Previous Article
Next Article

Your authoritative, multi-channel network for natural resources and environmental information since 1989 – by practioners for practitioners.

Line Spacing+- AFont Size+- Print This Article Back To Homepage

U.S. District Court Holds Issuance of New NPDES Permit Does Not Moot Claims for Violations of Prior Permit If New Permit Is Stayed

U.S. District Court Holds Issuance of New NPDES Permit Does Not Moot Claims for Violations of Prior Permit If New Permit Is Stayed
Related Articles

By Heraclio Pimentel and Rebecca Andrews

The U.S. District Court for New Hampshire recently determined that allegations of violations of a 1992 federal Clean Water Act, National Pollutant Discharge Elimination System (NPDES) permit were not moot even after issuance of a new permit, where the effectiveness of the new permit was subject to a stay while undergoing appellate review. The court also denied defendants’ motion for partial summary judgment as to plaintiffs’ claim that defendants violated reporting requirements in the 1992 discharge permit, finding that genuine disputes of material fact remained regarding the meaning of the reporting requirement. [Sierra Club, Inc. v. Granite Shore Power LLC, ___F.Supp.3d___, Case No. 19-cv-216-JL (D. N.H. Nov. 25, 2020).]

Factual and Procedural Background

Granite Shore Power LLC and GSP Merrimack LLC (collectively: Granite Shore) own Merrimack Station, a coal-fueled power plant that discharges heated water into a shallow, impounded section of Merrimack River known as Hooksett Pool. In 1992, the U.S. Environmental Protection Agency (EPA) issued an NPDES permit for Merrimack Station (1992 Permit). The 1992 Permit limited thermal discharges and required regular monitoring and reporting of the river water temperature and dissolved oxygen content. Originally set to expire in 1997, the permit was administratively continued and remained fully effective and enforceable under EPA regulations.

In 2011, EPA issued a new, draft NPDES permit for Merrimack Station (2011 Draft Permit). EPA’s draft determinations for the 2011 Draft Permit noted that Merrimack Station’s thermal discharges had caused or contributed appreciable harm to the Hooksett Pool’s balanced, indigenous community of fish. Issuance of a final permit was delayed several times. According to EPA, this delay was due in part to certain factual and legal developments, including, among other things, EPA’s revised understanding of the thermal data evaluated in the 2011 Draft Permit.

In 2019, Sierra Club, Inc. and Conservation Law Foundation, Inc., (plaintiffs) brought suit in the District Court against Granite Shore alleging violations of three conditions in the 1992 Permit. Plaintiffs alleged violations related to thermal discharge limitations and violations of the annual reporting condition.

In May 2020, EPA issued a final permit that would take effect in September 2020 (2020 Permit) and supersede the 1992 permit. Prior to the 2020 Permit’s effective date, Granite Shore and plaintiffs challenged different conditions in the 2020 Permit to the Environmental Appeals Board (EAB). As a result, the contested 2020 Permit conditions were stayed, and the corresponding 1992 Permit provisions remained in effect pending final agency action. Thereafter, Granite Shore moved for summary judgment in the District Court case, alleging that plaintiffs’ claims were moot as a result of the issuance of the 2020 Permit. Granite Shore also moved for partial summary judgment as to plaintiffs’ claim that it violated the annual reporting condition.

The District Court’s Decision

Claim of Mootness

The District Court first addressed Granite Shore’s argument that the plaintiffs’ claims were moot because the 2020 Permit removed and replaced the 1992 Permit conditions at issue in the plaintiffs’ complaint. A case is moot when the issues presented are no longer “live” or the parties lack a cognizable interest in the outcome. However, as long as the parties have even a small concrete interest in the outcome of the litigation, the case is not moot. The court’s primary inquiry was whether adjudication of the issue would grant meaningful relief.

In reviewing Granite Shore’s mootness argument, the District Court noted that lawsuits based on a defendant’s violations of a rule have been rendered moot by the enactment of a superseding rule with which the defendant complies. However, the court determined that the 1992 Permit conditions at issue in the present case were not superseded by the corresponding 2020 Permit conditions, because those conditions were contested and therefore stayed pending the appeal before the EAB and final agency action. The court held that because the relevant 1992 Permit conditions remained in effect, the controversy involving those permit conditions was not moot.

Granite Shore also argued that the plaintiffs’ complaint was moot because it was premised on EPA’s 2011 assessment regarding the harm caused to the Hooksett Pool, which the EPA had abandoned. The court interpreted this argument as mootness based on voluntary cessation. In order for defendants’ argument to succeed, defendants needed to show that they were no longer violating the 1992 Permit and that it was absolutely clear that the alleged permit violations could not reasonably be expected to recur. Unpersuaded by defendants’ argument, the court concluded that defendants failed to establish that there was no genuine dispute of material fact on these points.

Motion for Partial Summary Judgment

The District Court next addressed Granite Shore’s motion for partial summary judgment as to plaintiffs’ claim that defendants were violating the 1992 Permit’s reporting requirements by providing statistical summaries of certain data rather than the entirety of the continuous data collected. Granite Shore argued that summary judgment was proper because they had complied with their interpretation of the relevant reporting condition, which they asserted was unambiguous.

NPDES permits are interpreted as contracts. Because the 1992 Permit is a contract with the federal government, it is interpreted under the federal common law of contracts. The core principle of contract interpretation requires that unambiguous contract language be construed according to its plain and natural meaning. If ambiguities remain after analyzing the plain language, ultimate resolution of the meaning typically turns on the parties’ intent. As such, summary judgment based on contract interpretation is appropriate only if the language’s meaning is clear, considering the surroundings circumstances and undisputed evidence of intent, and there is no genuine issue as to the inferences which might reasonably be drawn from the language.

Plaintiffs argued that the 1992 permit required “continuous” monitoring of data, and thus the condition that “[a]ll . . . monitoring program data be submitted” required Granite Shore to report the entirety of the data collected through continuous monitoring.” In contrast, Granite Shore contended that “all” modified the term “program” and referred to “categories” of data that must be reported and maintained. Granite Shore also argued that other language in the 1992 Permit indicated that the monitoring data reported should be “representative” of the data collected, and not the entirety of the data collected. The District Court held that both of these interpretations were reasonable and therefore the plain language of the contested condition was ambiguous.

The court then turned to the “intent manifested” by the contested reporting condition. Granite Shore argued that EPA consistently accepted their annual reports as compliant and that the EPA included a temperature reporting requirement in the 2020 Permit that, according to EPA, follows “the format from the 2018-2019” annual reports. Plaintiffs countered that EPA’s failure to contest the adequacy of the annual reports was due in part to “bureaucratic inattention” as evidenced by the long delay in issuing a new NPDES permit and EPA’s failure to evaluate annual reports. As evidence of the inadequacy of the annual reports, plaintiffs pointed to a 2015 EPA request for the water temperature data used to create the annual report summary statistics from three stations covering the periods from April to October, from 1984-2004. The court found that the parties’ theories as to the intent of the reporting condition raised genuine issues of material fact. Thus, the District Court denied the motion for partial summary judgment because genuine disputes of material fact remained as to the meaning of the reporting requirement and Granite Shore’s compliance with it.

Conclusion and Implications

This case elucidates the key inquiry under the mootness doctrine. That is, when reviewing whether a claim is moot, the core question before the court is whether the controversy is presently live. The case also shows the difficulty in succeeding on a motion for summary judgment based on a disputed interpretation of an arguably ambiguous contract condition. The court’s opinion is available online at: