Arizona, State of v. International Boundary And Water Commission et al

MOTION for Partial Summary Judgment Count 9

D. Ariz.November 15, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARK BRNOVICH Attorney General Firm State Bar No. 14000 CURTIS A. COX Ariz. Bar No. 019040 RYAN J. REGULA Ariz. Bar No. 028037 1275 West Washington St. Phoenix, AZ 85007 Telephone: (602) 542-7781 Facsimile: (602) 542-7798 Environmental@azag.gov Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA State of Arizona, ex rel. Misael Cabrera, Director, Arizona Department of Environmental Quality, Plaintiff, v. International Boundary and Water Commission, United States Section, et al., Defendants/Third-Party Plaintiffs, v. City of Nogales, Arizona, Third Party Defendant. Case No: CV-12-644-TUC-FRZ-DTF Plaintiff State’s Motion for Partial Summary Judgment – Count 9 The Plaintiff, State of Arizona (“State”), moves for partial summary judgment against the Defendant, United States Section of the International Boundary and Water Commission (“USIBWC”), on the issue of Count 9 liability: the illegal discharge from the International Outfall Interceptor (“IOI”) pipeline. STANDARD OF REVIEW The State provided the standard of review in its previous motion for summary judgment. (Doc. 45 at 7). “A subsequent motion for summary judgment based on an expanded record is always permissible.” Williamsburg Wax Museum, Inc. v. Historic Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 1 of 17 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Figures, Inc., 810 F.2d 243, 251 (D.C. Cir. 1987) (citation omitted). The State now moves for summary judgment on the elements supporting liability under Count 9 after the development of evidence and the expansion of the record through discovery. ARGUMENT I. THE USIBWC IS AT LEAST A PARTIAL OWNER AND OPERATOR OF THE IOI. A.R.S. § 49-255.01 prohibits an owner or operator from discharging pollutants to a water of the United States unless the discharge is in conformance with an AZPDES/NPDES permit issued by either the Arizona Department of Environmental Quality (ADEQ) or the United States Environmental Protection Agency ( US EPA). See also Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1145 (10th Cir. 2005). This is true even for owners if they did not cause the discharge. Id. at 1145-46. a. The IOI is an 8.8 mile pipeline that extends from the United States and Mexico border to the Nogales International Wastewater Treatment Plant. In its Answer to the State’s Amended Complaint, the USIBWC admits the IOI to be the pipeline that extends from the United States and Mexico border to the Nogales International Wastewater Treatment Plant (referred to hereafter as the “NIWTP” or “NIWT plant”). See SOF 1. Specifically, the USIBWC admits: “The pipeline for the sewage collection system is known as the International Outfall Interceptor (IOI) and extends from the international border to the NIWTP.” Id. The distance from the border to the NIWT plant is 46,600 feet or 8.8 miles. See SOF 2. In addition to the admission contained within its Answer, the USIBWC made the same admission numerous other times. First, the USIBWC stated in a variety of documents that the IOI is an 8.8 mile pipeline and therefore extends from the border to the NIWT plant. See SOF 2. Second, the USIBWC admitted and testified in its employees’ deposition testimony that the pipeline extends from the border to the NIWT plant. See SOF 1. These numerous statements (including the admission) are supported Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 2 of 17 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by the Brown and Caldwell report that the IOI is a continuous 8.8 mile pipeline. See SOF 2. Because of this evidence, the State requests the Court hold the IOI to be the entire 8.8 mile pipeline that extends from the United State-Mexico border to the NIWT plant. b. The USIBWC is at least a partial owner of the IOI pipeline. USIBWC admits at least partial ownership of the IOI, and Contract IBM 69-40 and the Treaty of 1944 confirm that admission. 1. USIBWC admits at least partial ownership of the IOI pipeline. The current USIBWC staff attorney admits that the USIBWC partially owns the IOI, a former USIBWC staff conveyed a legal memorandum consistent with that admission, and John Light, USIBWC’s NIWT plant manager, corroborates both. i. Current USIBWC staff attorney admits USIBWC partially owns the IOI. On February 20, 2015, Rebecca A. Rizzuti, a USIBWC staff attorney, sent an email to Eugene Goldsmith, the lawyer representing the City of Nogales. See SOF 3. Attorney Rizzuti was representing USIBWC in contract negotiations and made representations on USIBWC’s behalf. See SOF 4. Her email informed Attorney Goldsmith that a draft Memorandum of Understanding contract between the USIBWC and the City was attached. See SOF 5. The February 20, 2015 Memorandum of Understanding draft concerned the operation and maintenance of the NIWT plant. See SOF 6. The February 20, 2015 draft also had an appendix. See SOF 7. Appendix A is a table addressing historical contributions to the NIWT plant. See SOF 8. In the third line of the Appendix A table, USIBWC lists the ownership proportions for the new IOI pipeline. See SOF 9. Under the heading “City,” USIBWC lists “22% of IOI.” See SOF 10. Under the heading “Federal Government,” USIBWC lists “78% of IOI.” See SOF 11. Under the heading “Mexico,” USIBWC lists “0%.” See SOF 12. In the Appendix A table, USIBWC admits they own 78% of the IOI pipeline. See SOF 11. USIBWC also admits the City owns 22% of the same pipeline. See SOF 10. Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 3 of 17 -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorney Rizzuti’s admissions are noteworthy for two reasons. First, she sent the draft after the commencement of the State’s civil action against the USIBWC. See SOF 13. The State filed its initial Complaint against the USIBWC on May 5, 2012. See SOF 14. Second, she sent the draft after the City admitted ownership of the entire pipeline in its initial Answer to USIBWC’s Third-Party Complaint. See SOF 15. The City filed its initial Answer on August 17, 2012. See SOF 16. On July 21, 2015, a few months after USIBWC Attorney Rizzuti sent Attorney Goldsmith the draft with the admission, the City amended its Answer. See SOF 17. The City’s Amended Answer to Paragraph 10 of the USIBWC’s Third-Party Complaint now states “that Nogales owns an undivided interest in the IOI corresponding to the financial contribution of Nogales to its construction costs, as set forth in Contract No. IBM 69-40, dated October 10, 1968, between Nogales and the United States of America (p. 4, ¶ 10).” See SOF 18 (Emphasis removed). ii. Past USIBWC staff attorney conveyed a legal memorandum consistent with USIBWC partially owning the IOI. USIBWC Attorney Rizzuti’s February 20, 2015 admission that the USIBWC is a partial owner of the IOI pipeline is consistent with a prior USIBWC position memorialized in a legal memorandum of another USIBWC staff attorney, William A. Wilcox, Jr. See SOF 19. Attorney Wilcox wrote the memorandum roughly fifteen years earlier. See SOF 20. On April 24, 2001, USIBWC Attorney Wilcox authored a memorandum titled: “Ownership of International Outfall Interceptor.” Id. The recipient of that internal memorandum was USIBWC Acting-Commissioner Robert Ortega. Id. In the memorandum, USIBWC Attorney Wilcox states twice that USIBWC is a partial owner of the IOI pipeline. See SOF 21. First and foremost, he writes: “I have reviewed the background materials regarding ownership of the International Outfall Interceptor (IOI) trunkline (sic) in Nogales, Arizona, and it is my conclusion that the United States has joint ownership and responsibility with the City of Nogales for the Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 4 of 17 -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IOI.” Id. Later, he closes: “The inescapable conclusion on this issue is that the USIBWC and the City jointly own the IOI.” Id. iii. USIBWC’s NIWT plant manager corroborates both the current USIBWC’s staff attorney admission and the past staff attorney’s legal memorandum. In his May 3, 2016 deposition, USIBWC’s John Light stated he has worked at the NIWT plant since 1998. See SOF 22 & 23. During his eighteen year USIBWC supervisorial and managerial career, Light stated he heard internal references that USIBWC owns 78% of the IOI pipeline and the City owns the other 22%. See SOF 24. Light made this statement five times. See SOF 25. 2. Contract IBM 69-40, Resolution A-469, and the Treaty of 1944 confirm USIBWC’s admissions. Contract IBM 69-40, Resolution A-469, and the Treaty of 1944 are three documents that confirm the USIBWC’s admission. See SOF 26. In fact, on April 24, 2001, USIBWC Attorney Wilcox stated: “The most important document in determining ownership and responsibility is the Contract [b]etween the City of Nogales, Arizona and the United States of America (USIBWC), IBM 69-40, dated Oct. 10, 1968.” See SOF 27. i. Contract IBM 69-40 provides the City 22% ownership of the IOI. On October 10, 1968, the USIBWC and the City entered into Contract IBM 69-40 to construct the new treatment plant and a new pipeline that extended from the United States-Mexico border to the new plant. See SOF 28. This contract confirms USIBWC is a partial owner of the entire IOI. In Contract IBM 69-40, the City agreed to pay USIBWC “22% of the total costs of the new plant and the main trunk line from the site of the present plant to the site of the new plant,” which was estimated at the time to be $530,000. See SOF 29. USIBWC and the City also agreed that after actual costs were determined, the City’s contribution would not exceed $530,000. See SOF 30. USIBWC and the City agreed as well that once the new plant and main trunk line from the site of the present plant to the site of the new Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 5 of 17 -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plant were completed, “the City shall have an undivided interest in the improvements corresponding to its financial contribution to their construction costs.” See SOF 31. That means the City shall have an undivided 22% interest in the new plant and the main trunk line from the old plant to the plant that currently exists. Id. Consistent with that statement, the USIBWC also admits through its Rule 30(b)(6) deposition witness that it owns the first 2.2 miles of pipeline. See SOF 32. ii. Resolution A-469 substantiates the City share in the cost to build the new plant and the IOI. On May 3, 1965, three-and-a-half years before the City and the USIBWC agreed to Contract IBM 69-40, the City adopted Resolution A-469. See SOF 33 & 34. In Resolution A-469, “the City expressed its intent to . . . participate in the construction costs of the new plant and main trunk line.” See SOF 35. The City expressed this intent by seeking to have the United States and Mexican governments expand the international sewage plant so that the plant could “provide the capacity and the type of treatment necessary to adequately meet the” sewage treatment needs of the cities of Nogales, Arizona, and Nogales, Sonora—both in the present and the reasonably foreseeable future. Id. The City also sought to have the new plant relocated. See SOF 36. To help facilitate this move, “the City expressed its intent to purchase and to furnish to the United States the lands and rights-of-way required for the new plant and for the extension of the main trunk line sewer to the new site.” Id. iii. The Treaty of 1944 confirms Contract IBM 69-40 and Resolution A-469. On February 3, 1944, the United States and Mexican governments signed the “Treaty of 1944: Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande.” See SOF 37. The Treaty of 1944 sets forth two ownership particulars. See SOF 38 & 39. First, the Treaty states that if infrastructure is constructed in the United States “in pursuance of the provisions of [the] Treaty,” then the property rights and jurisdiction over that infrastructure belongs to the United States. See SOF 39. The same is true for anything constructed in Mexico “in pursuance of the provisions of [the] Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 6 of 17 -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Treaty.” Id. Second, the Treaty states the country, where that infrastructure was constructed, has an obligation to “acquire and retain in its own possession the titles, control and jurisdiction” over the infrastructure to the extent it is necessary “to effectuate the provisions of [the] Treaty.” See SOF 40. In the USIBWC’s “Construction Report: Nogales International Sanitation Project (1969-1972),” Pollard Rodgers, USIBWC’s resident construction engineer, stated “9 miles of outfall pipeline,” “a five-cell lagoon,” and a “wastewater treatment plant with a design capacity to treat 8.2 million gallons of sewage per day from the cities of Nogales, Sonora, and Nogales, Arizona” were built in the United States. See SOF 41. “The City of Nogales, Arizona, acquired and made available, free of cost to the United States Government, all rights-of-way or easements for . . . .” these works. See SOF 42. According to Rodgers, “[t]he construction work was administered and supervised by the [(USIBWC)].” See SOF 43. “The cost of the project was shared by the Federal Governments of the United States and the Republic of Mexico, and the City of Nogales, Arizona.” See SOF 44. Rodgers made note as well that “[t]he cost of construction included a grant to the City of Nogales, Arizona, from the Environmental Protection Agency.” See SOF 45. USIBWC’s Construction Report indicated it cost $696,009.04 to build the wastewater treatment plant and $1,840,044.17 to construct the 8.8 mile concrete pipe that had 111 manholes. See SOF 46 & 47. USIBWC’s principal engineer Carlos Pena, Jr. testified the Treaty of 1944 governs the USIBWC and its works. See SOF 48. USIBWC Rule 30(b)(6) witness Albert Moehlig admits the IOI pipeline is an integral part of the sanitation project between the two countries and USIBWC’s Pena and former USIBWC staff attorney Rand McMains state the same. See SOF 49, 50, & 51. Because the USIBWC constructed 8.8 miles of outfall pipeline, a five-cell lagoon, and a wastewater treatment plant in the United States to be used in a sanitation project between the two countries, the Treaty states the property Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 7 of 17 -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rights for those constructed works along with the jurisdiction for their control rests with the USIBWC. See SOF 52. Although the Treaty begins with the presumption that the USIBWC is the sole owner, it does not necessarily end there. See SOF 53. Specifically, the Treaty states the country where those works were built has an obligation to “acquire and retain in its own possession the titles, control and jurisdiction” over those works to the extent it is necessary “to effectuate the provisions of [the] Treaty.” Id. That means, as Article 24(c) of the Treaty points out, the USIBWC must retain ownership, control, and jurisdiction over the constructed works to the extent necessary to ensure that neither the Treaty nor any agreements made pursuant to it are violated. Id. This ownership, control and jurisdiction obligation the Treaty imposes affects directly two agreements between the United States and Mexico. See SOF 54. The first is the sewage treatment agreement between the two countries that was made pursuant to and under the auspices of the Treaty. See SOF 55. The second is an agreement between the two countries, in the Treaty itself, to give “preferential attention to the solution of all border sanitation problems.” See SOF 56. Because of these two agreements, the USIBWC only contracted to the City 22% of the NIWT plant and the pipeline in exchange for the City’s assistance in the construction costs. See SOF 54, 55, & 56. The USIBWC limited the amount it contracted away because it had an obligation to retain enough ownership, control, and jurisdiction to ensure those two agreements—the sewage treatment agreement and the “preferential attention to the solution of all border sanitation problems” agreement—were not violated. Id. USIBWC’s actions confirm this to be true. See SOF 57. Nogales, Sonora’s domestic and industrial wastewater is conveyed north via a gravity collection pipeline. See SOF 58. As the Mexican sewage travels north, it ultimately enters the IOI and eventually mixes with Arizona sewage flows. See SOF 59. The combine sewage flows do not stop until they reach the NIWT plant. See SOF 60. USIBWC Rule 30(b)(6) witness Albert Moehlig admits the USIBWC cannot fulfill its Treaty and Mexican Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 8 of 17 -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sewage obligations without the IOI operating properly and USIBWC’s Pena and McMains state the same. See SOF 61, 62, & 63. Because the IOI is a gravity pipeline, the only way it can operate properly is if sewage flows through it. See SOF 64. That is how it is in use. Id. To ensure the flows continue unabated, Moehlig admits maintenance is required. See SOF 65. Thus, the USIBWC performs maintenance in the form of IOI repairs to protect its interests. Id. Numerous examples of such USIBWC repairs exist—both to the IOI itself and its surrounding environment. See SOF 66. USIBWC spent: 1. $500,000 to repair the area around the IOI in 2008, 2. $1.4 million to replace a section of the IOI near the border in 2010, 3. An unknown amount of money on repairs made by in-house staff to seal joints in 2010, 4. $90,000 to repair erosion near an exposed IOI in 2010, 5. An unknown amount of money to repair the IOI between the Highway 83 overpass and the Americana Hotel sometime in 2011 or 2012, 6. $750,000 to repair the IOI and rehabilitate an earthen section of the Nogales Wash in 2013, 7. An unknown amount of money to make a repair near the Royal Hotel sometime in 2014, 8. $647,282 to repair the IOI and panels in the Nogales Wash in 2015, and 9. $33,900 to repair damage done as a result of the IOI being breached on the Mexican side in 2014. See SOF 67-76. Moreover, as of the date of this Motion’s filing, the USIBWC is even pursuing a repair of the entire IOI. See SOF 77. USIBWC claims, however, that it only makes “emergency repairs” pursuant to 22 U.S.C. § 277d-12. See SOF 78. Section 277d-12 authorizes USIBWC to perform “emergency actions . . . to protect against health threatening surface and ground water pollution problems along the United States-Mexico boundary.” See SOF 79. The Court Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 9 of 17 -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 should be indifferent to what the USIBWC calls its repairs. That is because the bases for those repairs—no matter what they are called—remain the same: USIBWC’s ownership, control, and jurisdiction obligations as imposed by the Treaty of 1944 and Contract IBM 69-40. See SOF 27-77. As a result of USIBWC’s admission, its past positions, Contract IBM 69-40, and the Treaty of 1944, the State requests the Court find USIBWC to be at least a partial owner of the IOI pipeline. c. The USIBWC is also at least a partial operator of the IOI pipeline. The same language in the Treaty of 1944 that requires the USIBWC to retain ownership, control, and jurisdiction of the IOI to the extent it is necessary “to effectuate the provisions of [the] Treaty” also imposes operator obligations on the USIBWC as well— hence, the word “control.” See SOF 80. That means, as Article 24(c) points out, the USIBWC must retain enough control of the IOI to ensure that neither the Treaty nor any agreements made pursuant to it are violated. See SOF 81. The control obligation the Treaty imposes affects the same two agreements between the United States and Mexico as mentioned above, namely—the sewage treatment agreement and the “preferential attention to the solution of all border sanitation problems” agreement. See SOF 82. In light of this, the USIBWC contracted to the City operation and maintenance control. See SOF 83. This is confirmed by Contract IBM 68-48 (Aug. 31, 1967) and Contract IBM 69-40 (Oct. 10, 1968). Id. While it is true, the USIBWC contracted its IOI operation and maintenance duties to the City, the USIBWC’s ownership share and its actions demonstrate the USIBWC nevertheless remains a partial operator. See SOF 22- 77. A January 29, 2013 letter from USIBWC Commissioner Edward Drusina, P.E. to Shane D. Dille, City Manager of Nogales, Arizona, states as much. See SOF 84. In that letter, USIBWC Commissioner Drusina states the City does not have unilateral authority to “impede or regulate IOI operation” nor does the City “have the legal ability to interfere with the Sanitation Project, established by Congress, and administered by the USIBWC, on behalf of the U.S. State Department.” Id. Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 10 of 17 -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As a result of the Treaty of 1944, Contract IBM 69-40, USIBWC’s repair and maintenance actions, and USIBWC’s own admissions, the State requests the Court find USIBWC to be at least a partial operator of the IOI pipeline as well. II. THE IOI CONTINUOUSLY DISCHARGES POLLUTANTS TO A WATER OF THE UNITED STATES. Discharge means the addition of any pollutant to a water of the United States from any point source. A.R.S. § 49-255(2). A point source is “any discernible, confined, and discrete conveyance . . . from which pollutants are or may be discharged to” a water of the United States. A.R.S. § 49-201(22)&(28). A pipe is a point source. A.R.S. § 49- 201(28). The Nogales Wash is a tributary of the Santa Cruz River, a water of the United States. See 33 C.F.R. § 328.3(a)(1); A.R.S. § 49-201(22). A.R.S. § 49-255.01 prohibits an owner or operator from discharging pollutants to a water of the United States unless the discharge is in conformance with an AZPDES/NPDES permit issued by either ADEQ or the US EPA. See also Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1145 (10th Cir. 2005). This is true even for owners if they did not cause the discharge. Id. at 1145-46. To prevail against an owner or operator for ongoing discharges, a plaintiff must prove: (1) the violations will continue “after the date the complaint is filed” or (2) the violations will reasonably continue to occur in an intermittent or sporadic manner. Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 953 (9th Cir. 2002) (internal citation omitted). An intermittent or sporadic violation continues until the likelihood of its repetition has been eliminated. Id. a. The USIBWC admits the IOI discharges to the Nogales Wash. In its Answer to the State’s Amended Complaint, the USIBWC makes two admissions. See SOF 85. First, the USIBWC admits: “The IOI has deteriorated over time and has developed cracks and structural problems that allow discharge of sewage and other related wastewater.” See SOF 86. Second, the USIBWC admits: “During storm events, with increased flows through the Nogales Wash, stormwater through the Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 11 of 17 -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wash intermingles with untreated wastewater that escapes from the IOI and discharges into the Nogales Wash, a tributary of the Santa Cruz River, which is a water of the United States.” See SOF 87. USIBWC made these admissions on June 13, 2013. See SOF 88. b. The Court has already held the IOI discharges to the Nogales Wash. On June 18, 2015, the Court found: “The IOI has deteriorated over time and has developed cracks and structural problems that allow discharge of sewage and other related wastewater.” See SOF 89. The Court also found: “During storm events, storm water flowing through the Nogales Wash intermingles with untreated wastewater that escapes from the IOI and discharges into the wash.”1 See SOF 90. Based on these facts alone, the State has proven the IOI is a point source that has ongoing discharges that will either continue “after the date the complaint is filed” or will reasonably continue to occur in an intermittent or sporadic manner. That is because since the Court’s September 30, 2015 Order, the USIBWC has done nothing physically to the IOI to prevent these discharges from occurring again. c. The IOI has discharged into the Nogales Wash and will continue to do so in the future. The IOI discharges into the Nogales Wash two ways: (1) from manholes, and (2) through cracks, deteriorations, and structural problems. See SOF 85-114 & 119-120. 1. Discharges to the Nogales Wash from manholes have occurred and will continue to so in the future. Discharges from manholes occur because of either capacity or blockage problems. See SOF 92. / / / / / / / / / 1 On September 30, 2015, Senior U.S. District Judge Frank R. Zapata accepted and adopted these findings and conclusions of law of U.S. Magistrate Judge D. Thomas Ferraro. See SOF 91. Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 12 of 17 -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Capacity problems have caused manhole discharges and will continue to do so in the future. Capacity problems occur because neither the IOI nor the NIWT plant was designed to handle combined stormwater (i.e., rainwater) and sewage flows. See SOF 93-104. USIBWC’s plant manager John Light testified to this fact. See SOF 93 & 97. The IOI not being designed to handle combined flows is problematic because when the pipe has more volume flowing through it than is appropriate, the pipe becomes pressurized. See SOF 96 & 97. This pressure can lead to a volcanic-type eruption at a manhole that causes a sewage overflow and a discharge into the Nogales Wash. Id. USIBWC’s John Light testified to personally witnessing during storm events sewage overflows into the Nogales Wash from IOI Manholes 97 and 97A. See SOF 98. John Kissinger, Deputy City Manager of Nogales, Arizona, confirms Light’s testimony. See SOF 99. According to Kissinger, discharges from Manhole 97 transpire every year. Id. Kissinger described the problem as being “chronic” and sometimes lasting months. See SOF 100. Manhole discharges as a result of capacity problems do not just occur at the end of the IOI pipeline near the NIWT plant. See SOF 101-103. They also occur at the IOI’s beginning near the United States-Mexico border. Id. USIBWC’s John Light testified that a manhole sewage overflow occurred at the Morley Avenue Wash Tunnel and discharged into the Nogales Wash. Id. When Light’s and Kissinger’s testimony is combined with the fact that sewage overflows have been known to happen in the middle of the IOI as well (like at Manhole 40), it becomes apparent that a manhole sewage overflow can happen anywhere along the pipeline. See SOF 98-104. Consequently, until the USIBWC either stops the Mexican stormwater inflows from entering the IOI or increases the IOI’s capacity so it can handle both stormwater and sewage flows, sewage eruption discharges because of capacity problems will continue to pollute the Nogales Wash. These discharges alone establish liability. / / / / / / Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 13 of 17 -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. Blockages have caused manhole discharges and will continue to do so in the future. Blockage problems occur two ways. See SOF 105 & 111. First, as USIBWC’s John Light testified, blockage problems can arise as a result of stormwater bringing rocks, sand, and other debris into the IOI. See SOF 105. According to USIBWC’s 2015 Nogales IOI Rehabilitation Report, debris is already in the pipeline. See SOF 106. The Report stated debris was found on the steps of Manholes 33, 39, 41, 42, 43, 59, 60, 65, 66, 67, 68, 69, 71, 72, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, and 91. See SOF 107. Finding debris on the steps is noteworthy. For starters, the debris is evidence that the flows in the IOI were higher than appropriate. See SOF 108. Furthermore, if the flow pressure was strong enough to push the debris that high, then that means a manhole sewage eruption was near. See SOF 109. An additional twenty-five manholes are threatened by manhole sewage overflows. See SOF 110. Second, blockage problems can also result from the illegal disposal or insertion of items, including packages of smuggled drugs, into the pipeline through unsecure openings. See SOF 111. USIBWC’s Light testified to a September 2015 incident where a drug smuggling grate became caught in the IOI and caused a manhole sewage overflow. See SOF 112. Light assumed the sewage reached the wash because the overflow happened 250 feet away. See SOF 113. Light also testified the IOI was breached by drug smugglers days before his deposition testimony. See SOF 114. Until the USIBWC stops the unauthorized inflow of stormwater from entering the IOI and eliminates unsecure openings to it, sewage eruption discharges from blockages will continue to pollute the Nogales Wash. 2. Discharges to the Nogales Wash from cracks, deteriorations, and structural problems have occurred and will continue to do so in the future. USIBWC’s Nogales IOI Rehabilitation Report lists infiltration of groundwater and inflow of surface water into the IOI as two major contributors to its operational failures. See SOF 115. Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 14 of 17 -15- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Groundwater infiltration, and thus sewage exfiltration, will continue to occur in the future. Groundwater enters the IOI pipeline through cracks, deteriorations, and structural problems located in areas near Manholes 20, 21, 22, 23, 24, 25, 26, 28, 60, 64-65, 66-67, 67-68, 85-86, 88-89, 89-90, 90-91, and 94-95. See SOF 116. Some of the groundwater infiltration has been classified as “heavy” like those near Manholes 22, 23, 60, and 64-65. See 117. Other areas of groundwater infiltration have been classified as “gushing” like those near Manholes 64-65 and 65-66. See 118. If groundwater water enters through cracks, deteriorations, and structural problems, then sewage exits the same way. See SOF 116-118. Therefore, sewage will continue to discharge from the IOI through cracks, deteriorations, and structural problems. ii. Surface water inflow, and therefore sewage outflow, will continue to occur in the future. Surface water also enters the IOI pipeline through cracks, deteriorations, and structural problems. See SOF 119. This is true in the area where the IOI pipeline is located directly in the Nogales Wash. See SOF 120. For instance, surface water has been identified entering the IOI from the Nogales Wash near Manholes 17, 18, 19, 20, 21, 23, and 24. Id. If surface water enters through cracks, deteriorations, and structural problems, then sewage exits in the same manner. See SOF 119 & 120. Consequently, sewage will continue to discharge to the Nogales Wash from IOI cracks, deteriorations, and structural problems. See SOF 86, 87, 119, & 120. As a result of USIBWC admitting the IOI discharges, the Court finding the same, and the reasonable likelihood of the discharges continuing into the future, the State requests the Court find the IOI continuously discharges to a water of the United States. III. CONCLUSION In light of the USIBWC owning and operating a continuously discharging IOI, the State requests the Court grant summary judgment for Count 9 liability against USIBWC. Specifically, the State requests the Court find each of the following: (1) the IOI is the Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 15 of 17 -16- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 entire 8.8 mile pipeline from the United States-Mexico border to the NIWT plant, (2) the USIBWC is at least a partial owner of the IOI, (3) the USIBWC is at least a partial operator of the IOI, (4) the IOI continuously discharges to a water of the United States, and (5) as a partial owner or a partial operator USIBWC is liable. RESPECTFULLY SUBMITTED this 15th day of November, 2016. MARK BRNOVICH Attorney General s/ Ryan J. Regula Curtis A. Cox Ryan J. Regula Assistant Attorneys General Environmental Enforcement Section Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 16 of 17 -17- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on November 15, 2016, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing nad a Notice of Electronic Filing was sent to all CM/ECF registrants. s/ Guinevere L. Cassidy Case 4:12-cv-00644-FRZ-DTF Document 170 Filed 11/15/16 Page 17 of 17