Conservation Law Foundation v. Hannaford Bros. Co., No. 2:03-CV-121.

• Decision Date: 14 May 2004
• Docket Number: No. 2:03-CV-121.
• Citation: 327 F.Supp.2d 325
• Parties: CONSERVATION LAW FOUNDATION, Plaintiff, v. HANNAFORD BROS. CO., Martin's Foods of South Burlington, Inc., Skipco, Inc., Tire Warehouse Central, Inc., Limoge Brothers, Inc. (Aka Limoge Bros.), Robert J. and Richard Limoge, Ernest C. Hoechner, Jr., the Merchants Bank, and Lucia Investments, Inc., Defendants.
• Court: U.S. District Court — District of Vermont

327 F.Supp.2d 325

CONSERVATION LAW FOUNDATION, Plaintiff, v. HANNAFORD BROS. CO., Martin's Foods of South Burlington, Inc., Skipco, Inc., Tire Warehouse Central, Inc., Limoge Brothers, Inc. (Aka Limoge Bros.), Robert J. and Richard Limoge, Ernest C. Hoechner, Jr., the Merchants Bank, and Lucia Investments, Inc., Defendants.

No. 2:03-CV-121.

United States District Court, D. Vermont.

May 14, 2004.

Christopher M. Kiliam, Montpelier, VT, for plaintiff.

R. Bradford Fawley, Brattleboro, VT, for defendant.

OPINION AND ORDER

SESSIONS, Chief Judge.

Plaintiff Conservation Law Foundation ("CLF"), an environmental organization, brings a citizen-suit action under § 505(a) of the Clean Water Act ("CWA" or "Act"), 33 U.S.C.A. § 1365(a) (West 2001), against Defendants Hannaford Bros. Co., et al. ("Hannaford"). CLF alleges that Hannaford is violating § 301(a) of the CWA, 33 U.S.C.A. § 1311(a) (West 2001), by discharging pollutants through a storm drain system without a National Pollution Discharge Elimination System ("NPDES") permit. 33 U.S.C.A. § 1342 (West 2001 & Supp.2003).

Hannaford avers that existing regulations do not require a permit for the Burlington Plaza storm drain and pipe and therefore moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). The other named defendants have joined this motion. For the reasons set forth below, the Court GRANTS Hannaford's motion and dismisses the complaint against all defendants.

I. Background

A. Underlying Facts

The following facts, taken from CLF's complaint are assumed to be true for the purposes of this motion. At the center of this dispute is Burlington Plaza, a commercial property located on Shelburne Road in South Burlington, Chittenden County, Vermont. The Plaza contains a parking lot approximately nine acres in size. Runoff from precipitation falling on Burlington Plaza and surrounding properties flows to a storm drain in the center of the parking lot via drainage contouring. From there, the runoff drains through a subsurface pipe into a swale located along Queen City Park Road. The swale empties into Potash Brook which, in turn, flows into Shelburne Bay of Lake Champlain. Lake Champlain is a "navigable water" under the CWA. The Burlington Plaza storm drain and pipe ("Burlington Plaza") is a "point source" under the CWA. The runoff from Burlington Plaza discharges materials into the swale and Potash Brook, including oil, grease, metals, chloride, phosphorus, bacteria, suspended solids, turbidity, and nitrate nitrogen. These materials are "pollutants" under the CWA.

Defendant Hannaford is incorporated in the State of Maine and registered to conduct business in Vermont. Hannaford wholly owns Defendant Martin's Foods of South Burlington. Hannaford and Martin's Foods own, operate and control Burlington Plaza and its storm drain system. The remaining named Defendants own, lease or operate businesses adjacent to Burlington Plaza.

Plaintiff CLF is a private, not-for-profit organization, incorporated in Massachusetts and authorized to carry on activities in Vermont. CLF's purpose is to solve environmental problems that "threaten the people, communities, and natural resources in New England." Pl.'s Compl. at 3 (Doc. 1). CLF claims approximately 600 members in Vermont, including approximately 30 who live in South Burlington. Several of CLF's members own property abutting Potash Brook downstream of the Burlington Plaza.

According to CLF, the discharge of pollutants from Burlington Plaza harms CLF's recreational and aesthetic interests in the impacted waters. CLF asserts that the CWA requires a NPDES permit for the discharge of pollutants from Burlington Plaza and that by discharging pollutants without such a permit, Defendants are violating the CWA.

B. Regulatory Framework

The CWA, 33 U.S.C.A. §§ 1251-1387 (West 2001 & Supp.2003), is intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.A. § 1251(a). Section 301(a) prohibits "the discharge of any pollutant" unless that discharge complies with other specified provisions of the Act, including § 402. 33 U.S.C.A. § 1311(a).¹

Section 402 provides for the issuance of NPDES permits that allow the holder to discharge pollutants notwithstanding the general prohibition imposed by § 301(a). 33 U.S.C.A. § 1342(a). NPDES permits may be issued by EPA or by state agencies that have been duly authorized by EPA. 33. U.S.C.A. § 1342(a)-(b). In Vermont, the NPDES program is administered by the Vermont Agency of Natural Resources ("VANR").

In 1987, Congress amended the CWA by enacting the Water Quality Act. Pub.L. No. 100-4, 101 Stat. 7 (codified in scattered sections of 33 U.S.C.A. §§ 1251-1387). The Water Quality Act added § 402(p), "Municipal and Industrial Stormwater Discharges," Pub.L. No. 100-4 § 405, 101 Stat. 7 (codified at 33 U.S.C.A. § 1342(p)), to the CWA. Section 402(p) mandates a two-phase regulatory approach to the discharge of pollutants in stormwater. Section 402(p)(1) prohibits EPA or state agencies from requiring NPDES permits for "discharges composed entirely of stormwater" until October 1, 1994. 33 U.S.C.A. § 1342(p)(1).² Section 402(p)(2) exempts four categories of stormwater discharges from this permit moratorium:

(A) A discharge with respect to which a permit has been issued under this section before February 4, 1987.

(B) A discharge associated with industrial activity.

(C) A discharge from a municipal separate storm sewer 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.

33 U.S.C.A. § 1342(p)(2).

Section 402(p)(2) also provides EPA or authorized state agencies with residual authority to designate that a stormwater discharge requires a permit if the discharge "contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States." 33 U.S.C.A. § 402(p)(2)(E).

For the categories of stormwater discharges set forth in § 402(p)(2) ("Phase I discharges"), § 402(p)(3) mandates NPDES permits and § 402(p)(4) establishes a timetable by which EPA is to promulgate regulations setting forth permit application requirements. 33 U.S.C.A. § 1342(p)(3)-(4). In 1990, EPA promulgated a Phase I rule pursuant to § 402(p)(4). National Pollutant Discharge Elimination System Permit Application Regulation for Stormwater Discharges, 55 Fed.Reg. 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122-24). The Phase I rule requires NPDES permits for those categories of discharges listed in § 402(p)(2).

Congress directed EPA to conduct a study of those stormwater discharges not identified in § 402(p)(2) ("Phase II discharges"). 33 U.S.C.A. § 1342(p)(5). Section 402(p)(5) sets forth the purposes of this study:

(A) identif[y] those stormwater discharges or classes of stormwater discharges for which permits are not required pursuant to paragraphs (1) and (2) of this subsection;

(B) determin[e], to the maximum extent practicable, the nature and extent of the pollutants in such discharges; and

(C) establish[ ] procedures and methods to control stormwater discharges to the extent necessary to mitigate impacts on water quality.

33 U.S.C.A. § 1342(p)(5)

Section 402(p)(6) requires EPA to issue regulations based on the results of the study. 33 U.S.C.A. § 1342(p)(6). The regulations shall "designate stormwater discharges other than [the Phase I discharges identified in § 402(p)(2)] to be regulated to protect water quality" and "establish a comprehensive program to regulate such designated sources." Id. At minimum, the program must: "(A) establish priorities, (B) establish requirements for State stormwater management programs, and (C) establish expeditious deadlines." Id. The program "may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate." Id. According to § 402(p)(6), EPA was to promulgate the program by October 1, 1993, one year prior to the expiration of the permit moratorium. Id.

On December 8, 1999, more than six years after the required date and more than five years after the expiration of the permit moratorium, EPA promulgated the Phase II rule. Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed.Reg. 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123 and 124). Under the Phase II rule, NPDES permits are required for stormwater discharges from small municipal sewer systems and from small construction sites. 40 C.F.R. § 122.26(a)(9)(i). The Phase II rule also preserves the residual authority of EPA and authorized state agencies to designate that a stormwater discharge requires a permit. Id.³ EPA's retention of its residual designation authority has been upheld as a legitimate exercise of its statutory authority pursuant to § 402(p)(2)(E) and (p)(6). Envtl. Def. Ctr., v. EPA, 344 F.3d 832, 874-76 (9th Cir.2003).

II. Preliminary Matters

A. Jurisdiction

Although neither party disputes this Court's jurisdiction, a federal court has an independent duty to examine its own jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Section 505(a) provides the district courts with jurisdiction to hear a citizen suit alleging a violation of an "effluent standard or limitation." 33 U.S.C.A. § 1365(a)(1). The term "effluent standard or limitation" is defined in part as "an unlawful act under [§ 301(a)] of this title." 33 U.S.C.A. § 1365(f). Because CLF alleges that Hannaford's discharge of stormwater is unlawful under § 301(a), this Court has jurisdiction.

B. Ripeness

On June 27, 2003, CLF filed a petition with VANR seeking a determination that various stormwater discharges, including the discharge at issue here, required NPDES permits. Def.'s Supp. Brief at 2 (Doc. 22). In its initial motion to dismiss, Hannaford...