Waste Action Project v. Draper Valley Holdings LLC

Filing 69

ORDER granting in part and denying in part pltf's 41 Motion for Partial Summary Judgment; denying dft Draper Valley's 49 Motion for Summary Judgment by Judge Robert S. Lasnik.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
WASTE ACTION PROJECT,

)
)
Plaintiff,
)
v.
)
)
DRAPER VALLEY HOLDINGS LLC,
)
d/b/a DRAPER VALLEY FARMS,
)
)
Defendant,
)
___________________________________ )

Civil Action No. C12-1870RSL
ORDER REGARDING CROSSMOTIONS FOR SUMMARY
JUDGMENT

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This matter comes before the Court on “Plaintiff’s Motion for Partial

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Summary Judgment” (Dkt. # 41) and “Defendant Draper Valley’s Motion for Summary
Judgment” (Dkt. # 49). Having reviewed the memoranda, declarations, and exhibits
submitted by the parties, the Court finds as follows:

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BACKGROUND
This case was brought by a non-profit environmental and human health
organization, Waste Action Project, against Draper Valley Holdings, LLC, for alleged

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violations of the Federal Water Pollution Control Act (“Clean Water Act” or “Act”), 33
U.S.C. § 1365. Plaintiff alleges that defendant exceeded the limitations imposed by its

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state waste discharge permit and failed to apply all known, available, and reasonable
methods of treatment and control (“AKART”) to its effluent in violation of the Act.
Defendant does not deny that it violated certain numeric effluent limitations throughout

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the limitations period, but argues that plaintiff lacks standing to pursue this citizen’s suit
and denies that it violated the permit’s AKART requirement. Defendant also challenges
the adequacy of the pre-suit notice provided pursuant to 33 U.S.C. § 1365(b)(1)(A).

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A. The Clean Water Act
Section 301(a) of the Clean Water Act prohibits the discharge of pollutants
into navigable waters unless in compliance with the Act. 33 U.S.C. § 1311(a); Nw.

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Envtl. Advocates v. U.S. Envtl. Prot. Agency, 537 F.3d 1006, 1020 (9th Cir. 2008)
(“[T]he Act categorically prohibits any discharge of pollutant from a point source without
a permit.”). Congress directed the Environmental Protection Agency (“EPA”) to

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promulgate regulations setting limits on the pollutant discharges from three sources,

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including (1) point sources discharging directly into navigable waters (“direct

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dischargers”); (2) publicly owned treatment works (“POTWs”) treating and discharging

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municipal sewage or industrial wastewater; and (3) point sources discharging pollutants

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into POTWs rather than directly into navigable waters (“indirect dischargers”). See Nat’l

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Ass’n of Metal Finishers v. U.S. Envtl. Prot. Agency, 719 F.2d 624, 633 (3d Cir. 1983),

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rev’d on other grounds, Chem. Mfrs. Ass’n v. Natural Res. Def. Council, Inc., 470 U.S.

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116 (1985). Direct dischargers and POTWs are regulated through National Pollutant

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Discharge Elimination System (“NPDES”) permits issued to the discharger under 33

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U.S.C. § 1342. The effluent from indirect dischargers, such as defendant here, is subject
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to separate pretreatment standards designed to “prevent the discharge of any pollutant
through [the POTW], which pollutant interferes with, passes through or otherwise is
incompatible with such works.” 33 U.S.C. § 1317(b)(1).

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Pretreatment standards may be imposed by the EPA or an authorized state

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or POTW: where multiple standards exist for the same pollutant, the most stringent
applies. 40 C.F.R. § 403.4. In Washington, the applicable pretreatment standards for

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indirect dischargers, including numerical limitations and treatment requirements, are set
forth in a permit. Because the state waste discharge permit establishes the governing
“pretreatment standard” for purposes of the Clean Water Act, a violation of the permit is

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a violation of 33 U.S.C. § 1317(d).

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B. Relevant Waste Discharge Permits

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Defendant’s waste discharge permit authorizes discharges from defendant’s

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slaughterhouse to the Mount Vernon sanitary sewer and POTW under certain conditions.

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In particular, defendant’s effluent is limited to a maximum consecutive three-day average

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of 1430 pounds of biochemical oxygen demand (“BOD”) per day, a maximum

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consecutive three-day average of 825 pounds of total suspended solids (“TSS”) per day,

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and a pH between 6.0 and 11.0 standard units. It is undisputed that defendant exceeded

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one or more of these limitations at various times throughout the limitations period. 1 The

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permit also requires defendant to use all known, available, and reasonable methods for

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Plaintiff has identified 58 days on which Draper Valley exceeded its BOD limit, 76 days on
which the TSS limit was exceeded, and 143 days on which the pH of the effluent fell outside the
specified range.

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treatment (“AKART”) to pretreat its industrial wastes and to report discharge quality
information to the Washington Department of Ecology on a monthly basis.

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The Mount Vernon POTW has its own wastewater discharge limitations.

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The POTW has not had any permit excursions during the relevant time frame.

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DISCUSSION
A. Standing

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In order to satisfy Article III’s standing requirements, “[a] plaintiff must

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allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and
likely to be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, 750 (1984).

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The “personal injury” element requires a showing that plaintiff suffered an invasion of a
legally protected interest that is concrete and particularized, as well as actual or
imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Its purpose is to

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ensure that the named plaintiff was actually injured and is entitled to an adjudication of

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the claim asserted, not merely abstractly distressed by unfounded fears or a wrong

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suffered by the public at large. Friends of the Earth, Inc. v. Gaston Copper Recycling

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Corp., 204 F.3d 149, 154, 156 (4th Cir. 2000). The alleged injury need not be large: an

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actual and genuine loss, even if a trifle, will suffice for standing purposes. See, e.g., U.S.

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v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973);

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Natural Res. Def. Council, Inc. v. U.S. Food and Drug Admin., 710 F.3d 71, 85 (2nd Cir.

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2013).

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An organization like Waste Action Project “has standing to bring suit on

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behalf of its members when its members would otherwise have standing to sue in their
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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.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181

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(2000). 1 An individual member of Waste Action Project can show a cognizable injury by
establishing “that she has an aesthetic or recreational interest in a particular place, or
animal, or plant species and that that interest is impaired by defendant’s conduct.”

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Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000).
“[T]he threshold question of citizen standing under the Clean Water Act is whether an
individual can show that she has been injured in her use of a particular area because of

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concerns about violations of environmental laws, not whether the plaintiff can show there
has been actual environmental harm.” Id. at 1151.

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In this case, Doris Brevoort is a member of Waste Action Project who lives

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within sight of the Skagit River and utilizes the river for spiritual renewal, recreation,

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bird-watching, and aesthetic enjoyment. Ms. Brevoort is, however, aware that the waters

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of the Skagit River in and downstream of Mount Vernon are not as clean as other bodies

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of water in the area or even as clean as the upstream reaches of the river. While she

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would like to get in the water, watch birds, and enjoy the aesthetic and spiritual attributes

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of nature close to home, she expends time and money traveling elsewhere to engage in

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these activities. She also believes that, if the Skagit River were healthier near the estuary,

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the local fisherman from whom she buys salmon would have better catches and more to

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sell. Ms. Brevoort believes there is a correlation between the amount of pollutants going

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Defendant challenges only the first element.
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into the Mount Vernon POTW and the amount being discharged into the Skagit River.
Thus, when defendant exceeds its permit limitations and sends additional pollutants to the
POTW, Ms. Brevoort fears that the violations result in additional pollutants being

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discharged from the POTW over and above what would have been discharged had
defendant stayed within its permitted limits. Ms. Brevoort states that her concerns
regarding the kind and amount of pollutants discharged from the POTW and their effects

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on the environment inhibit her use of the river and have diminished her enjoyment and
appreciation of the resource.
Defendant argues that the alleged injuries to Ms. Brevoort’s aesthetic,

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recreational, and spiritual interests do not satisfy the standing requirement because they
are either unfounded or not fairly traceable to defendant’s unlawful discharges.
Defendant argues that any fears or concerns Ms. Brevoort has about utilizing the river are

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unreasonable because the POTW did not exceed its permit limitations at any point during

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the relevant period. “The relevant showing for purposes of Article III standing, however,

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is not injury to the environment but injury to the plaintiff.” Laidlaw, 528 U.S. at 181.

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Ms. Brevoort states, and defendant does not dispute, that she would like to utilize the

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river near Mount Vernon more often and for a wider range of activities, but does not do

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so because of the presence of pollutants. Her enjoyment of the river is diminished as a

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result of the existence of pollution in the water even in the absence of proof that any

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particular contaminant has reached a level at which the water is unsafe. The same

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situation was presented in Laidlaw, where the trial court found that there was “no

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demonstrated proof of harm to the environment” from Laidlaw’s discharge of mercury in
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excess of its permit limitations. Nevertheless, the Supreme Court determined that
“environmental plaintiffs adequately allege injury in fact when they aver that they use the
affected area and are persons for whom the aesthetic and recreational values of the area

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will be lessened by the challenged activity,” notwithstanding the lack of injury to the
environment. Id. at 183.
Defendant’s primary argument appears to be that Ms. Brevoort’s injuries

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are not fairly traceable to defendant’s permit violations. Defendant argues that the expert
opinions of David LaLiberte and Joseph Leyda are inadmissible, leaving no evidence
from which a reasonable fact finder could conclude that defendant’s excessive discharges

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resulted in an increase in pollutants finding their way into the Skagit River. The Court
disagrees. Regardless of whether the opinions of Messrs. LaLiberte and/or Leyda are
admissible, defendant’s expert, Carl Adams, testified at deposition that as much as five

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percent of the total suspended solids in defendant’s effluent gets through the POTW and

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is discharged into the Skagit River. Dkt. # 44-4 at 105-06. Defendant correctly points

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out that Dr. Adams’ testimony is not entirely clear on this issue: he also testified that

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because the fats and other suspended solids coming from Draper Valley are processed by

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biological organisms, the bulk of the TSS in the POTW’s effluent is made up of these

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organisms and contains an unquantifiably small amount of the TSS that was originally

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discharged from the Draper Valley facility. Dkt. # 57-2 at 96-97 and 110-14. In either

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case, however, the volume of TSS discharged from the POTW, whether in the form of

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fats and other suspended solids discharged by defendant or in the form of the bacteria

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introduced at the POTW to process those solids, increases when the volume of the
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influent increases. Thus, there is admissible evidence that supports Ms. Brevoort’s belief
that when defendant exceeds its permit limitations, the effluent from the POTW contains
more pollutants than it otherwise would have. That being the case, the Court further

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finds that the injuries of which Ms. Brevoort complains are fairly traceable to defendant’s
unlawful conduct and would likely be redressed, at least in part, by a favorable decision
in this case. “If a plaintiff can show that his claim to relief is free from excessive

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abstraction, undue attenuation, and unbridled speculation, the Constitution places no
further barriers between the plaintiff and an adjudication of his rights.” Gaston Copper,
204 F.3d at 155. The Court therefore finds that plaintiff has established standing for

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purposes of Article III.
Plaintiff must also satisfy the statutory standing requirements for bringing a
citizen’s suit under the Clean Water Act. The Clean Water Act authorizes any citizen to

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commence a civil action on his own behalf against any person who is alleged to have

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violated an effluent standard or limitation. 33 U.S.C. § 1365(a). A “citizen” is defined as

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“a person or persons having an interest which is or may be adversely affected.” 33

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U.S.C. § 1365(g). The Supreme Court reviewed the legislative history of the Clean

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Water Act and concluded that the statutory grant of standing is at least as broad as Article

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III. Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 16-17

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(1981). Thus, because plaintiff is able to prove an injury that satisfies Article III, it has

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“an interest which is or may be adversely affected” by the alleged discharge.

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B. Violations of Permit Limitations
Defendant does not dispute the underlying records on which plaintiff bases
its allegations of permit violations or plaintiff’s calculations regarding the number and

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extent of violations. The Court therefore finds that defendant is liable under the Clean
Water Act, 33 U.S.C. § 1317, for violating numeric effluent limitations for BOD, TSS,
and pH contained in condition S1 of state waste discharge permit ST0003861 as follows:

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Violations of Biochemical Oxygen Demand (BOD) Limit
Limit: 1430 lbs/day, 3-day rolling average
Components of 3-day average BOD
Date
lbs/day
03/04/08
2274
03/05/08
1592
03/06/08
1251
3-day average
1706

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20

08/18/09
08/19/09
08/20/09
3-day average
08/21/09
3-day average

1931
1551
1678
1720
1112
1447

08/26/09
08/27/09
08/28/09
3-day average

1024
2001
1690
1572

12/07/10
12/08/10
12/09/10
3-day average

1729
1592
4329
2550

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25
26
27
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9

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2
3

12/10/10
3-day average
12/11/10
3-day average

1000
2307
799
2043

12/14/10
12/15/10
12/16/10
3-day average
12/17/10
3-day average

1655
2058
1841
1851
794
1564

01/25/11
01/26/11
01/27/11
3-day average
01/28/11
3-day average

1033
2383
1102
1506
892
1459

02/01/11
02/02/11
02/03/11
3-day average
02/04/11
3-day average

1140
1879
1685
1568
1180
1581

02/08/11
02/09/11
02/10/11
3-day average
02/11/11
3-day average
05/26/11
05/27/11
05/28/11
3-day average

1475
1501
1549
1508
1497
1516
1248
1560
2159
1656

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10
11
12
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14
15
16
17
18
19
20
21
22
23
24
25
26
27
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29
10

1

05/29/11
3-day average

1540
1753

06/14/11
06/15/11
06/16/11
3-day average

1620
1647
1036
1434

07/19/11
07/20/11
07/21/11
3-day average
07/22/11
3-day average

1520
1889
1037
1482
1696
1541

01/18/12
01/19/12
01/20/12
3-day average
01/21/12
3-day average

853
1652
1935
1480
824
1470

12/11/12
12/12/12
12/13/12
3-day average

1629
1306
1371
1435

07/16/13
07/17/13
07/18/13
3-day average

1390
1533
1618
1514

11/13/13
11/14/13
11/15/13
3-day average

1655
1513
1286
1485

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4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
11

1
2
3
4
5
6

12/10/13
12/11/13
12/12/13
3-day average

1793
1232
1327
1450

Total Violation
Days =

58

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12
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16
17
18
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20
21
22
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24
25
26
27
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12

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2
3
4

Violations of Total Suspended Solids (TSS) Limit
Limit: 825 lbs/day, 3-day rolling average
Components of 3-day average
Date
TSS lbs/day
03/03/08
03/04/08

62
1674

03/05/08
3-day average
03/06/08

930
889
671

3-day average

1092

04/28/08
04/29/08
04/30/08

42
1070
1409

3-day average
05/01/08

840
704

3-day average
05/02/08

1061
476

3-day average

863

17

06/19/08

430

18

06/20/08
06/21/08

1035
1517

3-day average
06/22/08
3-day average

994
379
977

07/15/08

987

24

07/16/08
07/17/08

1193
507

25

3-day average

896

01/02/09

97

01/03/09
01/04/09

1253
1165

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6
7
8
9
10
11
12
13
14
15
16

19
20
21
22
23

26
27
28
29
13

3-day average

828

03/11/09

487

03/12/09
03/13/09

892
1402

3-day average
03/14/09
3-day average

927
597
964

8

05/27/09

740

9

05/28/09
05/29/09
3-day average

1211
714
888

12

06/09/09

665

13

06/10/09
06/11/09

1109
754

3-day average

843

16

08/17/10

414

17

08/18/10
08/19/10

1130
1092

3-day average
08/20/10
3-day average

879
460
894

22

10/12/10

1165

23

10/13/10
10/14/10

1018
523

24

3-day average

902

26

11/30/10

756

27

12/01/10
12/02/10

885
1024

3-day average

888

1
2
3
4
5
6
7

10
11

14
15

18
19
20
21

25

28
29

14

12/03/10

610

3-day average

840

12/07/10
12/08/10

851
1479

12/09/10
3-day average
12/10/10

1977
1436
628

8

3-day average
12/11/10

1361
488

9

3-day average

1031

01/01/11

715

12

01/03/11
01/04/11

424
1363

13

3-day average

834

02/01/11
02/02/11
02/03/11

654
1310
767

3-day average
02/04/11

910
595

3-day average

891

20

05/03/11

1058

21

05/04/11
05/05/11

1036
776

3-day average

957

05/26/11
05/27/11
05/28/11

549
786
1570

3-day average
05/29/11

968
1298

3-day average

1218

1
2
3
4
5
6
7

10
11

14
15
16
17
18
19

22
23
24
25
26
27
28
29

15

1

05/31/11

447

2

3-day average
06/01/11

1105
788

3

3-day average

844

05/21/12
05/22/12
05/23/12

157
1553
1108

3-day average
05/24/12

939
673

3-day average
05/25/12
3-day average

1111
793
858

12

05/26/12
05/27/12

769
1080

13

3-day average

881

05/30/12
05/31/12
06/01/12

810
1148
1154

3-day average
06/02/12

1037
621

3-day average

974

07/16/13
07/17/13

780
964

07/18/13
3-day average
07/19/13

1166
970
533

3-day average

888

Total Violation Days =

76

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5
6
7
8
9
10
11

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
16

1
2

Violations of pH Limit
Limit: Not outside the range of 6.0 to 11.0 Standard

3
4

Units (S.U.)
Date

Minimum pH
(S.U.)

5
6

Maximum pH
(S.U.)

3/5/2008

3.4

3/20/2008

4.6

12/15/2008

3.4

12/16/2008

5.1

1/1/2009

2.8

6/2009

5.6

6/25/2012

5.5

10/8/2012

5.2

10/9/2012

5.6

10/19/2012

4.7

10/24/2012

4.6

12/4/2012

4.95

12/5/2012

3.6

12/7/2012

5.5

12/13/2012

5.0

12/14/2012

3.7

12/17/2012

5.0

1/5/2013

4.9

25

1/15/2013

4.8

26

1/21/2013

4.6

27

1/24/2013

4.1

28

1/26/2013

3.9

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

29
17

12.0

12.7

1

2/1/2013

4.3

2

2/2/2013

4.4

3

2/3/2013

4

2/5/2013

4.7

5

2/7/2013

3.9

6

2/8/2013

4.75

7

2/10/2013

5.1

8

2/11/2013

4.5

9

2/12/2013

3.7

10

2/14/2013

3.6

11

2/15/2013

4.05

12.3

12

2/19/2013

4.95

12.55

13

2/22/2013

4.0

12.0

14

2/23/2013

15
16
17
18
19
20
21
22

11.5

2/26/2013
2/27/2013

4.2

3/6/2013

4.1

3/11/2012

4.9

3/15/2013

4.8

3/16/2013

4.4

4/1/2013
4/15/2013

4.82

4/16/2013

5.4
5.6

4/19/2013

3.58

4/20/2013

5.56

5/1/2013

4.8

5/2/2013

5.6

26

29

12.6

11.6

25

28

12.9

4.6

24

27

12.6

13.4

4/17/2013

23

12.8

18

1

5/9/2013

4.0

2

5/10/2013

4.6

3

5/11/2013

5.6

4

5/13/2013

2.7

5

5/14/2013

4.8

6

5/15/2013

5.2

7

5/16/2013

11.4

8

5/18/2013

12.6

9

5/19/2013

4.0

10

5/26/2013

4.2

11

5/28/2013

11.2

12

5/31/2013

12.4

13

6/1/2013

12.0

14

6/2/2013

11.2

15

11.5

11.1

18
19
20
21
22
23

6/10/2013

5.3

12.2

6/11/2013

5.5

11.2

6/12/2013

5.8

6/13/2013

5.4

6/14/2013

5.9

6/19/2013

5.8

6/27/2013

5.0

7/1/2013

2.6

12.2

5.2

12.0

7/5/2013

17

5.8

7/2/2013

16

6/8/2013

4.0

11.6

7/6/2013

4.0

11.6

7/7/2013

2.4

7/9/2013

5.7

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25
26
27
28
29

19

1

7/10/2013

4.7

2

7/11/2013

4.8

3

7/12/2013

5.4

4

7/13/2013

5.4

5

7/15/2013

5.5

6

7/19/2013

5.6

7

7/20/2013

5.7

8

7/21/2013

4.6

9

7/22/2013

4.4

10

7/27/2013

5.7

11

7/30/2013

5.0

12

7/31/2013

5.8

13

8/3/2013

4.2

14

8/4/2013

5.4

8/6/2013

5.9

15
16
17
18
19
20
21
22
23

8/8/2013

12.2

12.0

11.8

12.0

8/11/2013

5.6

8/28/2013

4.6

11/13/2013

4.8

11/26/2013

4.2

12/9/2013

5.0

12/10/2013

5.6

12/11/2013

5.7

12.1

11.2

24
12/12/2013

11.3

25
12/17/2013

5.7

26
27
28
29

12/19/2013

12.0

12/21/2013

12.3

12/24/2013

11.9
20

1

12/25/2013

2.4

12.4

2

12/26/2013

5.5

11.9

3

12/28/2013

11.2

4

12/29/2013

11.8

5

12/30/2013

6

12/31/2013

11.5

7

1/3/2014

12.4

8

1/4/2014

11.1

9

1/5/2015

11.2

10

1/6/2014

11.9

11

1/11/2014

12

1/12/2014

13

1/22/2014

4.1

14

1/30/2014

5.9

4.7

12.3
12.2

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Total Violation Days =

143

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C. AKART Requirement

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Defendant’s state waste discharge permit requires it to “treat all industrial

22

wastes containing pollutants by using all known, available, and reasonable methods for

23

treatment prior to discharge to the sanitary sewer.” Dkt. # 44-1, § S4.C.5. Plaintiff seeks

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25

a determination that, as of October 23, 2012 (the date on which the complaint in this case

26

was filed), defendant was in violation of this permit requirement. Plaintiff’s evidence

27

consists of (1) the undisputed fact that defendant’s then-existing dissolved air flotation

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29

(“DAF”) system had failed to prevent numerous discharges in excess of the numeric
21

1
2
3

permit limitations; (2) other poultry processing facilities, including nine out of ten
facilities owned by defendant’s grandparent company that discharged to POTWs, utilized
equalization tanks as part of their pretreatment systems; (3) one food processing facility

4
5
6
7

and a number of chemical facilities utilized flocculation chambers in their pretreatment
systems; and (4) defendant installed both an equalization tank and a flocculation chamber
in December 2013. Defendant argues that Washington’s Department of Ecology

8
9
10
11

(“DOE”) found that its DAF system satisfied the AKART requirement when it reissued
the permit on September 30, 2010, and that plaintiffs cannot challenge that determination
in the context of this suit.

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RCW 90.48.520 requires DOE to review a permit applicant’s “operations
and incorporate permit conditions which require all known, available, and reasonable
methods to control toxicants in the applicant’s wastewater.” DOE incorporated just such

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17

a requirement in defendant’s 2010 permit. In an accompanying “Fact Sheet,” DOE

18

provided an explanation of its permit decisions. With regards to the AKART provision,

19

DOE stated that it would not impose any “specific limitations based on AKART criteria,”

20
21

but that it “considers the performance of [defendant’s] DAF system to be consistent with

22

AKART requirements.” Dkt. # 53-7 at 3. Defendant argues that this statement

23

conclusively establishes its compliance with the permit’s AKART requirement. Plaintiff

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25

argues that the quoted statements are inadmissible as undisclosed expert opinion or

26

hearsay. Neither argument is persuasive.

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The AKART requirement is “clearly meant to foster the use of new

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29

emission control technology” in the hopes of someday “extinguish[ing] sources of water
22

1
2
3

quality degradation.” Puget Soundkeeper Alliance v. Washington Dep’t. of Ecology, 102
Wn. App. 783, 789, 792 (2000). Defendant’s argument that a statement in the “Fact
Sheet” should trump the express permit requirement that defendant use “all known,

4
5
6
7

available, and reasonable” treatment methods is factually and legally unsupported. There
is no indication that DOE intended that defendant use the “Fact Sheet” as a shield against
any technological upgrades that became available during the permit’s five year term. Nor

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9
10
11

is it clear that DOE would have the power to do so: a preemptive declaration of AKART
compliance, notwithstanding changes in the permitee’s operations or the availability of
new technologies, would thwart the legislature’s express command in RCW 90.48.520

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13
14
15

and, in fact, the express requirements of the permit.
The “Fact Sheet” is not meaningless, however. One could argue that, at
least as of September 30, 2010, DOE believed that defendant’s DAF system satisfied the

16
17

AKART requirement. While such a finding would not bind plaintiff or the fact finder in

18

this litigation (Ass’n to Protect Hammersley, Eld, and Totten Inlets v. Taylor Res., 299

19

F.3d 1007, 1012 (9th Cir. 2002) (“[N]either the text of the Act nor its legislative history

20
21

expressly grants to the EPA or [an authorized] state agency the exclusive authority to

22

decide whether the release of a substance into the waters of the United States violates the

23

Clean Water Act.”); Sierra Club v. Portland Gen. Elec. Co., 663 F. Supp.2d 983, 997 (D.

24
25

Or. 2009) (“The citizen suit provisions in both [the Clean Water Act and the Clean Air

26

Act] are nearly identical, and grant citizens the right to challenge the actions of

27

companies alleged to be in violation of the law, regardless of whether the government

28
29

believes them to be in violation of the law.”)), it is evidence that weighs in favor of
23

1
2
3

defendant on the AKART claim. Plaintiff’s objections to the admissibility of the “Fact
Sheet” are overruled. The “Fact Sheet” is not subject to the disclosure requirements of
Fed. R. Civ. P. 26(a)(2): it is not an expert witness, nor was the person(s) who created it

4
5
6
7

“retained or specially employed to provide expert testimony in the case.” With regards to
the hearsay objection, the “Fact Sheet” is a “record or statement of a public office” which
sets out factual findings following a legally authorized application and review process

8
9
10
11

under Fed. R. Ev. 803(8). Plaintiff is free to argue that the investigation and review of
defendant’s wastewater treatment system was cursory, that the statement is ambiguous,
and/or other factors that might reduce the weight given the statement (see Sullivan v.

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13
14
15

Dollar Tree Stores, Inc., 623 F.3d 770, 778 (9th Cir. 2010)), but the Court finds that the
source of the “Fact Sheet” and the context in which it was created are sufficient
indications of trustworthiness to warrant its admission into evidence.

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17

The question, then, is whether either party has shown that it is entitled to

18

summary adjudication on the AKART claim. Determining whether defendant utilized

19

“all known, available, and reasonable methods” to treat its wastewater throughout the

20
21

limitations period will require consideration of available technologies, their application in

22

the food processing industry, and the financial and operational burdens of adoption. The

23

state legislature has made clear that the goal of ensuring the purity of the waters of the

24
25

state must be pursued in a way that is consistent with not only public health and wildlife

26

protection, but also “industrial development of the state.” RCW 90.48.010. The mere

27

availability of certain technology in the marketplace cannot be the only consideration:

28
29

the technology may not be compatible with existing operations, it may be cost
24

1
2
3

prohibitive, or the benefits of adoption may be so minimal that it would not be
reasonable. 2 Nor does the fact that defendant adopted existing technology in December
2013 establish as a matter of law that the balance of competing factors made the

4
5
6
7

technology “known, available, and reasonable” as of October 23, 2012. While
defendant’s repeated permit violations between September 30, 2010, and the date this
action was filed suggest that the need to adopt better technologies despite the financial

8
9
10
11

burdens was fast becoming apparent, when, exactly, the utilization of an equalization
tank and flocculation chamber became not only “known” and “available” but
“reasonable” cannot be ascertained as a matter of law. The Court finds that there is a

12
13

genuine issue of fact regarding if and when defendant violated the AKART requirement.

14

D. Notice of Intent to Sue

15

On August 13, 2012, plaintiff sent a Notice of Intent to Sue, as required by

16
17

33 U.S.C. § 1365(b). The notice advised “Draper Valley Holdings LLC dba Draper

18

Valley Farms” that plaintiff intended to file a citizen’s suit against “Draper Valley Farms,

19

Inc.,” under the Clean Water Act. Dkt. # 47-1. Suit was subsequently filed against

20
21

Draper Valley Holdings LLC dba Draper Valley Farms. Defendant argues that the

22

insertion of “Inc.” in the notice made it impossible for the recipient to identify “the

23

person or persons responsible for the alleged violation.” 40 C.F.R. § 135.3. This

24
25

argument is not well-taken. Taken in the context of the remainder of the notice,

26
27
28
29

2

Two years before this suit was filed, the regulatory agency charged with evaluating
defendant’s system in the context of the Clean Water Act’s permitting scheme arguably decided
that the DAF system struck the appropriate balance between environmental protection and
industrial development.
25

1
2
3

defendant could not possibly have been confused about the identity of the alleged
polluter: plaintiff clearly identified the relevant permit number (which identified Draper
Valley Farms, Inc, as the permitee), the location of the slaughterhouse facility, and the

4
5
6
7

dates on which violations were alleged to occur. Although the record shows that
defendant used at least three names while operating the Mount Vernon facility, there is
no indication that, upon receipt of the Notice of Intent to Sue, it was in any way confused

8
9
10

regarding the identity of the entity responsible for the alleged violations. The notice
provided on August 13, 2012, was sufficient.

11
12
13
14
15

For all of the foregoing reasons, plaintiff’s motion for summary judgment
(Dkt. # 41) is GRANTED in part and DENIED in part. Defendant’s motion for summary
judgment (Dkt. # 49) is DENIED.

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17
18

Dated this 22nd day of April, 2014.

19
20

A

21

HONORABLE ROBERT S. LASNIK
UNITED STATES DISTRICT JUDGE

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26
27
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29
26