Puget Soundkeeper Alliance v. Louis Dreyfus Commodities LLC
| Decision Date | 24 June 2016 |
| Docket Number | CASE NO. C14-803RAJ |
| Citation | 192 F.Supp.3d 1165 |
| Parties | PUGET SOUNDKEEPER ALLIANCE, Plaintiff, v. LOUIS DREYFUS COMMODITIES LLC, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Eric D. Lowney, Marc Zemel, Smith & Lowney PLLC, John Wentworth Phillips, Phillips Law Group PLLC, Katelyn J. Kinn, Puget Soundkeeper Alliance, Seattle, WA, for Plaintiff.
Jennifer Tanya Barnett, Cascadia Law Group PLLC, Olympia, WA, Stephen J. Tan, Cascadia Law Group PLLC, Seattle, WA, for Defendants.
This matter comes before the court on Plaintiff Puget Soundkeeper Alliance's ("PSA") Motion for Partial Summary Judgment. Dkt. # 41. Plaintiff requests partial summary judgment against three of the Defendants in this matter: Louis Dreyfus LLC ("LD LLC"), LDC Washington LLC ("LDC Washington"), and LD Commodities Seattle Export Elevator LLC ("Seattle Export Elevator").1 See id. For the reasons set forth below, the Court GRANTS in part and DENIES in part PSA's motion.2 ,3
This Clean Water Act ("CWA") citizen suit contends that one (or all) of the Louis Dreyfus entities has violated the CWA by discharging grain materials directly into Elliott Bay or by violating various conditions in the various industrial stormwater general permits in effect. See SAC ¶ 1.
Briefly, the Louis Dreyfus entities operate a facility located at Pier 86, 955 Alaskan Way W, Seattle, WA 98119. See id. ¶ 10. They have obtained coverage for the facility under the relevant general permits issued by the Washington Department of Ecology—specifically, they have coverage under Permit No. WAR002719. Id. ¶ 15.
The PSA alleges a veritable cavalcade of violations of the CWA stemming from the beginning of the statutory period through the present. These violations include, inter alia , discharges of grain or grain dust directly into the waters of Elliott Bay, failing to implement best management practices as required by the general permit, failing to develop a stormwater pollution prevention plan ("SWPPP") in compliance with the general permits, and failing to properly sample and submit discharge monitoring reports as required by the general permits. See id. ¶¶ 14, 20-23, 28-29.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir.2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548. If the moving party meets the initial burden, the opposing party must set forth specific facts showing that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Although not seriously disputed, it is readily apparent that the PSA has sufficient standing to bring this action because its members have suffered injury in fact fairly traceable to Louis Dreyfus' violations and which are redressable by the relief sought.
"[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Id. ).
"The 'injury in fact' requirement in environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that interest is impaired by a defendant's conduct." Ecological Rights Foundation v. Pac. Lumber Co. , 230 F.3d 1141, 1147 (9th Cir.2000) (citing cases). Several of the PSA's members have shown that they have suffered (or will suffer) such injury in fact. See Dkt. # 45 (Wilke Decl.) ¶¶ 12-19; Dkt. # 46 (Eaton Decl.) ¶¶ 8-10; Dkt. # 47 (Frederickson Decl.) ¶¶ 8-18; Dkt. # 48 (Gannon Decl.) ¶¶ 6-11. The interests at stake here—namely environmental protection—are germane to the PSA's purpose. See Dkt. # 45 (Wilke Decl.) ¶ 3. And it appears that neither the claims themselves nor the relief sought require the individual members of the PSA to participate.
The PSA first seeks summary judgment on the liability of the three Louis Dreyfus entities here for violations of the CWA. See Dkt. # 41 at 11. PSA claims that these three entities have persistently violated the CWA by discharging grain or grain dust into Elliott Bay between March 30, 2009 and the present. See id.
The PSA apportions liability into four time frames:
Time Period Liable Parties
March 30, 2009 — December 20, 2010 LD LLC (as permit holder and operator)
December 20, 2010 — October 14, 2014 LD LLC (as permit holder) and Seattle
Export Elevator (as operator)
October 14, 2014 — November 1, 2014 Seattle Export Elevator (as permit holder
and operator)
November 1, 2014 — present LDC Washington (as permit holder and
operator)
See id.
Defendants raise certain issues regarding LD LLC's transfer of the permit to Seattle Export Elevator. See Dkt. # 54 at 8-10. Specifically, the Louis Dreyfus entities contend that LD LLC transferred the permit to Seattle Export Elevator on December 20, 2010 and that such transfer was recognized by the Department of Ecology. See id. Despite the PSA's arguments otherwise, Louis Dreyfus has shown that a transfer of coverage may have been submitted to the Department of Ecology before October 2014 and may have been effective as of December 20, 2010.
For one, the Department of Ecology interacted with Seattle Export Elevator as though it were the permittee several times prior to October 2014. See Dkt. # 17-1 (Zemel Decl.) Ex. 10 at 9 (); Dkt. # 36 (Zemel Decl.) Ex. 2 at 2 (addressed to "Louis Dreyfus Corp Grain Elevator"), Ex. 10 at 3 (addressed to "Louis Dreyfus Commodities"); Dkt. # 56-5 (Chapin Decl.) Ex. 5 at 2 ().
More importantly, WAC 173–220–200 () provides that a transfer is effective as of the date specified in an agreement so long as the Department does not object—even, apparently, if the transfer took place years before. Specifically, that regulation provides that "[a] permit is automatically transferred to a new discharger if: (a) A written agreement between the old and new discharger containing a specific date for transfer of permit responsibility, coverage, and liability is submitted to the director; and (b) The director does not notify the old and new discharger of his/her intent to modify, or revoke and reissue the permit." Id. Furthermore, "[i]f this notice is not given, the transfer is effective on the date specified in the agreement mentioned in (a) of this subsection. " Id. (emphasis added). Louis Dreyfus LLC and Seattle Export Elevator filed a transfer of coverage on October 14, 2014, specifying December 20, 2010 as the date the permit was transferred. See Dkt. # 56-6 (Chapin Decl.) Ex. 6. To date, the Department of Ecology has not notified the Louis Dreyfus entities that it intended to modify or to revoke and reissue the permit. See id. ¶ 14. This also indicates that the transfer was effective on December 20, 2010. See also Dkt. # 52-3 (Zemel Decl.) Ex. 3 at 13 ().
Even beyond issues as to the effective date, it is not entirely settled that Louis Dreyfus LLC and Seattle Export Elevator could be held jointly liable for discharges that occurred in this span of time. Although the court in Puget Soundkeeper Alliance v. Cruise Terminals of Am., LLC recognized that parties could be jointly liable for...
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