John C. Coughenour, UNITED STATES DISTRICT JUDGE
This matter was tried to the Court from February 27, 2017, to March 2, 2017. The claim presented for adjudication was whether Defendant Astro Auto Wrecking was in violation of sections 301(a) and 402 of the Clean Water Act (CWA), 33 U.S.C. §§ 1311(a) and 1342, for failing to comply with the terms and conditions of its National Pollutant Discharge Elimination System (NPDES) permits. After the bench trial and pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the following findings of fact and conclusions of law:
I. FINDINGS OF FACT
1. This is a Clean Water Act (CWA) citizen lawsuit in which Plaintiff Waste Action Project (WAP) alleges that Defendant Astro Auto Wrecking (Astro) violated and continues to violate federal law by failing to comply with numerous provisions of its NPDES permit.
2. Plaintiff Waste Action Project is a non-profit corporation organized under the laws of the State of Washington. It is a membership organization dedicated to protecting and preserving the environment of Washington State, especially the quality of its waters.
3. Defendant Astro Auto Wrecking operates a 5.15 acre auto wrecking, recycling, and storage facility in Western Washington, at 37307 Enchanted Parkway South, near Federal Way, Washington. The facility comprises a shop with indoor repair areas and two roofed but open-air vehicle bays, a mobile outdoor car crusher, auto fluid storage areas, scrap piles, and vehicle storage. The entry to the facility is paved with asphalt, and the roofed vehicle bays are concrete. The other outdoor areas of the facility are bare soil. Some areas are partially covered by quarry spalls. As part of its typical activities, Astro processes, dismantles, drains, stores, and crushes vehicles. Astro has operated the facility since 2000.
4. The facility's western property line runs along the top of a ravine. At the bottom of the ravine is the east fork of Hylebos Creek, which is a tributary to the Hylebos Waterway and Commencement Bay of Puget Sound. Testimony at trial established that water flows in the east fork approximately nine months of the year.
5. The east fork of Hylebos Creek is listed as impaired for copper
, bacteria, and dissolved oxygen under section 303(d) of the CWA. The copper and bacteria listings are in Category 5, the most advanced classification, indicating that data show violations of the relevant state water quality standard that must be addressed with a total maximum daily load ("TMDL") specification or a water quality improvement project.
6. Plaintiff presented two witnesses who testified that there are known sources of zinc and copper associated with Astro Auto's operations, including automotive chassis, engines, and other metallic vehicle parts handled and stored outdoors, petroleum products which often contain copper additives, brake pads, and tires.
7. The Washington Department of Ecology (Ecology) granted Astro coverage under the Washington Industrial Stormwater General Permit (ISGP) for discharges of stormwater associated with industrial activity from the facility. General permits were issued in 2010 and 2015.
8. Astro completed its first stormwater pollution prevention plan (SWPPP) in April 2011, which was the effective SWPPP for the facility until it was replaced by the May 2015 SWPPP.
9. The statute of limitations in this case extends to March 22, 2010.
10. Waste Action Project satisfied the CWA's pre-suit notice of intent to sue requirement to maintain this case.
11. Prior to trial, the parties stipulated to injunctive relief.
12. On December 6, 2016, this Court issued an order granting in part Plaintiff's motion for summary judgment. The Court held that:
a. WAP had standing to bring suit, including fulfillment of the notice and ongoing violation requirements,
b. Astro failed to implement the BMPs of a secondary containment for fluid storage from May 18, 2015, onward; a stormwater recycling system from October 31, 2015, onward; and keeping the hoods closed on stored junk vehicles from September 1, 2015, onward,
c. Astro failed to sample stormwater discharge in the first and fourth quarters of 2015 and the first quarter of 2016,
d. Astro failed to indicate compliance status on 40 monthly inspection reports,
e. Astro failed to prepare 26 reports of non-compliance and remedial actions,
f. Astro failed to prepare accurate and complete annual reports in 2011 and 2014, and
g. Astro failed to fulfill corrective action requirements in 2011 and 2014.
13. In that order, the Court declined to grant summary judgment as to Astro's alleged
a. Failure to implement Best Management Practices (BMPs) of a
bermed concrete containment pad for the vehicle crusher, cover and containment for waste and scrap piles, grading and containment pads to reduce pollutant exposure, and contaminated stormwater conveyance and treatment,
b. Failure to submit Discharge Monitoring Reports (DMRs) in 15 quarters, and
c. Violation of the copper
effluent limits.
14. The Court's order found Astro liable for at least 1,595 distinct violations of the CWA and left the remaining allegations to be decided at trial.
Failure to Implement BMPs
15. Defendant presented testimony from its expert Mr. Neugebauer, that the berm and trench system he designed was equally as effective as the BMPs required by Astro's SWPPP. However, Plaintiff presented the testimony of Ms. Hickey and Mr. Young, who testified to discharges with an oily sheen and petroleum smell coming from the southern end of the facility.
16. Mr. McMilian testified that he believed the water came from the housing development and aggregated on the southern side of Astro's fence. However, given the pictures entered into evidence at trial, and the video showing the water flowing south from under Astro's southern fence, the Court finds it is more likely than not that the water constituted a discharge from the southern end of the facility.
17. Mr. McMilian testified that the berm and trench system did not extend to the southern portion of the facility. He testified that he did not extend it to the southern portion of the property because he ran out of money.
18. Defendant presented testimony that the oily sheen on the water coming from Astro could have been iron-reducing bacteria, which presents similarly to petroleum on water. However, Plaintiff presented testimony that the water smelled of petroleum. Defendant did not refute this or present testimony that iron-reducing bacteria smell like petroleum products. Combined with the pictures and videos showing an oily sheen, the Court finds that it is more likely than not that the discharges coming from Astro's facility contained petroleum or petroleum byproducts.
19. The Court further finds that the measures currently in place are not as equally effective as the BMPs required by the SWPPP, specifically (1) a bermed concrete containment pad for the vehicle crusher, (2) cover and containment for waste and scrap piles, (3) grading and containment pads to reduce pollutant exposure, and (4) contaminated stormwater conveyance and treatment BMPs.
Failure to Submit DMRs in 15 Quarters
20. Defendant submitted into evidence records of every report that Plaintiff alleged was not filed. Plaintiff's witness from Ecology could not rule out human error in filings before May 2015 and could not explain why, if the reports were sent, Ecology would not have them in the database. The Court finds that Plaintiff did not show it is more likely than not that Astro failed to submit the discharge monitoring reports in 15 quarters.
Violation of the Copper
Effluent Limits
21. The effluent limit for copper
is 2.7 parts per billion.
22. In 2011, Astro sampled a stormwater discharge that contained copper in the amount of 36 parts per billion.
23. The only other sample tested for copper listed a concentration of .054 parts per billion.
24. Plaintiff's expert testified that this was a reporting error because equipment that measures copper in parts per billion would not be able to detect a reading that low. He testified that he thought the actual result was actually 5.4 or 54 parts per billion (both above the effluent limit) but said that was only speculation.
25. Defendant's expert testified that there are laboratories capable of testing for copper measured in parts per trillion, which would be able to explain the reading.
26. Neither side submitted the original lab report into evidence.
27. Neither side testified as to which lab performed the test and if that lab tested for copper in parts per trillion.
28. Plaintiff did not independently test any discharges. The only test results are from 2011 and 2014. The Court finds that Plaintiff did not carry its burden of showing more likely than not that the test result from 2014 was erroneous, or that any subsequent discharge exceeded the copper effluent limit.
Failure to Sample Discharges in 19 Quarters
29. Plaintiff submitted evidence demonstrating that any precipitation event equal to or larger than 0.68 inches in 24 hours is sufficient to produce a discharge of stormwater from the facility that can be sampled. The Court finds this evidence credible.
30. Precipitation data from SeaTac International Airport is applicable to the facility and from May 21, 2010 to February 9, 2017, there were at least 115 days with at least 0.68 inches of precipitation measured at SeaTac International Airport.
31. Using that data, the Court finds there were 19 quarters in which there would have been at least one discharge that should have been sampled. Astro did not sample any
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