Puget Soundkeeper Alliance v. Cruise Terminals of Am., LLC, CASE NO. C14-0476 JCC

• Citation: 216 F.Supp.3d 1198
• Decision Date: 20 November 2015
• Docket Number: CASE NO. C14-0476 JCC
• Parties: PUGET SOUNDKEEPER ALLIANCE, Plaintiff, v. CRUISE TERMINALS OF AMERICA, LLC, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)

216 F.Supp.3d 1198

PUGET SOUNDKEEPER ALLIANCE, Plaintiff,

v.CRUISE TERMINALS OF AMERICA, LLC, et al., Defendants.

CASE NO. C14-0476 JCC

United States District Court, W.D. Washington, at Seattle.

Signed November 20, 2015

Richard Adam Smith, Marc Zemel, Smith & Lowney PLLC, Seattle, WA, John Wentworth Phillips, Phillips Law Group PLLC, Seattle, WA, Katelyn J. Kinn, Puget Soundkeeper Alliance, Seattle, WA, for Plaintiff.

Bradley Bishop Jones, Dianne K. Conway, Gordon Thomas Honeywell LLP, Tacoma, WA, Jennifer Tanya Barnett, Philip Thomas McDonald, Cascadia Law Group PLLC, Olympia, WA, Susan M. Ridgley, Port of Seattle, Seattle, WA, for Defendants.

ORDER ON THE PARTIES' FIVE MOTIONS FOR SUMMARY JUDGMENT

John C. Coughenour, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on plaintiff Puget Soundkeeper Alliance's ("Soundkeeper") motion for partial summary judgment (Dkt. No. 72), defendant Cruise Terminals of America's ("CTA") two motions for summary judgment (Dkt. Nos. 38 and 86), and defendant the Port of Seattle's ("Port") two motions for summary judgment (Dkt. Nos. 52 and 81). Having thoroughly considered the parties' briefing, the relevant record, and the parties' oral arguments on November 17, 2015, the Court hereby GRANTS IN PART AND DENIES IN PART Soundkeeper's motion for partial summary judgment (Dkt. No. 72) and CTA's first motion for summary judgment (Dkt. No. 38). The Court DENIES CTA's second motion for summary judgment (Dkt. No. 86) and both of the Port's motions for summary judgment (Dkt. Nos. 52 and 81).

I. BACKGROUND

A. Factual Background

This case arises under the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq. Soundkeeper, an environmental nonprofit organization, alleges that CTA and the Port violate the CWA by discharging industrial stormwater runoff and other pollutants into Elliott Bay, a navigable surface water, without a National Pollutant Discharge Elimination System (NPDES) permit. (Dkt. No. 26 at 1–2, 6.) Soundkeeper seeks an order requiring CTA or the Port to apply for Washington State's Industrial Stormwater General Permit, an injunction against further discharges until permit coverage is obtained, civil fines, and attorney fees. (Dkt. No. 26 at 1, 5-6.)

CTA conducts business at Pier 66, 2225 Alaskan Way, Seattle, WA 98121, where it leases space from the Port. (Dkt. No. 10 at 2.) At Pier 66, CTA "oversee[s] vessel operations and building maintenance related to cruise ships during the five-month Alaska cruise season." (Id .) CTA's lease with the Port provides that "[CTA] shall manage and coordinate all Ship Activities at the Premises in a manner that supports the growth of cruise business in Seattle." (Dkt. No. 13–1 at 69.) Under the lease, these responsibilities include scheduling cruise and non-cruise ships, managing security operations, obtaining street use permits and meter hoods, and coordinating passenger transportation, concierge services, baggage operations, deliveries of provisions, stevedoring services, food and beverage service to passengers, and parking for the Pier. (Id. at 70–71.) Neither defendant has obtained an NPDES permit for Pier 66. (Dkt. Nos. 48–1 at 5 and 48-2 at 5.)

As required by the CWA, Soundkeeper served CTA with a Notice-of-Intent-to Sue Letter ("notice letter") on January 7, 2014. (Dkt. No. 26 at 10.) Soundkeeper filed its complaint against CTA on March 31, 2014. (Dkt. No. 1.) Soundkeeper sent a substantively identical notice letter to the Port on June 12, 2014. (Dkt. No. 26 at 38.) On June 18, 2014, Soundkeeper filed a motion to amend its complaint to add the Port as an additional defendant. (Dkt. No. 22.) After the Court granted Soundkeeper's motion, (Dkt. No. 25), Soundkeeper amended its complaint on September 22, 2014. (Dkt. No. 26.)

B. Regulatory Background

The Clean Water Act ("CWA") is intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Except as permitted under certain exceptions, section 301(a) prohibits any person from discharging pollutants from any "point source"¹ into navigable waters. See 33 U.S.C. § 1311(a), § 1362(12)(A) ; Comm. to Save Mokelumne River v. East Bay Util. , 13 F.3d 305, 309 (9th Cir.1993). One exception is granted for discharges authorized by a National Pollutant Discharge Elimination System ("NPDES") permit, which allows regulated discharges of some pollutants despite § 301(a)'s general prohibition, so long as the discharger complies with all applicable limitations. 33 U.S.C. § 1342(a)(1). Under the NPDES program, the Administrator of the Environmental Protection Agency ("EPA") may issue permits to point sources authorizing the discharge of pollutants in accordance with specified limitations and conditions set forth in the permit.² 33 U.S.C. § 1342(a).

CWA sections 402(p)(2) and 402(p)(3) mandate NPDES permits for stormwater "discharge[s] associated with industrial activity." See 33 U.S.C. § 1342(p)(3)(A). Industries covered by the industrial activity "Phase I" regulation are defined in accordance with Standard Industrial Classifications ("SICs"). See Decker v. N.W. Envtl. Def. Ctr. , 568 U.S. 597, 133 S.Ct. 1326, 1332, 185 L.Ed.2d 447 (2013). Transportation facilities classified as SIC 44xx are among "those considered to be engaging in ‘industrial activity.’ " 40 C.F.R. § 122.26(b)(14)(viii). However, only those portions of a SIC 44xx facility that are "involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), [or] equipment cleaning operations ... are associated with industrial activity." 40 C.F.R. § 122.26(b)(14)(viii) (emphasis added).

The EPA has promulgated regulations setting forth the NPDES permit application requirements for industrial stormwater discharges. See 40 C.F.R. § 122.26. These regulations require "[d]ischargers of storm water associated with industrial activity" to apply for an individual permit or seek coverage under a promulgated storm water general permit.³ 40 C.F.R. § 122.26(c)(1) ; Natural Res. Def. Council, Inc. v. EPA , 966 F.2d 1292, 1304–05 (9th Cir.1992) (detailing EPA's regulations regarding "industrial activity" sources). "When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit." 40 C.F.R. § 122.21(b).⁴

To enforce its provisions, the CWA authorizes any citizen to bring suit against any person for violation of any "effluent standard or limitation" under the Act. 33 U.S.C. § 1365(a). An "effluent standard or limitation" includes "an unlawful act" under Section 301(a) of the CWA. 33 U.S.C. § 1365(f)(1). Liability for a violation of the Clean Water Act is strict, i.e. , there is no de minimis defense. Sierra Club v. Union Oil of Cal. , 813 F.2d 1480, 1490–91 (9th Cir.1987).

C. The Parties' Pending Motions

There are five motions for summary judgment pending before the Court.

In CTA's first motion, it moves for summary judgment on the following claims: (1) that vessel-related activities at Pier 66 do not interface with stormwater; (2) that vessel-related claims are exempt from ISGP coverage because vessels are covered by a separate permit; (3) that the offloading of sewage from a vessel is exempt from ISGP coverage; (4) that the gangway at Pier 66 is not a vehicle; and (5) that Soundkeeper's notice letter to CTA was insufficient. (Dkt. No. 38 at 2-3.)

In the Port's first motion, it moves for summary judgment on the following claims: (1) that Soundkeeper's notice letter to the Port was insufficient; and (2) that the Court lacks jurisdiction over Soundkeeper's claims regarding future violations. (Dkt. No. 52 at 4, 13.)

In Soundkeeper's motion, it moves for partial summary judgment on the following claims: (1) that stormwater discharges from the Pier 66 cruise terminal are point source discharges of stormwater "associated with industrial activity" under 40 C.F.R. § 122.26(b)(14)(1)(viii) that violate the 33 U.S.C. § 1311(a) prohibition on unauthorized discharges; (2) that the cruise terminal discharged such stormwater on at least 320 days between January 30, 2009 and June 15, 2015; (3) that Soundkeeper provided adequate presuit notice; (4) that Soundkeeper has standing; (5) that the cruise terminal has Clean Water Act ("CWA") violations; and (6) that CTA and the Port are strictly liable for the ongoing unpermitted discharges. (Dkt. No. 72 at 4.)

In the Port's second motion, it moves for summary judgment on the following claims: (1) that the Port does not engage in industrial activities at the cruise terminal; (2) that there is no reasonable likelihood that any past industrial activities will recur; and (3) that the Port does not operate the cruise terminal.

In CTA's second motion, it moves for summary judgment on the following claims: (1) that no vehicle maintenance activity currently occurs at the cruise terminal; and (2) that CTA does not operate the cruise terminal.

One each of these motions, the Court holds as follows:

CTA's first motion is GRANTED IN PART AND DENIED IN PART. The Court finds that vessel-related activities may interface with stormwater if they create discharge that falls on the cruise terminal, and that these activities are not exempt from ISGP coverage even though they are covered by a separate permit. The Court also finds that Soundkeeper's notice letter to CTA was sufficient, but that the offloading of sewage from a vessel is exempt from ISGP coverage, and that the gangway is not a vehicle.

The Port's first motion is DENIED. The Court finds that Soundkeeper's notice letter to the Port was sufficient, and that Soundkeeper's claims regarding future violations have been mooted.

Soundkeeper's motion is GRANTED IN PART AND DENIED IN PART. The Court finds that Soundkeeper has standing and provided adequate notice to both Defendants. However, the Court cannot decide the rest of Soundkeeper's claims due to genuine disputes of material fact.

The Port's second motion and CTA's second...