The Clean Water Act: Deciphering the Relationship Between Ongoing Violations & Civil Penalties in a Citizen Suit.
Wild Fish Conservancy v. CookeAquaculture Pac., LLC,No. C17-1708-JCC, 2019 WL 2616640 (W.D. Wash. June 26, 2019).
By: Kelicia D. Raya
OnNovember 13, 2017, Plaintiff, Wild Fish Conservancy, brought suit againstDefendant, Cooke Aquaculture Pac., LLC, asserting several Clean Water Act (“CWA”)violations related to the 2017 collapse of Defendant’s Atlantic salmon net-penfacility (“Cypress 2”), which was located across Puget Sound. Prior to thiscollapse, Defendant operated numerous Atlantic salmon net-pen facilities acrossPuget Sound pursuant to separate National Pollutant Discharge EliminationSystem (“NPDES”) permits issued by the Washington Department of Ecology(“Ecology”). On August 19, 2017, Cypress 2 experienced mooring failures, andthese failures resulted in the facility’s collapse and destruction. More than200,000 Atlantic salmon, debris, and machinery released into Puget Soundbecause of this collapse. On January 30, 2018, Ecology issued a $332,000administrative penalty against Defendant because of the resulting environmentaldamage from the Cypress 2 collapse. Additionally, on February 2, 2018, theDepartment of Natural Resources (“DNR”) terminated Defendant’s lease forCypress 2. On April 24, 2019, Defendant and Ecology entered a consent decree toresolve Defendant’s liability related to the Cypress 2 collapse and all correspondingviolations.
Inthis citizen complaint, Plaintiff alleged that Defendant violated: (1) Section301(a) of the CWA[1]because the collapse of Cypress 2 resulted in the massive discharge of pollutants,debris, and non-Atlantic salmon into Puget Sound; (2) Condition S1 of its NPDESpermit when it allowed the release of thousands on Atlantic Salmon into PugetSound; (3) Condition S5 of the permit because it discharged various materialsand debris into Puget Sound; (4) Conditions S2 and S4 of the permit by failingto conduct mandatory procedures upon the closing of Cypress 2; and (5) Defendantfailed to prepare and implement a pollution prevention plan and a releaseprevention and monitoring plan. In response, Defendant moved for summaryjudgment on all of Plaintiff’s claims. Defendant raised two primary argumentsin support of its motion for summary judgment. First, Defendant alleged that Plaintiff cannotbring a claim under the CWA because when Plaintiff filed suit in November 2017,there were no ongoing violations at Cypress 2. Second, Defendant argued that Plaintiff’sclaims were mooted by the subsequent administrative and legislative actionsthat prevent Defendant from re-opening the facility. Defendant also filed amotion to amend its answer to add the affirmative defenses of res judicataand diligent prosecution and a motion to seal.
Ongoing Violations
Asthis was a CWA citizen suit, the Western District Court of Washington reasonedthat Plaintiff must allege violations that are “ongoing” at the time thecomplaint was filed. “A citizen plaintiff must prove ongoing violations byeither (1) demonstrating that violations continued on or after the date of thecomplaint, or (2) by adducing evidence that would allow a reasonable factfinderto find a ‘continuing likelihood of a recurrence in intermittent or sporadicviolations.’”[2]Applying this framework, the court examined each claim to determine whetherthere was a genuine issue of material fact as to whether violations wereactually occurring at Cypress 2 on November 13, 2017 when Plaintiff filed itssuit.
Section 301(a) of the CWA
Regardingthis claim, the court held that there was a genuine dispute of material fact asto whether at the time Plaintiff filed suit, there was a likelihood forsporadic or recurrent violations of Section 301(a) at Cypress 2 arising fromthe release of non-native Atlantic salmon. The bench found that facts were indispute because Defendant shifted positions regarding its intention to rebuildCypress 2 after the collapse and the continued validity of the NPDES permit.Additionally, Plaintiff presented evidence that in previous years, fish didescape from Defendant’s facilities. Therefore, the court denied Defendant’smotion for summary judgment and allowed the plaintiff to proceed to trial onthis claim that Defendant violated Section 301(a) based upon its release ofnon-native Atlantic salmon.
Permit Condition S1
Regardingthis condition, Plaintiff alleged that Defendant violated this condition whenit allowed the release of thousands of Atlantic salmon from Cypress 2. Insupport, Plaintiff pointed to (1) past incidents of fish escapements and (2) Ecology’snotice of administrative penalty that concluded that the release of Atlanticsalmon was the result of Defendant’s negligent maintenance of its net-penfacility. Viewed in the light most favorable to the non-moving party, Plaintiff,the court ruled there was a genuine issue of material fact as to this issue anddenied Defendant’s motion for summary judgment as to this claim.
Permit Condition S5
Plaintiffalleged that Defendant violated multiple provisions of Condition S5 when itdischarged various materials into Puget Sound following the collapse of Cypress2. However, Defendant rebutted this claim by arguing that there were no ongoingviolations of Condition S5 when Plaintiff filed its complaint because nomaterials were discharged from Cypress 2 at that time. Ultimately, DistrictJudge Coughenour granted Defendant’s motion for summary judgment on this issuebecause Plaintiff could not produce any evidence that Cypress 2, which wasnon-operational in November 2017, continued to discharge waste into PugetSound.
Permit Conditions S2 and S4
Plaintiffalleged that Defendant violated Conditions S2 and S4 when it failed to conductmandatory procedures regarding the closure of Cypress 2. Specifically, prior toclosing the Cypress 2 site, Defendant failed to submit a sediment sampling andanalysis plan to the Ecology. Defendant asserted that it did comply with theclosure requirements. Viewed in the light most favorable to Plaintiff, thecourt held that there was a genuine issue of material fact in regard to thisissue as it was unclear whether the Cypress 2 was officially “closed” inNovember 2017 given that the permit was still in effect. Furthermore, the benchstated that it was unclear when the defendant actually completed the closuremonitoring – such as the sediment sampling and analysis plan – that Defendantasserts satisfies its obligations under S2 and S4. Therefore, the court deniedthe defendant’s motion for summary judgment as to this claim.
Permit Conditions S6 and S7
Plaintiff alleged that Defendant violated Conditions S6 and S7 of its NPDES permit when it failed to prepare and implement a pollution prevention plan and a release prevention and monitoring plan. Defendant once again rebutted these claims by asserting that the plans were not violating the permit in November 2017 because of the destruction and interoperability of the Cypress 2 facility. In its reasoning, the court found that there was no legal basis to support Defendant’s argument that Cypress 2’s collapse and destruction absolved it from maintaining plans that complied with its NPDES permit. Considering the fact that the permit was still in effect when Plaintiff filed its complaint, the bench ruled that Plaintiff demonstrated ongoing violations of Conditions S6 and S7 with regard to the preparation of a pollution prevention plan and denied Defendant’s motion for summary judgment as to this claim. Conversely, Plaintiff was not able to demonstrate ongoing violations of permit conditions S6 and S7 with regard to the implementation of Defendant’s pollution prevention plan. Thus, the court granted Defendant’s motion for summary judgment on this claim.
Mootness
Thebench denied Defendant’s motion for summary judgement with prejudice on theissue of mootness. Initially, the court agreed with Defendant’s argument thatany injunctive relief Plaintiff seeks regarding Cypress 2 is now moot becauseCypress 2 was destroyed and is no longer operational. However, the court ruledthat even though injunctive relief could not be awarded, Plaintiff could stillreceive effective relief in the form of civil penalties.
Motion to Amend
Citingto Federal Rules of Civil Procedure 15 and 16, District Judge Coughenour heldthat Defendant’s motion for leave to amend its complaint was granted as to thedefense of Res Judicata and denied as to its defense of diligentprosecution. In his reasoning, the judge first determined that the motion toamend was untimely because the court ordered all pleading amendments be filedno later than January 18, 2019, and Defendant did not file its motion for leaveto amend until April 2019. Because the motion to amend was untimely filed, the Judgethen had to analyze the motion under the good cause standard stated in Rule 16.Defendant asserted that there was good cause because the defenses did not existprior to its April 24, 2019 settlement with Ecology. The court agreed with Defendantand held that good cause did exist, therefore, even with the exercise ofdiligence, Defendant could not have asserted those defenses prior to entry ofthe consent order.
Notwithstandingthe finding of good cause, the court held that Defendant could only amend toadd the defense of Res Judicata. Regarding the Res Judicatadefense, the bench reasoned that there appeared to be identity or privy betweenEcology’s claims resolved in the consent order and Plaintiff’s claims beforethe court. Thus, Defendant should be granted leave to amend his answer toassert that affirmative defense. Turning to the defense of diligentprosecution, the bench reasoned that it would be futile to allow Defendantleave to add this affirmative defense because no facts can be proved toconstitute that this is a valid defense. Thus, Defendant’s motion for leave toamend its complaint was granted in part as to Res Judicata and denied inpart as to diligent prosecution.
Motion to Seal
Lastly,Defendant filed a motion to seal a declaration submitted in support of itsresponse to Plaintiff’s motion for partial summary judgment. This declarationand the attached exhibits discussed “confidential and proprietary informationregarding the defendant’s business operations.”[3]The court reasoned that Defendant’s interest in keeping the informationconfidential presented a compelling reason for placing the documents under seal.Thus, the bench ruled to grant the motion to seal.
[1]Prohibits the discharge of any pollutant from any point source into navigablewaters unless the discharge complies with certain other sections of the CWA.
[2] WildFish Conservancy v. Cooke Aquaculture Pac., LLC, No. C17-1708-JCC, 2019 WL2616640, *8 (W.D. Wash. June 26, 2019).
[3] WildFish Conservancy v. Cooke Aquaculture Pac., LLC, No. C17-1708-JCC, 2019 WL2616640, *33 (W.D. Wash. June 26, 2019).
