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Heal Utah v. Pacificorp

United States District Court, D. Utah

March 22, 2019

HEAL UTAH and SIERRA CLUB, Plaintiffs,
v.
PACIFICORP, Defendant.

          Evelyn J. Furse Magistrate Judge.

          MEMORANDUM DECISION AND ORDER

          ROBERT J. SHELBY UNITED STATES CHIEF DISTRICT JUDGE.

         Plaintiffs HEAL Utah and Sierra Club (collectively, the Groups) brought this citizen suit under the Clean Water Act, claiming Defendant PacifiCorp violated the CWA by discharging dredged or fill material into waters of the United States at its Huntington Power Plant in Utah. The Groups and PacifiCorp filed cross-motions for summary judgment on the Groups' CWA claim.[1] PacifiCorp also moved to dismiss the claim for lack of standing.[2] PacifiCorp additionally filed a Motion to Exclude the testimony of the Groups' expert, Bruce A. Anderson.[3]

         The court heard oral argument on the motions on January 8, 2019. After carefully considering the parties' briefing and oral argument, as well as the relevant legal authorities, the court GRANTS PacifiCorp's Motion for Summary Judgment. The remaining motions are DENIED as MOOT.

         BACKGROUND[4]

         HEAL Utah and Sierra Club are environmental organizations whose respective objectives include “protect[ing] public health and the environment in Utah”[5] and “educating and enlisting people to protect and restore the quality of the natural and human environment.”[6] PacifiCorp, an Oregon corporation, owns and operates a power plant in Huntington, Utah (the Plant).[7]

         The Plant consists of a coal-fired power plant, a “Research Farm, ” and two landfills, the “Old Landfill” and the “New Landfill.”[8] The Plant lies on the south and west side of Huntington Creek.[9] There are a number of drainage basins across the site, including two at issue in this case, Basins 8 and 9.[10] To the extent Basins 8 and 9 produce measurable water flow, it moves through West End and Landfill Canyons, respectively.[11]

         In 1979, PacifiCorp built a surge pond to collect storm and spring water at the lower part of Basin 9 and named it “the Duck Pond.” At the same time, PacifiCorp dug a ditch connecting the Duck Pond to Huntington Creek.[12] Once the Duck Pond and connecting ditch were built, water from Basins 8 and 9 flowed through West End and Landfill Canyons, collected in the Duck Pond, and then discharged into Huntington Creek through a metal culvert known as Outfall 001.[13] The Groups generally refer to the Basin 9 area as the “Duck Pond drainage.”[14]

         In 2006, the Utah Department of Environmental Quality (DEQ) issued a permit to PacifiCorp for the discharge of certain pollutants (primarily total dissolved solids, or TDS) into Huntington Creek from Outfall 001.[15] PacifiCorp rescinded this permit in 2014 because it no longer discharged pollutants through Outfall 001, as described in the next section.[16] Separately, PacifiCorp operates the Plant under a Ground Water Discharge Permit issued by the State of Utah Division of Water Quality (DWQ).[17]

         (Image Omitted.)

         Section 404 of the Clean Water Act

         The CWA prohibits the discharge of pollutants, including dredged or fill material, into waters of the United States unless authorized by another provision of the Act.[18] Section 404 of the CWA authorizes the issuance of permits for the discharge of dredged or fill material.[19] To establish a “dredge and fill” violation under the CWA, a plaintiff must show: (1) the defendant is a “person” (2) who discharged dredged or fill material (3) into jurisdictional waters of the United States (4) from a point source (5) without a permit.[20] The first and fifth elements are not at issue in this case: “persons” subject to the CWA include corporations like PacifiCorp, [21] and PacifiCorp does not dispute that it did not obtain a § 404 permit for any of the conduct the Groups challenge in this lawsuit.

         The Alleged 2007-2008 Violation

         Between November 2007 and January 2008, PacifiCorp installed a “collection system” in the Duck Pond drainage, designed to intercept surface water and landfill leachate and pipe it to a pump house near Huntington Creek and then to the Plant.[22] The intercepted water is primarily used at the Plant, but is sometimes pumped to an evaporation pond east of Huntington Creek.[23]Water from the evaporation pond (including any water originating from the collection system) is “land applied” on PacifiCorp's Research Farm.[24] The land application of wastewater at Research Farm is governed by PacifiCorp's Ground Water Discharge Permit.[25]

         The Groups claim PacifiCorp violated the CWA when it installed the collection system without a § 404 permit. The Groups point to several elements of the installation they contend violated the CWA. PacifiCorp “used a track hoe to excavate ditches three feet deep in both Landfill and West End Canyon, ” placed pipes and filter fabric in the ditches, then placed “a variety of fill materials over the pipe, including medium gravel, rip-rap and soil.”[26] To connect the pipes with the pump house, PacifiCorp buried pipes beneath the connecting ditch between the Duck Pond and Huntington Creek.[27] Finally, the Groups claim PacifiCorp “placed fill material in the [connecting ditch], ” essentially creating a dam so water would no longer flow to Huntington Creek.[28] PacifiCorp does not dispute these assertions other than to challenge the Groups' use of the term “fill material.”[29]

         The Alleged 2008 and 2016 Violations

         In 2008, PacifiCorp removed sediment from the Duck Pond, moving some of it up-canyon from the Duck Pond where it remains in piles.[30] According to the Groups, “brief heavy storms” periodically erode the sediment piles and wash material from them downstream back into the Duck Pond.[31] They claim such a storm event occurred in 2016 and that the resulting erosion constituted a § 404 violation. PacifiCorp disputes both the factual assertion that material washes back downstream into the Duck Pond and the conclusion that such an event would constitute a separate § 404 violation.

         During a storm in 2016, a large rock fell on part of the collection system, damaging a pipe.[32] PacifiCorp employees repaired the pipe, using a shovel to excavate and cut out the damaged section.[33] The Groups claim this constituted a § 404 violation because PacifiCorp “excavated and deposited additional fill material” when it repaired and reburied the broken pipe.[34]

         The Groups File Suit

         On October 15, 2015, the Groups notified PacifiCorp of their intent to bring a citizen suit under the CWA.[35] Their notice letter describes various alleged violations of the CWA and the Resource Conservation and Recovery Act, including the Groups' claim that PacifiCorp “filled tributaries of Huntington Creek without a permit.”[36]

         The Groups filed their original Complaint on February 12, 2016, asserting five claims under the RCRA and CWA.[37] On October 13, 2017, they filed an Amended Complaint eliminating all but one remaining count, for the unlawful discharge of dredged or fill material into waters of the United States under the CWA.[38]

         ANALYSIS

         I. SUBJECT MATTER JURISDICTION

         The threshold issue in this case concerns the court's subject-matter jurisdiction. The parties dispute (A) whether the Groups' pre-suit notice satisfies 33 U.S.C. § 1365; and (B) whether the Groups have constitutional standing to pursue the § 404 CWA claim.

         The Groups' § 404 CWA claim is primarily centered on the installation of the collection system in 2007-2008. However, in response to PacifiCorp's statute of limitations argument, the Groups argue they have a separate claim relating to the repair of a pipe in the collection system that took place in fall of 2016.[39] Given this position, notice and standing are analyzed separately for the 2007-2008 installation and 2016 repair claim.[40]

         A. Notice Requirement

         A plaintiff must satisfy three statutory requirements to bring a citizen suit under the CWA. First, the plaintiff must give notice of its intent to sue at least sixty days before filing a private enforcement suit.[41] Second, there must be no ongoing civil or administrative proceeding for the same alleged violations by the State or the EPA.[42] Third, a citizen suit must allege a “continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will continue to pollute in the future.”[43] PacifiCorp does not dispute that the latter two requirements are met, but challenges the adequacy of the Groups' notice letter.[44]

         The CWA's notice requirement is a “mandatory precondition that, if not met, requires dismissal of the action.”[45] A notice letter must provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, [and] the date or dates of such violation.”[46] The recipient “must understand from the notice what the citizen is alleging-not what the citizen could allege if the citizen knew more or cared about other possible transgressions.”[47] In determining the sufficiency of a notice letter, the “guiding principle” is whether it contains enough information to provide the defendant an opportunity to cure any violations and render the suit unnecessary.[48]

         The Groups sent PacifiCorp notice of their intent to sue on October 15, 2015.[49] As explained below, the Groups' notice letter satisfies the notice requirement for the 2007-2008 claim, but not the 2016 claim.

         First, the notice letter is sufficient for the 2007-2008 claim. While PacifiCorp argues the letter fails to mention the connecting ditch as the site of the unpermitted discharge, the court agrees with the Groups that the connecting ditch can be understood as the “the lower portion of the Duck Pond drainage channel that was described in the notice letter and complaint.”[50] The notice letter contains sufficient information to alert PacifiCorp about the nature and location of the Groups' claims, including allegations relating to the connecting ditch between the Duck Pond and Huntington Creek.[51]

         But the Groups did not provide notice for their claim related to the 2016 repair. The 2016 repair post-dates the October 2015 notice letter. And the court finds unavailing the Groups' argument that the 2015 letter put PacifiCorp on notice for the 2016 repair because it is closely related to the 2007-2008 violation.

         Under a Third Circuit rule, “a notice letter which includes a list of discharge violations, by parameter, provides sufficient information for the recipients of the notice to identify violations of the same type (same parameter, same outfall) occurring during and after the period covered by the notice letter.”[52] Under that rule, at least, if post-notice violations are sufficiently similar to previously noticed violations, no new notice is required.

         But even if that rule applied in the Tenth Circuit, the Groups' letter does not contain sufficient information to satisfy the notice requirement for the 2016 repair. General similarities between the 2007-2008 and 2016 violations are outweighed by the distinct nature of the two sets of violations. Although both potentially involve the unpermitted discharge of fill material on PacifiCorp's property, the 2016 violation involves conduct of a different type and scope from that noticed in the letter. As described in the notice letter, the 2007-2008 violation involved installation of a pump house and four separate collection systems made of “concrete or earthen structures that were placed into the stream beds.”[53] In 2016, on the other hand, employees “dug up, repaired, and reburied” a single damaged pipe within the collection system.

         In light of these differences, the claims are not sufficiently similar such that the notice requirement is satisfied for the 2016 repair claim. That claim is therefore dismissed for failure to provide adequate pre-suit notice.[54]

         B. Article III Standing

         To satisfy Article III of the Constitution, a plaintiff must have standing to bring a claim in federal court.[55] “An association has standing to bring suit on behalf of its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purposes, and [3] neither the claim asserted nor the relief requested required the participation of individual members in the lawsuit.”[56] Only the first prong is at issue in this case.[57]

         To satisfy the first standing element, the Groups must show (1) at least one of their members has suffered an injury in fact that is “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to [PacifiCorp's illegal conduct]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”[58] The Groups fail to meet this standard.

         1. Injury In Fact

         At the pleading stage, “general factual allegations of injury resulting from the defendant's conduct may suffice” to meet the plaintiff's burden on injury in fact.[59] But at the summary judgment stage, “the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.”[60] “And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.”[61]

         Discerning guiding principles from cases analyzing standing elements-particularly for the injury in fact requirement-can prove challenging. But controlling authority provides some helpful direction in the context of environmental suits. “In the environmental context, a plaintiff who has repeatedly visited a particular site, has imminent plans to do so again, and whose interests are harmed by a defendant's conduct has suffered injury in fact.”[62] And “[w]hile generalized harm to . . . the environment will not alone support standing, if that harm in fact affects the recreational or even the mere [a]esthetic interests of the plaintiff, that will suffice.”[63]Furthermore, a person's reasonable concerns about pollution can support injury in fact where those concerns directly affect the person's recreational, aesthetic, or economic interests.[64]

         To show injury in fact here, the Groups submit declaration testimony of one of their members, Perrine Anderson. Anderson is a member of an LLC which owns property on Huntington Creek, immediately downstream of the PacifiCorp power plant.[65] The property contains Anderson's family's apple orchard and a small pond. Anderson claims she suffers economic, environmental, and aesthetic injury from a reduction in the amount of water flowing in Huntington Creek as a result of PacifiCorp's constructed water collection system, and that she suffers or will suffer environmental injury from application of water diverted from the collection system onto Research Farm. She further claims aesthetic injury from the loss of the ability to view, from Highway 31, flowing water in what was previously the connecting ditch. Finally, the Groups claim Anderson suffers procedural injury from the deprivation of the opportunity to participate in a § 404 permit process when PacifiCorp elected to construct the collection system without first seeking a permit. The court addresses the sufficiency of each claimed injury in turn.

         a. Economic, Environmental, and Aesthetic Injury from Reduced Water Flow on Property

         The Groups claim Anderson suffers injury from the reduced quantity of water flowing in Huntington Creek on her property. They provide evidence that PacifiCorp's collection system caused the flow of water from the Duck Pond drainage to Huntington Creek to decrease or stop altogether.[66] And because Anderson's property is immediately downstream from PacifiCorp's plant, it is plausible that PacifiCorp's conduct decreased the amount of water flowing into Huntington Creek on Anderson's property. But the proper question for injury is not to what degree the water flow on Anderson's property is reduced, but whether she suffers concrete harm by any reduction in flow.[67]

         The court finds insufficient Anderson's claimed economic injury.[68] The Groups argue Anderson suffers economic harm because “Huntington Creek flows through [her] property and contributes water to the pond on her property that can be used to irrigate the family orchard, which can provide her with economic benefits.”[69] This description of the economic impact of any reduction in water is speculative. Anderson avers the “dam which allowed the water to flow [from the pond] into the property” for irrigation has been in disrepair since 1999.[70] She has not repaired the dam because she “[has] not yet decided whether to continue operating the orchard.”[71] This testimony reveals Anderson has suffered no actual economic harm from reduced water flow-only the possibility that harm may arise if she decides at some unspecified time in the future to rebuild the dam and begin operating the orchard.[72] The economic injury is therefore too speculative to support standing.

         The Groups also fail to show Anderson suffers an environmental or aesthetic injury from reduced water flow. There are three theories under which a plaintiff can demonstrate injury in fact based on environmental or aesthetic harm. First, a plaintiff can show injury based on actual harm to the environment if the environmental harm “in fact affects [his or her] recreational or....[a]esthetic interests.”[73] Similarly, a plaintiff who has “reasonable concerns” about environmental harm can demonstrate injury where the concerns “directly affect [his or her] recreational, aesthetic, [or] economic interests.”[74] For example, plaintiffs can supply evidence they cease or limit their use and enjoyment of the impacted area because of their reasonable concerns.[75] Finally, threatened harm to the environment can amount to injury if the threat is imminent (not merely hypothetical) and affects the plaintiff “in a ‘personal and individual way.'”[76] A common thread tying these theories together is that the harm to the environment, whether actual or threatened, must directly and concretely affect the plaintiff's recreational or aesthetic interests.[77] The Groups have not established this kind of harm here.

         In her declaration, Anderson expresses her concern about the “unnatural change in the upstream quantity or quality” of Huntington Creek.[78] She is concerned PacifiCorp's diversion “could have reduced the amount of water in the pond, ”[79] and “could affect water quality in the pond and [her] ability to grow plants on the property.”[80] This is insufficient to fall within any of the three available theories outlined above.

         Neither Anderson nor the Groups demonstrate actual change to the quantity or quality of Huntington Creek water on the property. Anderson does not state how her concerns, however reasonable, directly and concretely affect her recreational, aesthetic, or economic interests. She does not say, for example, that she limits her recreational use of the pond or property due to her concerns, or that she has experienced any aesthetic change such as lower water level in the pond. Essentially, what Anderson expresses is a concern that she might have suffered an injury.[81] Though she may be concerned about her ability to grow plants on the property, this concern is also too speculative to constitute an economic injury for the reasons previously explained. Finally, to the extent the Groups claim Anderson suffers from a threat of environmental harm due to reduced water flow on the property, they have not demonstrated its imminence, especially considering the diversion has existed since at least 2008.

         b. Environmental Injury from Land Application of Diverted Water on Research Farm

         The Groups next claim Anderson suffers environmental injury from the risk of runoff or groundwater contamination from PacifiCorp's Research Farm. Some of the water diverted from the collection system is pumped to an irrigation pond, and water from the irrigation pond is land-applied on Research Farm.[82] As evidence of threatened environmental harm, the Groups cite a report by the Utah Department of Water Quality (DWQ) prepared in 2017. The report finds water applied at Research Farm “contains elevated and variable levels of total dissolved solids (TDS), nitrate, and boron.”[83] The Groups highlight the DWQ report's conclusion that “[t]he main potential threat that this site poses to beneficial uses of water is discharge of contaminants into Huntington Creek.”[84]

         Although it poses a close call, this showing fails to demonstrate injury for two reasons. First, the threat of environmental harm is not sufficiently imminent. Read in context, the DWQ report makes clear no actual environmental harm has occurred.[85] The report indicates there is a “potential” threat of future contamination, but it does so in terms that mirror the “some day” language[86] the Supreme Court rejected in Lujan.[87] Put differently, the DWQ supports the hypothetical possibility that a threat of environmental harm could develop, but not the existence of a present threat sufficient to support standing.[88]

         Second, the Groups fail to show Anderson is personally affected by the risk of environmental harm. Anderson states the increased risk of contamination from Research Farm has “reduced [her] enjoyment of the creek and the property.”[89] This is due to her concerns the land-application on Research Farm “could affect water quality in the pond and [her] ability to grow plants on the property” and “could add salt to the Creek [which] will contribute to levels of salt in the soil on the property that will inhibit plant growth there.”[90] But considering Anderson's representation that she “[has] not yet decided whether to continue operating the orchard, ”[91] any decreased ability to grow plants is too speculative to support standing. And she does not otherwise aver that her recreational or aesthetic interests are concretely affected by the “potential” threat of increased risk.[92] Once again, Anderson's statements are best characterized as concerns that she might someday be injured. These are insufficient to establish injury in fact.

         c. Aesthetic Injury from Loss of Ability to View Water from Highway 31

         The Groups claim Anderson suffers an aesthetic injury from her inability to “view and enjoy natural streams flowing into Huntington Creek when she drives on the highway that runs by the Plant.”[93] They cite testimony that Anderson “like[s] to look for birds and wildlife in areas with streams and vegetation.”[94] As she explains, “PacifiCorp's conversion of the area from a natural stream to an unnatural piping system with no visible stream harms my aesthetic and environmental interests of enjoying and viewing the wild and natural characteristics of flowing streams along Highway 31.”[95]

         Although there are legal[96] and factual[97] issues with Anderson's testimony, it ultimately fails to support standing because it does not show a concrete or particularized injury. Anderson says PacifiCorp's activities “reduced [her] aesthetic enjoyment of the area, ” but does not say she personally experienced any aesthetic change from Highway 31. For example, she does not claim to have ever seen “flowing water, related vegetation, or stream channel[s]” prior to implementation of the collection system-only that a tributary “would have been easily visible” before its installation.[98] She “like[s] to look for birds and wildlife in areas with streams and vegetation, ” but does not claim she ever looked for or viewed those things from Highway 31, before or after the collection system was installed.[99] Critically, she offers no statement describing whether or how the aesthetic view changed as a result of the installation of the collection system. At bottom, her testimony merely describes things she enjoys viewing, and sates that she does not see those things from Highway 31. Her conclusory statement that PacifiCorp's conduct reduced her enjoyment of the area, without testimony demonstrating she personally experienced any aesthetic change from Highway 31, cannot establish a concrete injury in fact.[100]

         d. Procedural Injury from Loss of Opportunity to Participate in § 404 Permit Process

         Finally, the Groups claim Anderson suffered a procedural injury due to her inability to participate in a § 404 permit process prior to the installation of the collection system. PacifiCorp responds that the Groups cannot assert a procedural injury in a suit against a non-governmental party. As discussed below, the court declines to expand procedural injury jurisprudence as the Groups request.

         Neither side cites controlling authority directly addressing this issue. PacifiCorp cites various procedural injury cases, arguing the common posture in those cases-i.e. suits against the government agencies-forecloses the availability of a procedural injury in a suit against a private party.[101] The Groups disagree with the conclusion PacifiCorp draws from those cases, maintaining the deprivation of procedural opportunities constitutes cognizable injury in fact regardless of the defendant's identity. But the Groups cite only one case in support of their position. In that case, a district court found procedural standing in a case against a private company defendant who “evaded” Clean Air Act requirements by failing to apply for a preconstruction permit.[102] Beyond the fact that the case is not controlling, it provides little persuasive value due to the lack of analysis on this point; the court did not justify its unusual application of the procedural injury doctrine, citing only to procedural standing cases asserted against government agencies.[103]

         Upon review of these cases, and absent controlling authority on this point, the court declines to recognize procedural injury as a basis for standing in a suit against a nongovernmental party. With the sole exception noted above, every procedural standing case cited by the parties names the government party responsible to provide the procedure in question.[104]The Groups cannot therefore rely on procedural injury to establish standing.

         2. Injury In Fact for the 2016 Violation

         Although it is dismissed as explained above for inadequate notice, the Groups also fail to show standing to assert the 2016 repair claim. In their briefing, the Groups do not tie any of Anderson's purported injuries to the 2016 claim. At oral argument the Groups put forth procedural injury as their basis for standing to assert this claim, but as just explained, the court declines to recognize procedural standing in a suit against a private party. Thus, the Groups fail to demonstrate standing for the 2016 repair claim.

         II. THE GROUPS' 2008 CLAIM IS TIME-BARRED[105]

         Even if the Groups had demonstrated standing for their claim related to the 2007-2008 collection system installation, that claim is time-barred under the five-year statute of limitations found in 28 U.S.C. § 2462, which both sides agree applies to the Groups' claim for civil penalties. Under § 2462, a suit must be commenced “within five years from the date when the claim first accrued, ”[106] plus sixty days to account for the notice requirement.[107] The Groups filed their original Complaint on February 12, 2016.[108] Thus, they are barred from asserting any claims for violations which first accrued on or before December 14, 2010.

         The Groups do not dispute the collection system was installed in 2007-2008, outside the statute of limitations period.[109] They nevertheless argue the claim is not time-barred for two reasons: (1) PacifiCorp is in “continuing violation” of the CWA each day the fill material remains in place, and (2) PacifiCorp discharged additional fill materials in two discrete violations after 2008. The court addresses both arguments in turn.

         A. ...


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