Natural Res. Def. Council v. Metro. Water Reclamation Dist. of Greater Chi.

226 F.Supp.3d 904

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,

v.METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, Defendant.

No. 11 C 02937

United States District Court, N.D. Illinois, Eastern Division.

Signed December 27, 2016

Michael Colin McCutcheon, Catherine Jeanne Osuilleabhain, David P. Hackett, Douglas Bennett Sanders, Jonathan H. Ebner, Brandon Flynt Moseberry, Eileen Theresa Flynn, Michael Daniel Lehrman, Baker & McKenzie LLP, Ann Alexander, Albert Ettinger, Chicago, IL, for Plaintiffs.

Gary J. Smith, Beveridge & Diamond PC, San Francisco, CA, Brendan George O'Connor, Ellen Marie Avery, Lisa Luhrs Draper, Ronald Michael Hill, Margaret Theresa Conway, Metropolitan Water Reclamation District of Greater Chicago, Chicago, IL, Benjamin F. Wilson, Katherine T. Gates, Mark A. Turco, Richard S. Davis, Wilson Parker Moore, Hana V. Vizcarra, Beveridge & Diamond, P.C., Washington, DC, Marc Jeffrey Goldstein, Beveridge & Diamond, P.C., Wellesley, MA, Sarah E. Albert, Beveridge & Diamond, PC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

As previously recounted, the plaintiffs, Natural Resources Defense Council, Inc., Sierra Club, Inc., and Prairie Rivers Network are non-profit environmental groups who have brought this case pursuant to the citizen-suit provision of the federal Clean Water Act. In Count Two, the plaintiffs claim that the Metropolitan Water Reclamation District of Greater Chicago ("MWRD" or "District") violated the terms of its National Pollution Discharge Elimination System ("NPDES") permits, and thus the Act itself, at three area water reclamation plants ("WRPs") that it operates. Specifically, the plaintiffs claim that the effluent from the WRPs contains levels of phosphorus that have caused conditions in the receiving waters that violate Illinois water quality standards with respect to levels of algal and plant growth and dissolved oxygen ("DO"). The plaintiffs maintain that the water quality standards are enforceable against the District because Special Condition 5 of the three NPDES permits for the WRPs incorporates those standards.

This Court has already ruled on both parties' motions for summary judgment, first rejecting the District's primary-jurisidiction defense and also holding that the so-called "permit shield" did not protect it to the extent it was not in compliance with Special Condition 5, which the court held incorporates the Illinois water quality standards as substantive terms of the permit, compliance with which is required in order for the permit shield to apply. The court held that the permit shield defense can apply only if the three WRPs' effluent does not cause violations of the Illinois WQS, and therefore the defendant's motion for summary judgment was denied. So too was the plaintiffs's motion. The court concluded that the plaintiffs failed to establish as a matter of law that the phosphorus content of the WRPs' effluent caused violations of the unnatural-growth and DO water quality standards, and that, accordingly, they did not establish any violations of Special Condition 5 of the NPDES permits and the Clean Water Act.

While summary judgment proceedings were pending, another of the plaintiffs' cases, which challenged the most recent permits granted to the District, made its way through the Illinois courts.¹ The plaintiffs lost in the administrative appeal but won in the Illinois Appellate Court. In particular, the appellate court concluded that the permit terms merely incorporating the Illinois WQS were not enforceable as a practical matter and therefore placed no substantive restrictions on the District's phosphorus discharges. The new permits will require reconsideration by the ICPB in light of the ruling. So, the District now comes back to this Court to raise the argument that the plaintiffs are judicially estopped from arguing that the District violated permit terms that the plaintiffs successfully argued elsewhere could not meaningfully restrict phosphorus discharges.

LITIGATION BACKGROUND

Familiarity with the facts of this case is assumed, and they are not set forth again here. The litigation history, however, governs the resolution of this motion.

This case was filed in May 2011 (and assigned to two judges before this one). It sought enforcement of the District's 2002 NPDES permits as to the phosphorus content of effluent from three WRPs. Briefing on the parties' summary-judgment motions was completed in November 2014. In the meantime, the IEPA had issued renewed permits to the District, effective January 1, 2014 (the "2013 permits"). After the parties engaged in prolonged settlement negotiations, this Court ultimately denied both summary-judgment motions on March 31, 2016 (and amended its opinion slightly on April 20); both parties' motions were denied. Thereafter, the case was set for a bench trial on January 17, 2017.

Meanwhile, the plaintiffs, among others, appealed the 2013 permits to the Illinois Pollution Control Board. They argued that the permits, which newly imposed a numeric restriction on phosphorus levels of 1.0 mg/L on a monthly average, did not go far enough to limit phosphorus and that the new numerical standards were too high to ensure compliance with applicable water quality standards. The ICPB granted summary judgment for the District on December 18, 2014, upholding the 2013 permits. The plaintiffs appealed to the Illinois Appellate Court. See Prairie Rivers Network, et al. v. Illnois Pollution Control Board , Appeal No. 15–0971, 401 Ill.Dec. 538, 50 N.E.3d 680 (Ill. App. Ct. 2016) (Mot. Ex. A, ECF No. 165–3.) The plaintiffs-appellants filed their opening brief on June 7, 2015, the District responded on November 6, 2015, and the plaintiffs replied on November 20, 2015. On February 26, 2016, the appellate court ruled in favor of the plaintiffs and remanded the case to the IPCB for further proceedings on the 2013 permits. A month later, this Court ruled on the pending summary-judgment motions in this case, which is directed at remedying alleged past and ongoing violations the 2002 permits. (Neither party suggests that it matters for purposes of this judicial-estoppel motion that the state court appeal addressed the 2013 permits, while this lawsuit pertains to the 2002 permits; Special Condition 5 appears, in identical form, in both.) Neither party supplemented its briefs based on the state appellate court's decision before this Court ruled.²

In the state appeal, the plaintiffs-appellants argued that in granting the District's 2013 NPDES permits, the IEPA violated the Clean Water Act's implementing regulations, and in particular, the water quality standards for offensive conditions, unnatural plant and algal growth, and the minimum dissolved oxygen standards, because the permits insufficiently restricted the amount of phosphorus in the effluent.³ Appellants' Br. at 1. They contended that the numeric limitation was arbitrary, not supported by the scientific record, not designed to ensure that water quality standards would not be violated, and was imposed just because the District agreed to accept that limitation. Appellants' Br. at 19. The appellants requestion a remand to the IPCB to require IEPA to create "science based numeric phosphorus limits that comply with the law." Id. at 20. They argued that both Illinois and federal regulations require the development of numeric phosphorus limits to prevent phosphorus pollution, id. at 24, but also that NPDES must contain limitations that also prevent the violation of the various narrative standards—i.e. , the narrative standards that are the subject of this lawsuit. They expressly argued that in developing an numeric limitation,"[t]he applicable water quality standards are the offensive condition / unnatural growth standards and the dissolved oxygen standards." Id. at 27. The appellants agreed with IEPA that Special Condition 5 of the permits addresses phosphorus discharges and "at least affords citizens an opportunity to enforce violations ... through citizen suits" (such as this one), but that relying on Special Condition 5 alone to not meet the federal requirement for "chemical-specific limits," and is insufficient to ensure compliance with the WQS. Id. at 27–28. The appellants further argued that the Special Condition, which essentially just directs compliance with the law, suffered problems beyond illegality:

First, this approach turns what is required to be a forward-thinking permit limit designed to prevent violations of water quality standards into a "catch me if you can" enforcement issue. Further, the condition does not provide guidance as to what monitorying should be required or otherwise lend itself to efficient enforcement. Finally, it leaves up to the discharger to decide what is necessary to meet water quality standards until corrected through an enforcement action.

Id. at 28. The appellants' many other arguments challenging the procedure and substance of the permits did not pertain to the effect of Special Condition 5.

The District and its co-defendants countered that the permits were perfectly adequate and that the IEPA had fulfilled its obligations impose limitations to ensure compliance with water quality standards. The District argued that its concession to follow the 1.0 mg/L interim limitation—which technically applies just to "new or explaning plants" went well beyond any legal obligations it has. Dist. Appellee Br. at 25. The District argued that "there is no basis under Illinois law for a more stringent phosphorus requirement in the" 2013 permits. Id. at 27. The District also faulted the appellants, as it has in this case, for trying to use litigation to "circumvent" Illinois' ongoing nutrient study and administrative process for "methodically developing science-based nutrient standards." Distr. Appellee Br. at 24. The IPCB, said the District, "correctly determined that [IEPA] was reasonable in imposing...