PARADISE, Calif. (CN) — A federal judge denied summary judgment to a California nonprofit that accuses a solid waste facility in Butte County of allowing contaminants to seep out of its facility and into a wetland preserve that leads to a Sacramento River tributary during a major rainstorm.
Nonprofit California Open Lands maintains a wetland preserve in Butte County that sits near the Neal Road Recycling and Waste Facility, operated by the Butte County Department of Public Works. The devastating Camp Fire damaged the facility in November 2018, and in February 2019 a rainstorm inundated the area.
The plaintiffs claim the storm caused leachate from the facility to seep into a stormwater basin and into a ditch that flowed to the plaintiff’s wetland preserve. The stormwater then flowed out of the preserve into an unnamed creek, then into Hamlin Slough — a tributary of Butte Creek which is itself a tributary of the Sacramento River and the Sacramento-San Joaquin Delta.
California Open Lands sued the Butte County Department of Public Works in January 2020 claiming violations of the Clean Water Act and the California General Permit, which regulate stormwater discharges associated with construction activities. The nonprofit accused the facility of discharging contaminated stormwater into the preserve and failing to implement and develop adequate stormwater pollution prevention and monitoring implementation plans.
U.S. District Judge Daniel Calabretta denied summary judgment on the plaintiff’s claim regarding the discharge of contaminated water because he said there are disputes of fact as to whether any of the leachate-contaminated water actually flowed into Hamlin Slough.
“Defendants point to a report prepared by their experts, Formation Environmental, LLC, which found based on water samples drawn from the preserve’s spillway, SW-1, that ‘the stormwater data indicates that there were no leachate discharges that flowed off-site or into the tributary to Hamlin Slough,” Calabretta wrote.
Calabretta found the report was bolstered by the defendant’s expert witness, Sean Covington, who opined there was no leachate discharge concentrations of chemicals of potential concern in stormwater that flowed off-site or into the unnamed tributary to Hamlin Slough in 2019 that exceeded environmental screening levels, human health screening levels or background concentrations.
“Plaintiff has not provided definitive proof that the stormwater discharged from the preserve contained leachate. Rather, plaintiff has provided evidence that Covington believed, or assumed, the stormwater he was testing contained leachate.," Calabretta wrote.
Calabretta found the nonprofit wanted him to draw an inference that because leachate-contaminated storm water was pumped into the preserve, that any water then pumped from the preserve would also be contaminated. He said the reports cited by the county undermine and that summary judgment was not appropriate.
“A rational jury could view those reports as evidence that no leachate was in fact leaked from the preserve, and plaintiff has not provided any definitive evidence to the contrary. In addition, as defendants explained at oral argument, the primary sedimentation basin is designed to allow suspended particles to settle out of water as it flows through the basin,” Calabretta wrote. “Accordingly, some contaminants may have been removed from the stormwater that entered the primary sedimentation basin on the dates in question before it was discharged from the facility. Therefore, the evidence is not so one sided that plaintiff must prevail as a matter of law.”
Calabretta did grant summary judgment to the plaintiff on two other causes of action, however. He found that the waste facility failed to develop and implement an adequate stormwater pollution prevention plan in 2014, 2015, 2019, and 2021, and failed to develop an adequate monitoring implementation plan in 2019 and 2021.
The latter plan would have required the facility to collect representative samples of stormwater discharges and have those samples analyzed for various pollutants. Failure to comply is a violation of the Clean Water Act. Similarly, the inadequacies of the stormwater pollution prevention plan amounted to a violation of a section of the California General Permit as they lacked adequate site maps and did not disclose locations of industrial activity and material or areas where Posi-Shell — a weather-resistant sprayed coating made from a blend of clay binders, reinforcing fibers, and polymers that can be used as a landfill cover system — was applied.
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