Environmental Protection Inform. v. Pacific Lumber, C 01-2821 MHP.

• Decision Date: 28 April 2006
• Docket Number: No. C 01-2821 MHP.,C 01-2821 MHP.
• Citation: 430 F.Supp.2d 996
• Court: U.S. District Court — Northern District of California
• Parties: 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 <B>Todd Whitman, Defendants.</B>

430 F.Supp.2d 996

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.

April 28, 2006.

Michael R. Lozeau, Law Office of Michael R. Lozeau, Alameda, CA, Deborah A. Sivas, Stanford Law School, Environmental Law Clinic, 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 Division, 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 & ORDER

PATEL, District Judge.

Parties' Cross-Motions for Summary Judgment

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 Lumber 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 regarding EPIC's first and second claims for relief² and EPIC's cross-motion for summary judgment on the issue of PALCO's liability. The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows.

BACKGROUND

I. Background Facts

In each of its prior decisions the court has set forth the underlying facts of this action in significant detail, and it is not necessary to restate that background here in order to resolve the motions currently before the court. The court, rather, need only reframe the core dispute.

At the lieart of this litigation is Bear Creek, a brook situated several miles upstream of Scotia, California. A tributary of the Eel River, Bear Creek creates a watershed that covers 5500 acres of land throughout Humboldt County, California. Pacific Lumber Company and its whollyowned subsidiary, defendant Scotia Pacific Lumber Company, own some ninety-five percent of the land in the Bear Creek watershed, much of which PALCO uses for logging.³

According to EPIC, substantial logging activity (primarily PALCO's) in the watershed area has spurred a dramatic increase in the amount of sediment deposited in Bear Creek. Before significant logging began, EPIC claims, Bear Creek's sediment deposit peaked at approximately 8,000 tons per year; after logging practices commenced, sediment deposit climbed to 27,000 tons per year. This sediment increase, EPIC alleges, has a specific source: PALCO's timber harvesting and construction of unpaved roads. According to EPIC, PALCO's logging activity increases sediment through the following process. First, EPIC notes, timber harvesting removes vegetation from the ground surface, making soil more susceptible to erosion and landslides. Construction of unpaved roads then exposes more soil, which, in turn, further destabilizes slopes. The effect of timber harvesting and road construction, EPIC contends, is to expose far more destabilized soil than is environmentally sustainable. When it rains, EPIC explains, the rain water carries the exposed silts and sediments—as well as other pollutants, such as pesticides and diesel fuel—into culverts, ditches, erosion gullies, and other alleged channels. From these various channels, silts, sediments and pollutants flow directly into Bear Creek. The consequences of PACO's drainage system, EPIC notes, are predictable and environmentally adverse; PALCO's present and future timber harvest plans, EPIC adds, promise only to make the situation worse.

EPIC believes PALCO's present drainage system violates various provisions of the Clean Water Act, including (but not necessarily limited to) the National Pollutant Discharge Elimination System ("NPDES"). See 33 U.S.C. §§ 1251(a), 1311(a), 1342(a); see also Environmental Def. Ctr., Inc. v. United States Envtl. Prot. Agency ("EPA"), 344 F.3d 832 (9th Cir. 2003), cert. denied, 541 U.S. 1085, 124 S.Ct. 2811, 159 L.Ed.2d 246 (2004); Association to Protect Hammersley v. Taylor Res., Inc., 299 F.3d 1007, 1016 (9th Cir.2002) (noting that, in 1972, "Congress passed the Clean Water Act amendments, 33 U.S.C. §§ 1251-1387, to respond to environmental degradation of the nation's waters."); Natural Resources Defense Council ("NRDC") v. EPA, 822 F.2d 104, 109 (D.C.Cir.1987) (citing 33 U.S.C. § 1311(a)). In substantial part, EPIC alleges that PALCO has used a variety of "point sources," see 33 U.S.C. § 1362(14), to discharge pollutants without first securing necessary NPDES permits. Absent such permits, EPIC claims, PALCO's system conflicts with defendants' CWA obligations.

II. Statutory and Regulatory Background

With the goal of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters," Congress enacted the CWA in 1972. 33 U.S.C. § 1251(a) (originally codified as the Federal Water Pollution Control Act, 62 Stat. 1155); see Association to Protect Hammersley, 299 F.3d at 1016; Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir.2002) (observing that prior federal water pollution regulation "had proven ineffective"), cert. denied, 539 U.S. 926, 123 S.Ct. 2573, 156 L.Ed.2d 602 (2003). Built on a "fundamental premise" that the unauthorized "discharge of any pollutant by any person shall be unlawful,'" NRDC v. EPA, 822 F.2d at 109 (citing 33 U.S.C. § 1311(a)), the CWA "establishes a comprehensive statutory system for controlling water pollution." Association to Protect Hammersley, 299 F.3d at 1009 (citation and internal quotation marks omitted). This broad statutory scheme includes, inter alia, a National Pollutant Discharge Elimination System (NPDES) for regulation of pollutant discharges into the waters of the United States. See 33 U.S.C. §§ 1311(a), 1342(a). Under the NPDES, permits may be issued by EPA or by States that have been authorized by EPA to act as NPDES permitting authorities. See 33 U.S.C. § 1342(a)—(b); see also Environmental Def. Ctr., Inc., 344 F.3d at 841 (holding that pollution dischargers must comply with "technology-based pollution limitations (generally according to the `best available technology economically achievable,' or `BAT' standard)."); NRDC v. EPA, 822 F.2d at 110 (noting that, when necessary, water quality-based standards may supplement technology standards). California has been so authorized.⁴

Not all pollutants or pollution sources fall within the purview of the NPDES. Under the CWA, "discharge of pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A) (emphasis added). The CWA's and NPDES's focus, then, trains largely on pollutant discharges from "point sources," a term the Act defines as:

any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

Id. at § 1362(14); see also id. at § 1362(6) (defining "pollutant" broadly to include substances ranging from rock and sand to industrial, municipal, and industrial wastes).

The CWA distinguishes "point sources" from "nonpoint sources." The NPDES recognizes—and functions on the basis of—this distinction, requiring permits only for such "point source" emissions. See, e.g., League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002) ("Point source pollution is distinguished from `nonpoint source pollution,' which is regulated in a different way and does not require [the NPDES] type of permit."). Unlike "point sources," "nonpoint sources"⁵ are regulated indirectly: the CWA directs EPA to disseminate information regarding nonpoint pollution sources, see 33 U.S.C. § 1314(f), but it is often through state management programs that "nonpoint sources" are monitored and controlled. See Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1096-97 (9th Cir.1998), cert. denied, 528 U.S. 964, 120 S.Ct. 397, 145 L.Ed.2d 310 (1999).⁶

III. Procedural History

In an effort to compel PALCO to comply with the putative terms of the CWA, EPIC brought a citizen-suit action under section 505(a) of the CWA, 33 U.S.C. section 1365(a), against PALCO, the EPA, and then-EPA Administrator Christine Todd Whitman. EPIC's first two claims allege, generally stated, that PALCO's drainage system employs a number of unpermitted "point sources" to discharge pollutants; EPIC later added a third claim, alleging that the adoption of a particular EPA regulation-40 C.F.R. section 122.27—constituted an ultra vires act. A number of potentially dispositive motions followed.

On June 6, 2003 the court denied EPA's motion to dismiss and denied PALCO's motion to dismiss in part, concluding that EPIC could pursue a claim under the Administrative Procedures Act ("APA") in this court and that EPIC's claim was not time-barred. On October 14, 2003 the court denied EPIC's motion for summary adjudication on its third claim for relief, granting EPA's and PALCO's cross-motions for summary adjudication and construing 40 C.F.R. section 122.27 to be consistent with the governing provisions of the CWA. On January 23, 2004 the court denied PALCO's motion to dismiss EPIC's remaining claims (that is, its first and second claims for relief) under Federal Rule of Civil...