Corona Clay Company Finds Its Legal Remedy Is a Tough Pill to Swallow
By Joshua Robin
Inland Empire Waterkeeper v. Corona Clay Co., __ F.4th __, 2021 U.S. App. LEXIS28322, 2021 WL 4258829 (9th Cir. Sept. 20, 2021).
On September 21, 2021, the United States Court of Appeals for the Ninth Circuit remanded the decision of the District Court for the Central District of California in the case of Inland Empire Waterkeeper v. Corona Clay Co.
Corona Clay processed clay products which created “storm water discharge” which was released under a general permit from the California State Water Resources Board. The permit required Corona Clay to maintain a Storm Water Pollution Prevention Plan. Coastkeeper filed this action in 2018 alleging that Corona violated the conditions of its General Permit and discharged polluted storm water into Temescal Creek.
Specifically, the Plaintiffs, Inland Empire Waterkeeper and Orange County Coastkeeper, two affiliated non-profit organizations, alleged that Corona Clay illegally discharged pollutants into a navigable water of the United States, failed to monitor that discharge, and violated the conditions of its permit by failing to report the above violations. The district court granted partial summary judgment to the plaintiffs, and a jury returned a verdict favorable to the defendant on the remaining claims.
The court first addressed the issue of Article III organizational standing to pursue the discharge and procedural alleged violations. Here, the plaintiffs established injury in fact and causation with affidavits attesting to frequent use and deterioration of the water quality. In addition, the plaintiffs satisfied Article III standing to pursue the procedural claims. Failure to provide statutorily mandated information gives rise to Article III standing. Plaintiffs alleged that Corona Clay failed to abide by permit requirements, monitor discharges and report them. That is sufficient to establish Article III standing.
In reaching its decision, the appellate court relied on two Supreme Court decisions: Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation[1] and County of Maui v. Hawaii Wildlife Fund.[2] Gwaltney held that the Clean Waters Act (CWA) bars citizen suits alleging only “wholly past” violations of permits. In the context of Gwaltney, the court in Inland Empire held that if the required jurisdictional discharge into United States waters has occurred, a CWA citizen suit can be premised on ongoing or reasonably expected monitoring or reporting violations. The district court erred when it held that an ongoing violation was necessary to pursue a citizen suit which asserts monitoring and reporting violations. However, County of Maui was decided after the final district court’s judgment of this case. The appeals court vacated the district court’s judgment and remanded it for further proceedings consistent with the Supreme Court’s decision in County of Maui. At the time of trial, plaintiffs only had to prove that the pollutants were “fairly traceable” to the point source. In City of Maui, the Supreme Court reversed that standard and held that the discharge must be direct or the “functional equivalent” of a direct discharge. The judgment was vacated, and the case was remanded for the parties to address whether the “indirect discharge” was the “functional equivalent” of a direct discharge into navigable waters.
[1] 484 U.S. 49, 67, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987).
[2] 140 S. Ct. 1462, 1468, 206 L. Ed. 2d 640 (2020).
