) of [RCRA]." (emphasis added).

Section 257.3-3 provides

otherwise since it is limited to enforcement by States. 18. Further, there is no mention in the preamble to the 1996 final rule or in the preamble to the 1995 proposal of that rule indicating that the EPA intended to undo the effect of the 1981 amendments. Criteria for Classification of Solid Waste Disposal Facilities and Practices, 61 Fed. Reg. at 34,252-69; Criteria for Classification of Solid Waste Disposal Facilities and Practices, 60 Fed. Reg. 30,964, 30,964-82 (proposed June 12, 1995)(to be codified at 40 C.F.R. pt. 257). Had the EPA intended to make such a substantive change in the See

regulations, it could be expected that change, and the EPA's rationale for it, would have been discussed in the preamble. 19. Therefore, the Court lacks citizen suit jurisdiction over See Hackensack, 450 F. Supp. 2d at 486-87

Plaintiffs' Sixth claim.

(finding "Plaintiffs . . . improperly commenced a citizen suit pursuant to RCRA seeking a remedy in violation of 257.3-3" because "the EPA did not intend for the surface water criteria promulgated under section 4004(a) of RCRA (42 U.S.C. § 6944(a)) to authorize citizen suits for open dumping practices in violation of section 4005(a) of RCRA (42 U.S.C. § 6945)"); see also Jones v. E.R. Snell Contractor, Inc., 333 F.Supp.2d 1344, 1350 (N.D. Ga. 2004)(not citing 40 C.F.R. § 257.3-3, but granting summary judgment for Defendants on Plaintiff's RCRA claims because "[t]he EPA's. . . [1981] final version of [RCRA]'s criteria noted that the regulations were designed to eliminate double liability under the [CWA] and [RCRA] . . . [and] the pollution issues in this case are covered by the [CWA] . . . .") 20. For the stated reasons, Plaintiffs' motion for summary judgment

on their Sixth Claim for Relief is DENIED, and Defendants' 7

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cross-motion for summary judgment on Plaintiffs' Sixth Claim for Relief is GRANTED. IT IS SO ORDERED. Dated: January 20, 2010

GARLAND E. BURRELL, JR. United States District Judge

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