Northwest Environmental Advocates v. City of Portland

• Decision Date: 07 June 1995
• Docket Number: No. 92-35044,92-35044
• Citation: 56 F.3d 979
• Parties: , 63 USLW 2777, 25 Envtl. L. Rep. 21,250 NORTHWEST ENVIRONMENTAL ADVOCATES, a Non-Profit Oregon Corporation; and Nina Bell, Plaintiffs-Appellants, v. CITY OF PORTLAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 979

56 F.3d 979

40 ERC 1801, 63 USLW 2777, 25 Envtl.

L. Rep. 21,250

NORTHWEST ENVIRONMENTAL ADVOCATES, a Non-Profit Oregon

Corporation; and Nina Bell, Plaintiffs-Appellants, v. CITY OF PORTLAND, Defendant-Appellee.

No. 92-35044.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1993.

Opinion Filed Dec. 10, 1993.

Opinion Withdrawn June 7, 1995.

Decided June 7, 1995.

Patrick A. Parenteau, Perkins Coie, Portland, OR, for plaintiffs-appellants, Northwest Environmental Advocates and Nina Bell.

Terence L. Thatcher, Deputy City Atty., Portland, OR, for defendant-appellee, City of Portland.

Catherine M. Flanagan, U.S. Dept. of Justice, Washington, DC, for amicus.

Appeal from the United States District Court for the District of Oregon.

Before: PREGERSON, KLEINFELD, Circuit Judges, and INGRAM, District Judge. ^*

Opinion by Judge PREGERSON; Dissent by Judge KLEINFELD.

ORDER

The opinion and dissent filed December 10, 1993 is withdrawn.

OPINION

PREGERSON, Circuit Judge:

Northwest Environmental Advocates and Nina Bell ("NWEA") appeal the district court's judgment in favor of Portland on their claims that the City is violating the Clean Water Act ("CWA"), 33 U.S.C. Sec. 1251 et seq. On April 16, 1991, NWEA filed suit in the district court alleging that Portland's practice of discharging raw sewage during times of precipitation from 54 outfall points was not covered by a permit and that the practice had caused and was continuing to cause violations of Oregon's water quality standards. After a trial on the written record, the district court held that (1) the contested discharge points were covered by Portland's pollution permit, and (2) the court lacked jurisdiction to consider NWEA's water quality violation claims.

In Northwest Environmental Advocates v. City of Portland, 11 F.3d 900 (9th Cir.1993) (Northwest ), we affirmed. We held that the contested discharge points were covered by Portland's pollution permit, id. at 903-06, and we held that Northwest Environmental Advocates lacked standing to bring a citizen suit under Sec. 505(a)(1) of the Clean Water Act, 33 U.S.C. Sec. 1365(a)(1), to enforce water quality standards contained in Portland's permit. Id. at 906-11. On December 28, 1993, NWEA filed a petition for rehearing with suggestion for rehearing en banc. While this petition was still pending, the Supreme Court decided PUD No. 1 of Jefferson County v. Washington Department of Ecology, --- U.S. ----, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (Jefferson County). ¹

Jefferson County cast into considerable doubt our holding in Northwest that citizens do not have standing under the Clean Water Act to enforce water quality standards unless they have been translated into end-of-pipe effluent limitations. In light of Jefferson County and upon reconsideration of our prior opinion in Northwest, we now vacate that opinion, 11 F.3d at 900-913, and issue the following opinion.

I. BACKGROUND

A. The Portland Sewage Treatment System

At issue is the operation of the Portland sewer system. Portland operates a sewage treatment system that includes a network of combined sewage and stormwater pipes. Although the construction of these combined sewer pipes was discontinued in 1962, approximately 70% of the City's sewers remain combined sewers. Supp.E.R. 21. The effluent flowing in the system ideally is intercepted and transported to the Columbia Boulevard Treatment Plant where it is treated and then discharged into the Columbia River through two outfalls (Nos. 001 and 002). The interceptors can carry only " 'three times [the] average dry weather flow' " of effluent to the treatment plant. Sunnarborg Aff., Supp.E.R. 21. When the flow exceeds the plant's capacity, as can occur during periods of precipitation, the effluent is released untreated through a system of combined sewer overflow (CSO) outfalls in what is termed a CSO event. There are between 50 and 80 CSO events every year in Portland. E.R. 216; see also Bureau of Environmental Services, City of Portland, Columbia Slough Planning Study Background Report (1989) (there are between 67 and 79 CSO events per year in the Columbia Slough).

Portland has 54 CSO outfalls; 12 drain into the Columbia Slough and 42 drain into the Willamette River. These waterways and their environs are used by Portland residents for recreation, including water contact activities such as boating. The release of untreated sewage into such public waters can present health risks. See National Combined Sewer Overflow Control Strategy, 54 Fed.Reg. 37370, 37371 (1989) ("CSOs have been shown to have severe adverse impacts on human health under certain conditions."). Appellants have supplied both anecdotal and scientific evidence of the polluted nature of the Willamette River and the Columbia Slough, especially during and immediately after CSO events. See, e.g., Portland's Response to NWEA's Interrogatories, E.R. 119; Thutt Aff., E.R. 159-178; Pratt Aff., E.R. 20.

Abatement of CSO events is not easy. It has been estimated that to solve the problem in Portland alone will cost between $500 million and $1.2 billion dollars. E.R. 221. Estimates for the entire nation are between $70 billion and $109 billion dollars. Environmental Groups Call for Effort to Deal with Combined Sewer Problems, 23 Env.Rptr. (BNA) 13 (1992) (upgrades could start at between $70 and $80 billion dollars); Combined Sewer Overflow Problems Demand New Approach, Local Officials Say, 20 Env.Rptr. (BNA) 1939 (1990) (costs could be as high as $109 billion).

B. Proceedings in the District Court

On February 1, 1991 NWEA gave written notice to Portland, the EPA Administrator, the State of Oregon, and the EPA Regional Administrator of its intent to file suit in the district court challenging the legality of the CSO discharges. Complaint, E.R. 9. In April 1991, after the required 60 day notice period, NWEA filed this action.

The crux of the NWEA complaint was that the 54 CSO outfalls being used regularly by the City were not covered by the City's 1984 National Pollution Discharge Elimination System (NPDES) permit. Because unpermitted discharges of pollutants are illegal, NWEA argued the City was violating the CWA. Even if the CSOs were covered by the permit, NWEA argued that the discharges violated Oregon water quality standards and therefore violated a condition of the Permit. These violations were ongoing and likely to continue. NWEA prayed for injunctive relief and civil penalties. Complaint, E.R. 10-11.

The 1984 permit was to expire in July 1989. However it remained in effect until Portland and the Oregon Department of Environmental Quality (DEQ) ² were able to complete the renewal process and agree on the terms of a new permit. DEQ forwarded a draft of a proposed renewal permit to Portland in December 1990. This draft permit required the City to "meet water quality standards at all discharge points, including CSOs,...." Because Portland could not meet the five year time table set forth in the proposed renewal permit, id., the parties determined that a compliance order separate from the renewal permit, and requiring eventual abatement of all CSO events, was appropriate. After a period of Notice and Comment, Portland and the DEQ came to an agreement in August 1991. Under that settlement, Portland's new permit specifically listed the CSOs as permitted discharge points. In addition to the permit, the parties entered into a stipulation and final order (SFO) in which Portland agreed to replace the CSO system within the next 20 years.

Once these negotiations had been completed, Portland filed a motion to dismiss and the parties filed cross-motions for summary judgment. The court bifurcated the proceedings; first it would address whether Portland could be held liable for violations of the CWA, and then if necessary, determine whether violations had occurred and impose any necessary penalties. The parties stipulated to a trial of the liability phase on the summary judgment submissions, allowing the court to decide questions of fact as well as questions of law. Amended Opinion, E.R. 73.

After reviewing the submissions the district court issued an opinion and judgment. It later filed an amended opinion which was essentially the same as the original. The court found that Portland's 54 CSOs were covered by the 1984 NPDES permit, and thus that the City was not in violation of the Act for allowing unpermitted discharges. It also rejected NWEA's claim that Portland would nonetheless be liable for violating Oregon's water quality standards because the CWA did not confer federal jurisdiction to entertain citizen suits to enforce state water quality standards.

II. ANALYSIS

A. Does the 1984 Permit Cover the CSOs?

In the court below, NWEA argued that Portland had violated and continued to violate the CWA by discharging through unpermitted outfalls. The district court found otherwise, holding that the relevant NPDES discharge permit authorized CSO events under specific circumstances. NWEA asserts that the district court erred in so interpreting the permit.

We review the district court's interpretation of the 1984 permit as we would the interpretation of a contract or other legal document. When reviewing a district court's interpretation of such a writing, the court reviews de novo the determination of whether it is ambiguous. In re U.S. Fin. Sec. Litig., 729 F.2d 628, 632 (9th Cir.1984). Interpretation of an unambiguous writing is also a question of law subject to de novo review. Culinary & Service Employees Union, Local 555 v. Hawaii Employee Ben. Admin. Inc., 688 F.2d 1228, 1230 (9th Cir.1982). If the court must look to extrinsic evidence in order to interpret a writing, its findings of fact are reviewed for clear error. U.S. Fin. Sec., 729 F.2d at 632; Culinary & Service Employees Union, 688 F.2d at 1230; In re Agricultural Research & Technology Group, Inc., 916 F.2d 528, 537 (9th Cir.1990).

NWEA argued in the court below...