Opinion
Motion filed on March 18, 2008
AMENDED ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
Dean D. Pregerson, United States District Judge.
This matter is before the Court on Plaintiff Inland Empire Waterkeeper’s Motion for Partial Summary Judgment. After reviewing the papers submitted by the parties and considering the arguments therein, the Court grants the motion.
I. BACKGROUND
This case arises out from Defendant Uniweb, Inc.’s (“Uniweb”) alleged violation of the Federal Water Pollution Control Act (“Clean Water Act” or “Act”), 33 U.S.C. § 1365. Plaintiff Inland Empire Waterkeeper, a chapter of the nonprofit organization Orange County Coastkeeper, filed this citizen suit against Uniweb as one of several related cases against industrial users that release wastewater into the City of Corona’s Publicly Owned Treatment Works (“POTW”). Plaintiff alleges that Uniweb has exceeded the wastewater discharge limits under its permit with the City of Corona in violation of the Clean Water Act. Plaintiff seeks partial summary judgment that Uniweb violated the Act and a determination of the number of violations.
A. Statutory Background on the Clean Water Act
Section 301(a) of the Clean Water Act prohibits the discharge of pollutants into navigable waters unless in compliance with the Act. Congress directed the Environmental Protection Agency (“EPA”) to promulgate regulations setting limits on the pollutant discharges from three general types of “point sources,” 33 U.S.C. § 1362(14) (1976), including (1) point sources discharging directly into navigable waters (“direct dischargers”); (2) POTWs treating municipal sewage or industrial wastewater; and (3) point sources discharging pollutants into POTWs rather than directly into navigable waters (“indirect dischargers”). See Nat’l Ass'n of Metal Finishers v. EPA, 719 F.2d 624, 633 (3d Cir. 1983), rev’d on other grounds, Chem. Mfrs. Ass'n v. Natural Res. Def. Council, Inc., 470 U.S. 116 (1985). Direct dischargers and POTWs are regulated through the National Pollutant Discharge Elimination System (“NPDES”) permit issued to the discharger under section 402 of the Act. Indirect dischargers are regulated under separate regulatory standards provided for by section 307(b)(1) of the Act, 33 U.S.C. § 1317(b). Id.
Congress sought to regulate indirect dischargers in recognition that “the pollutants which some indirect dischargers release into POTWs could interfere with the operation of the POTWs, or could pass through the POTWs without adequate treatment.” Nat’l Ass'n of Metal Finishers, 719 F.2d at 633. The EPA has promulgated two types of national pretreatment standards applicable to indirect dischargers: general pretreatment regulations and national categorical pretreatment standards. “It is unlawful for any indirect discharger to operate in violation of any ‘effluent standard or prohibition or pretreatment standard’ promulgated under section 307.’” Int’l Union et al. v. Amerace Corp., Inc., 740 F.Supp. 1072, 1079 (D.N.J. 1990), (quoting 33 U.S.C. §§ 1317(d), 1311(a)).
40 C.F.R. 403 sets forth the permitting requirements for “industrial users” that release pollutants into POTWs. All POTWs discharging over 5 million gallons per day (“GPD”) and receiving pollutants from industrial users must develop a pretreatment program. 40 C.F.R. § 403.8. A POTW must issue individual permits to all “Significant Industrial User[s],” which includes those industrial users (1) subject to the categorical pretreatment standards; (2) discharging more than 25,000 GPD; or (3) determined to be significant by the POTW based upon “a reasonable potential for adversely affecting the POTW's operation or for violating any [p]retreatment [s]tandard or requirement.” 40 C.F.R. §§ 403.8(f), 403.3(v)(1)(ii). The permits must establish effluent limits, as well as self-monitoring, sampling, reporting, notification and recordkeeping requirements. 40 C.F.R. § 403.8(f)(1).
By definition, “[the] term Industrial User or User means a source of Indirect Discharge.” 40 C.F.R. § 403.3(j).
POTWs are also required to set local standards. “[W]here pollutants contributed by User(s) result in Interference or Pass-Through, and such violation is likely to recur, [POTWS must] develop and enforce specific effluent limits for Industrial User(s), and all other users, as appropriate . . . .” 40 C.F.R. 403.5(c)(2). “[S]uch [local] limits shall be deemed [enforceable] Pretreatment Standards for the purposes of section 307(d) of the Act.” 40 C.F.R. § 403.5(d). Local limits may be more stringent than federal pretreatment standards. 40 C.F.R. § 403.4.
B. Factual Background
1. The City of Corona’s Pretreatment Program
The City of Corona’s pretreatment ordinance, adopted pursuant to 40 C.F.R. 403 and set forth under section 13.08 of the Corona Municipal Code, provides local prohibitions, discharge limits, and reporting and permitting requirements. The Regional Water Quality Board, which is the “Approval Authority” delegated by the EPA, approved the City’s pretreatment program. See Cal. Water Code §§ 13000-13001. The City’s permits, issued pursuant to the pretreatment ordinance and allowing industrial users to discharge pollutants into its POTW, establish the local limits specific to the user.
2. Defendant Uniweb
Defendant Uniweb manufactures retail store fixtures at a facility in Corona, California. (Def’s Opp’n 5.) As part of its manufacturing operations, Uniweb cleans and rinses the steel it uses to make the store fixtures. (Pl.’s Mot. 2.) The wastewater generated through this process is discharged into the City of Corona’s POTW facility Number 2. (Def.’s Opp’n 5.)
Since 2001, the City of Corona has issued to Uniweb an annual pretreatment permit that establishes “effluent limits” for specific pollutants. (Wastewater Discharge Permits 2001-2008, Pl.’s Exhs. 3-9.) These permits identify the maximum concentration of specific types of pollution allowed per part of water. (Pl.’s Exh. 3, 98-100; Exh. 4, 112-14; Exh. 5, 126-28; Exh. 6, 142-44; Exh. 7, 158-160; Exh. 8, 176-78; Exh. 9, 194-96.) These permits also establish a sampling frequency for each pollutant requiring that Uniweb conduct routine water testing and report the results to the City under penalty of perjury. (Pl.s’ Exhs. 3-9.)
Effluent limits can be understood as the concentration level of a specific type of pollution per part of water that a permit holder may discharge into a POTW. For example, Defendant’s 2001 permit indicates that Defendant may not discharge more than 332 milligrams of sodium per liter of waste water. (Pl.’s Exh. 3, 98-100; Ex. 4, 112-14; Exh. 5, 126-28; Ex. 6, 142-44; Exh. 7, 158-160; Exh. 8, 176-78; Exh. 9, 194-96.)
3. The City of Corona’s Total Dissolved Solids Offset Program
On January 29, 2003, the City of Corona Department of Water and Power addressed a letter to Uniweb and other industrial users that announced the completion of a new water softening facility, also called a desalter. (Pl. Exh. 14 & Uniweb Exh. 101.) The letter provided that the City had received approval from the Regional Board to operate an off-set program “to pass the salt removal benefits to industrial users, providing that the City fulfil its discharge obligation as outlined in the NPDES Permit.” (Id.) The letter states:
To implement this offset program, the City is proposing to establish a surcharge fee for total dissolved solids, considering that the total dissolved solids is the summation of the sodium, sulfate, chloride, and total hardness. Offset benefits will apply to those individual mineral components as well. The surcharge fees collected will be used to assist maintenance and future expansion of the City’s Desalter.
(Id.)
The City considered eligible for the off-set program those industrial users with flows less than 25 million GPD and TDS concentrations of less than 4,800 mg/l. Discharges over 850 mg/l of TDS would be subject to a $ .05 surcharge fee per pound of TDS. On July 29, 2004, according to the aforementioned terms, Uniweb and the City entered an agreement for Uniweb’s participation in the off-set program. (Pl. Exh. 15 & Uniweb Exh. 102.) On July 1, 2008, the City plans to end the off-set program.
4. Plaintiff’s Allegations and Uniweb’s Defenses
Plaintiff maintains that many wastewater samples taken by Uniweb or the City between 2001 and 2007 exceeded the effluent limits for sulfate, nickel, sodium and TDS that are set forth in Uniweb’s permit. Specifically, Plaintiff alleges Uniweb exceeded its permit limits for nickel on six occasions, for sodium on eight occasions, for sulfate on thirteen occasions, and for TDS on eleven occasions. Plaintiff argues that each violative sample should count not as a single violation, but as a violation for each day of the sampling period, which would amount to 1,333 total violations (515 for sulfate, 365 for nickel, 183 for sodium, and 270 for TDS). Plaintiff additionally asserts that Uniweb may not rely on the off- set program to avoid liability because the program was not enacted pursuant to appropriate procedures under the Clean Water Act.
Uniweb raises several defenses based upon the TDS off-set program. The focus of these defenses are that the off-set program increased Uniweb’s discharge limits, such that the majority of its alleged violations did not in fact violate the effluent limits as modified by the off-set program. Uniweb argues the off-set program was in compliance with the Clean Water Act, and if it was not, Plaintiff’s complaint properly lies with the City. Uniweb also raises additional defenses: it argues that Plaintiff’s pre-lawsuit notice was inadequate; that Plaintiff’s claims will become moot upon the end of the off-set program on July 1, 2008; and that Plaintiff does not have standing to challenge the violations that occurred outside the scope of the off-set program because those violations are not recurring or likely to recur.
II. LEGAL STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining a motion for summary judgment, all reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact is created if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and material facts are those “that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. On the other hand, no genuine issue of fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. DISCUSSION
A. Plaintiff’s Pre-Lawsuit Notice
To file a “citizen” lawsuit under the Clean Water Act, the plaintiff must first provide sixty days notice to the defendant. 33 U.S.C. § 1365(b). Uniweb argues that Plaintiff’s notice was insufficient because there was “no reference to a challenge to the validity of the Off-Set Program.” (Def.’s Opp’n 14.) The Court disagrees.
A plaintiff’s notice need only provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to constitute a violation.” 40 C.F.R. 135.3(a). The Ninth Circuit has recognized the pre-lawsuit notice requirement as one of “reasonable specificity.” S.F. Baykeeper v. Tosco Corp., 309 F.3d 1153, 1158 (9th Cir. 2002). There is no requirement “that plaintiffs list every specific aspect of detail of every alleged violation.” Id. (citations omitted).
Plaintiff has complied with that requirement here.Plaintiff sent a letter to Uniweb stating that it intended to bring suit under the Clean Water Act. Plaintiff explained that it believed Uniweb to have violated the Act by releasing wastewater in excess of the limits set forth in Uniweb’s discharge permits. Plaintiff specifically cited to the Uniweb’s wastewater discharge permits. (See Compl. Exh. A.) Attached to the letter was a document itemizing the alleged violations. The document identified the limits set forth in Uniweb’s permits - not the off-set program - as the standard for finding excess discharges of wastewater. The document also included calculations of the percentage of excess over the permit limits. (Id.) The notice was a reasonably specific indication that Plaintiff was alleging violations of Uniweb’s permit limits.
There is no dispute that Plaintiff’s October 31, 2006 letter was sent more than sixty days before it filed suit on April 24, 2007.
Uniweb’s suggestion that Plaintiff provided inadequate notice is unconvincing. The notice was “sufficiently specific to inform [Uniweb] about what it [was allegedly] doing wrong, so that it [knew] what corrective actions [would] avert a lawsuit.” ONRC Action v. Columbia Plywood, Inc., 286 F.3d 1137, 1143 (9th Cir. 2002). The clear inference to be drawn from Plaintiff’s notice was that it alleged violations of the permit limits and considered the off-set program inapplicable. Plaintiff did not need to specifically cite to the off-set program to comply with the notice requirement. Cf. Waterkeepers N. Cal. v. AG Indus. Mfg., 375 F.3d 913, 919 (9th Cir. 2004) (finding adequate notice even in the absence of specific citation to applicable regulation). Based upon the attachment to Plaintiff’s notice, Uniweb must have known that Plaintiff did not consider the off-set program to be the applicable standard. Accordingly, the Court finds that Plaintiff’s notice provided Uniweb with sufficient information of the basis for its claim, and thus complied with 40 C.F.R. 135.3(a).
B. Uniweb’s Effluent Limits
Whether Uniweb violated the Clean Water Act by exceeding local pretreatment limits turns on this threshold question: was Uniweb subject to the local effluent limits set forth in its discharge permits or the modified limits specified in the TDS off-set program.
1. Modification of POTW Pretreatment Programs Under the Clean Water Act
40 C.F.R. § 403.18 provides that “the Approval Authority or a POTW . . . may initiate program modification. . . .” 40 C.F.R. § 403.18(a). The regulation sets forth different procedures for “substantial modifications” and “non-substanial modifications.” 40 C.F.R. § 403.18(c)-(d). Which procedures were applicable here requires a determination whether Corona’s TDS off-set program qualified as a “substantial modification” or “non-substantial modification.”
The regulation defines “substantial modifications” in relevant part as:
Modifications that relax local limits, except for the modifications to local limits for pH and reallocations of the Maximum Allowable Industrial Loading of a pollutant that do not increase the total industrial loadings for the pollutant, which are reported pursuant to paragraph (d) of this section. Maximum Allowable Industrial Loading means the total mass of a pollutant that all Industrial Users of a POTW . . . may discharge pursuant to limits developed under § 403.5(c). . . .
Here, the off-set program sought to “relax local limits.” See 40 C.F.R. § 403.18(b)(2). Local limits for purposes of the Clean Water Act include the “specific effluent limits for Industrial User(s).” 40 C.F.R. § 403.11(c) & (d). The off-set program increased TDS concentrations to 4,800 mg/l, and although it did not specifically increase the sodium, sulfate, chloride, and total hardness limits, it effectively relaxed those limits by including those constituents in the program. (See Pl. Exh. 14-15 & Uniweb Exh. 101-102.) Therefore, the Court finds that the off-set program qualified as a “substantial modification.”
Uniweb asserts that the off-set program did not relax local limits, but only “reallocated the task of meeting a portion of the TDS limits from Uniweb, and other businesses, to the City.” (Opp’n 20.) Uniweb appears to base this argument on the regulation’s exception which provides that “reallocations of the Maximum Allowable Industrial Loading [MAIL] of a pollutant” are not a relaxation of local limits and thus not “substantial modifications.” See 40 C.F.R. § 403.18(b)(2).
Plaintiff responds that Uniweb’s reliance on the exception is misplaced for two reasons. First, the increase of Uniweb and other industrial users’ discharge limits was not a mere reallocation. Second, the exception only applies to reallocations between industrial users, not the type of reallocation between industrial users and the City that was countenanced by the off-set program.
The Court finds that the off-set program increased the total mass of a pollutant that industrial users could discharge into the POTW, and therefore, did not constitute a “reallocation” of the MAIL. The off-set program allowed industrial users to increase their pollutant discharges into the POTW with the City assuming treatment responsibilities for those added discharges. (See Pl. Exh. 14 & Uniweb Exh. 101.) While the program shifted responsibility to the City, the program was not the sort of “reallocation” that falls within the regulation’s exception. The regulation provides that a reallocation of the MAIL which increases “the total industrial loadings for the pollutant” remains a substantial modification. 40 C.F.R. § 403.18(b)(2). As the offset program increased the amount of pollutants that industrial users could discharge into the POTW, it did not fall within the “reallocation” exception. Whatever the reasons for adopting the off-set program, the City was required to follow the approval procedures for “substantial modifications” set forth at 40 C.F.R. § 403.18(c).
Uniweb also asserts that there was no relaxation of local limits because the City still had to comply with its NPDES permit under the off-set program. However, while this may be true, the fact that the off-set program relaxed the permit limits of industrial users remains undisputed. This fact makes the off-set program a substantial modification.
2. Approval Procedures for Substantial Modifications to POTW Pretreatment Programs
In seeking approval of substantial program modifications, the POTW must submit a request to the Approval Authority that explains the reasons for program modification. 40 C.F.R. § 403.18(c)(1). The Approval Authority then reviews the program modification to ensure that the POTW pretreatment program has legal authority to regulate industrial users and enforce compliance with appropriate pretreatment standards as required by law. 40 C.F.R. § 403.18(c)(2). Additionally, the regulation requires compliance with the public notice requirements of 40 C.F.R. § 403.11(b)-(f), which include publication of the modification request in “a newspaper(s) of general circulation” and set a notice period to allow interested persons to comment on the modifications and request a public hearing. 40 C.F.R. § 403.18(c)(2). The Approval Authority need not publish a notice of decision if the original public notice of the requested modification indicates that “the request will be approved if no comments are received by a date specified in the notice; no substantive comments are received; and the request is approved without change.” 40 C.F.R. § 403.18(c)(3). A POTW may comply with the public notice requirements so long as the Approval Authority determines that the POTW’s notice “satisfies the requirements of § 403.11.” 40 C.F.R. § 403.18(c)(4).
Plaintiff’s counsel sets forth by declaration that several public records requests were submitted to the City of Corona and the Santa Ana Regional Water Quality Board in 2005 and 2006. (Declaration of Cory J. Briggs (“Briggs Decl.”) ¶ 3.) Those requests asked for documents related to the City’s TDS off-set program, and more generally, documents related to modification requests by the City or modification approvals by the Board for Corona’s POTW pretreatment program. (Pl.’s Exh. 16.) In response to those requests, Plaintiff’s counsel reviewed files at the Board twice in 2005. Plaintiff’s counsel also reviewed a number of City documents copied by the City or counsel’s staff. Plaintiff’s counsel states that none of the documents reviewed at the Board’s offices or produced by the City showed any request for approval of the TDS off-set program or any public notice of the requested modification. (Briggs Decl. ¶ 4.)
There is thus no documentary evidence that the City followed the appropriate procedures for “substantial modifications” when adopting the off-set program. Plaintiff’s review of files in connection with the public records requests did not uncover any record that the City sought approval for its modification or that public notice requirements were satisfied. (See Briggs Decl. ¶ 4.) Uniweb does not provide documentary evidence to the contrary.
Uniweb objects that Plaintiff’s counsel lacks personal knowledge to state whether the off-set program was approved or whether there was any record of approval. Uniweb’s objection is overruled because Plaintiff’s counsel does not make any of those statements. Rather, Plaintiff’s counsel has personal knowledge of the results of his records request and research of produced documents.
Rather, Uniweb argues that triable issues of fact exist regarding whether the City followed appropriate procedures. Uniweb points to the City’s announcement of the off-set program and its letter of agreement with the City to participate in the off-set program. In both, the City asserts that it “requested and received the Regional Board’s approval.” (Uniweb’s Exhs. 101 & 102.) However, other than these assertions, there is no documentary evidence from the City or the Board to support that the off-set program was requested or approved. Uniweb has not produced any documents or declarations from the City or the Board to show that approval was granted. Moreover, there is no documentary evidence or even an assertion from the City that it complied with the requisite public notice requirements. This is insufficient to create a triable issue of fact. See McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1340 (9th Cir. 1987) (a party opposing summary judgment must present evidence to create a triable issue of fact).
At oral argument, Uniweb maintained that the Board’s failure to act in approving the off-set program would result in approval of the program under the regulation. This argument misreads the regulation. For a non-substantial modification, the POTW may implement the modification if it does not receive a notice from the Approval within 45 days of the Approval Authority’s decision to approve or deny the modification. 40 C.F.R. § 403.18(d)(3). For a substantial modification, however, a modification must be approved by the Approval Authority and satisfy various procedural requirements including public notice. 40 C.F.R. § 403.18(c).
If there had been compliance with the 40 C.F.R. § 403.18(c) procedures, the Board and the City would have maintained some records of any requests for modification of Corona’s POTW, any review of such requests, or any public notice issued pursuant to the procedures. In the absence of evidence that the City complied with the 40 C.F.R. § 403.18(c) procedures, the only reasonable conclusion is that the TDS off-set program was adopted in contravention of the procedures under the Clean Water Act regulations. Therefore, the off-set program’s modifications to industrial users’ discharge limits were invalid because they were in violation of the law.
3. Uniweb’s Effluent Limits Were the Limits Set Forth in its Discharge Permits
Because the off-set program was invalid, Uniweb and other businesses in Corona were required to comply with the pollutant discharge limits set forth in their discharge permits. Whether Uniweb has violated its effluent limits will be determined by reference to the limits specified in its permit and not the invalid modifications of the off-set program. Thus, Uniweb’s defenses based on the off-set program are unavailing.
Uniweb’s additional defenses are similarly misplaced. First, Uniweb cannot assert the “permit shield” defense established under Section 402 of the Clean Water Act. The defense provides that “[c]ompliance with a permit issued pursuant to this section shall be deemed compliance [with the Act].” 33 U.S.C. 1342(k). However, Section 402 permits are the NPDES permits held by cities operating POTWs, not the permits of industrial users that discharge pollutants into the POTWs. Industrial users such as Uniweb are issued permits pursuant to section 307 of the Act, and thus, Section 402's “permit shield” defense does not apply here.
Second, Uniweb’s “pass through” defense has been waived. The failure to allege an affirmative defense waives the defense, and Uniweb did not raise a “pass through” defense in its answer to Plaintiff’s complaint. (See Uniweb’s Answer, at 9-10.) Even if the Court were to construe Uniweb’s answer to include this defense, the “pass through” defense does not apply. To prove the “pass through” defense, an industrial user must show: (1) “[i]t did not know or have reason to know that its Discharge, alone or in conjunction with a discharge or discharges from other sources, would cause Pass Through . . .”; and (2) compliance with “[a] local limit designed to prevent Pass Through . . . directly prior to and during the Pass Through . . .” 40 C.F.R. § 403.5(a)(2). There is no evidence that a pass-through event occurred here. In any event, if a sample of wastewater shows that Uniweb did not exceed its permit limits, then there is no violation for that sample.
As defined in the Clean Water Act regulations The term Pass Through means a Discharge which exits the POTW into waters of the United States in quantities or concentrations which, alone or in conjunction with a discharge or discharges from other sources, is a cause of a violation of any requirement of the POTW's NPDES permit (including an increase in the magnitude or duration of a violation).” 40 C.F.R. § 403.3.
There is also an alternative ground for the “pass through” defense not raised here. See 40 C.F.R. § 403.5(a)(2).
Finally, Uniweb argues that its good faith participation in the off-set program, even if the program was invalid, insulates it from liability. The Court disagrees. All that is required to be liable for a Clean Water Act violation is a discharge that exceeds the effluent limits specified in the industrial user’s applicable discharge permit. 33 U.S.C. 1311(a) (prohibiting pollutant discharges “except in compliance with law,” which includes the requirement that an industrial user comply with specific permit limits established under 33 U.S.C. 1317 and 40 C.F.R. 403.11). Compliance with the Clean Water Act is a matter of strict liability subject to the particular affirmative defenses set forth in the Act. See Haw.'s Thousand Friends v. City & County of Honolulu, 821 F.Supp. 1368, 1392 (D. Haw. 1993).
The Clean Water Act’s strict liability regime for enforcing compliance with discharge limits supports holding Uniweb accountable for any violations of its permits and in spite of any good faith reliance on the invalid off-set program. That Uniweb may have inadvertently violated the permit limits in believing its discharges were lawful under the invalid off-set program does not allow it to avoid a finding of liability, although this certainly could be a factor when measuring any civil penalties for violations. Haw.'s Thousand Friends, 821 F.Supp. at 1392, (citing United States v. Ohio Edison, 725 F.Supp. 928, 934 (N.D. Ohio 1989)) (“The fact that a violator is ‘without fault’ in committing violations of the Clean Water Act does not absolve the violator from penalties, although it may mitigate the amount of the penalties assessed.”); see also 33 U.S.C. § 1319(d) (providing that a court in determining the extent of a civil penalty, shall consider the following six factors: “[t]he seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require”).
Moreover, there are significant public policy reasons for rejection of Uniweb’s good faith violations defense. Where, as here, the City did not comply with approval procedures for relaxing industrial users’ permit limits, the public was deprived of the opportunity to make comments, oppose the measure, or request a hearing. There are incentives for bypassing approval procedures. Localities and businesses may seek to enter side agreements as a way to circumvent the approval process and the ever-present threat of public opposition.
For this reason, Uniweb’s laches defense also fails. The failure to provide public notice of the off-set program explains why no lawsuit was filed until 2007. Plaintiff cannot be faulted for lack of diligence in bringing this action. See Kling v. Hallmark Cards Inc., 225 F.3d 1030, 1036 (9th Cir. 2000).
Yet the Clean Water Act’s procedures prevent such collusion. A city cannot unilaterally decide to modify its POTW without the consent of the Approval Authority. See 40 C.F.R. § 403.18(c). Although there is no indication of collusion here, it is inconsistent with the Clean Water Act’s strict liability regime to allow violators to avoid liability based upon its compliance with an unauthorized or unnoticed city program. Thus, Uniweb’s argument that Plaintiff may bring a claim against the City is misplaced; rather, Uniweb may consider pursuing a claim against the City for any penalties it may incur as a result of its participation in the City’s unlawful off-set program. The Court now turns to the violations.
C. Violations of the Clean Water Act and Local Effluent Limits
1. Proof of Violations
Plaintiff alleges a number of violations based upon the sampling data in reports submitted by Uniweb to the City. Uniweb argues that the monitoring reports show only a few, isolated Clean Water Act violations and that its participation in the off-set program eliminate Plaintiff’s allegations of more significant violations. Uniweb does not dispute that the monitoring reports show discharges in excess of the permit limits.
A monitoring report that shows a water sample with pollutant discharges in excess of permit limits is conclusive evidence of a violation. Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491 (9th Cir. 1987), vacated on other grounds, 485 U.S. 931 (1988), reinstated with minor amendment, 853 F.2d 667 (9th Cir. 1988). A defendant may not impeach its own publicly filed reports which are “submitted under penalty of perjury.” Save Our Bays & Beaches v. City & County of Honolulu, 904 F.Supp. 1098, 1138 (D. Haw. 1994). Here, Corona requires industrial users like Uniweb to submit monitoring reports under penalty of perjury. Corona Municipal Code 13.08.350 (providing that “[a]ll required reports” be submitted in accordance with 40 C.F.R. 403.6(a)(2(ii), which states that reports be submitted “under penalty of law”). Where Uniweb’s reports demonstrate discharges in excess of its permit limits, the Court will consider that evidence to establish a violation.
The Court engages in an independent review of the monitoring reports to determine whether there are in fact violations of a permit. The Court has compared the discharges of nickel, sodium, sulfate, and TDS on the alleged violation dates with Uniweb’s applicable permit limits. The Court has synthesized the relevant data in the tables below, and concludes that each of the following discharges were in violation of Uniweb’s permits:
Plaintiff provided tables to document Uniweb’s violations in its moving papers for this motion. However, those tables were missing the reported discharge for each alleged violation. In the future, Plaintiff should provide the reported discharge in excess of applicable permit limits in any table to assist the Court with its review of the monitoring reports.
The Court has synthesized information from Uniweb’s permits and monitoring reports in these tables. (See Pl.’s Exhs. 3-9, 17-36.)
| Constituent | Permit Limit | Violation (Date) | Sample Frequency | No. Days Sample Period |
| Nickel | .4 mg/L | .45 mg/L (8-10-2005) | Biannually | 184 |
| Nickel | .4 mg/L | .42 mg/L (8-18-2005) | Biannually | Same Period |
| Nickel | .4 mg/L | .63 mg/L (9-13-2005) | Biannually | Same Period |
| Nickel | .4 mg/L | .41 mg/L (3-23-2006) | Biannually | 181 |
| Nickel | .4 mg/L | .41 mg/L (4-13-2006) | Biannually | Same Period |
| Nickel | .4 mg/L | .44 mg/L (4-24-2006) | Biannually | Same Period |
| Constituent | Permit Limit | Violation (Date) | Sample Frequency | No. Days Sample Period |
| Sodium | 332 mg/L | 470 mg/L (9-12-2002) | Monthly | 30 |
| Sodium | 332 mg/L | 348 mg/L (7-14-2005) | Monthly | 31 |
| Sodium | 332 mg/L | 420 mg/L (8-10-2005) | Monthly | 31 |
| Sodium | 332 mg/L | 428 mg/L (8-18-2005) | Monthly | Same Period |
| Sodium | 332 mg/L | 510 mg/L (9-13-2005) | Monthly | 30 |
| Sodium | 332 mg/L | 374 mg/L (3-15-2006) | Monthly | 31 |
| Sodium | 332 mg/L | 390 mg/L (3-23-2006) | Monthly | Same Period |
| Sodium | 332 mg/L | 490 (4-13-2006) | Monthly | 30 |
| Constituent | Permit Limit | Violation (Date) | Sample Frequency | No. Days Sample Period |
| Sulfate | 300 mg/L | 386 (9-13-2005) | Monthly | 30 |
| Sulfate | 300 mg/L | 421 (2-15-2006) | Monthly | 28 |
| Sulfate | 300 mg/L | 481 (3-15-2006) | Monthly | 31 |
| Sulfate | 300 mg/L | 476 (4-13-2006) | Monthly | 30 |
| Sulfate | 300 mg/L | 825 (7-27-2006) | Monthly | 31 |
| Sulfate | 227 mg/L | 369 (1-12-2007) | Biannually | 181 |
| Sulfate | 227 mg/L | 297 (2-16-2007) | Biannually | Same Period |
| Sulfate | 227 mg/L | 324 (4-13-2007) | Biannually | Same Period |
| Sulfate | 227 mg/L | 342 (5-11-2007) | Biannually | Same Period |
| Sulfate | 227 mg/L | 316 (6-08-2007) | Biannually | Same Period |
| Sulfate | 227 mg/L | 305 (7-18-2007) | Biannually | 184 |
| Sulfate | 227 mg/L | 362 (8-17-2007) | Biannually | Same Period |
| Sulfate | 227 mg/L | 340 (9-18-2007) | Biannually | Same Period |
| Constituent | Permit Limit | Violation (Date) | Sample Frequency | No. Days Sample Period |
| TDS | 1,844 mg/L | 2200 mg/L (9-12-2002) | Monthly | 30 |
| TDS | 1,844 mg/L | 1942 mg/L (2-10-2005) | Monthly | 28 |
| TDS | 1,844 mg/L | 2600 mg/L (07-14-2005) | Monthly | 31 |
| TDS | 1,844 mg/L | 2500 mg/L (8-10-2005) | Monthly | 31 |
| TDS | 1,844 mg/L | 2510 mg/L (8-18-2005) | Monthly | Same Period |
| TDS | 1,844 mg/L | 3220 mg/L (9-13-2005) | Monthly | 30 |
| TDS | 1,844 mg/L | 2400 mg/L (2-15-2006) | Monthly | 28 |
| TDS | 1,844 mg/L | 3850 mg/L (3-15-2006) | Monthly | 31 |
| TDS | 1,844 mg/L | 2200 mg/L (3-23-2006) | Monthly | Same Period |
| TDS | 1,844 mg/L | 4234 mg/L (4-13-2006) | Monthly | 30 |
| TDS | 1,556 mg/L | 2220 mg/L (7-27-2006) | Monthly | 31 |
2. Number of Violations
A remaining issue is the number of violations. Plaintiff argues that each day of a sampling period when a violation occurred should be counted as a distinct violation. Applying this approach, Plaintiff calculates 1,333 total violations: 365 violations of nickel limits, 183 violations of sodium limits, 515 violations of sulfate limits, and 270 violations of TDS limits. Uniweb does not address this issue.
Courts have found that “where a violation is defined in terms of a time period longer than a day, the maximum penalty assessable for that violation should be defined in terms of the number of days in that time period.” Chesapeake Bay Found. v. Gwaltney of Smithfield, 791 F.2d 304, 314 (4th Cir. 1986), vacated on other grounds, Gwaltney v. Smithfield, Ltd., 484 U.S. 49 (1987); see also United States v. Allegheny Ludlum Corp., 366 F.3d 164, 188 (3rd Cir. 2004). The Court accepts this proposition as a statement of the law. However, the Court defers ruling on the precise number of Uniweb’s violations. That issue is interrelated with the Court’s discretionary assessment of appropriate civil penalties. See 33 U.S.C. § 1319(d). The parties are yet to provide briefing or evidence on civil penalties. The Court, therefore, considers it prudent to rule on the precise number of Uniweb’s violations in conjunction with its discretionary determination of the appropriate civil penalties.
D. Standing and Mootness
Uniweb argues that Plaintiff’s lawsuit is moot because the City has announced that the off-set program will be discontinued as of July 1, 2008. Uniweb also argues that Plaintiff lacks standing because the violations are not recurring nor are they likely to recur.
Uniweb does not argue that there has been no injury, no causation, or that Plaintiff’s claims would not redress the alleged harm. Nor does Uniweb challenge Plaintiff’s “organizational standing” as an environmental organization. See Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000). The Court notes that Uniweb’s standing argument is limited to whether violations are likely to recur.
The Clean Water Act contains a “citizen suit” provision that confers standing to bring a civil action “against any person who is alleged to be in violation of . . . an effluent standard or limitation under th[e] Act . . . .” 33 U.S.C. § 1365(a); see also Gwaltney, 484 U.S. at 58-61. In Gwaltney, the U.S. Supreme Court held that citizens bringing suit for Clean Water Act violations “may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation.” Gwaltney, 484 U.S. at 59. A plaintiff may show an ongoing violation “'either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.'” Natural Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 998 (9th Cir. 2000) (quoting Sierra Club v. Union Oil Co., 853 F.2d at 671 (quoting Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988))).
Here, there is evidence of ongoing sulfate violations since Plaintiff filed its complaint in April 2007. See supra 18-20. Plaintiff argues that there is also evidence from which it is reasonable to infer that intermittent or sporadic violations for the other constituents are likely to recur. The Ninth Circuit has explained that “[i]ntermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.” Sierra Club, 853 F.2d at 671 (quoting Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 172 (4th Cir. 1988)). Plaintiff indicates that Uniweb’s operations have not substantially changed during the period of its violations, nor has Uniweb shown that the violations will not persist after the off-set program.
As to sodium and TDS, the Court cannot conclude that there “is no real likelihood of repetition” of violations under these circumstances. It is not clear that Uniweb will comply with its permit limits independent of the off-set program. As for the nickel discharges in 2005 and 2006, Uniweb presents evidence that it replaced filtration equipment after those excess nickel discharges, and that there have been no excess nickel discharges since that time. (McDonnell Decl. ¶ 17; Uniweb Exh. 106.) This is enough to at least create an issue of fact whether nickel discharges are likely to recur. However, the Court does not consider Uniweb’s “best guess” that faulty filtration equipment was the source of the excess nickel to preclude a reasonable trier of fact from finding that nickel violations could recur. (See Def.’s Opp’n 9.)
The Court does not consider Plaintiff’s claims moot because it is not “absolutely clear” that Uniweb’s violations will not recur after the off-set program. See Friends of the Earth, Inc., 528 U.S. at 189. Uniweb presents its vice president’s declaration, where he states that Uniweb is “preparing for the end of the Program and will have alternative arrangements in place when the Program ends.” (Declaration of John McDonnell ¶ 26.) While McDonnell does offer tentative plans for compliance after the offset program, there is no concrete evidence that these plans will be implemented or that implementation will prevent future violations. Therefore, the Court finds that Plaintiff’s claims are not moot.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the motion for partial summary judgment. The remaining issues in this case are standing with respect to the nickel violations, the number of violations, and proof of civil penalties.
IT IS SO ORDERED.