Oregon Research v. Pacific Coast Seafoods Co.

• Decision Date: 17 September 2004
• Docket Number: No. CV 02-924-HA.,CV 02-924-HA.
• Citation: 341 F.Supp.2d 1170
• Parties: OREGON STATE PUBLIC INTEREST RESEARCH GROUP, INC., Diane Heintz, and Rena Taylor, Plaintiffs, v. PACIFIC COAST SEAFOODS COMPANY, Pacific Surimi Joint Venture, LLC, and Pacific Surimi Company, Inc., Defendants.
• Court: U.S. District Court — District of Oregon

Page 1170

341 F.Supp.2d 1170

OREGON STATE PUBLIC INTEREST RESEARCH GROUP, INC., Diane Heintz, and Rena Taylor, Plaintiffs, v. PACIFIC COAST SEAFOODS COMPANY, Pacific Surimi Joint Venture, LLC, and Pacific Surimi Company, Inc., Defendants.

No. CV 02-924-HA.

United States District Court, D. Oregon.

September 17, 2004.

Charles C. Caldart, Seattle, WA, Joseph J. Mann, Boston, MA, Karl G. Anuta, Sokol & Anuta, P.C., Portland, OR, for Plaintiffs.

Jerry B. Hodson, Suzanne Lacampagne, Hong Huynh, Miller Nash LLP, Portland, OR, for Defendant.

OPINION AND ORDER

HAGGERTY, Chief Judge.

In July 2002, plaintiffs filed this case, alleging violations of the Clean Water Act (CWA). Plaintiffs allege that defendants are committing ongoing violations of the CWA at their Warrenton, Oregon seafood processing facility. Specifically, plaintiffs claim that defendants are discharging an excess of seafood processing waste into the Skipanon River, a tributary of the Columbia River, causing dissolved oxygen levels to fall to levels that are toxic to aquatic life. Plaintiffs seek a declaration regarding defendants' violations, an injunction requiring defendants to attain compliance and remediate the harm caused by their violations, the imposition of civil penalties, and the award of the costs of litigation as provided by the CWA.

Defendants move for summary judgment. The court heard oral argument on the motion on September 13, 2004. For the following reasons, defendants' motion is denied.

FACTUAL BACKGROUND

The Clean Water Act (CWA), 33 U.S.C. §§ 1251-1376, is designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). "[T]he cornerstone of the Clean Water Act's pollution control scheme is the National Pollution Discharge Elimination System (NPDES) permit program...." Natural Res. Defense Council, Inc. v. EPA, 822 F.2d 104, 108 (D.C.Cir.1987). The Environmental Protection Agency (EPA) is charged with administering the NPDES permit system, but may delegate this authority to the state government. 33 U.S.C. § 1342(b). Oregon's certified NPDES program is managed by the Oregon Department of Environmental Quality (DEQ). O.R.S. 468.035; O.R.S. 468.065; see also ONRC Action v. Columbia Plywood, Inc., 332 Or. 216, 26 P.3d 142, 143 (2001).

Defendants are wholly owned subsidiaries of the Pacific Seafood Group. Plaintiffs allege that defendants have been violating the CWA since Pacific Coast Seafoods Company (Coast) purchased a facility located in Warrenton, Oregon in 1983. At that time, the facility discharged its wastewater into the Skipanon River. In 1986 DEQ conducted a CWA compliance inspection at the facility and cited defendants for failing to perform required monitoring and for also operating without a wastewater discharge permit. The following year Coast applied for, and was granted, a wastewater discharge permit issued by DEQ. The permit set numeric discharge limits for biochemical oxygen demand (BOD), total suspended solids (TSS), oil, and grease. This general seafood permit was re-issued by DEQ in January 1992 (the 1992 NPDES permit).

In June 1995, defendant Pacific Surimi Joint Venture (Surimi JV) leased a portion of the facility and began processing surimi. In June 1999, DEQ renewed the NPDES permit (1999 NPDES permit) for all conventional seafood processors, but excluded surimi operators from the permit. The 1999 NPDES permit instead required surimi-processing facilities to apply for individual NPDES permits. Rather than issuing an individual permit to defendants for its surimi operations, DEQ entered into a stipulated consent order (SCO) with Surimi JV in June 1999 (the 1999 SCO).

On May 10, 2000, DEQ issued a Notice of Noncompliance (NON) to Coast for permit violations regarding the existing source limitations for TSS during January and February 2000. In July 2000, DEQ issued another NON to Coast for violations regarding the existing source limitations for TSS in May 2000. This NON warned Coast against additional violations. Also in July 2000, DEQ issued a NON to Surimi JV for exceeding the monthly average for biological oxygen demand as set by the 1999 SCO. In September 2000, DEQ issued a NON to Coast for violations occurring in July 2000 and stated that the matter was being referred to DEQ's enforcement section. A year later, DEQ issued another NON to Surimi JV for exceeding the monthly average for oil and grease and stated that it was recommending enforcement action that could result in administrative penalties.

Following the issuances of the NONs, defendants discussed possible long-term solutions for the facility's wastewater with DEQ, including discharging somewhere other than the Skipanon River. Plaintiffs contend that defendants were aware of — but did not invoke — at least five alternate treatment technologies, including wastewater acidification, dissolved air floatation, ultrafiltration, biological treatment, and sedimentation.

Beginning in 2001, Coast and Surimi JV began holding informal meetings with stakeholders, political representatives, and members of the community to develop several long-term solutions for the wastewater. Coast, Surimi JV, and DEQ held meetings with stakeholders to discuss the following options: (1) discharging to the municipal system; (2) improving the facility's existing pre-treatment system; (3) constructing a pipeline for discharge to the Columbia River; (4) discharging to a golf course; and (5) closing the facility.

In the summer of 2001, defendants and the City of Warrenton (hereinafter referred to as the "City") collaborated on a joint project to address their respective discharges. The City is subject to a mutual agreement and order (MAO) designed to achieve compliance with the CWA by December 2005, contingent on approval by DEQ. The MAO provides for its own modification under a variety of circumstances, which could push the compliance deadline beyond December 2005. The requirement for DEQ approval of plans and specifications has no fixed deadline.

In December 2001, defendants proposed a four-phase compliance schedule to DEQ to find a viable economic solution to bring each company into compliance with the 1999 NPDES permit and 1999 SCO by early 2006. No definite time frame for compliance was proposed. In response to the proposal, DEQ sent Coast a draft MAO outlining a schedule and a NON summarizing permit violations from October 2000 through June 2001. The draft MAO provided for its own modification under a variety of circumstances, so any compliance schedule established was subject to change.

The DEQ issued another NON to Coast in February 2002 stating that the matter had been recommended for enforcement action and could result in administrative penalties. Two months later, plaintiffs sent defendants a notice of intent to sue. In May 2002, plaintiffs sent a notice of intent to sue defendant Surimi Company, Incorporated, and an amended notice to Coast and Surimi JV.

Since plaintiffs filed this lawsuit in July 2002, defendants have continued to work with DEQ to finalize the proposed MAOs for Coast and Surimi JV (the draft SCO for Surimi JV was replaced by an MAO). Defendants have presented no evidence that these proposed MAOs have been finalized. Surimi JV violated the interim effluent limitations in the proposed MAO in June and July 2003.

Under the current proposal, defendants would not provide any additional treatment of their wastewater prior to discharge to the City's outfall into the Columbia River and the City would provide no treatment of defendants' wastewater. Rather, defendants' wastewater would be pumped to the City's outfall pipe at a point downstream of the City's treatment plan, and then would be pumped directly into the Columbia River. Recently, Congress appropriated sufficient funds to pay for most or all of the costs of this project.

STANDARDS

Summary judgment is required when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be met by showing that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify facts which show a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Id. at 249, 106 S.Ct. 2505.

The court must view the evidence in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir.2000). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000) (citation omitted). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Texas Partners v. Conrock Co., 685 F.2d 1116, 1119 (9th Cir.1982). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Jewel Companies, Inc. v. Pay Less Drug Stores N.W., Inc., 741 F.2d 1555, 1566-67 (9th Cir.1984). However, if all reasonable inferences are drawn in favor of the non-moving party and the evidence is merely colorable or not significantly probative, summary judgment is appropriate. Anderson, 477 U.S. 242 at 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202.

ANALYSIS

Defendants urge this court...