12.11.15

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Federal Court Finds Broad Clean Water Act Liability for Unpermitted Industrial Stormwater Discharges

PRACTICE GROUPS

Key Takeaways

  • Unpermitted stormwater discharges “associated with industrial activity” are broadly defined, independent Clean Water Act violations that give rise to citizen suit liability.
  • Manufacturing and industrial facilities should act to eliminate stormwater discharges or to obtain either a permit or a permit exemption from the appropriate regulatory agency.
  • Enforcement defense strategies should potentially be re-evaluated.

Analysis

A federal court in Seattle determined last month that unpermitted discharges of stormwater “associated with industrial activity” are independent violations of the federal Clean Water Act (CWA).  Puget Soundkeeper Alliance v. Whitley Mfg. Co., Inc., No. C13-1690RSL, 2015 WL 6870716 (W.D. Wash. Nov. 9, 2015) (Lasnik, J.).  The decision creates a substantial risk of citizen-suit liability for a broad range of manufacturers and other industrial businesses.

In Soundkeeper Alliance, an environmental group sued modular building manufacturer Whitley Evergreen under the citizen suit provision of the CWA.  That provision allows private citizens to sue for violations of effluent standards and limitations established under the CWA.  33 U.S.C. § 1365.  Soundkeeper alleged that Whitley violated the CWA over a period of nearly six years by discharging stormwater without a permit.  Whitley did not dispute that stormwater discharged from its facility was “associated with industrial activity” and therefore required a permit under the CWA.  However, Whitley argued that it had no liability to a private plaintiff for failing to obtain a permit for its discharges.  Whitley argued that, as a result, Soundkeeper could bring a citizen suit only if it could prove that Whitley’s unpermitted discharges contained one or more “pollutants.”

The court agreed with Whitley that Soundkeeper could not bring a citizen suit simply because Whitley failed to obtain a permit for its stormwater discharges.  But that was a hollow victory.  Critically, the court held that:

[I]n determining that the discharge of stormwater associated with industrial activity requires a permit, Congress necessarily found that the stormwater itself is a pollutant subject to regulation under the CWA.

Soundkeeper Alliance, 2015 WL 6870716, at *3 (emphasis added).  The court therefore concluded that any unpermitted discharge of stormwater associated with industrial activity is necessarily a violation of the CWA, and that such violations independently give rise to citizen-suit liability.

This decision is important, in part, because stormwater discharges “associated with industrial activity” are broadly defined.  Many manufacturers and other industries may have facilities with such discharges.  And, absent a permit, such discharges could result in substantial liability.

In light of this decision, owners of manufacturing and industrial facilities should take extra care to prevent or eliminate unpermitted stormwater discharges from their facilities.  If such discharges are occurring and cannot reasonably be stopped, facilities should act quickly to obtain permit coverage.  In Washington, such discharges can usually be permitted under the state’s Industrial Stormwater General Permit (ISGP).  Certain discharges can be exempt from permitting requirements altogether, but only if the discharging facility obtains a “Conditional No Exposure” (CNE) certificate from the Washington Department of Ecology.  Other states employ similar permitting programs.

Finally, industrial facilities facing citizen suits or other enforcement action related to unpermitted stormwater discharges should consider re-evaluating their defense strategies in light of the court’s determination that “stormwater associated with industrial activity” is itself a pollutant under the CWA and that unpermitted discharges provide an independent basis for citizen-suit liability.


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The opinions expressed in this article are those of the authors and do not necessarily reflect the views of Riddell Williams or its clients.  This article is for general informational purposes and is not intended to be, and should not be taken as, legal advice.

The Riddell Williams Environmental Group has played a key part in addressing some of the region’s most challenging environmental issues.  Our group’s clients include utilities, pulp and paper manufacturers, petroleum companies, regional energy companies, airlines and airfreight carriers, steel manufacturers, waste management companies, technology businesses, real estate development partnerships, private landowners, and some of the state’s leading environmental groups.