Waste Action Project v. Astro Auto Wrecking, LLC

Citation: 274 F. Supp. 3d 1133Docket: CASE NO. C15-0796-JCC

Court: District Court, W.D. Washington; April 4, 2017; Federal District Court

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The legal proceedings, presided over by Judge John C. Coughenour, addressed a Clean Water Act (CWA) citizen lawsuit brought by Plaintiff Waste Action Project (WAP) against Defendant Astro Auto Wrecking for alleged violations of its National Pollutant Discharge Elimination System (NPDES) permits. The trial occurred from February 27 to March 2, 2017.

Key findings include:

1. WAP, a Washington non-profit focused on environmental protection, claims Astro has violated federal law by not adhering to multiple provisions of its NPDES permit.
2. Astro operates a 5.15-acre auto wrecking and recycling facility in Western Washington, characterized by a mix of paved, concrete, and bare soil areas, where it has processed vehicles since 2000.
3. The facility is adjacent to the east fork of Hylebos Creek, which is classified as impaired for copper, bacteria, and dissolved oxygen, necessitating a total maximum daily load (TMDL) or water quality improvement project.
4. Testimony indicated that Astro’s operations contribute to zinc and copper contamination due to the handling of automotive parts and petroleum products.
5. Astro is covered under the Washington Industrial Stormwater General Permit (ISGP) for stormwater discharges, with permits issued in 2010 and 2015, and it submitted its first stormwater pollution prevention plan (SWPPP) in April 2011, later updated in May 2015.
6. The statute of limitations for the case extends to March 22, 2010, and WAP complied with the CWA’s pre-suit notice requirement. 
7. The parties agreed to stipulate to injunctive relief prior to the trial.

On December 6, 2016, the Court partially granted the Plaintiffs' motion for summary judgment. Key findings included: 

1. WAP was deemed to have standing to sue, fulfilling notice and ongoing violation requirements.
2. Astro failed to implement several Best Management Practices (BMPs) related to fluid storage, stormwater recycling, and the management of junk vehicles from specified dates in 2015.
3. Astro did not conduct required stormwater discharge sampling during the first and fourth quarters of 2015 and the first quarter of 2016.
4. Astro failed to report compliance status in 40 monthly inspections, prepare 26 compliance reports, and submit accurate annual reports in 2011 and 2014. Additionally, corrective action requirements from those years were unmet.
5. The Court found Astro liable for at least 1,595 violations of the Clean Water Act (CWA), with remaining allegations to be assessed at trial.

Regarding BMP implementation, expert testimony from Mr. Neugebauer claimed a berm and trench system he designed was effective; however, witnesses Ms. Hickey and Mr. Young reported oily discharges from Astro’s facility. Testimony from Mr. McMilian suggested these discharges originated from a housing development, but evidence indicated otherwise. The Court concluded that the discharges likely contained petroleum or petroleum byproducts and that Astro's current measures were insufficient compared to the required BMPs.

For the failure to submit Discharge Monitoring Reports (DMRs) in 15 quarters, the Court found that the Plaintiff did not adequately demonstrate Astro's non-compliance, as the evidence presented did not rule out human error in report filings before May 2015.

Astro also violated copper effluent limits, with a stormwater discharge in 2011 containing copper at 36 parts per billion, exceeding the limit of 2.7 parts per billion.

A copper concentration of .054 parts per billion was reported in a sample, which the Plaintiff's expert deemed a reporting error, suggesting a more accurate reading would be 5.4 or 54 parts per billion, though he acknowledged this as speculation. The Defendant’s expert countered that some labs can detect copper in parts per trillion, potentially justifying the low reading. No original lab report was submitted, nor was there evidence regarding which lab conducted the test or its capabilities. The Plaintiff did not conduct independent tests, relying solely on results from 2011 and 2014. The Court concluded that the Plaintiff failed to prove the 2014 test result was erroneous or that any discharge exceeded copper limits.

Evidence presented showed that any precipitation event of 0.68 inches or more within 24 hours could produce a discharge eligible for sampling. Data from SeaTac International Airport indicated there were at least 115 days with such precipitation from May 21, 2010, to February 9, 2017, leading to the conclusion that Astro did not sample discharges during 19 quarters when sampling should have occurred.

Astro has incurred losses annually since 2010, spending over $100,000 on compliance efforts. Testimony indicated that a maximum fine of $50,000 would threaten Astro's viability, and there was insufficient evidence of financial gain from Clean Water Act (CWA) violations.

The Court outlined economically and technically feasible injunctive relief for Astro to remedy alleged CWA violations, including compliance with the CWA regarding industrial stormwater discharges and installation of specific infrastructure by March 31, 2018. This includes concrete pads and an oil/water separator, along with stormwater collection and infiltration devices to be completed by March 31, 2019, unless complications arise due to soil contamination or groundwater. The stipulation clarifies that the Plaintiff retains the right to pursue separate CWA violation claims.

Astro is required to complete soil testing by October 31, 2018, which includes collecting at least eight soil samples from the top six inches of the excavation area. The samples must be representative and can be combined into no fewer than two for analysis, focusing on pollutants including pH, conductivity, metals, organics, and petroleum hydrocarbons as specified in the 2015 General Permit. If any sample exceeds permitted thresholds or if groundwater is encountered, Astro must notify WAP within 14 days and propose an alternative stormwater treatment system within 90 days, with installation required by May 17, 2019. WAP will have the right to verify task completion with seven days' notice. Additionally, within six months after completing specific tasks, Astro must update the Stormwater Pollution Prevention Plan (SWPPP) and send it to WAP.

The Court has jurisdiction and venue is appropriate in the Western District of Washington, as Astro is located there. Citizen plaintiffs are acting as private attorneys general under the Clean Water Act (CWA), seeking enforcement for public benefit. The Court confirms the plaintiffs have standing and have adhered to CWA requirements for their suit. Astro’s defense regarding the adequacy of its current systems was rejected. The Court found Astro in violation of sections 301(a) and 402 of the CWA for failing to implement several best management practices (BMPs) required by the SWPPP, resulting in approximately 2,400 violations since May 21, 2010. Additionally, Astro failed to perform a required Level 1 corrective action for oil sheen in the fourth quarter of 2015, constituting one more violation of the CWA.

Astro has violated sections 301(a) and 402 of the Clean Water Act (CWA) by failing to sample stormwater discharge over 19 quarters, resulting in 19 distinct violations. However, the Plaintiff did not prove that Astro failed to submit discharge monitoring reports for 15 quarters, leading to the dismissal of that claim with prejudice. Additionally, the Plaintiff's claim regarding the discharge of copper exceeding effluent limits was also dismissed with prejudice.

The Court possesses broad authority under the CWA to impose equitable remedies, emphasizing that the primary purpose of CWA penalties is deterrence. Civil penalties can reach up to $37,500 per day for violations before November 2, 2015, and $51,570 per day for those after. Astro is found liable for approximately 4,015 CWA violations, amounting to over $150 million in potential fines.

Despite this, the Court has ordered stipulated injunctive relief and determined that imposing a substantial penalty would hinder Astro’s compliance efforts and potentially jeopardize its business. Consequently, a deferred penalty of $50,000 is imposed, which Astro must use to meet the injunctive relief conditions. If these conditions are unmet by November 2019, the penalty will be enforced.

The Court retains jurisdiction to ensure compliance and recognizes Waste Action Project as a substantially prevailing party entitled to litigation cost recovery. The Plaintiff must provide a detailed accounting of expenses by April 28, 2017, with the Defendant allowed to object by May 12, 2017, and the Plaintiff to reply by May 26, 2017. If found reasonable, the Court will order full payment of these expenses by the Defendant.