U.S. v. City of Toledo, Ohio

• Decision Date: 06 August 1999
• Docket Number: No. 3:91CV7646.,3:91CV7646.
• Parties: UNITED STATES of America, et al., Plaintiffs, v. The CITY OF TOLEDO, OHIO, a Municipal Corporation, Defendant.
• Court: U.S. District Court — Northern District of Ohio

63 F.Supp.2d 834

UNITED STATES of America, et al., Plaintiffs, v. The CITY OF TOLEDO, OHIO, a Municipal Corporation, Defendant.

No. 3:91CV7646.

United States District Court, N.D. Ohio, Western Division.

August 6, 1999.

Lisa A. Cherup, Steven D. Ellis, Kurt F. Zimmerman, Department of Justice, Environmental Enforcement Section, Washington, DC, Holly Taft Sydlow, Office of the U.S. Attorney, Toledo, OH, for Plaintiffs.

Van Carson, Charles R. McElwee, Squire, Sanders & Dempsey, Cleveland, OH, for defendant.

Keith A. Wilkowski, Cooper, Walinski & Cramer, Toledo, OH, for cross-defendant.

Joseph P. Koncelik, Joan R. Kooistra, Office of the Attorney General, Environmental Enforcement Section, Margaret A. Malone, Office of the Attorney General, Columbus, OH, Margaret A. Malone, Office of Atty. Gen., Columbus, OH, for cross-claimant.

ORDER

CARR, District Judge.

This is an action in which the United States Environmental Protection Agency (US-EPA) and the Ohio Environmental Protection Agency (OH-EPA) sued the City of Toledo for alleged violations of the Clean Water Act. 33 U.S.C. § 1251. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and 33 U.S.C. § 1319(b). Pending is plaintiffs' joint motion for partial summary judgment. (Doc. 229, 232). For the following reasons, plaintiffs' joint motion shall be granted.

Background

Defendant operates the Bay View Wastewater Treatment Plant. During some routine wet weather events,¹ the Bay View Plant discharges wastewater, with minimal treatment, through a bypass outfall directly into the Maumee River. Plaintiffs allege that these bypasses violate the Bay View Plant's discharge permit and the Clean Water Act. The bypass provision in the discharge permit provides:

11. UNAUTHORIZED DISCHARGES.

A. Bypassing or diverting of wastewater from the treatment works is prohibited unless:

1. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

2. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of downtime. This condition is not satisfied if adequate back up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

3. The permitted submitted notices as required under paragraph D. of this section.

(Doc. 231 Ex. 1 at 29-30) (emphasis supplied). This language is taken from the US-EPA bypass regulation. See 40 C.F.R. § 122.41(m)(4)(i).

The issue before me is purely legal, requiring an interpretation of the phrase "feasible alternatives." According to plaintiffs, "feasible alternatives" include increases in plant capacity through construction of additional treatment units or storage equipment. Defendant, however, contends that the phrase refers only to existing treatment or storage equipment which is physically available at the time of a bypass.

Plaintiffs move for partial summary judgment, asking me to hold that any bypass which occurs because of inadequate plant capacity is unauthorized to the extent that there are "feasible alternatives" including the placement or construction of additional treatment units or storage equipment. Accordingly, plaintiffs ask me to hold that such bypasses violate the Bay View Plant's permit and the Clean Water Act.

Summary Judgment Standard

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).² The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. See id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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).

Analysis

Defendant does not disagree that the Bay View Plant may only discharge pollutants into the Maumee River in compliance with its discharge permit. Likewise, it does not dispute plaintiffs' contention that a bypass is prohibited if there are feasible alternatives. Rather, the dispute in this case hinges on interpretation of the phrase "feasible alternatives." Plaintiffs contend that the phrase includes increases in plant capacity through construction of additional treatment units or storage equipment. Defendant contends that the phrase refers only to existing treatment or storage equipment which is physically available at the time of a bypass.

Plaintiffs argue that their view, as an agency interpretation, controls my inquiry. They point out that at least one court accorded deference to the US-EPA's interpretation of a bypass provision. See United States v. Weitzenhoff, 35 F.3d 1275, 1288-89 (9th Cir.1993) ("The EPA's interpretation of its bypass regulation is entitled to considerable weight.").

Defendant argues that plaintiffs' interpretation does not control because it is "plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). See also Martin v. OSHA, 499 U.S. 144, 151-52, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). Further, defendant contends that I should give plaintiffs' interpretation little deference because it is inconsistent with previous US-EPA positions.³ See Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

1. Plainly Erroneous or Inconsistent with the Regulation

To support their interpretation, plaintiffs rely on the plain language of the bypass provision in the Bay View Plant's permit, the structure and context of the provision, and case law. Defendant contends that, notwithstanding plaintiffs' arguments, this interpretation is plainly erroneous or inconsistent with the regulation.

A. Plain Language

According to plaintiffs, the plain language of the bypass provision supports their interpretation of "feasible alternatives." First, plaintiffs point out that no language excludes alternatives which can be constructed to avoid a future bypass. Defendant responds that the provision, while it does not exclude such activity, also does not explicitly call for construction, addition, or installation. The provision's silence is inconclusive.

Next, plaintiffs contend that the examples of "feasible alternatives" support their reading. Defendant argues the opposite, relying on the same examples to support its interpretation. There are three examples in the bypass provision: "use of auxiliary treatment facilities, retention of untreated wastes, and maintenance during normal periods of downtime." (Doc. 231 Ex. 1 at 30). Plaintiffs claim that these examples can require advance planning and do not limit alternatives to those physically available at the time of a bypass. Defendant insists that, to be "use[d]," facilities or capacity must exist at the time of a decision to bypass.

I disagree with defendant. First, the phrase "use of" modifies "auxiliary treatment facilities," and not "retention of untreated wastes." (Id.) Thus, defendant's argument fails at the outset with respect to increased storage capacity. Moreover, at the time when a bypass becomes necessary, it is too late to resort to "maintenance during normal periods of downtime" and this example necessarily requires advance planning. Defendant's argument fails in its entirety, and I find that the examples support plaintiffs' interpretation.

In light of the examples and the fact that there is no language restricting "feasible alternatives" to those available at the time of a decision to bypass, I see no reason to read such a restriction into the permit. Plain language is not a basis for finding plaintiffs' interpretation to be plainly erroneous or inconsistent with the regulation.

B. Structure and Context

Next, Plaintiffs contend that the structure and context of the bypass provision support their interpretation of "feasible alternatives." The Bay View Plant's permit contains no general authorization to bypass pollutants. Instead, the permit expressly prohibits bypasses except in "emergency conditions as authorized by federal regulation at 40 CFR. 122.41(m) or Part III, Item 11, General Conditions of this permit." (Doc. 231 Ex. 1 at 11). According to plaintiffs, the regulation contemplates bypassing during emergencies, not during routine wet weather events.

Defendant argues that the bypass provision's focus is strictly operational, requiring permittees only to operate their entire treatment facilities at all...