UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Conservation Law Foundation, Inc.
Case No. 18-cv-996-PB
v. Opinion No. 2020 DNH 150
New Hampshire Fish and Game Department, et al.
MEMORANDUM AND ORDER
The Conservation Law Foundation (“CLF”), a non-profit
environmental advocacy organization, brought this citizen suit
for injunctive and declaratory relief under Section 505 of the
Clean Water Act (“CWA”) against the Executive Director of the
New Hampshire Fish and Game Department (“NHF&G”) and the eleven
individual officers who serve as commissioners of the New
Hampshire Fish and Game Commission (collectively “defendants”).1
CLF alleges that the Powder Mill State Fish Hatchery (“the
Facility”), which is owned by the state and operated by the
defendants, has for several years been discharging pollutants
into the Merrymeeting River in violation of the Facility’s
National Pollutant Discharge Elimination System (“NPDES”)
permit. CLF bases its claims on two types of what it alleges are
1 CLF stipulated earlier to a dismissal of the New Hampshire Fish & Game Department (“NHF&G”) and the New Hampshire Fish & Game Commission as defendants. Joint Stipulation & Notice of Dismissal of NHF&G, the Comm’n, Barry Carr, & Todd Baldwin with Prejudice, Doc. No. 29 at 1–2.
ongoing CWA violations. The first — “Outfall Discharge” claims —
are based on current and anticipated releases of phosphorus and
other pollutants directly from the Facility’s two outfalls. The
remaining claims — “Sediment Discharge” claims — stem from past
releases of phosphorus by the Facility that have settled into
sediments at the bottom of the river and continue to leach into
the river.
The parties have filed cross-motions for summary judgment
(Doc. Nos. 72, 73) addressing both types of claims. For the
reasons that follow, I grant defendants’ motion with respect to
the Sediment Discharge claims and grant in part and deny in part
each side’s motion with respect to the Outfall Discharge claims.
I. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In this context, a “material fact” is one that “ha[s] the
‘potential to affect the outcome of the suit under the
applicable law.’” Cherkaoui v. City of Quincy, 877 F.3d 14, 23
(1st Cir. 2017) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227
(1st Cir. 1996)). A “genuine dispute” exists if “a reasonable
jury could resolve the” disputed fact in the nonmovant’s favor.
2
Ellis v. Fidelity Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018)
(quoting Cherkaoui, 877 F.3d at 23–24).
The movant bears the initial burden of presenting evidence
that “it believes demonstrate[s] the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); accord Flovac, Inc. v.
Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016). Once the movant
has properly presented such evidence, the burden shifts to the
nonmoving party to “designate ‘specific facts showing that there
is a genuine issue for trial,’” Celotex, 477 U.S. at 324, and to
“demonstrate that a trier of fact could reasonably resolve that
issue in its favor,” Flovac, 817 F.3d at 853 (brackets omitted)
(internal quotation marks omitted) (quoting Borges ex rel.
S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If
the nonmovant fails to produce this evidence, then the motion
must be granted. Id.
When the parties file cross-motions for summary judgment, I
“view each motion separately, drawing all inferences in favor of
the nonmoving party.” Giguere v. Port Res. Inc., 927 F.3d 43, 47
(1st Cir. 2019) (internal quotation marks omitted) (quoting
Fadili v. Deutsche Bank Nat. Tr. Co., 772 F.3d 951, 953 (1st
Cir. 2014)).
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II. BACKGROUND
A. The Facility
NHF&G established the Facility in 1947. Fact Sheet at 3,
Ex. 3 to Decl. of Heather A. Govern in Supp. of Pl. CLF’s Mot.
for Summ. J. (“Govern Decl.”), Doc. No. 47-5. It has since been
expanded twice and — as of the issuance of its most recent NPDES
permit — raises “[e]astern brook trout, rainbow trout, . . .
brown trout[,]” and “landlocked salmon[.]” Fact Sheet at 3, Doc.
No. 47-5. The Facility complex includes “a [h]atchery [h]ouse,
seven series of raceways, three [s]how [p]onds, four [w]oods
[p]onds, four [b]ass [p]onds, and [twenty-seven] [c]ircular
[t]anks . . . .” Fact Sheet at 3, Doc. No. 47-5. It is capable
of producing up to 265,000 harvestable pounds of fish annually.
Fact Sheet at 3, Doc. No. 47-5.
As part of its operation, the Facility draws water from the
Merrymeeting River, a “Class B waterbody pursuant to [New
Hampshire Revised Statutes Annotated Section] 485-A:8 . . . .”
Fact Sheet at 6, Doc. No. 47-5.2 The Facility then discharges
water back into the Merrymeeting River through two outfalls,
Outfall 001 and Outfall 002. Fact Sheet at 10, Doc. No. 47-5.
Downstream of these outfalls, the Merrymeeting River flows into
2 “Class B waterbodies are considered suitable for fishing, swimming[,] and other recreational purposes, and for use as a water supply after adequate treatment.” Fact Sheet at 6, Doc. No. 47-5.
4
Marsh Pond, James Pond, Downing Pond, and, eventually, Lake
Winnipesaukee. FB Envtl. Assocs., Merrymeeting River & Lake
Watershed Management Plan iv (Sept. 2019), Ex. 1 to Govern
Decl., Doc. No. 47-3.
B. The 2011 Permit
The U.S. Environmental Protection Agency (“EPA”) has
designated the Facility “as a concentrated aquatic animal
production . . . facility . . . .” Fact Sheet at 3, Doc. No. 47-5. Based upon this designation, the EPA issued the Authorization
to Discharge under the NPDES (“2011 Permit”), which imposes
limitations and standards on the Facility’s discharges, as well
as institutes monitoring and reporting requirements. 2011 Permit
at 2–16, Doc. No. 47-5. The 2011 Permit expired in December
2016, 2011 Permit at 1, Doc. No. 47-5, and has since been
administratively continued, Aff. of Jason Smith (“2019 Smith
Aff.”), Ex. A to State’s Partial Mot. for Summ. J., Doc. No. 44-2 at 2 ¶ 5, Nov. 26, 2019. In December 2019, the EPA issued a
draft NPDES permit to replace the expired permit (“2019 Draft
Permit”). N.H. Dep’t of Envtl. Servs. & EPA Joint Pub. Re-Notice
of Pub. Cmt. Period & Notice of a Pub. Hr’g, Pub. Notice No. NH12-19, Ex. A-1 to Aff. of Jason Smith, Jan. 3, 2020 (“2020 Smith
Aff.”), Doc. No. 53-3 at 1. The public comment period for the
2019 Draft Permit ended on February 14, 2020. Doc. No. 53-3 at
1. The EPA has yet to issue a final renewed permit. The language
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in the 2011 permit relevant to each count alleged in CLF’s
amended complaint is as follows.
1. State Water Quality Standards - Phosphorous (Count I)
Under the 2011 Permit, the Facility’s “discharge shall not
cause a violation of the [state] water quality standards of the
receiving water.” 2011 Permit, pt. I.A.3, at 7, Doc. No. 47-5.
New Hampshire water quality standards require that “[a]ll
surface waters . . . be restored to meet the water quality
criteria for their designated classification[,] including
existing and designated uses, and to maintain the chemical,
physical, and biological integrity of surface waters,” N.H. Code
Admin. R. Env-Wq § 1703.01(b), and that “[a]ll surface waters
. . . provide, wherever attainable, for the protection and
propagation of fish, shellfish[,] and wildlife, and for
recreation in and on the surface waters,” id. § 1703.01(c). The
standards further state that “[u]nless otherwise specifically
allowed by a statute, rule, order, or permit,” N.H. Code Admin.
R. Env-Wq § 1703.03(c), “[a]ll surface waters shall be free from
substances in kind or quantity that,” id. § 1703.03(c)(1),
[s]ettle to form harmful benthic deposits; . . . [f]loat
as foam, debris, scum[,] or other visible substances;
. . . [p]roduce odor, color, taste or turbidity that is
not naturally occurring and would render the surface
water unsuitable for its designated uses; . . . [r]esult
in the dominance of nuisance species; or . . .
[i]nterfere with recreational activities,
id. § 1703.03(c)(1)(a)—(e).
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Class B waters, such as the Merrymeeting River, “shall have
a dissolved oxygen content of . . . (1) [a]t least [seventy-five
percent] of saturation, . . . based on a daily average; and (2)
[a]n instantaneous minimum dissolved oxygen concentration of at
least [five milligrams per liter].” N.H. Code Admin. R. Env-Wq
§ 1703.07(b). Class B waters cannot “contain . . . benthic
deposits that have a detrimental impact on the benthic
community, unless naturally occurring.” N.H. Code Admin. R. EnvWq § 1703.08(b). Class B waters also cannot “contain . . . color
in such concentrations that would impair any existing or
designated uses, unless naturally occurring.” N.H. Code Admin.
R. Env-Wq § 1703.10(b).
Finally, the regulations prohibit Class B waters from
containing “phosphorus . . . in such concentrations that would
impair any existing or designated uses, unless naturally
occurring.” N.H. Code Admin. R. Env-Wq § 1703.14(b). Any
“[e]xisting discharges containing phosphorus[,]” therefore, that
“encourage cultural eutrophication shall be treated to remove
the nutrient(s) to ensure attainment and maintenance of water
quality standards,” id. § 1703.14(c), and “[t]here shall be no
new or increased discharge containing phosphorus . . . to
tributaries of lakes or ponds that would contribute to cultural
eutrophication or growth of weeds or algae in such lakes or
ponds,” id. § 1703.14(e).
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2. Narrative Requirements - Phosphorous (Count II)
The 2011 Permit requires that the Facility’s
discharge . . . be adequately treated to ensure that the
receiving water remains free from pollutants in
concentrations or combinations that settle to form
harmful deposits, float as foam, debris, scum or other
visible pollutants. It shall be adequately treated to
ensure that the receiving water remain free from
pollutants which produce odor, color, taste[,] or
turbidity [that] is not naturally occurring and would
render it unsuitable for its designated uses.
2011 Permit, pt. I.A.4, at 7, Doc. No. 47-5. It further requires
that “[n]o components of the effluent . . . result in any
demonstrable harm to aquatic life . . . .” 2011 Permit, pt.
I.A.5.a, at 7, Doc. No. 47-5.
3. Formaldehyde Discharge Limits (Count III)
The 2011 Permit contemplates that defendants will use
formalin, a mixture of formaldehyde gas in water with methanol.
Fact Sheet at 4, Doc. No. 47-5. Formalin is “[a]dded as needed
to culture water to control external parasites on fish and
eggs.” Fact Sheet at 4, Doc. No. 47-5. The Facility’s use of
formalin is subject to two limits on the milligram-per-liter
(“mg/l”) concentration of formaldehyde in the Facility’s
outfalls: a maximum daily concentration of 4.6 mg/l and a
maximum monthly average concentration of 1.6 mg/l. 2011 Permit,
pt. I.A.1, at 3; pt. I.A.2, at 5, Doc. No. 47-5.
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4. pH Limits (Counts IV & V)
The 2011 Permit requires that
[t]he pH of the [Facility’s] discharge shall be in the
range of 6.5 to 8.0 standard units ([“]S.U.[”])[,]
unless the upstream ambient pH in the receiving water is
outside of this range, and is not altered by the
[F]acility’s discharge or activities. If the permittee’s
discharge pH is lower than 6.5 S.U., the permittee may
demonstrate compliance by showing that the discharge pH
is either higher than, or no more than 0.5 S.U. lower
than, the ambient upstream river water pH.
2011 Permit, pt. I.D.1.a, at 16, Doc. No. 47-5; accord 2011
Permit, pt. I.A.1, at 2; pt. I.A.2, at 4, Doc. No. 47-5
(providing charts of discharge limitations for each outfall).3
5. Cleaning Water (Count VI)
The 2011 Permit requires that
[t]here . . . be no direct discharge of “cleaning water.”
Cleaning water is defined as any water from the
[F]acility’s hatchery house, raceways, ponds, canals,
circular tanks, etc. [that] contains settled solids that
have accumulated on the bottom of such structures that
is discharged, absent some form of solids removal,
directly to the receiving water during periodic cleaning
operations. The discharge of water from the hatchery
house, or any raceway, pond, canal, circular tank, etc.
to a settling tank, empty raceway and/or clarifier for
3 Although CLF has styled Count IV as a violation of the 2011 permit based on Part I.A., and Count V as a violation of identical “state certification requirements” based on Part I.D., a close inspection of the permit reveals that they are one and the same. A footnote to Parts I.A.1 and 2 reads, “Limit is a State Certification Requirement.” 2011 Permit, pt. I.A.1 & 2, at 6 n.4, Doc. No. 47-5. In any event, this distinction is immaterial because, as I explained at the October 8, 2019 hearing on defendants’ motion to dismiss, there is no potential for improper duplicative relief based on these two pH-related counts.
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the purposes of settling solids, including the temporary
storage of those solids, is allowed. The discharges of
any decant water that accumulates above those solids
and/or any water that flows slowly over those solids is
allowed.
2011 Permit, pt. I.A.9, at 8, Doc. No. 47-5.
6. The Best Management Practices (“BMP”) Plan (Count VII)
The 2011 Permit states that the Facility “must continue to
implement and maintain a BMP Plan . . . .” 2011 Permit, pt.
I.B.4, at 10, Doc. No. 47-5. The BMP Plan “must address, at a
minimum, . . . [s]olids [c]ontrol . . . .” 2011 Permit, pt.
I.B.4—4.a, at 11, Doc. No. 47-5. Specifically, “[i]n order to
minimize the discharge of accumulated solids from settling
tanks, basins[,] and production systems,” the BMP Plan must
“identify and implement procedures for routine cleaning of
rearing units and settling tanks . . . .” 2011 Permit, pt.
I.B.4.a.ii, at 11, Doc. No. 47-5. Defendants’ most recent BMP
Plan, adopted pursuant to the 2011 Permit, prescribes a process
by which each pool of the seven raceways “is cleaned
approximately once per week, or once every two weeks in winter,
when in use . . . .” NNF&G, BMP Plan (Sept. 2019), Ex. 4 to
Govern Decl., Doc. No. 47-6 at 4. “The [twenty-four] round tanks
are cleaned about once every two weeks.” Doc. No. 47-6 at 4.
C. Alleged Violations of the 2011 Permit
CLF alleges that the following conduct by defendants
constitute violations of the 2011 Permit.
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1. State Water Quality Standards and 2011 Permit
Narrative Requirements - Phosphorous (Counts I & II)
CLF alleges that defendants are violating the 2011 Permit
because, although the permit contains no numerical limit for the
discharge of phosphorus,4 defendants’ phosphorus discharges cause
violations of the state water quality standards and the 2011
Permit narrative requirements that I have outlined above. The
primary mechanism by which CLF alleges that the phosphorus
discharges impact the waterbody is by “trigger[ing] the growth
of invasive aquatic plants, algae, and cyanobacteria (a bluegreen, algae-like bacteria).” Pl. CLF’s Consol. Mem. of Law in
Supp. of Its Mot. for Summ. J. & Its Obj. to Defs.’ Partial
Cross[-]Mot. for Summ. J., Doc. No. 75 at 10. This growth
contributes to hypoxia, which kills fish and results in the
4 Defendants point out repeatedly that the permit includes no numerical limit on phosphorus discharge. See, e.g., Defs.’ Consol. Mem. of Law in Supp. of State’s Partial Mot. for Summ. J. & in Obj. to Pl.’s Mot. for Summ. J. (“Defs.’ Consol. Mem.”), Doc. No. 78 at 2, 16, 17, 36 n.4. They made clear at the July 29, 2020 hearing on the cross-motions for summary judgment, however, that they do not argue that the absence of a numeric limit on phosphorus precludes plaintiff’s phosphorus-based claims. I agree that the law would not support such a contention. See PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700, 714–15, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994) (rejecting the argument that only specific numerical criteria can give rise to CWA liability); Paolino v. JF Realty, LLC, 710 F.3d 31, 39 & n.7, 42 (1st Cir. 2013) (reversing district court’s dismissal and permitting suit to go forward based on alleged violations of state water quality standards incorporated into NPDES permit).
11
“dominance of nuisance species[,] like variable milfoil and
filamentous green algae[,] at the expense of biological
diversity.” Doc. No. 75 at 11. The cyanobacteria also release
cyanotoxins, which “are among the most powerful natural poisons
known.” Cyanobacteria Blooms FAQs, Ex. 17 to Govern Decl., Doc.
No. 47-19 at 1.5
CLF identifies two processes by which defendants allegedly
discharge phosphorus into the Merrymeeting River. First, the
Facility’s own data from its reports to the EPA show that the
Facility directly discharges hundreds of pounds of phosphorus
per year from its two outfalls. E.g., 2019 Pollutant Loading
Report at 1, Ex. 7 to Govern Decl., Doc. No. 47-9 (showing 431
pounds of phosphorus discharge in 2019 reported as of November
26, 2019); 2018 Pollutant Loading Report at 1, Doc. No. 47-9 at
6 (showing 1,354 pounds of phosphorus discharge in 2018); 2017
Pollutant Loading Report at 1, Doc. No. 47-9 (showing 983 pounds
of phosphorus discharge in 2017). One of CLF’s experts
identifies the Facility as “the single largest point source of
5 At times, defendants have appeared to argue that their phosphorus discharges do not violate the water quality standards or narrative standards because the algae and cyanobacteria, and not the phosphorus, cause these violations. See, e.g., Doc. No. 78 at 21–22. At the hearing on these cross-motions, however, defendants made clear that they do not, in fact, argue that there can be no CWA liability for violations caused by cyanobacteria and algae blooms that are, in turn, directly caused by phosphorus discharges.
12
[phosphorus] to the watershed.” Report of J.E. Jack Rensel
M.Sc., Ph.D., Ex. 15 to Govern Decl., Doc. No. 47-17 at 3. These
alleged violations stemming from the Facility’s current and
anticipated discharges from its outfalls are what I have
referred to as “Direct Discharges” in earlier orders and what I
refer to as “Outfall Discharges” in this order.
Second, according the same expert, discharged phosphorus
settles into sediments at the bottom of the ponds downstream
from the Facility. Doc. No. 47-17 at 11. Then, through a process
called “internal loading,” phosphorus from these deposits is rereleased into the water column “after hypoxia or physical
disturbance breaks the chemical bonds holding it in place.” Doc.
No. 47-17 at 3. These internal loading discharges of phosphorus
are what I have referred to as “Indirect Discharges” in earlier
orders and what I refer to as “Sediment Discharges” in this
order.
2. Formaldehyde Discharge Limits (Count III)
CLF identifies two past formalin treatments that resulted
in reported formaldehyde concentrations at the Facility’s
outfalls in excess of permit limits. See Doc. No. 75 at 14–15.
First, following a September 2016 sampling analysis, defendants
reported a daily maximum formaldehyde concentration of 75 mg/l
(far above the permitted daily maximum concentration of 4.6
mg/l). NPDES Discharge Monitoring Report (“DMR”) (Sept. 30,
13
2016) at 2, Ex. 7 to Govern Decl., Doc. No. 47-9; accord Doc.
No. 75 at 15. Then, in November 2017, defendants reported a
daily maximum formaldehyde concentration of 8.8 mg/l and a
monthly average formaldehyde concentration of 3.26 mg/l (above
the permitted monthly average concentration of 1.6 mg/l). NPDES
DMR (Nov. 30, 2017) at 2, Doc. No. 47-9; accord Doc. No. 75 at
15. CLF further argues that, because the parasite infestations
that defendants treat with formalin “are seasonally recurring,”
Doc. No. 75 at 14, and because defendants “maintain supplies of
formalin on[-]site at the Facility,” Doc. No. 75 at 15, the
formaldehyde concentration violations are likely to recur, Doc.
No. 75 at 35–36.
3. pH Limits (Counts IV & V)
Plaintiff alleges — and defendants do not dispute — that
the Facility’s Outfall Discharges have, on occasion, been more
acidic than is allowed under the 2011 Permit. Doc. No. 75 at 36–
37; Defs.’ Consol. Mem., Doc. No. 78 at 10. Defendants provided
data showing numerous samples taken over the past four years
that were both “below 6.5 S.U. and more than 0.5 S.U. below the
pH measured at the inflow.” Doc. No. 78 at 10; accord pH Data,
Ex. A-3 to 2020 Smith Aff., Doc. No. 53-5 at 1. Most recently,
in 2019 (the year after CLF commenced this suit), the Facility
took 104 pH measurements (once per week at each of the two
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outfalls), nine of which were more acidic than permitted. Doc.
No. 78 at 10; accord Doc. No. 53-5 at 1.
4. Cleaning Water (Count VI)
Defendants periodically vacuum waste from the Facility’s
rearing units, generating “a slurry of water and fish waste”
referred to as “cleaning water.” Doc. No. 44-2 at 4 ¶ 14. Prior
to the commencement of this suit, defendants disposed of this
cleaning water by depositing it into settling ponds. Doc. No.
44-2 at 4 ¶ 14. Solids in the waste settled to the bottom of
these ponds while the excess decant water flowed “over dam
boards” and out one of the outfalls. Doc. No. 44-2 at 4 ¶ 14.
The settled solids were then removed from the settling ponds
approximately once a year and applied to “local agricultural
fields.” Doc. No. 44-2 at 4 ¶ 14. Plaintiffs allege that the
decant water releases violate the 2011 Permit.
In the summer of 2019, the Facility ceased using the
settling ponds for cleaning water. See Doc. No. 44-2 at 4 ¶ 15.
Instead, defendants devised “a new . . . waste treatment system”
that uses a series of circular tanks to collect settled waste in
cleaning water. Doc. No. 44-2 at 4 ¶ 15. Vegetation in the tanks
is intended to remove excess phosphorus from the cleaning water.
Doc. No. 44-2 at 4 ¶ 16. The resulting effluent then passes
through a sand filter, filter bags, and wood chips and is
discharged into the ground. Doc. No. 44-2 at 4–5 ¶ 16.
15
Defendants contend that this new waste treatment system moots
plaintiffs’ cleaning water claim.
5. The Best Management Practices (“BMP”) Plan (Count VII)
Defendants maintain a log “documenting when the loads of
vacuumed solids” are transported from rearing units to settling
ponds or tanks for regular cleaning. Doc. No. 75 at 16; accord
Loads Hauled Log, Ex. 30 to Govern Decl., Doc. No. 47-32. For
the purposes of its claim, CLF considers “[d]efendants to have
cleaned ‘approximately weekly’” when cleanings occurred “no more
than [eleven] days apart.” Doc. No. 75 at 17 n.8. Based on this
definition, CLF identifies “[twenty-six] times in the spring,
summer, and fall” of 2019 when defendants did not clean the
rearing units “approximately weekly.” Doc. No. 75 at 17; accord
Summ. Chart: Frequency of Raceway Cleaning at the Facility in
2019, Ex. 32 to Govern Decl., Doc. No. 47-34. CLF further
identifies “[eight] times in the winter” of 2019, Doc. No. 75 at
17, when defendants did not clean the rearing units “about once
every two weeks,” Doc. No. 75 at 16, although CLF does not
specify the number of days it used to judge this metric.
Plaintiffs’ argue that defendants’ failure to keep up with the
cleaning schedule required by the BMP violates the 2011 Permit.
16
D. Remedies Sought
The remedies CLF seeks include “a declaratory judgment,
pursuant to 28 U.S.C. § 2201, that [d]efendants have violated
and remain in violation of the [2011] Permit, Section 301(a) of
the [CWA], 33 U.S.C § 1311(a), and applicable regulations[;]” an
injunction preventing defendants “from violating the
requirements of the [2011] Permit, Section 301(a) of the [CWA],
33 U.S.C. § 1311(a), applicable [CWA] regulations, and the State
Certification requirement; . . . an injunction requiring
[d]efendants to remove sediments from the receiving water; . . .
[and] reasonable attorney and expert witness fees . . . .” First
Am. Compl. for Declaratory & Injunctive Relief & Civil
Penalties, Doc. No. 20 at 28–29.6
III. ANALYSIS
My analysis of CLF’s claims is governed by the CWA and the
Eleventh Amendment. I outline each relevant area of law before
applying both to the facts of this case.
6 At the hearing on defendants’ motion to dismiss, CLF abandoned any claim to civil penalties, as barred by the Eleventh Amendment.
17
A. Relevant Law
1. The CWA
The CWA aims “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33
U.S.C. § 1251(a). To achieve this goal, the CWA “makes unlawful
the discharge of any pollutant into navigable waters except as
authorized by specified sections of the Act.” Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
52, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987) (citing 33 U.S.C.
§ 1311(a)). For purposes of the CWA, a “discharge of a
pollutant” and the “discharge of pollutants” mean “any addition
of any pollutant to navigable waters from any point source
. . . .” 33 U.S.C. § 1362(12). “Point source,” in turn, means
“any discernible, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged.” Id. § 1362(14).7
7 By contrast, “Congress intended to leave substantial responsibility and autonomy to the States” for the regulation of nonpoint source pollution. Cnty. of Maui v. Haw. Wildlife Fund, ___ U.S. ___, 140 S. Ct. 1462, 1471, 206 L. Ed. 2d 640 (2020) (citing CWA § 101(b), 86 Stat. 816, 816 (1972) (codified as amended at 33 U.S.C. § 1251(b))).
18
One exception to the CWA’s ban on point source discharges
is the National Pollutant Discharge Elimination System (NPDES),
which allows the Administrator of the EPA to “issue a permit for
the discharge of any pollutant, or combination of pollutants”
under certain conditions. 33 U.S.C. § 1342(a)(1). Thus, “all
discharges from a ‘point source’ . . . must obtain an [NPDES]
permit.” Conservation L. Found., Inc. v. Pruitt, 881 F.3d 24, 26
(1st Cir. 2018) (citing §§ 1362(14), 1342(a)).
State and federal authorities may enforce the terms of an
NPDES permit through suits. See generally 33 U.S.C. §§ 1319,
1342(b)(7). Congress intended “[t]he great volume of enforcement
actions [to] be brought by the [s]tate.” N. & S. Rivers
Watershed Ass’n v. Town of Scituate, 949 F.2d 552, 557 (1st Cir.
1991) (internal quotation marks omitted) (quoting Gwaltney, 484
U.S. at 60). Private citizens also share an enforcement role,
albeit a more limited one. A citizen may bring a civil
enforcement action “against any person . . . alleged to be in
violation of” the conditions of an NPDES permit. 33 U.S.C.
§ 1365(a)(1). The “in violation of” requirement prohibits
citizens — but not state and federal authorities — from bringing
suits for “wholly past violations.” Gwaltney, 484 U.S. at 58,
64. The citizen suit provision “confers jurisdiction . . . when
the citizen-plaintiffs make a good-faith allegation of
continuous or intermittent violation . . . .” Id. at 64. The
19
CWA, therefore, grants a district court subject matter
jurisdiction to adjudicate
only citizen suits alleging that defendants are in
violation of the [CWA] at the time suit is brought
. . . . But once a citizen suit is brought and
establishes a present violation, there is nothing in the
statute or in Gwaltney that prevents a court from
ordering equitable relief to remedy the harm done in the
past.
U.S. Pub. Int. Rsch. Grp. v. Atl. Salmon of Me., LLC, 339 F.3d
23, 33 (1st Cir. 2003). In addition to an injunction, the
district court may award attorneys’ fees and, when the defendant
is a private party, impose civil penalties. § 1365(a), (d).
2. The Eleventh Amendment
The Eleventh Amendment provides that “[t]he Judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State . . . .” U.S.
Const. amend XI. “Long interpreted as an affirmation of state
sovereign immunity[,]” the Eleventh “[A]mendment (despite its
literal text) also bar[s] a citizen from bringing a federal
court action against his or her own State.” Maysonet-Robles v.
Cabrero, 323 F.3d 43, 48 (1st Cir. 2003) (footnote omitted).
This immunity “extends to bar suits against state agents and
instrumentalities . . . .” Id. (citing Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429, 117 S. Ct. 900, 137 L. Ed. 2d 55
(1997)).
20
The Eleventh Amendment’s prohibition is, however, “subject
to a well[-]recognized exception” described in Ex parte Young,
209 U.S. 123, 159–60, 28 S. Ct. 441, 52 L. Ed. 714 (1908). Town
of Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015)
(internal quotation marks omitted) (quoting Rosie D. ex rel.
John D. v. Swift, 310 F.3d 230, 234 (1st Cir. 2002)). This
exception “permits ‘federal courts, notwithstanding the absence
of consent, waiver[,] or evidence of congressional assertion of
national hegemony, [to] enjoin state officials to conform future
conduct to the requirements of federal law.’” Id. (alteration in
original) (quoting Rosie D., 310 F.at 234). The Ex parte Young
exception is, itself, subject to an exception articulated in
Edelman v. Jordan, 415 U.S. 651, 666, 94 S. Ct. 1347, 39 L. Ed.
2d 662 (1974). “The distinction between that relief permissible
under the doctrine of Ex parte Young and that found barred in
Edelman [is] the difference between prospective relief on [the]
one hand and retrospective relief on the other.” Quern v.
Jordan, 440 U.S. 332, 337, 99 S. Ct. 1139, 59 L. Ed. 2d 358
(1979). “The Constitution does not permit relief that ‘would
have much the same effect as a full-fledged award of damages or
restitution by the federal court . . . .’” O’Connor, 786 F. 3d
at 138 (quoting Mills v. Maine, 118 F.3d 37, 55 (1st Cir.
1997)). Put differently, “[t]he key question . . . is whether
the” relief sought
21
requires the payment of funds or grants other relief,
“not as a necessary consequence of compliance in the
future with a substantive federal question
determination, but as a form of compensation” or other
relief based on or flowing from violations at a prior
time when the defendant “was under no court-imposed
obligation to conform to a different standard.”
Guardians Ass’n v. Civ. Serv. Comm’n, 463 U.S. 582, 604, 103 S.
Ct. 3221, 77 L. Ed. 2d 866 (1983) (quoting Edelman, 415 U.S. at
668). The Eleventh Amendment similarly bars federal courts from
granting declaratory relief related solely to past violations of
federal law. See Green v. Mansour, 474 U.S. 64, 74, 106 S. Ct.
423, 88 L. Ed. 2d 371 (1985).
B. Application
CLF’s most substantial claims allege that defendants are
discharging large quantities of phosphorous into the
Merrymeeting River in violation of the 2011 Permit. I begin by
analyzing CLF’s phosphorous claims and then take up each of its
remaining claims in turn.
1. Phosphorous Claims (Counts I and II)
Although CLF’s complaint does not separate its Sediment
Discharge claims from its Outfall Discharge claims, I view these
two types of alleged violations as analytically distinct.
Accordingly, I first address CLF’s Sediment Discharge claims:
the category of claims encompassing the portions of Counts I and
II that allege violations of the 2011 Permit due to “internal
22
loading” of phosphorus that left the Facility’s outfalls and
settled into sediment in the receiving waters before plaintiffs
filed their complaint. I then address CLF’s Outfall Discharge
claims, which include those portions of Counts I and II that
allege violations of the 2011 Permit due to the Facility’s
current and anticipated discharges of phosphorus from its
outfalls.
i. Sediment Discharge Claims
There can be no doubt that CLF has alleged an ongoing
violation of the CWA under Gwaltney. Defendants’ present
discharges from their outfalls are, perhaps, paradigmatic point
source discharges. CLF’s good-faith allegations that those
discharges continue to violate provisions of defendants’ NPDES
permit and incorporated state water quality standards are
unambiguous allegations of “continuous or intermittent
violation[s].” Gwaltney, 484 U.S. at 64. This is plainly
sufficient to establish subject matter jurisdiction under the
CWA for both plaintiffs’ Sediment Discharge claims and their
Outfall Discharge claims. See Atl. Salmon of Me., 339 F.3d at
33. Defendants argue, however, that the relief CLF seeks with
respect to the Sediment Discharge claims — namely, an injunction
requiring defendants to remove or otherwise remediate the
phosphorus-laden sediments — is a form of retrospective relief
barred by the Eleventh Amendment. See Doc. No. 73 at 8 ¶ 30.
23
CLF counters with two legal theories. First, it argues that
the sediments are, themselves, point sources attributable to
defendants. Doc. No. 75 at 20. Because the sediments continue to
discharge phosphorus, CLF argues, an injunction requiring
defendants to eliminate those discharges is necessarily a
prospective form of relief not barred by the Eleventh Amendment.
Second, CLF argues that, even if the sediments are not point
sources, the Sediment Discharges represent the lingering effects
of prior Outfall Discharges. According to CLF, an injunction to
clean up the contaminated sediments does not violate the
Eleventh Amendment under this “continuing violation” theory
because it would merely require the defendants to end what CLF
argues is an ongoing violation of the CWA. See Doc. No. 75 at
20–21. Neither argument is ultimately persuasive.
a. Sediments as a Point Source
CLF’s argument that the sediments at the bottom of the
receiving waters are, themselves, point sources cannot be
reconciled with the CWA’s definition of “point source.” To be
sure, there is support for the proposition that “[t]he concept
of a point source was designed to . . . embrac[e] the broadest
possible definition of any identifiable conveyance from which
pollutants might enter waters of the United States.” Dague v.
City of Burlington, 935 F.2d 1343, 1354–55 (2d Cir. 1991)
(quoting United States v. Earth Scis., Inc., 599 F.2d 368, 373
24
(10th Cir. 1979)), rev’d in part on other grounds, 505 U.S. 557,
112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992). Even reading this
statute as broadly as possible, however, I struggle to see how
diffuse sediments spread across multiple ponds could qualify as
“discernible, confined, and discrete conveyance[s] . . . .” See
§ 1362(14).
Although the CWA’s examples of “conveyances” that qualify
as “point sources” are non-exhaustive, I can hardly disregard
those examples in my analysis. I may “rely on the principle of
noscitur a sociis — a word is known by the company it keeps — to
‘avoid ascribing to one word a meaning so broad that it is
inconsistent with its accompanying words, thus giving unintended
breadth to the Acts of Congress.’” Yates v. United States, 574
U.S. 528, 543, 135 S. Ct. 1074, 191 L. Ed. 2d 64 (2015) (quoting
Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575, 115 S. Ct.
1061, 131 L. Ed. 2d 1 (1995)). Pollutant-containing sediments —
that form at the base of waterbodies and re-release pollutants
through natural processes — have little in common with pipes,
ditches, channels, tunnels, or any of the other enumerated
“point sources.” See § 1362(14).
Yet another flaw with CLF’s argument is illuminated by one
of the numerous cases to which it cites to illustrate the
breadth of conveyances that other courts have deemed to be
“point sources.” In Ohio Valley Environmental Coal, Inc. v.
25
Hernshaw Partners, LLC, 984 F. Supp. 2d 589 (S.D. W. Va. 2013),
the court found that water percolating through a valley fill
deposit and out of the valley’s “toe” into a river was
adequately alleged to be a point source. Id. at 599. In doing
so, the court distinguished the toe discharge from “uncollected
rainfall runoff” — a nonpoint source — because “water discharged
from the toe of the valley fill is easily ascribed to a single
source: the valley fill.” Id. The same cannot be said of the
sediments at issue here, even when fully crediting CLF’s version
of the material facts. See Doc. No. 75 at 32 (“Defendants’
discharges are the primary contributors of phosphorus to the
[r]iver, accounting for [sixty-seven] percent of the total
phosphorus in the [r]iver.”).
Furthermore, in every case CLF cites8 demonstrating the
broad array of recognized point sources, the point source is,
without exception, the point at which the pollutant first finds
its way from the permitted entity to navigable waters. See,
e.g., Sierra Club v. Abston Const. Co., Inc., 620 F. 2d 41, 45
(5th Cir. 1980) (holding that overflow from mine spoils pile was
8 At the hearing on these cross-motions, the case CLF cited as providing the greatest support for its contention that the sediments are point sources was Rybachek v. EPA, 904 F. 2d 1276 (9th Cir. 1990). This case discusses the CWA’s use of the word “addition” within its definition of “discharge,” not within its definition of “point source.” Id. at 1285–86.
26
a point source discharge, where that overflow was carried to
navigable waters “by means of ditches, gullies[,] and similar
conveyances”); Earth Scis., Inc., 599 F.2d at 374 (holding that
sump pit “discharge, whether from a fissure in [its] dirt berm
or overflow of [its] wall” is an “escape of liquid from [a]
confined system” and, therefore, “from a point source”). I can
find no case where a defendant discharged a pollutant from a
point source into navigable waters, the pollutant left and
reentered navigable waters by natural processes, and the reentry
was found to be a point source attributable to the defendant.
Such a broad reading would destroy any meaningful distinction
between point sources and nonpoint sources and confuse the
jurisdiction of the CWA with the enforcement authority Congress
left to the states. See Cnty. of Maui v. Haw. Wildlife Fund, ___
U.S. ___, 140 S. Ct. 1462, 1471, 206 L. Ed. 2d 640 (2020) (“[A]s
to . . . nonpoint source pollution, Congress intended to leave
substantial responsibility and autonomy to the States.”).
b. Sediment Discharges as Continuing Violations
CLF’s fallback argument is that an injunction to clean up
the contaminated sediments is a form of prospective relief
authorized by the Eleventh Amendment because a person who
violates the CWA by improperly discharging pollutants through a
point source remains “in violation” until the effects of the
violation have dissipated. Under this argument, an order to
27
clean up the sediments is a permissible form of prospective
relief that merely requires defendants to stop an ongoing
violation of the CWA.
Plaintiffs draw their argument from cases that consider
whether the lingering effects of prior point source discharges
can support a citizen suit under Gwaltney. Other courts that
have addressed that issue have come to differing conclusions.
See Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133,
1139-40 (10th Cir. 2005) (collecting cases), as corrected, (Oct.
21, 2005); Day, LLC v. Plantation Pipe Line Co., 315 F. Supp. 3d
1219, 1236 (N.D. Ala. 2018) (same). As I have explained,
however, this case does not present a Gwaltney problem because
CLF has credibly alleged that defendants are currently
discharging phosphorous through the Facility’s Outfalls.
Instead, the very different question at issue here, which none
of the cases cited by the parties consider, is whether the
Eleventh Amendment bars a federal court from issuing an
injunction against state officials to eliminate the lingering
effects of past point source discharges.
In answering this question, it is important to bear in mind
that regardless of whether a citizen suit can be based on the
lingering effects of a past point source discharge, it remains
the case that the conduct that the CWA prohibits is the
“discharge of pollutants . . . .” § 1362(12). Because the
28
Sediment Discharge claims are based solely on prior discharges
through the Facility’s Outfalls, an injunction to correct the
lingering effects of such discharges is necessarily
retrospective. See Edelman, 415 U.S. at 665 (“It is one thing to
tell [a state defendant] that he must comply with the federal
standards for the future . . . . It is quite another thing to
order [a state defendant] to use state funds to make reparation
for the past.” (internal quotation marks omitted) (quoting
Rothstein v. Wyman, 467 F.2d 226, 236–37 (2d Cir. 1972))). If I
were to require defendants to remove sediment contaminated by
past point source discharges, it would be “relief based on or
flowing from violations at a prior time when . . . defendant[s]
‘[were] under no court-imposed obligation to conform to a
different standard.’” Guardians Ass’n, 463 U.S. at 604 (quoting
Edelman, 415 U.S. at 668).9 Applying a continuing violation
argument to overcome Gwaltney, therefore, does nothing to
address the Eleventh Amendment bar to the injunction CLF seeks.
Because the sediments are not “point sources” within the
meaning of the CWA, and because CLF’s continuing violation
theory cannot overcome the hurdle imposed by the Eleventh
9 A declaratory judgment that defendants have violated their NPDES permit due to past discharges that have resulted in the creation of phosphorus-laden sediments would be similarly barred under Green. See 474 U.S. at 74.
29
Amendment, the relief it seeks with respect to the Sediment
Discharges is barred. Defendants are, therefore, entitled to
summary judgment on Counts I and II, to the extent those counts
are based on the Sediment Discharges.
ii. Outfall Discharge Claims
As I have already noted, the Facility’s outfalls are
indisputably point sources. Defendants advance no argument that
their current and anticipated discharges from those outfalls are
outside the jurisdiction of the CWA citizen suit provision under
Gwaltney. They, furthermore, do not argue that the Eleventh
Amendment prevents me from enjoining them to modify their
current and anticipated outfall discharge. Having cleared these
two hurdles, I proceed to the merits of each count.
a. State Water Quality Standards (Count I)
As I have already noted, state water quality standards
incorporated into an NPDES permit can form the basis of CWA
liability. See PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S.
700, 714–15, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994). CLF asks
me to rule, as a matter of law, that defendants’ discharges
cause algae and cyanobacteria blooms and that those blooms, in
turn, violate a litany of state water quality standards
incorporated into the 2011 Permit. Defendants do not move for
summary judgment on this count and, instead, ask only that I
30
deny CLF’s motion because genuine disputes of material fact
remain. Doc. No. 78 at 35–41. I agree with the defendants on
this issue.
When, as in this case, “the party moving for summary
judgment bears the burden of proof on an issue, he cannot
prevail ‘unless the evidence he provides on that issue is
conclusive.’” EEOC v. Unión Independiente de la Autoridad de
Acueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir.
2002) (quoting Torres Vargas v. Santiago Cummings, 149 F.3d 29,
35 (1st Cir. 1998)). Here, there are simply too many disputes of
material fact that must be resolved before I could rule in CLF’s
favor on this claim. Most importantly, as both parties
recognize, the Facility is not the only source of phosphorus
discharges on the Merrymeeting River. See Doc. No. 78 at 38;
Doc. No. 75 at 32. The Merrymeeting River & Lake Watershed
Management Plan provided by CLF identifies septic systems,
fertilizers, abandoned landfills, and climate change as other
potential sources of phosphorus. Doc. No. 47-3 at 40–43. It is
entirely possible that CLF can prove the necessary chain of
causation through evidence introduced at trial. On summary
judgement, however, I must “draw[] all inferences in favor of
the nonmoving party.” Giguere, 927 F.3d at 47 (quoting Fadili,
772 F.3d at 953). Because issues of material fact remain, I deny
31
the motion for summary judgment on Count I with respect to CLF’s
Outfall Discharge claims.
b. NPDES Permit Narrative Requirements (Count II)
My analysis of Count II largely repeats my analysis of
Count I with respect to the Outfall Discharge claims. To prove
the alleged violations of the 2011 Permit’s narrative
requirements, CLF must prove that defendants’ discharges caused
those violations. When I draw all reasonable inferences in
defendants’ favor, I cannot conclude that CLF has proven
causation as a matter of law.
Defendants have also moved for summary judgment on this
count. Doc. No. 78 at 20–25. Just as CLF has not proven a link
between defendants’ discharges and the alleged violations,
defendants have not proven the absence of such a link. CLF has
provided ample evidence from which a reasonable juror could
conclude that defendants’ discharges produce unnatural odor,
color, taste, or turbidity in the Merrymeeting River by causing
cyanobacteria and algae blooms, and that these blooms render the
receiving waters unsuitable for their designated uses. See,
e.g., Doc. No. 47-17 at 4–5 (expert report articulating causal
link between Facility’s phosphorus discharge and eutrophication
in receiving waters). Defendants have, similarly, failed to meet
the summary judgment standard as to the Outfall Discharge claims
in Count II.
32
The parties’ cross-motions for summary judgment on Count II
are, therefore, denied to the extent they are based on Outfall
Discharges.
2. Formaldehyde Discharge Limits (Count III)
Defendants concede that they have “used formalin
(formaldehyde) to treat parasitic infections in” the Facility’s
fish and fish eggs four times in the past five years. See Aff.
of Edward J. Malone (“Malone Aff.”), Ex. B to State’s Partial
Mot. for Summ. J., Doc. No. 44-11 at 2 ¶ 5. They also
acknowledge that, in two of those instances, the Facility
reported formaldehyde discharges that violated the limitations
in the 2011 Permit. Doc. No. 44-11 at 2 ¶¶ 7–9; 3 ¶¶ 13–14.
Defendants assert, however, that only one of these discharges
actually exceeded permitted limitations, as the other was caused
by a sampling error. Doc. No. 44-11 at 2–3 ¶ 10; accord Doc. No.
78 at 8–9.
In support of their explanation, defendants have provided a
contemporaneous letter sent to the EPA by Edward Malone, the
Facility’s superintendent, who conducted the sampling. Letter
from Edward J. Malone, Hatchery Superintendent, to Joy J.
Hilton, EPA, Water Treatment Unit - SEW (Sept. 27, 2016), Ex. B3 to Malone Aff., Doc. No. 44-14. This letter attributes the
reported high formaldehyde concentration to “operational error.”
Doc. No. 44-14. Malone, in an affidavit accompanying defendants’
33
motion, further explains that he “had mistakenly taken the water
samples” for the formaldehyde test
from the tail end of the B series of raceways where the
treatment had been administered, instead of at Outfall
002 as required under the [Facility’s] standard
operating procedures. Because of the incorrect sampling
location, the samples showed inaccurately high results
that did not accurately represent the concentration of
formaldehyde at Outfall 002, which would have been
substantially lower due to dilution within the
[Facility] from the other series.
Doc. No. 44-11 at 2–3 ¶ 10. Defendants, therefore, move for
summary judgment on Count III, arguing that CLF “has failed to
establish an ongoing violation of the formaldehyde effluent
limits in the [2011] Permit.” Doc. No. 73 at 4 ¶ 11.
CLF offers no evidence to contradict Malone’s
contemporaneous letter and sworn statements but merely expresses
disbelief of his account. “When the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)
(footnote omitted). However sincere CLF’s skepticism may be, it
is, without more, insufficient to generate a genuine dispute of
material facts.
I am left, therefore, to consider only one instance in the
past six years when defendants’ formaldehyde discharge exceeded
its permitted limits and three subsequent formalin treatments
34
that did not result in discharges with unpermitted formaldehyde
concentrations. “[A] single, past violation” is not sufficient
to meet a citizen suit plaintiff’s burden of alleging “a
continuing likelihood” of future violations. Pawtuxet Cove
Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089, 1094 (1st Cir.
1986). Accordingly, defendants’ motion is granted with respect
to Count III.
3. pH Limits (Counts IV and V)
There is no dispute that the Outfall Discharges have, on
numerous occasions, had a pH below 6.5 S.U. and more than 0.5
S.U. lower than the ambient upstream water. E.g., Doc. No. 78 at
41. Defendants acknowledge that there were nine instances in
2019 alone when the Outfall Discharges violated the pH limit.
Doc. No. 78 at 41. They merely argue, instead, that CLF has not
proven a causal link between the Facility’s activities and the
low pH, because the Facility’s outflow pH is also occasionally
higher than the upstream pH. Doc. No. 78 at 41–42. Defendants
contend, therefore, that “it is likely that pH [p]ermit
violations are the result of external environmental factors.”
Doc. No. 78 at 41.
It is highly improbable that a decrease in pH between the
Facility’s inflow and outflow could be attributed to anything
other than the Facility itself. Whether the Facility, in fact,
is the cause of the low pH is, however, immaterial. Unlike
35
provisions of the 2011 Permit that require a showing of
causation, the pH provision imposes a strict liability standard.
Compare, e.g., 2011 Permit, pt. I.A.3, at 7, Doc. No. 47-5 (“The
discharge shall not cause a violation of the water quality
standards of the receiving water.” (emphasis added)) with 2011
Permit, pt. I.D.1.a, at 16, Doc. No. 47-5 (“The pH of the
discharge shall be in the range of 6.5 to 8.0 [S.U.] . . . .”).
Whatever the cause, it is undisputed that defendants’
discharges violated the 2011 Permit. The fact that violations
indisputably continued unabated, even after CLF commenced this
suit, is proof that those violations are likely to continue. Cf.
Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844
F.2d 170, 171 (4th Cir. 1988) (holding that citizen-plaintiff
can prove an ongoing violation “by proving violations that
continue on or after the date the complaint is filed”); accord
Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 998
(9th Cir. 2000) (citing Chesapeake Bay Found., 844 F.2d at 171).
CLF is, therefore, entitled to summary judgment on Counts IV and
V.
4. Cleaning Water (Count VI)
CLF has proffered evidence that defendants frequently
discharged cleaning water directly into the Merrymeeting River
in the summers of 2017, 2018, and 2019. Decl. of Michael
Gelinas, Ex. 13 to Govern Decl., Doc. No. 47-15 at 4 ¶ 26. If
36
true, these discharges would violate the 2011 permit’s
prohibition on “direct discharge of ‘cleaning water.’” 2011
Permit, pt. I.A.9, at 8, Doc. No. 47-5. Defendants have not
contradicted this account and argue only that CLF’s cleaning
water claim is now moot given the Facility’s new interim
cleaning water system, which discharges cleaning water into the
ground. Doc. No. 78 at 27–29.
“The doctrine of mootness enforces the mandate ‘that an
actual controversy must be extant at all stages of the review,
not merely at the time the complaint is filed.’” ACLU of Mass.
v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 52 (1st Cir. 2013)
(internal quotation marks omitted) (quoting Mangual v. Rotger–
Sabat, 317 F.3d 45, 60 (1st Cir. 2003)). “A case might become
moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to
recur.” United States v. Concentrated Phosphate Exp. Ass’n, 393
U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968); accord
City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S. Ct. 1660,
75 L. Ed. 2d 675 (1983) (noting that temporary moratorium on the
use of the challenged policy did not moot the case). One “reason
for mootness is that a court cannot provide meaningful relief to
the allegedly aggrieved party,” especially when “the only relief
requested is an injunction,” and “there is no ongoing conduct
left for the court to enjoin.” U.S. Conf. of Cath. Bishops, 705
37
F.3d at 53. Declaratory judgements deeming past conduct illegal
are similarly disfavored because “[t]he Supreme Court has
admonished that federal courts ‘are not in the business of
pronouncing that past actions [that] have no demonstrable
continuing effect were right or wrong.’” Id. (quoting Spencer v.
Kemna, 523 U.S. 1, 18, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998)).
Ordinarily, a defendant may not render a suit moot simply
by voluntarily ceasing its challenged conduct once the suit is
commenced. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L.
Ed. 2d 610 (2000) (“It is well settled that ‘a defendant’s
voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the
practice.’” (quoting City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982))).
As I have written previously, unsupported speculation that
temporary cessation will at some point become permanent “cannot
provide a sufficient foundation to moot a live controversy.”
N.H. Lottery Comm’n v. Barr, 386 F. Supp. 3d 132, 143 (D.N.H.
2019), argued, No. 19-1835 (1st Cir. June 18, 2020).
Here, CLF questions the efficacy of defendants’ new
cleaning water system. See Decl. of R. Wane Schneiter, Ex. 24 to
Govern Decl., Doc. No. 47-26 at 4 ¶¶ 8–9 (providing expert’s
sworn statements). Further, while the settling ponds used in the
38
Facility’s former cleaning system have been “drained, cleaned,
and taken out of service,” they remain on-site. Doc. No. 78 at
28. There is no practical bar to defendants returning to past
practices. Cf. Already, LLC v. Nike, Inc., 568 U.S. 85, 96, 133
S. Ct. 721, 184 L. Ed. 2d 553 (2013) (“[T]he voluntary cessation
standard requires the defendant to show that the challenged
behavior cannot reasonably be expected to recur . . . .”).
Accordingly, I see no way to conclude, as a matter of law, that
CLF’s cleaning water claim is moot.10 I am, likewise, unable to
find at the summary judgment stage that defendants’ settling
pond system violated the 2011 Permit’s prohibition on the direct
discharge of cleaning water because CLF’s cleaning water count
is based entirely on the observations of a non-expert bystander,
which is insufficient evidence for me to rule in CLF’s favor at
this stage. The parties’ motions are, therefore, denied with
respect to Count VI.
5. The BMP Plan (Count VII)
Defendants’ 2011 Permit does not include any specific
cleaning requirements. Rather, it requires defendants “to
implement and maintain a BMP Plan . . . .” 2011 Permit, pt.
10Although I am highly likely to credit defendants’ representation that it will not revert to a challenged practice once this suit is resolved, I cannot reach that conclusion at the summary judgment stage. Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983).
39
I.B.4, at 10, Doc. No. 47-5. This plan “must address, at a
minimum, . . . [s]olids [c]ontrol.” 2011 Permit, pt. I.B.4.–4.a,
at 11, Doc. No. 47-5. Furthermore, “[i]n order to minimize the
discharge of accumulated solids from settling tanks, basins[,]
and production systems,” the BMP Plan must “identify and
implement procedures for routine cleaning of rearing units and
settling tanks . . . .” 2011 Permit, pt. I.B.4.a.ii., at 11,
Doc. No. 47-5. Defendants’ BMP Plan prescribes a cleaning
schedule of “approximately once per week” for some of its units
and “about once every two weeks” for others. Doc. No. 47-6 at 4.
CLF argues that it has identified numerous instances —
continuing even after it filed this suit — where defendants
“routinely fail[ed] to comply with this requirement” by missing
cleanings. Doc. No. 75 at 40.
Litigation over the minutiae of BMP Plan implementation is
rare. Defendants identify two cases addressing whether
provisions of a BMP Plan adopted pursuant to an NPDES permit
were adequate. See Doc. No. 78 at 30–31. Neither party, however,
has cited a single case where a court found a defendant’s
failure to follow its BMP Plan to the letter constituted a
violation of the CWA. Without the benefit of guiding caselaw, I
turn to the text of the 2011 Permit.
The plain text of the 2011 Permit does not require
defendants to adhere to a rigid cleaning schedule. Rather, it
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requires the BMP Plan to “identify and implement procedures for
routine cleaning . . . .” 2011 Permit, pt. I.B.4.a.ii, at 11,
Doc. No. 47-5. Thus, even if I were to adopt CLF’s definition of
“approximately once per week” and determine that defendants’
cleaning fell short of that definition, that shortcoming alone
would not constitute a violation of the 2011 Permit. To reach
the level of a violation, defendants’ implementation of their
BMP Plan would have to fall so far short that they fail to
fulfill the 2011 Permit’s mandate to “address, at a minimum . .
. [s]olids [c]ontrol . . . [i]n order to minimize the discharge
of accumulated solids.” 2011 Permit, pt. I.B.4.—4.a.ii, at 11,
Doc. No. 47-5.
I am willing to accept the proposition, at least in
principle, that a failure to fulfill that mandate could
constitute a violation of the 2011 Permit. Determining whether
defendants’ implementation of their approximated cleaning
schedule is inadequate, however, would require a detailed
factual inquiry. Neither party has presented evidence showing
whether defendants’ current implementation of their BMP Plan
minimizes the discharge of accumulated solids. At present, I
have little more than CLF’s inferences drawn from defendants’
“Loads Hauled Log,” see Doc. No. 75 at 40–41, and an affidavit
from an NHF&G employee stating that “[r]igid adherence to a
weekly or bi-weekly cleaning schedule for each rearing unit
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without regard to specific rearing unit conditions would not
optimize solids removal,” 2020 Smith Aff., Doc. No. 53-2 at 3 ¶
11. This evidence is insufficient to permit an award of summary
judgment to either party. The motions are, therefore, denied
with respect to Count VII.
IV. CONCLUSION
For the foregoing reasons, defendants’ partial cross-motion
for summary judgment (Doc. No. 73) is granted with respect to
the Sediment Discharge claims in Counts I and II and with
respect to Count III in its entirely. CLF’s cross-motion for
summary judgment (Doc. No. 72) is granted with respect to Counts
IV and V.
Pursuant to 28 U.S.C. § 2201, I declare that defendants’
discharges have violated the pH limits in their 2011 NPDES
Permit. Defendants shall have ninety days to devise and
implement a system to cease Outfall Discharges that violate
these limits.
The motions are, in all other respects, denied.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
August 27, 2020
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cc: Chelsea Elizabeth Kendall, Esq.
Heather A. Govern, Esq.
Kenta Tsuda, Esq.
Thomas F. Irwin, Esq.
Christopher G. Aslin, Esq.
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