Umatilla Waterquality Protect v. Smith Frozen

• Decision Date: 09 April 1997
• Docket Number: Civil No. 96-657-AS.
• Citation: 962 F.Supp. 1312
• Parties: UMATILLA WATERQUALITY PROTECTIVE ASSOCIATION, INC., an Oregon nonprofit corporation, Plaintiff, v. SMITH FROZEN FOODS, INC., an Oregon corporation, Defendant.
• Court: U.S. District Court — District of Oregon

962 F.Supp. 1312

UMATILLA WATERQUALITY PROTECTIVE ASSOCIATION, INC., an Oregon nonprofit corporation, Plaintiff, v. SMITH FROZEN FOODS, INC., an Oregon corporation, Defendant.

Civil No. 96-657-AS.

United States District Court, D. Oregon.

April 9, 1997.

Bill Kloos, Johnson, Kloos & Sherton, P.C., Eugene, OR, William A. Sherlock, Rob Jerome, Sherlock & Jerome, Eugene, OR, for Plaintiff.

Tom Lindley, Jerry B. Hodson, Lynne A. Perry, Miller, Nash, Wiener, Hager & Carlson, LLP, Portland, OR, for Defendant.

PARTIAL JUDGMENT AND ORDER CERTIFYING INTERLOCUTORY APPEAL

ROBERT E. JONES, District Judge.

This is a Clean Water Act (CWA) citizen suit. Plaintiff Umatilla Waterquality Protective Association (UWQPA) is a nonprofit corporation composed of about 12 individuals dedicated to protecting the water quality in Umatilla, Union, Wallowa and Morrow Counties in Oregon. Members of UWQPA reside in Umatilla County in the vicinity of, or own property near, defendant Smith Frozen Foods' vegetable processing facility on Pine Creek in Weston, Oregon. Plaintiff alleges that (1) defendant Smith Frozen Foods' wastewater pipelines periodically fail, discharging pollutants into Pine Creek and interfering with fishing and other water-based recreation around and aesthetic enjoyment of the creek; and (2) that sodium and chloride from defendant's old brine lagoon are leaching into groundwater and then traveling to Pine Creek, constituting an unpermitted continuing discharge of pollutants into the creek.

This case is now before me on the parties' joint motion for immediate certification to the Ninth Circuit of three questions. The parties submit this motion pursuant to 28 U.S.C. § 1292(b). However, before the Ninth Circuit can review a question pursuant to that statute, this court must enter an interlocutory order. 28 U.S.C. § 1292(b); Fed. R.App. P. 5. Therefore, I interpret the parties' motion as a motion for a declaratory judgment with a finding that such order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation," 28 U.S.C. § 1292(b), and hereby GRANT that motion.

The parties have stipulated to three questions:

1. Are discharges of pollutants into navigable waters via hydrologically connected groundwater subject to regulation under the federal Clean Water Act?

2. If so, do subsoils containing residual pollutants from a former unlined brine pond constitute a point source under the federal Clean Water Act?

3. If so, does the ongoing migration of those pollutants to navigable waters via hydrologically connected groundwater constitute on ongoing discharge within the scope of federal Clean Water Act citizen suit jurisdiction?

My analysis of these questions follows.

DISCUSSION

A. Clean Water Act Regulation of Hydrologically-Connected Groundwater

1. Water Quality Regulation in Oregon

In 1972, Congress enacted the Clean Water Act (CWA) in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To carry out this goal, the Act provides that, "except as in compliance" with its provisions, "the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a). Indeed, the Act established an ambitious if impractical "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. § 1251(a)(1).

The CWA defines "discharge of a pollutant" to include both "any addition of any pollutant to navigable waters from any point source" and "any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." 33 U.S.C. § 1362(12). Only the first of these sub-definitions is at issue here.

"Navigable waters," for purposes of the CWA, are "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). Courts have upheld EPA's broad interpretation of this term to include, essentially, any surface water body capable of affecting interstate commerce. International Paper Co. v. Ouellette, 479 U.S. 481, 486 n. 6, 107 S.Ct. 805, 808 n. 6, 93 L.Ed.2d 883 (1987) (citing United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), and 33 U.S.C. § 1362(7)).

Nevertheless, EPA's expanded definition of "waters of the United States" does not make it clear that the CWA covers any kind of underground waters. Under EPA's definition, "waters of the United States" include:

(a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(b) All interstate waters, including interstate "wetlands;"

(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, "wet-lands," sloughs, prairie potholes, wet meadows, playa lakes, or natural lakes the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

(1) Which are or could be used by interstate or foreign travellers for recreation or other purposes;

(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(3) Which are or could be used for industrial purposes by industries in interstate commerce;

(d) All impoundments of waters otherwise defined as waters of the United States under this definition;

(e) Tributaries of waters identified in paragraphs (a) through (d) of this definition;

(f) The territorial sea; and

(g) "Wetlands" adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through

(f) of this definition.

40 C.F.R. § 122.2. Water treatment systems, including treatment ponds or lagoons, are not waters of the United States if they are "manmade bodies of water which neither were created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States." Id. Thus, the brine pond at issue in the stipulated questions presumably is not itself a navigable water.

The CWA's primary mechanism for regulating the addition of pollutants to navigable waters is the National Pollutant Discharge Elimination System, or NPDES, permit, 33 U.S.C. § 1342(a), which allows regulated discharges of pollutants notwithstanding the Act's general prohibition, so long as the discharger complies with all applicable limitations. 33 U.S.C. § 1342(a)(1). EPA received the original authority to issue such permits, id., but the CWA also allows any state "desiring to administer its own permit program for discharges into navigable waters within its jurisdiction" to apply to EPA for such authority. 33 U.S.C. § 1342(b). EPA has delegated such NPDES permitting authority to Oregon, and Oregon's Department of Environmental Quality (DEQ) and Environmental Quality Commission (EQC) administer Oregon's NPDES permit program. ORS 468B.035.

Oregon water quality law provides that, without a permit, "no person shall:"

(a) Cause pollution of any waters of the state or place or cause to be placed any wastes in a location where such wastes are likely to escape or be carried into waters of the state by any means.

(b) Discharge any wastes into waters of the state if the discharge reduces the quality of such waters below the water quality standards established by rule for such waters by the [Environmental Quality] commission.

ORS 468B.025(1). In addition, statutes require a permit before any person can:

(a) Discharge any wastes into the waters of the state from any industrial or commercial establishment or activity or any disposal system.

(b) Construct, install, modify or operate any disposal system or part thereof or any extension or addition thereto.

(c) Increase in volume or strength any wastes in excess of the permissive discharges specified under an existing permit.

(d) Construct, install, operate or conduct any industrial, commercial, confined animal feeding operation or other establishment or activity or any extension or modification thereof or addition thereto, the operation or conduct of which would cause an increase in the discharge of wastes into the waters of the state or which would otherwise alter the physical, chemical or biological properties of any waters of the state in a manner not lawfully authorized.

(e) Construct or use any new outlet for the discharge of wastes into waters of the state.

ORS 468B.050(1).

"Waters of the state" under Oregon law covers a broader range of waters than the CWA regulates under federal law. Under Oregon statute, "waters of the state" include:

lakes, bays, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Pacific Ocean within the territorial limits of the State of Oregon and all other bodies of surface or underground waters, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters which do not combine or effect a junction with natural surface or underground waters), which are wholly or partially within or bordering the state or within its jurisdiction.

ORS 468B.005(8) (emphasis added).

The most obvious distinction between Oregon law and the CWA is that Oregon law clearly requires some sort of water quality permit for discharges into underground waters, whereas the CWA appears to be confined to discharges that affect surface waters. Indeed, DEQ divides its water quality permitting programs largely on the basis of whether the discharge of pollutants is to surface or to underground waters.

Under DEQ's rules, NPDES permits are required any time a person "discharge[s] pollutants from a point source into navigable waters." OAR 340-45-015(2). DEQ defines "point...