United States District Court for the District of Columbia
March 2, 2004.
AMERICAN CANOE ASSOCIATION, INC., et al, Plaintiffs,
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant
The opinion of the court was delivered by: HENRY KENNEDY, District Judge
This action is brought under the citizen suit provision,
33 U.S.C. § 1365, of the Federal Water Pollution Control Act ("Clean
Water Act" or "CWA"), 33 U.S.C. § 1251-1387. Plaintiffs American Canoe
Association, Inc., Potomac Conservancy, Inc., and Canoe Cruisers
Association of Greater Washington, Inc. (collectively "plaintiffs")
charge that the District of Columbia Water and Sewer Authority ("WASA"),
an independent authority of the District of Columbia government, has
violated the terms and conditions of a permit, National Pollutant
Discharge Elimination System ("NPDES") permit number DC0021199
("Permit"), issued to WASA by the Environmental Protection Agency ("EPA")
to operate the Potomac Interceptor Sewer and Upper Potomac Interceptor
Relief Sewer. Alleging that these permit violations have resulted in the
emission of hydrogen sulfide from the sewers, plaintiffs seek injunctive
and other relief. Before the court are the parties' cross-motions for
summary judgment [Docket ## 61, 65]. Upon consideration of the
motions, the respective oppositions thereto, and the record of this case,
the court concludes that defendant's motion for summary judgment must be
granted and plaintiffs'
motion for summary judgment must be denied.
A. Clean Water Act
In passing the Federal Water Pollution Control Act,
33 U.S.C. § 1251-1387, Congress established a comprehensive regulatory
scheme to control the discharge of waste and pollutants into the
nation's navigable waters. The Act's objective is to "restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251. The CWA makes unlawful any
pollutant discharges into navigable waters, except as authorized by
other provisions of the CWA, 33 U.S.C. § 1311(a), 1342, and requires
the promulgation of effluent limitations which set the maximum
allowable quantities, rates and concentrations of different
pollutants that may be discharged into waters. 33 U.S.C. § 1362(11).
The EPA enforces the CWA through the National Pollutant Discharge
Elimination System, under which the EPA has the discretion to
issue permits, or delegate that power to states, for the discharge
of otherwise prohibited effluents, after a public hearing and
subject to conditions set by the EPA 33 U.S.C. § 1342(a)(1).
While the EPA and states generally enforce NPDES permit terms, private
citizens may also enforce the CWA: "[A]ny citizen may commence a civil
action on his own behalf . . . against any person . . . who is
alleged to be in violation of . . . an effluent standard or limitation
under this chapter . . . " 33 U.S.C. § 1365(a). The CWA defines
"citizen" as "a person or persons having an interest which is or may be
adversely affected." 33 U.S.C. § 1365(g). Further, under the citizen
suit provision, "effluent standard or limitation" includes "a permit or
condition thereof issued under section 1342 [the NPDES permitting
regime]." 33 U.S.C. § 1365(f)(6).
B. Factual Background
WASA operates the Blue Plains Sewage Treatment Plant ("Blue Plains"),
Potomac Interceptor Sewer ("PI"), and Upper Potomac Interceptor Relief
Sewer ("UPI"), which together carry sewage from the District of Columbia
and Loudoun, Montgomery, and Fairfax Counties, to Blue Plains for
treatment. There are approximately 34 vents installed along the PI and
UPI sewer mains. The EPA issued a NPDES permit to WASA on January 22,
1997 to operate the Blue Plains sewage collection system and related
sewer interceptors and overflows. See generally Def's App. at
228-84 (NPDES Permit No. DC0021189, Jan. 22, 1997) ("1997 Permit").
Section II.B.1 of the permit ("M&O Clause") requires WASA to:
properly operate, inspect and maintain all
facilities and systems of treatment and control
(and related appurtenances including sewers,
intercepting chambers, interceptors, combined
sewer overflows, pumping stations and emergency
bypasses) which are installed or used by the
permittee to achieve compliance with the
conditions of this permit.
Id. at 19.
Plaintiffs claim that WASA has violated, and continues to violate, its
1997 Permit and, therefore, puts it in violation of 33 U.S.C. § 1342,
which constitutes the NPDES program. More specifically, plaintiffs allege
violation of the 1997 Permit's M&O Clause because WASA has failed to
fulfill its obligation to the National Park Service ("Park Service" or
"NPS") to install "odor controlled carbon filters" on vents located on
Park Service property. Compl. ¶ 18. Because most of the PI and UPI
sewer vents are "not equipped with any sort of filtration system or other
means of controlling hydrogen sulfide emissions," WASA is in violation of
its permit. Furthermore, plaintiffs contend that the PI and UPI vents
have emitted and continue to emit, intermittently, hydrogen sulfide,
which directly and adversely affects the "health, economic, recreational,
aesthetic and environmental interests" of plaintiffs and their members.
Id. ¶ 12.
On August 6, 1999, plaintiffs wrote WASA, the EPA, and other local and
federal authorities to provide notice of the alleged violations and of
plaintiffs' intent to pursue a citizen suit in federal district court.
See Compl. at Ex. 1 (Bookbinder Ltr. to Williams, Linton &
Johnson, Aug. 6, 1999). Shortly thereafter, on October 22, 1999,
plaintiffs filed the present suit seeking a declaratory judgment that
WASA has violated and continues to violate its permit and the CWA, an
injunction against further violations, an order requiring WASA to conduct
monitoring of the PI and UPI sewer vents, appropriate civil penalties,
and attorneys' and expert witnesses' fees.
In December 1999, WASA filed a motion to dismiss on the grounds that
(1) plaintiffs had no Article III standing to bring a suit, Def.'s Mot.
to Dismiss at 7-18; (2) plaintiffs failed to state a claim upon which
relief can be granted, id. at 18-23; and (3) the statute of
limitations barred plaintiffs' action. Id. at 23-25. In its
November 19, 2000 order, this court denied WASA's motions to dismiss.
Am. Canoe Ass'n v. Dist. of Columbia Water & Sewer Auth.,
No. 99-2798, slip op. at 12 (D.D.C. Nov. 19, 2000) ("Nov. 2000 Order")
[Docket #19]. After engaging in discovery, the parties filed the
cross-motions for summary judgment presently before the court.
A. Legal Standards
1. Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment shall be granted if the
pleadings, depositions, answers to interrogatories, admissions on file
and affidavits show that there is no genuine issue of material fact in
dispute and that the moving party is entitled to judgment as a matter of
law. Material facts are those "that might affect the outcome of the suit
under the governing law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
considering a motion for summary judgment, the "evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor." Id. at 255. But the non-moving party's
opposition must consist of more than mere unsupported allegations or
denials and must be supported by affidavits or other competent evidence
setting forth specific facts showing that there is a genuine issue for
trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett,
477 U.S. 317 (1986). The non-moving party is "required to provide evidence
that would permit a reasonable jury to find" in its favor. Laningham v.
United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the
evidence is "merely colorable" or "not significantly probative," summary
judgment maybe granted. Anderson, 477 U.S. at 249-50.
2. Effect of Previous Motion to Dismiss
A previous motion to dismiss, granted or denied, may have an effect on
a subsequent motion for summary judgment. In general, "[t]he ruling on a
motion to dismiss for failure to state a claim for relief is addressed
solely to the sufficiency of the complaint and does not prevent summary
judgment from subsequently being granted based on material outside the
complaint." 10A WRIGHT, MILLER & KANE, FEDERAL PRACTICE &
PROCEDURE: CIVIL 3D § 2713 at 233 (2d. ed. 1998); see also
Wilderness Soc'y v. Griles, 824 F.2d 4, 16 (D.C. Cir. 1987) ("In
sum, while a motion to dismiss may be decided on the pleadings alone,
construed liberally in favor of the plaintiff, a motion for summary
judgment by definition entails an opportunity for a supplementation of
the record, and accordingly a greater showing is demanded of the
plaintiff"). However, a summary judgment motion "may not be made on the
same grounds and with the same showing that led to the denial of a
previous motion to dismiss." See id. (citing Mayer v.
Tool & Mach. Co., 556 F.2d 798 (6th Cir. 1977). Even
if different language is used in a summary judgment motion than in a
previous motion to dismiss, so long as the same legal theory supports
both motions, the denial of the motion to dismiss serves as the law of
the case*fn1 and on these grounds, a court may deny a motion for summary
judgment. See In re Midwest Milk Monopolization Litig.,
380 F. Supp. 880 (D. Mo. 1974).
Jurisdiction is a threshold matter without which this court has no
authority to decide other potentially dispositive issues in this case.
See Ticor Title Ins. Co. v. FTC, 814 F.2d 731, 757 (D.C. Cir.
1987) (Green, J., concurring) (holding that "lower courts must always
wrestle with [jurisdictional issues] before reaching any questions of
justiciability, since courts may not decide issues over which they lack
jurisdiction"); Tuck v. Pan Am. Health Org., 668 F.2d 547, 549
(D.C. Cir. 1981) ("The federal courts are courts of limited jurisdiction,
and they lack the power to presume the existence of jurisdiction in order
to dispose of a case on any other grounds."); Am. Farm Bureau v.
EPA, 121 F. Supp.2d 84, 91 (D.D.C. 2000) ("The court must address
the issue of jurisdiction as a threshold matter, because absent
jurisdiction the court lacks the authority to decide the case on any
other grounds."). Therefore, before considering the parties'
cross-motions for summary judgment on the merits, the court must consider
the two jurisdictional issues raised by WASA-notice and standing. The
notice argument did not appear in WAS As motion to dismiss. The standing
argument was denied in the court's previous order, see Nov. 2000
3-9, but the issue merits further discussion because WASA
introduces new evidence and cites new cases decided after the court's
The CWA's citizen suit provision requires that a plaintiff provide
notice to alleged violators of the Act and provide them 60 days to
respond before bringing suit. 33 U.S.C. § 1365(b). Federal
regulations require that the notice letter include certain items,
including inter alia, "sufficient information to permit the
recipient to identify the specific requirement alleged to have been
violated" and "the date or dates of such violation."
40 C.F.R. § 135.12(a). Strict compliance with this provision is a mandatory
jurisdictional prerequisite for a citizen suit. Nat'l Parks
Conservation Ass'n, Inc. v. Tenn. Valley Auth., 175 F. Supp.2d 1071,
1077 (E.D. Tenn. 2001). WASA claims that plaintiffs provided
defective notice before bringing the present suit. Specifically, WASA
alleges that plaintiffs notice letter failed to provide specific
information on (1) the dates of alleged violations and (2) pollutants
discharged unlawfully. These arguments are without merit.
First, WASA alleges that plaintiffs fail to identify precise dates on
which odors were emitted from the PI. Plaintiffs notice letter alleged
that WASA "has and continues to violate" its NPDES permit by failing to
maintain vents and vent filters on the Potomac Interceptor. See
Def's App. at 1287-88 (Bookbinder Ltr. to Williams, Linton & Johnson,
Aug. 6, 1999). Reference to ongoing violations is sufficiently specific
notice. See Natural Resources Def. Council, Inc., v. Southwest
Marine, Inc., 236 F.3d 985, 996 (9th Cir. 2000) (holding that
allegation of ongoing wrongdoing, a failure "to prepare and implement
plans that were required by . . . permit," provided defendant
sufficient notice of specific date under 40 C.F.R. § 135.3(a)).
WAS A cites one case in which a notice letter containing
allegations of repeated, if intermittent, emissions was deemed
insufficient warning for the purposes of a regulation analogous to
40 C.F.R. § 135.12(a). See Def.'s Mot. for Summ. J. (citing
Nat'l Parks Conservation Ass'n, 175 F. Supp.2d at 1077
(analyzing similar regulation, 40 C.F.R. § 54.3 (b), promulgated
pursuant to the Clean Air Act)). That case, however, is distinguishable.
While the hydrogen sulfide odor emanating from the Pl's vents is
intermittent, plaintiffs' notice letter alleged an ongoing, and likely
future, failure to properly maintain carbon filters on vents. Def's App.
at 1288 (alleging past and continuing failure to properly operate and
maintain vents on the PI and UPI). The plaintiffs in National Parks
Conservation Association, by contrast, alleged no such ongoing,
current failure to act but, instead, alleged discrete, past emissions
violations without identifying dates, though exact dates were critical to
determining whether Clean Air Act violations had occurred at all.
See 175 F. Supp.2d at 1076 (noting allegations of over 6,000
discrete violations of an air-opacity requirement of the Clean Air Act
without the identifying particular dates, while the relevant permit
excused such violations under certain factual situations and allowed
unexcused violations 2% of the time). Plaintiffs' letter, therefore,
provided WASA sufficient notice of the specific dates of violation.
Second, WASA argues that plaintiffs' letter failed to provide notice of
the effluents WASA allegedly discharged in violation of its permit.
Plaintiffs, according to the relevant regulation, must identify "the
specific requirement alleged to have been violated."
40 C.F.R. § 135.12(a). See also 40 C.F.R. § 135.3(a) (requiring notice
letter from plaintiff to include "sufficient information to permit the
recipient to identify the specific standard, limitation, or order alleged
to have been violated"). Nothing in § 135.12(a) requires a
plaintiff's notice letter to identify specific
effluents or pollutants when the complaint does not allege
violations of effluent limitations. Yet WASA cites Catskill Mountains
v. City of New York, 273 F.3d 481 (2d Cir. 2001), out of context by
claiming that it holds that all notice letters must identify
specific effluents. See Def's Mot. for Summ. J. at 55 (citing
273 F.3d at 488). Rather, the case merely indicates that if a plaintiff
alleges effluent limitation violations, her notice letter must identify
particular effluents. See Catskill Mountains, 273 F.3d at 488.
Notice is not proper if the letter generally alleges illegal discharges
without naming specific substances. Id. at 487. Catskill
Mountains says nothing about how specific notice must be when a
citizen suit is brought to stop violations of non-effluent portions of a
NPDES permit. See generally 273 F.3d 481. In this case,
plaintiffs' notice letter clearly identified the harm they suffered,
Def.'s App. at 1288 (alleging emission of hydrogen sulfide) and the
specific permit provision they believe WASA violated. Id. at
1287-88 (alleging violation of the M&O clause, citing specifically to
1997 Permit at 19).
WASA claims that plaintiffs' letter did not indicate "what would
constitute compliance," but neither § 135.12(a) nor case law requires
that a notice letter identify a technical solution to the violation. A
notice letter need not tell an alleged violator "what would constitute
compliance." See Def's Mot. for Summ. J. at 56. Rather, §
135.12(a) merely gives alleged CWA violators the opportunity to
"identify its own violations and bring itself into compliance
voluntarily, thus making a costly lawsuit unnecessary." Catskill
Mountains, 273 F.3d at 488. Plaintiffs' letter sufficed to give WASA
proper notice and the opportunity to "bring itself into compliance" as
required by federal regulations.
In its motion for summary judgment, WASA raises arguments which are
variations on a
theme it presented in its motion to dismiss-that plaintiffs have no
standing to sue under the Clean Water Act because their claim is
unrelated to the purposes of the Act, which regulates water quality.
See Def's Mot. to Dismiss at 9 ("The disconnect between air
emissions and waters protected by the Clean Water Act prevents
[plaintiffs] from suing under the Clean Water Act . . . because
. . . a complaint about odor is simply not a Clean Water Act case
. . . "); id. at 10-11 ("[T]o be actionable, plaintiffs'
allegations must implicate the purpose of the NPDES program, which is to
regulate discharges of pollutants into national waters."). In the present
iteration of this "zone of interests" argument, WASA provides factual
materials and new cases to support its argument. Instead of explicitly
raising standing as a jurisdictional issue, however, WASA requests
summary judgment on the merits. Specifically, WASA argues that (1) the
EPA has no authority or intent to regulate odor, Def's Mot. for Summ. J.
at 33; (2) nuisance actions are not cognizable under the CWA,
id. at 52; (3) an implied odor requirement would violate the Due
Process Clause, id. at 38-44; and (4) the 1997 NPDES Permit does
not require odor control.
However repackaged, these arguments are based on a theory the court has
invalidated. See Nov. 2000 Order at 3-9. Further, WASA presents
new facts that are immaterial and new cases that are inapposite. The
court must, therefore, deny all grounds for summary judgment based upon
WASA's old standing argument. The court, having established the law of
the case in its previous order, may deny arguments based on old standing
grounds. See 10A WRIGHT, MILLER & KANE, FED. PRAC. &
PROC.: CIVIL. 3D § 2713 at 233; Midwest Milk, 380 F. Supp.
at 883. Nevertheless, even after revisiting the issue, the court
determines that WASA's arguments do not support summary judgment in its
favor. Simply, the CWA allows citizen suits to enforce any NPDES permit
provision, whether or not the provision directly regulates water quality.
The court previously denied WASA's motion to dismiss and held that
plaintiffs had Article III standing under the CWA,
33 U.S.C. § 1365(f), to challenge any conditions of an NPDES permit,
whether or not they state effluent limitations. See Nov. 2000
Order at 6-9. In finding plaintiffs' claims to be inside the zone of
interests protected by the Clean Water Act, the court's previous order
was based on two rationales, neither of which WASA directly challenges
in its current summary judgment motion. First, it is well-established
that whether a claim is within the zone of interests protected by a
statute is to be evaluated "not by reference to the overall purpose
of the Act in question, . . . but by reference to the particular
provision of law upon which the plaintiff relies." Bennett v.
Spear, 520 U.S. 154, 175-76 (1997) cited in Nov. 2000 Order
at 6. That the Act's overall purpose is to regulate water
quality is irrelevant. What matters is that a plaintiff identifies a
"particular provision of law" within the Act. Id.
Second, the court found that plaintiffs had standing because they
alleged violation of a specific provision of the CWA. Nov. 2000 Order at
7. Plaintiffs invoked 33 U.S.C. § 1365(a)(1) and § 1342, and a
plain reading of these statutes together indicates that a citizen may sue
for any violation of an NPDES permit. See id. 7-8 & n.4.
Further, the court found, id., that a body of persuasive
authority supported this reading of the statutes. See Friends of the
Earth, Inc., v. Gaston Copper Recycling Corp., 204 F.3d 149, 152
(4th Cir. 2000) (en banc) (finding that 33 U.S.C. § 1365(f) allows
citizen suits for "any term or condition of an approved [NPDES] permit");
Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979, 986
(9th Cir. 1995) ("The plain language of [§ 1365] authorizes citizens
to enforce all permit conditions"); Conn. Fund for the Env't v.
Raymark Indus., Inc., 631 F. Supp. 1283, 1285 (D. Conn. 1986)
(Cabranes, J.) ("There is nothing in the language or legislative history
of the [Clean Water Act] to suggest that a
citizens' suit may seek to enforce only those conditions of an
NPDES permit that regulate the quality of a discharge immediately before
its release into navigable waters."); Locust Lane v. Swatara Township
Auth., 636 F. Supp. 534, 537-38 (M.D. Pa. 1986) (holding that
plaintiffs had standing to enforce permit provision that set a schedule
for the construction of wastewater treatment facilities); Pymatuning
Water Shed Citizens for a Hygienic Env't v. Eaton, 506 F. Supp. 902,
908 (W.D. Pa. 1980) ("Inasmuch as we have found violations of the NPDES
permit it is unnecessary to determine whether plaintiffs have proved
violations of effluent standards or limitations under . . .
33 U.S.C. § 1311 or any other section of the Clean Water Act.").
While WASA does not challenge these cases, WASA challenges the court's
finding on several other grounds. WASA asks the court to reconsider its
previous decision to decline to follow Citizens Coordinating Comm. on
Friendship Heights, Inc. v. Washington Metro. Transit Auth.,
765 F.2d 1169 (D.C. Cir. 1985) ("Friendship Heights"). See Nov. 2000
Order at 8-9 (evaluating and distinguishing inapposite Friendship Heights
case). WASA argues that Friendship Heights controls, and that
the factual distinction made in the previous order was erroneous.
Id. ("[T]he Friendship Heights plaintiff did allege the
same type of [CWA] violation as Canoeists allege here. The Court should
recognize that the claims in both cases are common-law tort claims
. . . dressed in sheep's clothing of a [CWA] citizen suit."). This
court held that plaintiffs in the present action had clearly alleged a
violation of an "effluent standard or limitation" namely the
M&O Clause of the 1997 Permit. See Nov. 2000 Order at 9.
The court's previous decision on this issue stands, though the court's
analysis of Friendship Heights merits some elaboration. Simply
put, Bennett supercedes Friendship Heights-at least as
WASA understands the latter case. In Friendship Heights, the
in finding that the court had no jurisdiction to consider a claim
involving the seepage of diesel fuel into a mall's basement, made
reference to the general purpose of the CWA See Friendship
Heights, 765 F.2d at 1173 ("The Clean Water Act, however, was
enacted not to create a federal tort of subterranean trespass but to
protect navigable rivers and streams from pollution. . . . ").
However, Bennett bars precisely the sort of reasoning
Friendship Heights applied in excluding the diesel fuel claims
from the CWA's zone of interests. 520 U.S. at 175-76. In
Bennett, the Supreme Court simply reaffirmed a well-established
doctrine-that a plaintiff's suit need not "vindicate the overall purpose"
of a statutory regime so long as her interest is protected by "the
specific provision which they alleged had been violated." Id. at
176. Whether or not it cites Friendship Heights, WASA cannot
prevail on its argument that the CWA provides standing only for claims
directly involving the pollution of navigable waters. See Def.'s
Mot. for Summ. J. at 53 n.32 (citing Friends hip Heights, 765
F.2d at 1173, as support for the statement that "only discharges to
navigable waters may be permitted under NPDES program").*fn2 As a
result, the court finds no reason to disturb its previous order.
Aside from treading old ground, WASA identifies new materials-released
after this court's previous order-to justify its standing arguments. WASA
cites EPA regulations, Def's Mot. for Summ J. at 34, which indicate that
the CWA does not regulate odor. Def.'s App. at 1407
(Notice of Proposed NPDES General Permit for Egg Production
Operations, 66 Fed. Reg. 50,646 (Oct. 4, 2001)) (finding that "[odor is]
not subject to regulation under the Clean Water Act"); id. at
1409 (Proposed Rule, Effluent Guidelines Limitations and New Source
Performance Standards for Meat and Poultry Products Point Source
Categories, 67 Fed. Reg. 8582 (Feb. 25, 2002)) (same). However, these
regulations are entirely compatible with the court's previous order. A
plaintiff has standing to bring a citizen suit so long as she alleges
violation of a CWA or NPDES permit provision. See, e.g., Friends of
the Earth, 204 F.3d at 152. As a corollary, a plaintiff does not
lose standing simply because odor, not polluted water, is the injury she
suffers as a result of a CWA violation.
WASA also cites new case law which, WASA claims, limits the CWA's
jurisdictional reach. See Def.'s Mot. for Summ. J. at 35-38
(citing Solid Waste Agency of N. Cook County v. U.S. Army Corps of
Eng'rs, 531 U.S. 159 (2001)). WASA argues that Solid Waste
indicates that CWA jurisdiction "extends only to discharges interacting
with navigable waters." Def's Mot. for Summ. J. at 35. However, Solid
Waste did not purport to reinterpret the general scope of the CWA
Rather, the Court found that a rule promulgated by the Army Corps
specifically exceeded the scope of 33 U.S.C. § 1344(a).*fn3 The
Court rejected the Army Corps' regulation after an exegesis of the text
and legislative background of § 1344(a) in particular. Solid
Waste did not
reject the Army Corps' rule because it failed to serve the CWA's
general purpose. See id. at 167-72. Solid Waste simply
does not support WASA's standing argument because it did not purport to
limit the zone-of-interests protected by CWA provisions other than §
1344(a).*fn4 To apply Solid Waste, as WASA understands it, to
the present case would be to contradict Bennett, 520 U.S. at
175-76 (requiring zone of interests arguments to be made by "by reference
to the particular provision of law upon which the plaintiff relies"),
which Solid Waste did not purport to supercede or overrule.
See generally 531 U.S. 159. Solid Waste did not even
mention Bennett. Id.
Clearly, plaintiffs brought suit to stop the emission of odors. This
fact alone does not bar plaintiffs' claim so long as they allege
violation of a specific CWA or NPDES permit provision. Neither the CWA
nor case law requires a direct connection between the violation of an
NPDES permit provision and a plaintiff's injury. Indeed,
Courts are not at liberty to write their own rules
of evidence for environmental standing by
crediting only direct evidence of impairment. Such
elevated evidentiary hurdles are in no way
mandated by Article III. Nor are they permitted by
the Federal Rules of Evidence or the text of the
Clean Water Act. It is in fact difficult to see
how one can move from the [§ 1365(g), the
citizen suit provision] standard of "an interest
which is or may be adversely affected" to a
standard of direct scientific proof of an
observable negative impact on a waterway.
Friends of the Earth, 204 F.3d at 149 (Wilkinson, C.J.,
writing for en banc court). So long as plaintiffs allege a violation of a
specific provision of the CWA, they have standing to sue.
C. Statute of Limitations
WASA asserts, as it did in its motion to dismiss, that plaintiffs'
claim is barred by the
general five-year statute of limitations in 28 U.S.C. § 2462.
Specifically, WASA claims that the limitations period begins to run at
the moment of violation. See Def.'s Mot. for Summ. J. at 58
(citing 3M v. Browner, 17 F.3d 1453, 1461 (D.C. Cir. 1994)).
WASA provides that any "moment of violation," if one existed, occurred
prior to 1987 when all carbon filters were removed. See Def's
Mot. for Summ J. at 59 (citing Def App. at 8, 312, 947).
These arguments both ignore the law of the case and misunderstand
3M. WASA raises essentially the same statute of limitations
argument in its summary judgment motion as in its motion to dismiss.
Compare Def.'s Mot. for Summ. J. at 58-60 with Def's
Mot. to Dismiss at 23-24. The court found this argument meritless when it
denied WASA's motion to dismiss: "[I]t is patently clear that plaintiffs
allege an ongoing continuous violation of WASA's permit." Nov. 2000 Order
at 3 n.1 (citing L.E.A.D. Group v. Exide Corp., 1999 WL 124473,
at *3-4, * 19-20 (E.D. Pa. Feb. 19, 1999) and United States v.
Reaves, 923 F. Supp. 1530, 1533 (M.D. Fla. 1996) as authority that
five-year statute of limitations period does not run when defendant's CWA
violation is ongoing). WASA cites a number of "new" factual materials in
its motion for summary judgment. See Def.'s Mot. for Summ. J. at
59 (citing Def.'s App. at 8, 312, 947, 1283). These sources support
assertions WASA made in its motion to dismiss-that it had "abandoned
proper maintenance of the alleged carbon filters several decades ago,"
that the statute of limitations began to run more than five years ago,
and that the present action is therefore barred. Def's Mot. to Dismiss at
However, these essentially undisputed facts are immaterial to the law
established by the court's previous order, which recognized that
plaintiffs alleged ongoing violations of an NPDES permit. Nov. 2000 Order
at 3 n.1. Furthermore, as plaintiffs argue, Pls.' Cross-Mot, for Summ.
J. at 33-34, 3M does not bar entirely an action brought to stop
ongoing violations which began more than five years before the complaint
was filed. Rather, 3M holds that § 2462 does not permit the
collection of civil penalties for violations that took place more than
five years before the action commenced. 17 F.3d at 1454-55. In
3M, the EPA filed suit in 1988 alleging repeated violations of
the Toxic Substances Control Act, 15 U.S.C. § 2601-2629, from 1980 to
1986. Id. The D.C. Circuit precluded EPA from recovering civil
penalties for violations between 1980 and 1983, five years before EPA
instituted its lawsuit. See id. at 1463 ("EPA may not assess
civil penalties against 3M for any violations . . . allegedly
committed by the company more than five years before EPA commenced its
proceeding"). Otherwise, 3M did not bar as untimely suits, by
citizens or EPA, to stop alleged ongoing violations of an environmental
statute. Id. The 3M case does bar plaintiffs from recovering
civil penalties for CWA violations WASA committed before 1994, five years
before the commencement of the present action. But 3M does not bar the
present suit as untimely. The court therefore denies WASA summary
judgment on its statute of limitations argument.
D. Interpretation of NPDES Permit Provision
Plaintiffs satisfied the zone of interests standing requirement by
bringing suit under a particular CWA provision and alleging that WASA
violated a specific NPDES permit provision. Plaintiffs were not required
to show that the permit provision which they sought to enforce directly
advanced the Act's general purpose of limiting effluents introduced into
the nation's waterways. There is, however, a difference between alleging
an injury sufficient to maintain standing, as a matter of jurisdiction,
and providing enough evidence to prevail on summary judgment. See
Piney Run Preservation Ass'n v. County Comm'rs ofCarroll County,
268 F.3d 255, 263-64, 270-71 (4th Cir. 2001) (finding that while
plaintiff association properly demonstrated standing, by tracing injury
to defendant's actions, it failed to demonstrate that defendant's NPDES
permit prohibited the alleged activity); Wilderness Soc'y, 824
F.2d at 16 (requiring greater showing by plaintiff on summary judgment).
In order to prevail on summary judgment, plaintiffs must demonstrate
that there is no genuine issue of fact regarding their claim. FED. R.
CIV. P. 56. In this case, they must demonstrate that WASA had an
obligation, under the M&O Clause of the 1997 Permit, to operate and
maintain carbon filters. See Compl. ¶¶ 18, 22. Plaintiffs
must also show that WASA failed to comply with this obligation.
Id. ¶ 22. The court must deny plaintiffs summary judgment
motion and must grant WASA's summary judgment motion. There is no genuine
issue of material fact with regard to the claim that the 1997 Permit
itself created an obligation to operate or maintain carbon filters;
plaintiffs provide no materials to support this assertion, and all other
evidence tend to contradict the assertion.
The interpretation of a NPDES permit provision is a question of law for
the courts to decide. Natural Resources Def. Council, Inc., v. Texaco
Refining & Mktg., Inc., 20 F. Supp.2d 700, 710 (D. Del. 1998).
Indeed, another circuit found it "manifestly erroneous" to allow a jury
to decide the meaning of an NPDES permit. United States v.
Weitzenhoff, 35 F.3d 1275, 1286-87 (9th Cir. 1993). Furthermore,
courts must analyze a provision of a NPDES permit in the same manner it
would review a contract or another legal document. Piney Run,
268 F.3d at 269; Northwest Envtl. Advocates, 56 F.3d at 983.
That is, if a NPDES permit provision is unambiguous, that language
controls. See Piney Run, 268 F.3d at 269; Northwest Envtl.
Advocates, 56 F.3d at 982-83. But if the permit provision is
ambiguous, the court may examine
extrinsic evidence to uncover the provision's meaning. See
Piney Run, 268 F.3d at 270; Northwest Envtl. Advocates, 56,
F.3d at 982; Texaco, 20 F. Supp.2d at 709.
1. Express Text
The specific issue, at this point in the analysis, is whether the
M&O Clause is ambiguous. If its meaning is clear upon an examination
of its explicit terms, the provision is unambiguous. See Potomac
Elec. Power Co. v. Mirant Corp., 251 F. Supp.2d 144, 148 (D.D.C.
2003). However, if its provisions are "reasonably or fairly susceptible
of different constructions or interpretations," it is ambiguous.
Id. The parties' cross-motions for summary judgment imply two
different questions of ambiguity-first, in support of plaintiffs, does
the M&O Clause unambiguously require WASA to maintain carbon
filters? And, second, in support of WAS As argument, does the clause
unambiguously excuse WASA from the same? Because the answer to both
questions is no, the court finds the M&O Clause ambiguous.
The M&O Clause is a boilerplate provision lifted entirely from
40 C.F.R. § 122.41(e). Compare 1997 Permit at 19 with
40 C.F.R. § 122.41(e). It does not once mention carbon filters,
hydrogen sulfide or anything of the sort. The M&O Clause cannot be
read to expressly or unambiguously require the maintenance of
filters on vents or odor control when it does not even mention them.
See 1997 Permit at 19. Plaintiffs essentially concede this.
Pls.' Cross-Mot. for Summ. J. at 35 ("Plaintiffs do not, and have never,
claimed that the Permit contains express limits on hydrogen
sulfide or odor.") (emphasis added). On the other hand, the M&O
Clause does not expressly or unambiguously excuse WASA from maintaining
carbon filters. The clause requires proper maintenance, operation and
inspection of those "systems of treatment and control . . . which are
installed or used by the permittee to achieve compliance with conditions
of this permit."
Id. Clearly, the permit requires WASA to properly maintain
equipment used to comply with express permit provisions, e.g., effluent
limitations. However, what remains unclear is whether "conditions of this
permit" requires proper maintenance of equipment used to comply with
implied permit provisions. The word "conditions" is not
synonymous with "express terms" or "written terms"; its meaning is rather
broader, something more akin to a general obligation, express or implied.
See, e.g., WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (9th ed.
1985) (explaining "condition," in the first definition listed, to be "a
premise upon which the fulfillment of an agreement depends"). Because the
word "conditions" is susceptible to two reasonable readings-encompassing
both express and implied obligations-the M&O Clause cannot be read to
exclude the possibility that WASA was obligated to maintain equipment
used to comply with implied permit provisions. Therefore, the court finds
the M&O Clause ambiguous. As a result, the court may refer to
extrinsic evidence in order to interpret the M&O Clause. See
Piney Run, 268 F.3d at 270; Northwest Envtl. Advocates,
56 F.3d at 982.
It is troubling, though not dispositive, that plaintiffs concede that
the M&O Clause does not explicitly require WASA to install carbon
filters or control odor. In successful citizen suits brought to enforce
non-effluent limitations, the prevailing plaintiffs seemed always able to
identify violations of explicit permit provisions. See
Friends of the Earth, 204 F.3d at 153, 157 (allowing suit to enforce
express effluent limitations on discharge of cadmium, copper, iron, lead
and zinc); Northwest Envtl. Advocates, 56 F.3d at 979, 986
(upholding enforcement of a NPDES permit that was "clear on its face in
permitting [combined sewer overflow] events under specified conditions");
Conn. Fund, 631 F. Supp. at 1283, 1285 (allowing enforcement of
NPDES permit provision expressly limiting discharges into a lagoon,
though the lagoon was not otherwise subject
to CWA regulation because discharges into the lagoon might never
reach navigable waters); Locust Lane, 636 F. Supp. at 537-38
(enforcing NPDES permit provision setting a schedule for the construction
of wastewater treatment facilities); Pymatuning, 506 F. Supp. at
904 n.1, 905 n.2, 908 (upholding enforcement of specific construction
requirements contained in a NPDES permit, including inter alia
"tight, well-fitting joints" and concrete "cured from injury by water,
freezing, drying or other harmful conditions"). At least one court
indicated its reluctance to enforce specific, though implied, conditions
through the general, but explicit, terms of a NPDES permit. See Piney
Run, 269 F.3d at 271 (finding that neither the express terms, nor
extrinsic evidence interpreting such terms, of a NPDES permit supported a
reading that prohibited heat discharges). Persuasive authority,
therefore, seems to require courts to examine extrinsic evidence in
interpreting NPDES terms*fn5 while discouraging them from being eager to
enforce implied obligations in permits.
2. Extrinsic Evidence
When the express terms of a legal document are ambiguous, extrinsic
evidence may be used to interpret it. Specifically, extrinsic evidence is
used to "determine the circumstances surrounding the making of the
contract so as to ascertain what a reasonable person in the position of
the parties would have thought the words meant." Potomac Elec.,
251 F. Supp.2d at 150.
Therefore, both objective and subjective (the intentions of the
parties) evidence can be relevant.
Id. at 148 (applying the "objective law of contracts
whereby the written language embodying the terms of an agreement will
govern . . ., irrespective of the intent of the parties at the time
they entered the contract, unless the written language is not
susceptible of a clear and definite understanding . . .") (emphasis
added); id at 149 ("[T]he court should look to the intent of the
parties entering into the agreement."). Relevant forms of extrinsic
evidence include circumstances before, during, and surrounding the making
of the contract, customary practices the parties had reason to know
about, and the course of conduct of the parties. Id. at 150.
Plaintiffs' claim depends almost completely on extrinsic evidence, since
the 1997 Permit says nothing specific-that is, nothing at ail-about
WASA's obligation to operate and maintain carbon filters. See
generally 1997 Permit; Pls.' Cross-Mot. for Summ. J. at 35
(acknowledging that 1997 Permit contained no express limits on hydrogen
sulfide or odor control requirements). The evidence upon which plaintiffs
relies does show WASA's obligation, but only vis-a-vis the Park Service,
to operate and maintain carbon filters; they fail to show that such
obligations were enforceable, or were connected in any way to, the 1997
Permit. Other pieces of extrinsic evidence support the conclusion that
none of the parties (EPA, Park Service, WASA) involved in executing
relevant legal documents (1997 Permit, Park Service permits) intended the
filter obligations in the Park Service permits to be enforced through
1997 Permit or CWA. The court analyzes, first, evidence that the Park
Service obligated WASA to maintain carbon filters, and, second, the
evidence that those obligations were enforceable through the 1997 Permit.
First, plaintiffs arguments hint that certain Park Service (not NPDES)
permits requiring carbon filters are critical to proving their claim, for
they create WASA's legal obligation in the first place. Plaintiffs claim
that WASA's predecessor "needed NPS permission to construct,
operate and maintain [the District of Columbia-based] portions of
the system." Pls.' Cross-Mot, for Summ J. at 2. Further, plaintiffs
maintain that "as a necessary precondition to the construction and
operation of portions of the Potomac Interceptor, the Park Service
required WASA to install and maintain carbon filters on all vents
. . . located on U.S. Government Property." Pls.' Reply at 1. As a
result, plaintiffs conclude that "an odor-control system on the PI vents
was a necessary condition for the construction of PI [and] remains a
necessary condition for its operation," and that WASA's predecessor
acquiesced to these requirements. Pls.' Cross-Mot, for Summ. J. at 35. In
other words, this is the "implied condition" which plaintiffs claim to be
enforceable through the M&O Clause. The 1997 Permit requires WASA to
properly maintain all equipment used to comply with "conditions of the
permit," 1997 Permit at 19, and plaintiffs allege that one "necessary
precondition" to the permit is odor control via carbon filter.
Indeed, the Park Service permits do show that WASA had duty to install
filters. In 1962, the Park Service clearly required some form of odor
management-either ventilation of odors off of Park lands or filtering of
hydrogen sulfide-when it first allowed WASA's predecessor to construct
the PI and UPI on federal lands. See Def's App. at 911, 913
(Home Ltr. to Bd. of Commissioners, Gov't of Dist. of Columbia at 1, 3
(Apr. 12, 1962)) (requiring WASA predecessor to abide by all terms in the
permit "as long as this facility is in place" and requiring, inter alia,
that "[a]ll vent structures shall either be located off United States
property or shall provide for odor controlled carbon filters.");
id. at 906 (Freeman Ltr. to Head, Jun. 6, 1962) (requesting WASA
predecessor to "take the necessary action to revise the vent structures,
located on park land, to accommodate carbon filters). Further, in 1999,
the Park Service reminded WASA of its duty to maintain carbon filters
just before plaintiffs initiated the present action:
The permit issued to your agency on April 12,
1962, states in paragraph 16, "All vent structures
shall either be located off Untied States property
or shall provide for odor controlled carbon
filters." The strong odor that is present seems to
indicate that the carbon filters have failed and
maintenance is required. Please arrange to correct
this problem as soon as possible.
Def.'s App. at 651 (Faris Ltr. to Marcotte, Aug. 24, 1999). In
response, WASA's General Manager Michael Marcotte neither confirmed nor
denied having an obligation to maintain the filters, but rather reported
that WASA would "review their condition and odors associated with the
operation of the sewer" and would "advise you of our specific action
plans as they are developed." Def's App. at 652 (Marcotte Ltr. to Faris,
Sept. 10, 1999). In between 1962 and 1999, the Park Service reminded, at
least once, WASA of the issue of carbon filters. NPS complained of a
"continual discharge of sewer gas" and noted that the under the 1962 and
1966 permit actions, charcoal filters "were and still are required."
Def's App. at 226-27 (Stanton Ltr. to White, Jun. 13, 1984); see also
id. (noting that "the Chesapeake and Ohio Canal National Historical
Park has been particularly affected by non-maintenance of the filters.").
WASA does not seriously contest this evidence. WASA, for instance,
attempts to argue that the original 1961 and 1962 Park Service permits
merely "requested that the District install carbon filters." Def.'s Mot.
for Summ. J. at 7. WASA also claims that the 1984 Park Service letter was
less than clear in requiring maintenance of carbon filters, and if
maintenance was mandatory, the obligation extended only to relatively few
stretches of the PI. See Def.'s Reply at 16-18. However, the
Park Service documents use obligatory not horatory language-each requires
WASA to install filters. See Def's App. at 226-27 (1984 letter); 651
(1999 letter), 911, 913 (1962 Permit). They expressly indicate that WASA
had, and still has, an obligation vis-a-vis the Park Service to
control odor, probably by installing carbon filters. Finally, a WASA
has essentially conceded the binding nature of Park Service
permits. Pls.'s Ex. 3 (Doane Dep. at 39) ("any modifications [WASA
proposes] also require permits from the National Park Service.")
cited at Pls.' Cross-Mot. for Summ J. at 13.
Whether the Park Service obligated WASA to install carbon filters
requires no further scrutiny. An examination of the Park Service permits
does, however, highlight the comparative dearth of evidence to support
the next logical step in plaintiffs' argument. Because plaintiffs bring
suit under the CWA to enforce an NPDES permit provision, they must
demonstrate not only that WASA has an obligation to operate and maintain
filters, but also that that obligation is enforceable through the 1997
Permit. Plaintiffs fail to present any evidence on this second, critical
point. No evidence even suggests that these obligations were enforceable
through the 1997 Permit, or that the Park Service or EPA had any such
intention. Without this critical link, the court must deny plaintiffs'
summary judgment motion and grant WASA's motion.
Neither party identifies materials that indicate that the EPA, Park
Service or WASA intended or believed that the Park Service permit
requirements were enforceable through the 1997 Permit specifically.
Nothing in the record suggests that the 1997 Permit incorporated by
reference the Park Service requirements. See generally 1997
Permit. Certainly, as plaintiffs concede, nothing in the M&O clause
refers to maintenance of equipment to fulfill Park Service obligations.
See id. at 19. Indeed, the 1997 Permit mentions the National
Park Service only once. The permit requires WASA to submit a quarterly
report to the Park Service, amongst other "users of the sanitary system
and local government officials and the general public," in order to
inform them of "the extent of actual compliance with permit requirements
and conditions; additionally the permittee shall include in this report
information the efficacy of all (on and off
site) operations utilized in the disposal of sludge from the Blue
Plains WWTP." See 1997 Permit at 31. Under the 1997 Permit,
WASA's only obligation vis-a-vis the Park Service is to provide
compliance reports. In addition, no Park Service documents on the record
suggest that the Park Service intended or believed its permits to be
enforceable through the 1997 Permit. Indeed, the Park Service documents
fail to mention the EPA, Clean Water Act, or 1997 Permit even once.
See generally Def.'s App. at 651, 906, 911, 913 (Park Service
documents sent to WASA after passage of the Clean Water Act). Finally,
plaintiffs agree that they are not enforcing the Park Service permit
itself. See Def. `s App. at 929-31. As a result, the court
concludes there is no evidence, objective or subjective (i.e., regarding
the intentions of the EPA or the Park Service) that the filter
maintenance requirement was specifically enforceable through the 1997
As a more general matter, it seems that the EPA did not intend to allow
enforcement of conditions external to a NPDES permit through the permit
itself. Neither did EPA apparently intend to require odor control.
General EPA guidance documents indicate that the boilerplate M&O
Clause, included in all NPDES permits, does not generally enforce
conditions external to a NPDES permit. The most direct evidence of this
is EPA's manual on NPDES permits. See Def's App. at 1017-25
(U.S. EPA NPDES Permit Writers' Manual (1996)) ("NPDES Manual"). The
manual advises permitting authorities, explaining the meaning of and
reasons for different permit provisions. Id. at 1021-22 (NPDES
Manual at 176-68). In a section on boilerplate clauses, the EPA explains
the M&O Clause, lifted verbatim from 40 C.F.R. § 122.41 (e), this
Proper Operation and Maintenance . . . The
permittee must properly operate and maintain all
equipment and treatment systems used by the
permittee for compliance 'with the terms of
the permit. The permittee must provide
controls and quality assurance procedures.
Backup systems are required when needed to ensure
compliance. However, each main line unit treatment
process must be operated at a minimum.
Def.'s App. at 1022 (NPDES Manual at 168) (emphasis added). This
guidance document, somewhat more explicitly than the M&O Clause
itself, only requires permittees to maintain equipment in order to
comply with other express permit provisions. Compare
1997 Permit at 19 (requiring maintenance of systems used for "compliance
with conditions of the permit."). Put another way, the manual interprets
the boilerplate M&O clause not to require maintenance of
equipment used to comply with implied permit conditions. The EPA NPDES
manual can hardly be said to provide extensive guidance, but it is the
only evidence presented by the parties that helps interpret the M&O
Clause, and it supports WASA's reading of the maintenance provision.
In addition, other guidance documents indicate that the EPA generally
abstains from regulating odor. One indicates that the best, and only
extant, means of regulating odor is the state common law of nuisance:
[E]fforts to establish quantified acceptability or
annoyance threshold levels for any particular
odorant [sic] are fraught with subjective
evaluations. Subjective reactions to odor differ
between individuals and between communities.
Indeed, this factor is a major reason for the view
that nuisance law is an appropriate mechanism for
addressing odor problems. Despite all of its
substantive, procedural, and evidentiary
shortcomings, the nuisance approach is the only
odor-regulation strategy now in use that is tied
directly to the basic criterion of an unreasonable
interference with public or private rights.
Def's App. 696 (Regulatory Options for the Control of Odors, EPA
Doc. 450 5-80-003, at 14 (1980)). That is, EPA does not purport to
regulate odor through either the CWA or Clean Air Act. See id. A
different EPA guidance manual document-both thorough and thoroughly
technical-on hydrogen sulfide odor and corrosion in sewer systems
provides no indication that the
CWA, or EPA generally, requires odor control technology. See
generally Def.'s App. 1080-1224 (Design Manual: Odor and Corrosion
Control in Sanitary Sewerage Systems and Treatment Plants, EPA Doc.
EPA/625/1-85/018 (1985)). Rather, the EPA seems to acknowledge the need
for wastewater authorities to balance competing factors-on the one hand,
"[w]astewater is known to the public for its potential to create odor
nuisance" but, on the other, hydrogen sulfide can "corrode
various materials used in sewer and treatment plant construction."
Id. at 1090 (Design Manual at 1) (emphasis added). The manual
also assumes that state law, not federal law or the EPA, operates to
require odor control. See id. Put together, these guidance
documents indicate that the EPA did not intend, in drafting the 1997
Permit and M&O Clause, to obligate WAS A to install and maintain
filters or control odor.
After exhausting the possibilities, the court finds, as a matter of
law, there is no connection between the M&O Clause, or any other 1997
Permit provision, and the Park Service requirement that WASA maintain
carbon filters. As plaintiffs present it, the Park Service requirement
is, legally, an obligation in the air, detached from the very NPDES
permit which plaintiffs claim to enforce. The court concludes that WASA
had no obligation under its NPDES permit to operate or maintain
carbon filters.*fn6 The court need not reach WASA's other arguments
in support of summary judgment.
Plaintiffs fail to demonstrate a connection between any obligations
imposed by the Park Service and the NPDES permit provision through which
they sought vindicate their claim. Plaintiffs sued under the CWA and
must, therefore, identify a legal obligation specifically under the CWA
which WASA failed to uphold. The boilerplate maintenance provision
requires reference to another, explicit NPDES permit provision. By
failing to connect the dots, as it were, plaintiffs cannot maintain an
action under the CWA.
Plaintiffs' argument is troubling because the principle underlying it
would expand the CWA beyond recognition, such that it would be hard to
distinguish actions properly brought under the Act and actions
conveniently brought through it. Plaintiffs argue that it is absurd to
think that their argument would, as WASA suggests, validate actions to
quell the noise from a wastewater facility, or actions to remove or paint
over unsightly pipes in the view of area residents. See Pls.'
Cross-Mot. for Summ. J. at 36 (citing Def.'s Mot. for Summ J. at 24)
(arguing that). But, if the court correctly understands plaintiffs'
argument, these actions would be enforceable under the CWA had the Park
Service required noise control or aesthetically pleasing pipes as
conditions for the construction of the PI and UPI. In this case,
plaintiffs' attempt to enforce obligations not contained in the CWA or
WASA's NPDES permit and conceded to be
unrelated to the general purposes of the CWA,
The CWA is already generous to the extent that it allows the EPA and
affected citizens to bring suit for violations of any NPDES permit
violations even though the permit provisions themselves may not be
strictly related to limiting water pollution. Bennett, amongst
other cases, allows this. See 520 U.S. at 175-76. Perhaps it
would not be possible to advance the primary objectives of a statutory
regime (e.g., controlling water pollution) without enforcement of mundane
administrative or maintenance requirements, such as contained in the
M&O Clause. But to allow the enforcement of legal obligations not
actually contained in a permit would be to open the floodgates, as it
were. At some point, the CWA, like any federal statutory regime, must
have boundaries. Whether or not a principled line, separating proper CWA
actions from non-CWA actions, can be cleanly drawn, in this case,
plaintiffs' claim falls on the wrong side of the line. The CWA citizen
suit provision, by way of WASA's 1997 Permit, is the wrong mechanism to
enforce WASA's obligation to maintain carbon filters.
For the reasons set forth in the court's Memorandum Opinion docketed
this same day, it is this 2nd day of March, 2004, hereby
ORDERED that Judgment is entered in favor of Defendant.