Natural Res. Def. Council v. Metro. Water Reclamation Dist. of Greater Chi.

• Decision Date: 31 March 2016
• Docket Number: No. 11 C 02937,11 C 02937
• Citation: 175 F.Supp.3d 1041
• Parties: Natural Resources Defense Council, et al., Plaintiffs, v. Metropolitan Water Reclamation District of Greater Chicago, Defendant.
• Court: U.S. District Court — Northern District of Illinois

175 F.Supp.3d 1041

Natural Resources Defense Council, et al., Plaintiffs,

v.Metropolitan Water Reclamation District of Greater Chicago, Defendant.

No. 11 C 02937

United States District Court, N.D. Illinois, Eastern Division.

Signed March 31, 2016

As Amended April 20, 2016

Michael Colin McCutcheon, Brandon Flynt Moseberry, Catherine Jeanne Osuilleabhain, David P. Hackett, Douglas Bennett Sanders, Eileen Theresa Flynn, Jonathan H. Ebner, Michael Daniel Lehrman, Baker & McKenzie LLP, Ann Alexander, Natural Resources Defense Council, Albert Ettinger Chicago, IL, for Plaintiffs.

Ronald Michael Hill, Brendan George O'Connor, Ellen Marie Avery, Lisa Luhrs Draper, Margaret Theresa Conway, Metropolitan Water Reclamation District of Greater Chicago, Chicago, IL, Gary J. Smith, Beveridge & Diamond PC, San Francisco, CA, Benjamin F. Wilson, Katherine T. Gates, Mark A Turco, Richard S. Davis, Wilson Parker Moore, Beveridge & Diamond, PC, Washington, DC, Sarah E. Albert, Beveridge & Diamond, PC, Baltimore, MD, for Defendant.

AMENDED MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr.

, United States District Judge

The plaintiffs, Natural Resources Defense Council, Inc., Sierra Club, Inc., and Prairie Rivers Network are non-profit environmental groups who have brought this case pursuant to the citizen-suit provision of the federal Clean Water Act. In Count Two, the subject of the instant motions, the plaintiffs claim that the Metropolitan Water Reclamation District of Greater Chicago (“MWRD” or “District”) violated the terms of its National Pollution Discharge Elimination System (“NPDES”) permits, and thus the Act itself, at three area water reclamation plants (“WRPs”) that it operates. Specifically, the plaintiffs claim that the effluent from the WRPs contains levels of phosphorus that have caused conditions in the receiving waters that violate Illinois water quality standards with respect to levels of algal and plant growth and dissolved oxygen (“DO”). The plaintiffs maintain that the water quality standards are enforceable against the District because Special Condition 5 of the three WRPs' applicable NPDES permits incorporates those standards.

Two summary judgment motions are pending. In the first, the District requests judgment as a matter of law based on two legal defenses: primary jurisdiction and the Clean Water Act's so-called “permit shield.” In the second, the plaintiffs seek judgment on the merits of their claim that the District was and is violating the water quality standards, its permit, and the Act, as a result of the conditions created by the WRPs' effluent. The legal defenses do not defeat the plaintiffs' claims, but those claims present material disputes of fact that make summary judgment for the plaintiffs inappropriate. Accordingly, both motions are denied.

FACTS¹

The District is a unit of local government that operates wastewater collection, treatment, and discharge facilities in the greater Chicago area. As relevant here, the District operates the North Side, Stickney, and Calumet water reclamation plants. These WRPs discharge into the Chicago Area Waterway System (“CAWS”), which includes the North Shore Channel, the North Branch of the Chicago River below its confluence with the North Shore Channel, the Main Branch and South Branch of the Chicago River, the Chicago Sanitary and Ship Canal (“CSSC”), the Calumet-Sag Channel, and the portion of the Little Calumet River east of its confluence with the Calumet-Sag Channel. The CAWS normally flows from the CSSC into the Des Plaines River, which joins downstream with the Kankakee River to form the Illinois River, which flows generally southwest and ultimately into the Mississippi River near Alton, Illinois. It is estimated that over 70% of the flow in the CAWS, and even more than that (about 85%) when water diversions from Lake Michigan are reduced, consists of treated wastewater from the three District WRPs at issue in this case.

In 1992, the District applied for, and ultimately was granted, National Pollutant Discharge Elimination System permits for the three relevant WRPs. The NPDES permits were issued by the Illinois Environmental Protection Agency (IEPA) pursuant to the authority delegated to the State by the federal EPA. The WRPs' permits were issued in 2002 and, although they technically expired in 2007, they remained in effect in 2011, when this lawsuit commenced, and during permit renewal proceedings that culminated in the issuance of revised permits that became effective on January 1, 2014. The parties refer to the two sets of permits as the “2002 permits” and the “2013 permits,” respectively (the latter having been granted in December 2013), and the Court does the same.

As noted in the District's 1992 permit applications, the WRPs' discharges contain phosphorus from sources including human excreta, industry, and storm water runoff containing animal waste, fertilizers, fallen leaves, dishwasher detergents, food waste, and tap water. Phosphorus is a naturally occurring basic element and a nutrient that enables plants and algae to grow. When the supply of phosphorus is limited in a freshwater system, the growth of plants and algae in the system likewise is limited. Where phosphorus is present in high levels that are no longer limiting, plants and algae have what amounts to an unlimited food supply; unless other factors are limiting, the growth of plants and algae increases. It is undisputed that in the CAWS and Illinois River, phosphorus is not a limiting factor to plant and algae growth.

The 2002 permits did not place any numeric effluent limitations on phosphorus, even though the District's permit applications identified the quantity of phosphorus in its treated wastewater discharges and disclosed that the WRPs had no original design capacity to remove phosphorus. The 2002 permits do impose numeric limitations on other constituents of the discharges from the WRPs. Those limitations are coupled with mandatory self-reporting and monitoring obligations. The IEPA's decision not to impose numeric phosphorus limitations was over objections by the plaintiffs and others during the public comment period of the permit process. In its Responsiveness Summary, which addressed the public comments, IEPA stated, in part: “[T]his permit does not authorize or provide any legal protection to the [District] for violation of downstream water quality standards that may result from the discharges covered by these permits.”

The 2002 permits include a provision, Special Condition 5, that states in its entirety: “The effluent, alone or in combination with other sources, shall not cause a violation of any applicable water quality standards outlined in 35 Ill. Adm. Code 302.” In turn, the state administrative code sets forth water quality standards (“WQS”) for waterways based upon their use. One such WQS, entitled “Offensive Conditions,” requires that so-called general use waters “shall be free from ... plant or algal growth ... of other than natural origin .” 35 Ill. Adm. Code. § 302.203

(emphasis added). A second WQS entitled “Unnatural Sludge” requires that certain other waters “shall be free from ... unnatural plant or algal growth .” 35 Ill. Adm. Code. §§ 302.403 (emphasis added). A third WQS sets forth numeric minimums for DO levels in applicable waters: “Dissolved oxygen ... shall not be less than 4.0 mg/L at any time except that the Calumet-Sag Channel shall not be less than 3.0 mg/L at any time.” 35 Ill. Admin. Code § 302.405. A similar provision sets forth seasonally variable minimums for DO in general use waters, never below 3.5 mg/L. 35 Ill. Admin. Code. § 302.206.

In 2009, IEPA provided public notice of the proposed terms for the District's renewed NPDES permits for the WRPs. The plaintiffs again participated in public comment and advocated for the inclusion of numeric effluent limits on phosphorus discharges. Ultimately, the 2013 permits included new numeric effluent limits on the discharge of phosphorus; however, the three WRPs were given from 49 to 120 months to comply with those new numeric standards. In the interim, there are design, construction, and reporting milestones that the WRPs must meet. The 2013 permits also continue to impose Special Condition 5.²

In a 2011 memorandum prompted by its Gulf Hypoxia

Action Plan, the federal EPA instructed that IEPA “must determine whether nutrient discharges will cause, have a reasonable potential to cause, or contribute to an excursion beyond the criteria in 35 Ill. Adm. Code 302.203 [“unnatural” algal growth] or 302.205 [phosphorus] in proximate and downstream waters; and (2) set nutrient effluent limitations which are derived from and comply with 35 Ill. Adm. Code 302.203 and 302.205, as applicable.” It is undisputed that currently the State of Illinois, acting through the IPCB, is actively considering modifications to its WQS that set numeric nutrient limitations for phosphorus and other nutrients and that the plaintiffs have been actively participating in that process. IEPA, in cooperation with the Illinois Department of Agriculture, also funded and recently published a report entitled Illinois Nutrient Loss Reduction Strategy , prepared by a working group of state and local government agencies, public and private interest groups, and researchers, in order to “direct efforts to reduce nutrients from point and non-point sources in a coordinated, primarily voluntary, and cost-effective manner.”

At times the District has been subject to enforcement action under the narrative WQS regulating unnatural algal growth. In September 2006, the IEPA issued a Notice of Violation to the District after the District self-reported an incident involving a combined sewer overflow (CSO) discharge from a District pumping station—a facility other than those at issue in this case—that killed fish. The District was charged with violating “the 'Offensive Conditions' water quality standard contained in [section] 302.” Sewer overflows were also the...