Washington Court Holds Industrial Stormwater Discharger Liable for Dozens of CWA Violations

A federal district court in Washington State recently granted summary judgment against a railyard operator in a Clean Water Act (CWA) citizen suit case, Puget Soundkeeper Alliance v. BNSF Railway Co.,[1] finding nearly two dozen violations of the defendant’s industrial stormwater permits covering over close to a ten year period.

Background

The CWA authorizes any “citizen” to bring an action “against any person … who is alleged to be in violation of an effluent standard or limitation … or any order issued by [EPA] or a State with respect to such a standard or limitation.”[2] To file a lawsuit in federal court, a private citizen must first provide an alleged violator with notice of the alleged violation(s) 60 days prior to initiating an action, and must also send that notice to relevant federal and state authorities.[3] Federal regulations address the necessary level of detail in a notice letter, generally requiring a description of the alleged violation with enough specificity that the defendant can come into compliance. Citizens may not sue if EPA or a state is “diligently prosecuting” an action, but may intervene as a matter of right. Otherwise, if settlement does not occur, citizen plaintiffs can lodge their complaint in a federal court and, if they “prevail or substantially prevail,” recover reasonable attorney fees and costs and civil penalties of up to $37,500 per violation per day.[4]

Washington’s Industrial Stormwater General Permit

Washington’s Industrial Stormwater General Permit (ISGP), most recently issued in 2009, requires industrial facilities to manage and monitor stormwater runoff to ensure that contaminated stormwater is not discharged to wetlands, creeks, rivers, or marine waters. For a summary of the current ISGP, see Washington State Issues New Stormwater Permit for Industrial Facilities. Generally, the permit requires permittees to: (1) prepare, implement, and update as necessary a Stormwater Pollution Prevention Plan (SWPPP) that, among other things, identifies on-site pollutant sources and best management practices (BMPs) to prevent or reduce pollution, and includes a facility assessment, monitoring plan, and descriptions of applicable BMPs; (2) timely perform appropriate stormwater sampling and visual inspections, and submit proper reports of the sampling and inspections to Ecology; and (3) compare the sampling results to the benchmarks for those parameters and comply with the permit’s corrective action requirements and other recordkeeping obligations.

Puget Soundkeeper Alliance v. BNSF Railway Co.

The Puget Soundkeeper Alliance v. BNSF Railway Co. case primarily involves BNSF’s Balmer Yard railroad transportation facility in Seattle, Washington. BNSF initially secured coverage for its facility under Washington’s ISGP in 1993 and renewed its permit multiple times. On May 29, 2009, Puget Soundkeeper Alliance, an environmental group and a frequent plaintiff in CWA citizen suit actions in the Puget Sound area, sent BNSF a notice of intent to sue alleging ongoing violations at Balmer Yard, including discharges of pollutants in stormwater in violation of the general permit, and inadequacies of BNSF’s SWPPP, monitoring, reporting, and recordkeeping requirements. Puget Soundkeeper then filed its complaint 62 days later, seeking injunctive, declaratory, and monetary relief.

Shortly thereafter, BNSF hired a consultant to determine whether the Balmer Yard discharged stormwater to navigable waters, which requires a stormwater permit, or to a sanitary sewer system, which does not. BNSF’s consultant initially determined that stormwater discharges from BNSF’s facility went to the King County sanitary sewer system – not to surface waters, as Puget Soundkeeper alleged. Determining that it had mistakenly sought and obtained coverage under a stormwater discharge permit, on October 30, 2009, BNSF filed a notice of termination of coverage under the permit with Ecology. Four days later, Ecology terminated the permit.

BNSF then filed a motion for summary judgment seeking dismissal of the lawsuit, alleging that, because its facility did not discharge stormwater into jurisdictional waters, Puget Soundkeeper’s claims were moot. In response, Puget Soundkeeper proffered various facts showing that stormwater discharges from BNSF’s facility indeed reached surface waters, including evidence relating to the impact of two separate spills from the facility in 2001 and 2010, and that CWA violations were likely to recur. In an August 10, 2010 decision, the court rejected BNSF’s motion for summary judgment based on issues of fact regarding whether the Balmer Yard requires a stormwater permit, the source of past discharges that reached surface waters and whether that potential facility itself is subject to the CWA, and whether multiple areas of operation are considered a single “facility.” The court also granted Puget Soundkeeper leave to amend its complaint to allege claims that BNSF was discharging pollutants without a National Pollutant Discharge Elimination System (NPDES) permit and that, after the time of bringing suit, BNSF was discharging pollutants in violation of its NPDES permit.

About a year later, in an August 19, 2011 decision, the court partially granted Puget Soundkeeper’s motions for summary judgment that: (1) BNSF violated the CWA by discharging stormwater associated with industrial activity from the Balmer Yard without a permit since November 2009 and that violations occurred on 78 specific dates; and (2) that BNSF violated the CWA by failing to comply with the terms of its stormwater permit over a lengthy period before November 2009. BNSF conceded liability on the first issue, acknowledging that it had erroneously concluded that stormwater from the Balmer Yard discharged to the combined sanitary sewer. Accordingly, BNSF conceded that the facility discharged without a permit between November 3, 2010 and March 28, 2011, when BNSF reacquired coverage for the facility under a new permit.

Regarding the second issue, the court assessed several dozen alleged violations dating back nearly ten years under multiple iterations of BNSF’s stormwater permit and granted summary judgment for Puget Soundkeeper on the significant majority of these issues. The court’s rulings in favor of Puget Soundkeeper addressed the following types of violations:

• SWPPPs. The court held that at least one of BNSF’s SWPPPs failed to include: a stormwater sampling plan or appropriate site map; descriptions of all relevant industrial activities; complete narratives describing the potential for pollutants in handled materials to be present in stormwater discharges; sufficiently specific statements of the schedule and frequency for inspections, including members of the pollution prevention team; specific BMPs and/or narratives regarding why some BMPs were unnecessary; required evaluations in the monitoring plan; and signatures from a duly authorized BNSF representative.
• Stormwater Sampling. The court granted summary judgment for Puget Soundkeeper on two issues related to the stormwater sampling that BNSF conducted. These issues included the failure to collect and analyze stormwater samples during specific quarters, or at least provide an explanation in the discharge monitoring reports (DMRs) for why the samples were not taken, and to include a valid signature on several DMRs from a duly authorized BNSF representative.
• Visual Monitoring. The court granted summary judgment for Puget Soundkeeper regarding several inadequacies of BNSF’s visual monitoring at the facility. These violations included the failure to: conduct adequate visual monitoring during specified quarters; document that inspections occurred during specified circumstances; and include signatures on the monitoring reports from a duly authorized representative.
• Adaptive Management. Puget Soundkeeper also recovered summary judgment regarding the inadequacy of BNSF’s response to benchmark exceedences during multiple sampling quarters in accordance with the specified requirements under Level 1, 2, or 3 responses. These violations included failures to: evaluate BMPs to reduce contamination levels below benchmark; include summaries in the SWPPP regarding additional BMPs implemented in response to exceedences; and have a duly authorized representative sign source control reports to Ecology.

Trial is currently set for January 3, 2012 to address remaining issues in the case. The court has not yet issued a pretrial order regarding the issues for trial and briefing regarding the scope of that pretrial order is ongoing.

For more information regarding this article, please contact Meline MacCurdy or any member of Marten Law’s Water Quality practice group.