Save Our Bays & Beaches v. City & County of Honolulu (904 F. Supp. 1098, 1994)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

The court heard the parties’ cross motions for summary judgment on April 25, 1994. Paul “Skip” Spaulding, Esq., and M. Casey Jarman, Esq., appeared on behalf of the plaintiffs; Cheryl Okuma-Sepe, Esq., appeared on behalf of the defendant. After full consideration of the motions and of the supporting and opposing memoranda, and after hearing oral argument from counsel, the court GRANTS IN PART and DENIES IN PART the defendant’s motions, and GRANTS IN PART and DENIES IN PART the plaintiffs’ motions.

SUMMARY OF HOLDING

This is a citizens’ enforcement action brought under Section 505 of the Clean Water Act, 33 U.S.C. § 1365. In a complaint filed May 5, 1992, plaintiffs claimed that the City has repeatedly violated various conditions of the NPDES permits which regulate the discharge of treated water from the Kailua and Kaneohe Water Treatment Plants.

Counts One and Eight allege violations of secondary treatment levels as described in the Permits; Counts Two and Nine relate to alleged violations of receiving water quality standards articulated in the Permits; Counts Three and Ten concern alleged violations of bypass requirements; Counts Four and Eleven assert that the City repeatedly failed to report numerous noncompliance events; Counts Five and Twelve allege that defendant failed to monitor water quality and effluent flow as required by the Permits; Counts Six and Thirteen concern alleged violations of maintenance and operations standards contained in the Permits. Plaintiffs now move for summary judgment as to Counts One, Two, Three, Four, Five, Eight, Nine, Ten, Eleven, and Twelve; defendant has filed cross motions to dismiss or for summary judgment as to Counts Two, Three, Four, Nine, Ten, and Eleven. Defendant has also moved this court to reconsider its earlier denial of summary judgment as to Counts Six and Thirteen.

As to Counts One and Eight, the court GRANTS the plaintiffs’ motion for summary judgment as to 11,095 secondary treatment violations. With respect to the City’s mootness defense, the court finds that, despite recent improvements made by the City, the Kailua and Kaneohe Plants are susceptible to ongoing violations. Moreover, the court finds that DOH had no authority to issue to the Kaneohe Plant an interim permit and consent order which established secondary treatment levels below the statutory minimum; Kaneohe’s failure to meet statutory treatment levels results in enforceable violations. See Part III, infra.

As to Counts Two and Nine, the court GRANTS the defendant’s motion to dismiss based on lack of standing. This court is bound by the recent holding of the Ninth Circuit Court of Appeals in Northwest Environmental Advocates v. City of Portland, 11 F.3d 900 (9th Cir.1993): citizens have no standing to enforce receiving water quality permit conditions which have not been translated into end-of-the-pipe effluent limitations. The court DENIES the plaintiffs’ motion for summary judgment on these counts. See Part I, infra.

As to Counts Three and Ten, the court GRANTS the plaintiffs’ motion for summary judgment as to 406 bypass violations. The court finds no merit to the defendant’s contention that, because both federal and state governments are already actively enforcing these Permits, the plaintiffs’ suit should be pre-empted. First, the court concludes that EPA has merely threatened enforcement in the event of future noncomplianee; it is not actually enforcing the Kailua and Kaneohe Permits. Moreover, the court holds that Hawaii’s statutes and regulations fail to require DOH to provide the public with notice and an opportunity to be heard concerning proposed settlements with water pollution violators. Hence, any enforcement undertaken by the State of Hawaii would not pre-empt this citizen suit. Accordingly, the court DENIES defendant’s motion to dismiss or for summary judgment on these grounds. See Part IV, infra.

As to Counts Four and Eleven, the court GRANTS the plaintiffs’ motion for summary judgment as to 75 failures to report bypass incidents, 1,088 failures to report failures to monitor water quality, and 18 failures to report failures to monitor effluent flow. However, the court DENIES the plaintiffs’ motion and GRANTS the defendant’s motion to dismiss based on lack of standing as to the failures to report violations of receiving water quality permit conditions. See Part VI, infra.

As to Counts Five and Twelve, the court GRANTS the plaintiffs’ motion for summary judgment as to 1,110 failures to monitor. Defendant has advanced no credible defenses for its monitoring failures, although its excuses will be considered at the penalty phase of this proceeding. See Part V, infra.

As to Counts Six and Thirteen, the court DENIES the defendant’s Motion for Reconsideration of this court’s October 27, 1992 Order concerning maintenance and operations conditions. Inasmuch as defendant’s motion is based on its interpretation of the breadth of the NWEA holding, the court finds that interpretation erroneous, and accordingly stands by its earlier decision to deny summary judgment on these counts. See Part II, infra.

The court hereby finds that a grand total of 13,792 violations were committed by the City. The court reserves ruling on the proper penalties to be affixed.

BACKGROUND

This is a citizens’ enforcement action brought under Section 505 of the Clean Water Act, 33 U.S.C. § 1365 (“the Act”). The Act aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of this goal, the Act prohibits the discharge of all “pollutants” from a “point source” into navigable waters of the United States, unless the discharger complies with various enumerated sections of the Act. 33 U.S.C. § 1311(a). The Act specifically requires that all “publicly owned treatment works” (“POTWs”) in the United States meet effluent limitations based upon “secondary treatment” standards by July 1, 1988. 38 U.S.C. § I3ll(i)(l). Secondary treatment is generally defined as removal of eighty-five percent of the organic materials and suspended solids in the wastewater leaving the plant. 40 C.F.R. § 133.102.

Plaintiffs are four non-profit organizations dedicated to preserving Hawaii’s environment (“plaintiffs”). Defendant is the City and County of Honolulu (“City” or “defendant”), owner and operator of water treatment plants on the Island of Oahu. Plaintiffs’ claims concern the City’s Kailua and Kaneohe Wastewater Treatment Plants, which together serve the main population centers on the windward side of Oahu, from Lanikai to Heeia Pond. Plaintiffs allege that the City has failed to comply with various requirements of the Act and of the permits which regulate the plants’ discharges.

A. The Regulatory Scheme

The primary regulatory mechanism in the Clean Water Act is the National Pollution Discharge Elimination System (“NPDES”). Under this enforcement scheme, either the United States Environmental Protection Agency (“EPA”) or a state entity issues NPDES permits to individual dischargers. 33 U.S.C. § 1342. The state program for issuance of NPDES permits must comply with statutory standards and regulations, must be supervised closely by EPA, and must prescribe effluent standards and limitations no less stringent than those in the Act. 33 U.S.C. § 1342(a)-(d).

Each permit issued by a federal or state agency sets forth specific limitations and conditions by which the permit-holder must regulate its discharge of pollutants. Courts have held that a failure to comply with a permit condition amounts to a violation of the Act itself. A critical part of the regulatory scheme is a strict self-reporting system requiring permittees to monitor carefully their permit compliance and to report their own permit violations to the EPA and to the state agency which issued the permits. These self-monitoring reports, known as “Discharge Monitoring Reports” or “DMRs,” are public documents and are submitted under penalty of perjury. 40 C.F.R. § 122.41(k) and (1)(4).

The EPA, a state, or a private citizen can enforce violations of NPDES permits. The citizen suit provision defines exactly how and when citizens may file suit to enforce permit violations. 33 U.S.C. § 1365. Specifically, § 1365(f)(6) allows citizens to enforce “a permit or condition thereof issued under section 1342 of this title [the NPDES scheme], which is in effect under this chapter[.]”

The Act imposes strict liability for NPDES violations. The Act does not allow for “de minimus” or “rare” permit violations, and the permit-holder’s good faith is not relevant to the issue of liability.

B. The Permits at Issue

The State of Hawaii, Department of Health (DOH), has been delegated the responsibility of administering Hawaii’s NPDES permit system. 33 U.S.C. § 1342(b). Pursuant to this authority, DOH issued NPDES permits for the wastewater plants in Kailua and Kaneohe (“the Plants”), on the Island of Oahu. On February 1,1982, DOH issued to the City NPDES permit No. HI 0020141 for the Kailua Plant and NPDES permit No. HI 0020150 for the Kaneohe Plant. These permits were modified on June 5, 1985 and will hereinafter be referred to as the 1985 Kailua Permit and the 1985 Kaneohe Permit.

On July 1, 1988, the secondary treatment requirements of the Act became mandatory and binding on all municipal sewage treatment works, including the Kailua and Kaneohe Plants. As of that date, these statutory requirements superseded any inconsistent provisions in the 1985 Kailua and Kaneohe Permits.

On March 6, 1990, DOH issued to the City NPDES permit No. HI 0020141 for the Kailua Plant (“1990 Kailua Permit”) and NPDES Permit No. HI 0020150 for the Kaneohe Plant (“1990 Kaneohe Permit”). On or about December 19, 1990, DOH revised the 1990 Kailua Permit; on or about May 14, 1992, DOH revised the 1990 Kaneohe Permit.

The Kailua Permits authorize the City to discharge properly treated effluent (i.e., in compliance with secondary treatment standards) into the waters of the United States through the Mokapu Ocean Outfall (Serial No. 001) into Kailua Bay and through a second outfall (Serial No. 002) “when in use.” The Kaneohe Permits allow the City to discharge properly treated effluent only through the Mokapu outfall.

The Kailua and Kaneohe Permits impose a specific set of effluent limitations and related monitoring requirements, including limitations (measured in terms of both “mass emissions” and “concentrations”) on the quantity and quality of effluent. The two primary effluent components measured are Biochemical Oxygen Demand (BOD) and Total Suspended Solids (TSS). Both Permits require the Plants to remove 85% of both BOD and TSS materials from the effluent before discharging it through the ocean outfall.

The Revised 1990 Permits set the following specific BOD and TSS limitations:

DISCHARGE LIMITATIONS

Mass Emissions Concentration

Kailua

KG/Day Monthly Average (lbs/day) KG/Day 7-Day Average (lbs/day) Monthly Average 7-Day Average

BOD 795 (1752) 1192 (2629) 30 mg/1 45 mg/1

TSS 795 (1752) 1192 (2629) 30 mg/1 45 mg/1

Kaneohe

BOD 488 (1077) 732 (1614) 30 mg/1 45 mg/1

TSS 488 (1077) 732 (1614) 30 mg/1 45 mg/1

In addition to effluent limitations, the Kailua and Kaneohe Permits contain express prohibitions against causing violations of state water quality standards in the receiving waters and against the bypassing of sewage around treatment equipment. The Permits include extensive monitoring requirements for the Plants and the receiving waters, and specific provisions governing the reporting of noncompliance events. Additionally, the Permits expressly require the City to “comply with all conditions of this permit,” and remind the City that any noncompliance will constitute a violation of the Clean Water Act and serve as grounds for enforcement.

Plaintiffs claim that the City has repeatedly violated all of the above permit conditions at both the Kailua and Kaneohe Plants. Counts One and Eight allege violations of secondary treatment levels as described in the Permits; Counts Two and Nine relate to alleged violations of receiving water quality standards articulated in the Permits; Counts Three and Ten concern alleged violations of bypass requirements; Counts Four and Eleven assert that the City repeatedly failed to report numerous noncompliance events; Counts Five and Twelve allege that defendant failed to monitor water quality and effluent flow as required by the Permits; Counts Six and Thirteen concern alleged violations of maintenance and operations standards contained in the Permits. Plaintiffs now move for summary judgment as to Counts One, Two, Three, Four, Five, Eight, Nine, Ten, Eleven, and Twelve; defendant has filed cross motions to dismiss or for summary judgment as to Counts Two, Three, Four, Nine, Ten, and Eleven. Defendant has also moved this court to reconsider its earlier denial of summary judgment as to Counts Six and Thirteen.

STANDARD OF REVIEW

I. Dismissal Under Rule 12(b)(6)

A motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed unless it appears to a certainty that plaintiff can prove no set of facts which would entitle the plaintiff to relief. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989); Fidelity Fin. Corp. v. Federal Home Loan Bank, 792 F.2d 1432, 1435 (9th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 949, 93 L.Ed.2d 998 (1987); Stender v. Lucky Stores, Inc., 766 F.Supp. 830, 831 (N.D.Cal.1991). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Stender, 766 F.Supp. at 831.

To the extent, however, that “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed.R.Civ.P. 12(c).

II. Summary Judgment

Rule 56(c) provides that summary judgment shall be entered when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(e). The moving party has the initial burden of demonstrating for the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). However, the moving party need not produce evidence negating the existence of an element for which the opposing party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552.

Once the movant has met its burden, the opposing party has the affirmative burden of coming forward with specific facts evidencing a need for trial. Fed.R.Civ.P. 56(e). The opposing party cannot stand on its pleadings, nor simply assert that it will be able to discredit the movant’s evidence at trial. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987); Fed.R.Civ.P. 56(e). There is no genuine issue of fact “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation omitted).

At the summary judgment stage, this court may not make credibility determinations or weigh conflicting evidence. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir.1990). The standard for determining a motion for summary judgment is the same standard used to determine a motion for directed verdict: does the evidence present a sufficient disagreement to require submission to a jury or is it so one-sided that one party must prevail as a matter of law. Id. (citation omitted).

DISCUSSION

I. DO PLAINTIFFS HAVE STANDING TO ASSERT A CAUSE OF ACTION FOR WATER QUALITY VIOLATIONS (SECOND AND NINTH CAUSES OF ACTION)?

Every state is required to promulgate water quality standards, which must be accepted by the EPA administrator. 33 U.S.C. § 1313(a). If it is determined that water quality cannot be maintained or achieved under the normal effluent limitations, the Act authorizes the imposition of stricter effluent limitations in order to attain and maintain water quality. 33 U.S.C. § 1312, 33 U.S.C. § 1311(b)(1)(C) (requiring by 1977 any more stringent standard for effluent limitations necessary to meet water quality standards); 40 C.F.R. § 122.44(d)(l)(iii).

The Act also provides an elaborate mechanism for establishing effluent limitations based on water quality standards: if the EPA finds a need to protect water quality in a given area, it will hold a public hearing. The objective of this hearing is to set the correct effluent limitation to achieve the desired water quality, in light of both the economic and social costs attendant thereto and the available technology. 33 U.S.C. § 1312. Effluent limitations are revised by the EPA after consultation with agencies and interested persons. 33 U.S.C. § 1314.

The Ninth Circuit has, in the past, recognized that “it is not the water quality standards themselves that are enforceable in section 1311(b)(1)(C), but it is the ‘limitations necessary to meet’ those standards, or ‘required to implement’ the standards.” Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842, 850 (9th Cir.1987). In fact, one court has expressly held that “if a state water quality standard has not been incorporated into an NPDES permit through an effluent limitation, it is outside the scope of section 301(b)(1)(C).” McClellan Ecological Seepage Situation (MESS) v. Weinberger, 707 F.Supp. 1182, 1200 (E.D.Cal.1988).

The Permits which DOH issued to the Kailua and Kaneohe Plants contain not only end-of-the-pipe effluent limitations but also receiving water quality limitations. The first issue raised in this summary judgment motion is a question of law: do the plaintiffs, as citizens, have standing to enforce the receiving water quality limitations included in the permit?

This court’s analysis is guided primarily by a recent opinion of the Court of Appeals for the Ninth Circuit, Northwest Environmental Associates v. City of Portland (NWEA), 11 F.3d 900 (9th Cir.1993). The question addressed by the NWEA court was as follows: Are expressly stated permit conditions prohibiting discharges that cause water quality violations enforceable by citizens? NWEA at 907. The Ninth Circuit concluded, after an exhaustive review of the legislative history and of the practical realities of enforcing water quality standards, that the 1972 amendments to the Act rendered water quality standards unenforceable by citizen suits unless they have been translated into end-of-the-pipe effluent limitations. Id. at 911.

In NWEA, the Ninth Circuit acknowledged that, while the cases it cites regarding unenforceability of water quality standards by citizens (i.e., Oregon Natural Resources Council and MESS) are factually distinguishable, they stand for the proposition that “whenever courts have been faced with the question [of enforcing water quality standards], the answer has been that citizen suits cannot be used to enforce water quality standards.” Id. at 907, 909. The court then emphasized that not a single ease could be found in which a court held that citizen suits could be used to enforce water quality standards, “whether the water quality standards were incorporated in a NPDES permit or not.” Id. at 907-08.

After citing the provisions of the Act which concern citizen suits and water quality standards, the NWEA court concluded that the following statutory scheme exists:

(1) § 1365(a) allows citizen suits to enforce effluent limitations;

(2) § 1365(f) defines effluent limitations as end-of-the-pipe limitations and permit violations;

(3) §§ 1311 et seq. establish a NPDES permit system to require end-of-the-pipe effluent limitations tailored to achieve water quality standards.

Id. at 908.

The NWEA court examined the statutory requirements for the issuance of NPDES permits, pursuant to 33 U.S.C. § 1342. After asserting that these statutory sections require pollutant dischargers to meet effluent limitations calculated to achieve water quality standards, it concluded that “none of these sections, however, require that a permittee directly comply with water quality standards. Rather, it is the duty of the permit-issuing authority to include in the permit end-of-the-pipe effluent limitations that will ensure that water quality standards are met.” Id. (citing Oregon Natural Resources Council, 834 F.2d at 850).

The court then focused on the permit issued to the City of Portland. The permit stated that “notwithstanding the effluent limitations established by this permit, no wastes shall be discharged and no activities shall be conducted which will violate Water Quality Standards as adopted in OAR 340-41-445 except in the following defined mixing zone.... ” Id. at 906-07 (citing 1984 Permit, E.R. 223). The court held that this permit failed to “set out such [effluent] limitations as to the CSOs (combined sewer overflows).” The court concluded that, as a result of the permit’s failure to set forth water quality standards as effluent limitations, the plaintiffs had no standing to sue under 33 U.S.C. § 1365. Id. at 909.

Although the court could have terminated its standing analysis at that point, it instead conducted an exhaustive analysis of the legislative history of the Act and of the 1972 amendments, which drastically altered the enforcement scheme. The court first recognized that 33 U.S.C. § 1365(f) puts no explicit limits on the types of permit conditions that citizens can enforce. Id. (citing 1972 U.S.C.C.A.N. at 3747) (“In addition to violations of section 301(A) citizens are granted authority to bring enforcement actions for violations of ... any condition of any permit issued under section 402.”). The court asserted, though, that this broad grant of authority did not exist in a vacuum: its breadth is in fact directly contradicted by a more limited jurisdictional statement within the same document. In this earlier statement, the Senate Committee on Public Works stated that citizens could bring enforcement actions “against those who violate effluent standards or compliance orders.” Id. (citing 1972 U.S.C.C.A.N. at 3677).

The NWEA court then assessed the balance of the legislative history surrounding the 1972 amendments to the Act. Prior to 1972, the federal government used water quality standards to protect and preserve the nation’s bodies of water. Under the pre1972 legislation, the federal government could bring an enforcement action whenever it determined that water quality standards were being violated; this approach proved ineffective, though, as enforcement of water quality standards was practically non-existent. Id. (citing Jeffrey M. Gaba, Federal Supervision of State Water Quality Standards Under the Clean Water Act, 36 Vand. L.Rev. 1167, 1179 (1983)).

In 1972, the Act was amended, so that enforcement would focus on the quality and nature of the effluent being discharged into the receiving waters, rather than on the quality of the receiving waters themselves. While plaintiffs in this case argue that the amendments simply added end-of-the-pipe effluent limitations as an alternative enforcement measure [to the previously established water quality standards], the Ninth Circuit found that the 1972 amendments “reflect a 180 degree shift in the government’s attempts to control water pollution.” Id. at 909. In essence, the court determined that end-of-the-pipe effluent limitations completely replaced water quality standards as enforcement measures. Water quality standards remain only a goal which end-of-the-pipe limitations strive to reach:

This change in emphasis to an act geared towards discharge limits is reflected throughout the legislative history. See, e.g., 1972 U.S.C.C.A.N. 3675 (“The legislation recommended by the Committee proposes a major change in the enforcement mechanism of the Federal water pollution control program from water quality standards to effluent limits.”). Although the 1972 Amendments retain some role for water quality standards, see 33 U.S.C. § 1312 and 1313, that role has changed. Prior to 1972, water quality standards served as both the end goal and the mechanism for achieving that goal. Under the 1972 Amendments, water quality standards remain the goal, however discharge limits have taken over as the mechanism. See 1972 U.S.C.C.A.N. 3675 (“The basis of pollution prevention and elimination will be the application of effluent limitations. Water quality will be a measure of program effectiveness and performance, not a means of elimination and enforcement.”).

Id. at 909-10 (emphasis added).

The court then gave several examples from the legislative history in which legislators and policy-makers described the use of water quality standards as the goal to be reached through enforcement of end-of-the-pipe effluent limitations. Id. at 910 (citations omitted). These examples also emphasize that 33 U.S.C. § 1313, which assigns the new role to water quality standards, was intended as a means “to determine if more restrictive effluent limitations may be required”; this section does not “weaken the effluent limitation approach and [restore] the old water quality standard based approach to water quality controlf.]”

The NWEA court discussed the reasons for the switch in enforcement mechanisms. Id. at 910-11. It first noted the difficulty litigants had experienced in proving that a defendant’s discharges were in fact the cause of poor water quality in the receiving waters, where the water received discharges from more than one plant. The effluent limitation enforcement scheme was designed to give the courts a simpler, more objective task:

Now in order for the court to determine liability, it need only compare the quality and quantity of the alleged polluter’s discharge to the limits set forth in the applicable NPDES permit. If the discharges exceed the permit limits, the discharger has violated the Act; if they do not, there is no violation or liability.

Id. at 910.

Although the plaintiffs in this case contend that water quality standards, when listed as a permit condition, provide a second or alternative measurement by which a court can find liability, the NWEA court rejected this “alternatives” argument as contrary to purpose of the amendments: “The enforcement of a general water quality maintenance condition in a permit, however, would require the court to engage in just the subjective analysis of technological considerations that Congress sought to avoid under § 1365.” Id. (citing 1972 U.S.C.C.A.N. at 3745 (“An alleged violation of an effluent control limitation or standard, would not require reanalysis of technological in [sic] other considerations at the enforcement stage. These matters will have been settled in the administrative procedure leading to the establishment of such effluent control provision.”)).

The Ninth Circuit also considered the practical problems inherent in the “alternative enforcement” scheme suggested by the plaintiffs. It asserted that such an approach would place modern dischargers under the same disadvantage faced by pre-1972 dis-chargers: the legality of their actions would be “dependant [sic] on natural conditions such as the weather and third parties’ discharges.” Id. (citation omitted). Thus, in light of the multitude of other factors which affect water quality standards in the receiving waters, no amount of planning or care could protect a discharger from potential liability. The court found this strict liability approach both unfair and untenable: “[g]iven the extreme cost of pollution abatement,” dischargers (i.e. industries and cities) must have the ability to plan for the future with the assurance that, through such planning, they can keep themselves “on the correct side of the law.” Id. at 911.

The NWEA court summarized its review of the legislative history as follows: the 1972 amendments (1) instructed courts to make liability determinations objective and nontechnical, and (2) emphasized that water quality standards should be translated into end-of-the-pipe effluent limitations. In light of these instructions, the NWEA court was “eonvince[d] ... that the single reference to ‘any condition of any permit’ cannot be read as broadly as NWEA suggests without eviscerating Congress’s intent to restructure and revamp the statute.... Given the legislative history and the practical problems that NWEA’s interpretation of the statute would entail, the court finds that under 33 U.S.C. § 1365, water quality standards are unenforceable by way of citizen suit unless they have been translated into end-of-the-pipe effluent limitations.” Id. Accordingly, the Ninth Circuit affirmed the district court’s finding that the plaintiffs lacked federal jurisdiction to enforce the water quality conditions of the NPDES permits.

This court must now examine the case before it to determine whether the NWEA holding controls. Plaintiffs, in addition to arguing that the Ninth Circuit’s holding in NWEA is absolutely incorrect, contend that several distinctions exist between this case and NWEA which compel this court to reach a different result from that reached in NWEA After a careful review of the points raised by plaintiffs, this court finds those distinctions insufficient to place this ease beyond the reach of NWEA’s broad holding. Consequently, the court must dismiss the claims relating to water quality standards because the plaintiffs have no standing to assert those claims in a citizen suit in federal court. The court accordingly grants defendant’s motion to dismiss and denies plaintiffs’ motion for summary judgment as to these counts.

Plaintiffs primarily assert that, unlike the permit at issue in NWEA, the permits held by the Kailua and Kaneohe Plants contain specific water quality standards (described by the plaintiffs as “quantitative conditions”). The NWEA permit merely incorporated by reference the statutory water quality standards enacted by the State of Oregon (described by the plaintiffs as “narrative conditions”). The plaintiffs view this distinction as significant for two reasons: first, the NWEA holding as to “narrative conditions” should not affect specific water quality (“quantitative”) permit conditions, and second, the practical problems cited by the NWEA court would not exist here because the permit conditions at issue are specific, well designed and easily enforced. The court mil address each of these in turn.

A. Narrative Versus Quantitative Conditions

While it is true that the permit at issue in NWEA incorporated by reference Oregon’s statutory water quality standards, the NWEA court did not, as the plaintiffs do, distinguish narrative conditions from quantitative ones. There is no indication that the Ninth Circuit found the permit condition objectionable because it contained only a narrative condition, or limited its holding to only narrative conditions. In fact, in its analysis of the legislative history and the practical problems posed by water quality standard enforcement measures, the court repeatedly used the generic phrases “permit” or “permit condition”, unqualified by the words “narrative” or “incorporated by reference”. For example, the court’s conclusion that “[t]he permit at issue in the instant case fails to set out such limitations as to the CSOs” indicates that the water quality standards contained in the permit are objectionable because they have not been translated into end-of-the-pipe effluent limitations. The court does not even suggest that the standards are unenforceable because they have been incorporated by reference to the statute, rather than made explicit.

The NWEA court’s intent to render unenforceable all water quality standard permit conditions (which have not been translated into end-of-the-pipe effluent limitations) is even more apparent in the following statements:

The enforcement of a general water quality maintenance condition in a permit, however, would require the court to engage in just the subjective analysis of technological considerations that Congress sought to avoid under § 1365. Congress’s emphasis on the evidentiary simplicity of enforcement actions precludes the enforcement of water quality standards that have not been translated into effluent discharge limitations.

Id. at 910.

[T]his court [is convinced] that the single reference to “any condition of any permit” cannot be read as broadly as NWEA suggests without eviscerating Congress’s intent to restructure and revamp the statute____ [T]he court finds that under 33 U.S.C. § 1365, water quality standards are unenforceable by way of a citizen suit unless they have been translated into end-of-the-pipe effluent limitations.

Id. at 911.

Plaintiffs present to the court various authorities to support their position that water quality permit conditions should be enforced in spite of the NWEA holding. First, plaintiffs cite many cases in which courts have allowed citizens to enforce permit conditions pursuant to § 1365(f). NRDC v. Vygen Corp., 803 F.Supp. 97, 103 (D.Ohio 1992) (holding reporting violations enforceable under the Act); Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1115 (4th Cir.1988) (same); SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F.Supp. 1074, 1087-88 (D.N.J.1986); U.S. v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir.1979); Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton, 506 F.Supp. 902 (W.D.Pa.1980), aff'd, 644 F.2d 995 (3rd Cir.1981) (holding conditions relating to maintenance enforceable); Connecticut Fund for Envir. v. Raymark Industries, 631 F.Supp. 1283, 1285 (D.Conn.1986) (holding condition regulating discharge into a lagoon to be enforceable). None of these cases, however, specifically hold that a water quality condition in a permit is enforceable.

Plaintiffs do cite an unpublished opinion from the Northern District of California, in which Judge Patel held enforceable water quality standards found in the permit. U.S. v. Louisiana-Pacific Corp., Cv. No. C 78-0567 (N.D.Cal.1990). While the court appreciates Judge Patel’s analysis of the issue, it notes that unpublished opinions cannot be used as authority in either the district or appellate courts. Ninth Circuit Rule 36-3. Additionally, while Louisiana-Pacific was not specifically referenced by the Ninth Circuit in NWEA, it would appear that the 1993 NWEA opinion supersedes and implicitly overrules Judge Patel’s 1990 holding as to the enforceability of the water quality permit condition.

Finally, the plaintiffs align themselves with Judge Pregerson in his dissent in NWEA As Judge Pregerson interprets the legislative history, the 1972 amendments to the Act were intended “to improve enforcement, not to supplant the old system.” NWEA, 11 F.3d at 912 (Pregerson, J., dissenting). He points out that certain water quality standards cannot be expressed as effluent limitations, and that the regulatory scheme allows states to express criteria “‘as constituent concentrations, levels, or narrative statements____’” Id. (Pregerson, J., dissenting) (citing 40 C.F.R. § 131.3(b) (1992)). Judge Pregerson also asserts that the Act permits states to adopt stricter controls than those implemented by the federal government under the Act. Id. (Pregerson, J., dissenting) (citing 33 U.S.C. § 1370).

However, in determining whether the NWEA holding applies to the case presently pending, the court cannot ignore that Judge Pregerson dissents specifically because he objects to the breadth of the majority’s language: “By interpreting § 1365(a)(1) to exclude citizen suit enforcement of water quality standards that are not translated into quantitative [end-of-the-pipe] limitations, the majority opinion immunizes the entire body of qualitative regulations from an important enforcement tool.” Id. (Pregerson, J., dissenting). Thus, Judge Pregerson interprets the majority opinion as applying not only to narrative conditions, but to all water quality permit conditions which have not been translated into end-of-the-pipe effluent limitations. Such is the condition at issue in the Kailua and Kaneohe Permits. Judge Pregerson’s dissent therefore contributes to this court’s finding that NWEA compels the outcome of the standing issue in this case.

In short, despite plaintiff’s claims to the contrary, there is not a single statement in the NWEA opinion which can be construed as limiting the holding to permits containing narrative water quality conditions. In light of the NWEA court’s extensive consideration of legislative history and the realities of Clean Water Act litigation, it is not for this court to limit the Ninth Circuit’s decision to the facts before it.

B. Practical Enforcement Problems

The court now turns to the plaintiffs’ contention that the water quality standards in the Kailua and Kaneohe Permits would not cause practical enforcement problems, and should therefore be enforced despite the holding in NWEA According to the plaintiffs, the permit conditions for the pollutants at issue (ammonia nitrogen and enterococcus) are specific, well designed and easily enforced. The Permits specify the location and monitoring protocols for these pollutants and allow the City to be excused from violations if the City can prove that the violation was not due to the influence of its discharge on the receiving waters. Thus, according to the plaintiffs, the City has both a permit provision and a scientific methodology built into the Permits to avoid liability for violations, and is thereby protected from arbitrary enforcement.

The court agrees that, because the Kailua and Kaneohe Permits explicitly allow the dis-chargers to escape liability for violations caused by others, they are distinct from those at issue in NWEA. However, this distinction does not render the permit condition enforceable. First, under the law, lack of causation has historically been a defense available to all dischargers. The provision in the Kailua and Kaneohe Permits which expressly exempts a discharger from liability for violations he does not cause simply internalizes the statutory and common law liability; it does not give the dischargers an extra form of protection.

In addition, even if this court were to determine that the permits provide a more rehable means of determining causation, and therefore offer the dischargers a greater degree of protection than the permits considered in NWEA the breadth of NWEA’s holding still prevents citizen enforcement of the water quality conditions. The Ninth Circuit, in deciding whether the legislative history supported its finding that plaintiffs lacked standing to sue, addressed these practical concerns as one prong of its analysis: “Practical considerations also militate in favor of an interpretation that does not allow for jurisdiction in this ease.” NWEA, 11 F.3d at 910. The court does not state that its holding rests on its assessment of the practical realities of enforcement and planning, nor does it imply that such an assessment is a crucial element of the standing determination. Instead, the “practical considerations” segment, while important, appears simply to lend support to the majority’s conclusion. Hence, a contrary finding by this court as to the practical realities faced by the dischargers neither necessitates nor warrants a contrary finding as to standing.

C. Estoppel

Next, the plaintiffs contend that the defendant should be estopped from complaining about the Permits for two reasons. Plaintiffs first assert that, because defendant failed to challenge the Permits when they were issued, it has lost “forever the right to do so.” Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, 913 F.2d 64, 78 (3rd Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991); Connecticut Fund for the Envir. v. Job Plating Co., Inc., 623 F.Supp. 207, 216 (D.Conn.1985) (“By failing to challenge its NPDES permit under state law at a time when its purported legal deficiency should have been apparent to the defendant as it is now, the defendant is precluded from doing so in this action.”).

The court agrees that, had the defendant known of any deficiencies when the Permits were issued, it would have been required to challenge them at that time. However, this principle does not estop the City from raising this issue now, for two reasons. Until the Ninth Circuit determined seven months ago that the water quality condition could not be enforced in a citizen suit, there was no “apparent legal deficiency” in the Permits of which the defendant should have been aware. As the plaintiffs note, there is ample case law to support the enforceability of any permit condition. Moreover, the holding of NWEA and the holding of this case, address only the enforceability of this provision in a citizen suit: this case has no bearing on the ability of a federal or state agency to enforce the Permits. This court does not hold that the water quality condition is deficient in and of itself; the condition is simply not susceptible to enforcement by private citizens.

The second estoppel argument is based on jurisdiction: plaintiffs assert that only state courts can review the validity of a state-issued NPDES permit. Municipal Authority of the Borough of St. Mary’s v. U.S.E.P.A., 945 F.2d 67, 71 (3rd Cir.1991); American Paper Institute, Inc. v. U.S.E.P.A., 890 F.2d 869, 875 (7th Cir.1989); Shell Oil Co. v. Train, 585 F.2d 408 (9th Cir.1978). Thus, according to the plaintiffs, this court can only enforce the Permits; the defendant cannot challenge, and this court cannot review, the Permits’ validity. The court agrees with plaintiffs’ characterization of this court’s jurisdiction, but reaffirms that neither the Ninth Circuit in NWEA nor this court holds the permit condition invalid on its face. Instead, this court has limited its review to the enforceability of the water quality condition by citizens.

In sum, this court must follow NWEA’s holding that plaintiffs lack standing to enforce, through a citizen suit, the water quality permit conditions which have not been translated into end-of-the-pipe effluent limitations. This court grants the defendant’s motion to dismiss, and denies the plaintiffs’ motion for summary judgment, as to Counts Two and Nine of the Complaint.

II. DO PLAINTIFFS HAVE A CAUSE OF ACTION FOR MAINTENANCE AND OPERATIONS CONDITIONS (THE SIXTH AND THIRTEENTH CAUSES OF ACTION)?

The second element of Defendant’s Third Motion to Dismiss or for Summary Judgment alleges that plaintiffs have no standing to assert claims for violation of the maintenance and operations conditions of the Kailua and Kaneohe Permits. The defendant had previously raised this issue in its Motion to Dismiss or in the Alternative for Summary Judgment or Partial Summary Judgment dated July 27, 1992. In its Order dated October 27, 1992 (“1992 Order”), this court denied defendant’s motion as to this claim. Defendant has refiled this motion, asking the court to reconsider its decision in light of the Ninth Circuit’s decision in NWEA

The disposition of a motion for reconsideration is within the discretion of the district court and will not be reversed absent an abuse of discretion. Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1292 (9th Cir.1982). There is a “compelling interest in the finality of judgments which should not be lightly disregarded.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir.1983).

It is well settled in the Ninth Circuit that a successful motion for reconsideration must accomplish two goals. First, a motion for reconsideration must demonstrate some reason why the court should reconsider its prior decision. Second, a motion for reconsideration “must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Painting Ind. of Hawaii v. U.S. Dept. of Air Force, 756 F.Supp. 452 (D.Haw.1990) (citations omitted). Courts have established only three grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the discovery of new evidence not previously available; and (3) the need to correct clear or manifest error in law or fact, to prevent manifest injustice. Id. The District of Hawaii has implemented these standards in Local Rule 220-10.

According to the defendant, NWEA constitutes a change in the controlling law which compels the court to revise its earlier finding. In the defendant’s reading of NWEA the Ninth Circuit held that the only permit provision on which a citizen can bring an action is the effluent limitation condition. Defendant claims that the legislative history cited by the NWEA court fails to support a claim for a violation based on operations and maintenance permit conditions. Consequently, this court would violate the legislative intent of the Clean Water Act, as described in NWEA, if it allowed plaintiffs to raise operations and maintenance issues as grounds for enforcement.

The court disagrees with defendant’s reading of NWEA As discussed extensively in Part I, supra, the NWEA court decided only the issue of whether water quality permit conditions could form the basis of a citizen suit where they had not been translated into effluent limitations. It neither considered nor made reference to the relationship between effluent limitations and other types of permit conditions as potential grounds for enforcement. It therefore cited only the legislatíve history relevant to the water quality standard/effluent limitation debate and did not mention the body of legislative materials surrounding other provisions of the NPDES enforcement scheme. In short, defendant completely overstates the breadth of the NWEA opinion by claiming that, because the Ninth Circuit explicitly disallowed citizen enforcement of water quality permit conditions in favor of enforcement based on effluent limitations, it necessarily prohibited citizen enforcement of all permit conditions other than effluent limitations.

The Ninth Circuit’s decision in NWEA in no way changed the law regarding the enforcement of maintenance and operation permit conditions. Accordingly, the court denies defendant’s motion to reconsider its pri- or ruling denying defendant’s Motion to Dismiss or for Summary Judgment as to the Maintenance and Operations Claims.

III. SUMMARY JUDGMENT AS TO DEFENDANT’S ALLEGED FAILURE TO MEET SECONDARY TREATMENT LEVELS AT THE PLANTS (FIRST AND EIGHTH CLAIMS FOR RELIEF)

A. Have the Plaintiffs Satisfied the Gwaltney Doctrine?

The Supreme Court determined in Gwaltney of Smithfield, Inc. v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), that citizens cannot bring suits to enforce “wholly past violations.” This ruling requires that citizens allege “ongoing violations” of the Act, not just violations that had completely ceased at the time the lawsuit was filed.

In its 1992 Order, this court unequivocally held that the allegations in plaintiffs’ complaint satisfied the requirements of Gwaltney:

Gwaltney, however, does not require, as the City contends, that a plaintiff prove that a defendant is in violation of the Act at the time of the commencement of the suit. Rather, all that is required is that a defendant be alleged to be in continuous or intermittent violation of the Act. Any other construction of § 505 reads the word “alleged” out of the Act. (citations omitted).

Paragraphs 6 and 58 of plaintiffs’ complaint contain specific allegations that the City’s conduct is of an ongoing nature. As such, it satisfies the requirement of § 505 as interpreted by Gwaltney.

1992 Order at 12; see also Sierra Club v. Union Oil Co. of California (Union Oil II), 853 F.2d 667, 670 (9th Cir.1988) (“Sierra Club had to make good faith allegations of continuous or intermittent ongoing NPDES permit violations for jurisdiction to attach.”).

The Ninth Circuit has explained that the phrase “ongoing violations” in Gwaltney is a term of art that requires the plaintiff to show that there exists a reasonable likelihood of intermittent or sporadic violations in the future:

[A] citizen plaintiff may prove ongoing violations either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.

Union Oil II, 853 F.2d at 671. Moreover, “[ijntermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.” Id. (citing Chesapeake Bay Foundation v. Gwaltney, (Gwaltney II) 844 F.2d 170, 172 (4th Cir.1988)).

In assessing whether there are “ongoing violations,” a court may consider any remedial actions taken by the defendant and “any other evidence presented during the proceedings that bears on whether the risk of defendant’s continued violation had been completely eradicated when the citizen plaintiffs filed suit.” Union Oil II, 853 F.2d at 671. Significantly, the court’s assessment of the likelihood of future violations should begin with the date on which the complaint was filed; the court is not to view the likelihood of continuing violations from its present vantage-point. Chesapeake Bay Foundation v. Gwaltney, (Gwaltney III) 890 F.2d 690, 693 (4th Cir.1989) (finding that proper point for which to assess the likelihood of continuing violations is not the present, with its advantage of hindsight, but the time of the original suit); Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1134-35 (11th Cir.1990) (stating that the court must always look to the date the complaint was filed).

This court has already determined that the plaintiffs had no duty to actually prove the existence of an ongoing violation at the time they filed the complaint; their allegations thereof, if reasonable and made in good faith, are sufficient to invoke this court’s jurisdiction. See 1992 Order at 12. The court must now determine whether, as of May 5,1992, a reasonable trier of fact could have found ongoing violations (either continuing violations or likelihood of recurring intermittent or sporadic violations) by the City.

The City primarily argues that, in December of 1991, it had installed a “new upgraded trickling filter process” which would provide secondary treatment at the Kailua Plant. The City claims that, since the new filter was installed, the Kailua Plant has been in compliance with secondary treatment requirements. Hence, according to the City, the plaintiffs’ allegations of future violations were groundless.

The plaintiffs acknowledge that the City made improvements to the trickling filter in December of 1991. However, the plaintiffs have presented substantial evidence that the new filter, at the time of its installation, could not and was not expected to, “completely eradicate the risk” of future secondary treatment violations. Union Oil II, 853 F.2d at 671. Plaintiffs cite three fundamental problems at the Kailua Plant which experts believed, as of May 5, 1992, were reasonably likely to continue despite the new filter.

First, plaintiffs offer unrefuted evidence that the Kailua Plant was unable to handle the substantial flows which resulted during periods of heavy rainfall. Although flows as high as 34 million gallons per day (MGD) were recorded as recently as March 1991 and are expected to continue, the Plant operator admitted in a deposition that the Plant could not handle more than 18 MGD When the Kailua Plant is unable . to handle the increased flow, the sewage has to be re-routed (bypassed) to alternative outfalls. In a letter dated October 22, 1991, the Chief Engineer of the Kailua Plant indicated to DOH that “perennial bypassing has been occurring when intense rainfalls result in high flows.” These emergency bypasses have, in the past, led to permit violations.

Furthermore, while the plant may recently have achieved technical compliance, there is no indication that the new filter completely eradicated the risk that the Kailua Plant would be unable to handle exceptionally heavy rainfall. In March of 1992, four months after the new filter was installed, a consultant to the City confirmed that bypassing would still be required at flows of over 24 MGD. The anticipated failure of the new filter to manage flows exceeding 24 MGD signifies that, as of May 5, 1992, similar bypassing problems were likely to occur in the future.

Second, plaintiffs have produced uncontroverted evidence that the Kailua Plant lacks “redundancy” in its treatment units: it has only one major component for each of its major treatment processes. The Director and Chief Engineer of the Kailua Plant specified that “[t]he facility has no redundant primary or secondary treatment units.” As a result, whenever a single piece of equipment fails, no replacements are available, thereby causing the Plant to bypass some or all of the treatment units on a temporary basis. In a letter dated December 20,1991, the Chief Engineer characterized the Plant as “a maintenance nightmare due to a lack of redundant facilities.” See Exhibit “2” to Plaintiffs’ Reply Memorandum to the Related Motion (letter from Sam Callejo to John Felix, Chair of the Public Works and Safety Committee). Significantly, this letter was written at exactly the same time the new filter was installed. Defendant has produced no other evidence of improvements or new machinery which might have increased the redundancy of the Plant. Hence, there is no indication that, as of May 5, 1992, the new filter (or any other innovations) corrected or even ameliorated the redundancy problem.

Third, plaintiffs have demonstrated that the Kailua Plant has a “weaker than normal influent” (influent with lower than average concentrations of BOD and TSS). As a result, in order to meet the Act’s 85% removal requirement, Kailua’s sewage requires a high degree of treatment. Kailua had, in the past, experienced difficulty meeting this 85% requirement, and was not expected to reach compliance even with the new trickling filter installed in December of 1991. In the September 1991 Memorandum to the Head of the Planning and Public Service Branch cited above, the Superintendent of the Wastewater Treatment and Disposal Branch expressed his fear that, due to the medium to weak influent, “we do not anticipate consistently meeting the 85 percent removal efficiency requirements even though we may meet the 30/30 mg/1 concentration limitations.” The Superintendent also indicated that his office had failed in its attempt to convince DOH to remove or delete the 85% five-day BOD and TSS removal efficiency requirements for the Kailua Plant. See Exhibit “3” to Plaintiffs’ Reply Memorandum to the Related Motion. These difficulties were corroborated by the Chief Engineer of the Kailua Plant, who asserted in his December 20, 1991 letter that “[t]he plant, as it operates today, will not meet the requirements of secondary treatment as defined in the Clean Water Act.” See Exhibit “2” to Plaintiffs’ Reply Memorandum to the Related Motion. The predictions of these insiders that the Kailua Plant was unlikely to meet the 85% removal requirement provide a solid basis for plaintiffs’ beliefs that, as of May 5, 1992, the risk of future noncompliance was significant.

For the foregoing reasons, the court finds well-supported the plaintiffs’ allegation that, on May 5, 1992, there was a significant risk of future violations by the Kailua Plant. Despite defendant’s assertions regarding its success, defendant’s installation and improvement of the trickling filter did not “completely eradicate” the risks of bypass, redundancy, and removal problems as of May 5, 1992. Plaintiffs thus satisfy the requirements of Gwaltney, and can present evidence of violations by the Kailua Plant.

B. Should the Kailua Plant Claims Be Dismissed as Moot?

The City contends that, because it has installed the new trickling filter in the Kailua Plant and because the Kailua Plant has not committed any secondary treatment violations in the last two and a half years, the plaintiffs’ claim for injunctive relief is moot. The City also argues that, because the problems of which the plaintiffs complain were solved before the complaint was filed, the plaintiffs’ prayer for civil penalties is also moot.

Subject matter jurisdiction is determined with respect to circumstances at the time the complaint is filed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n. 4, 112 S.Ct. 2130, 2141 n. 4, 119 L.Ed.2d 351 (1992). Post-filing events cannot, therefore, strip a court of its properly conferred jurisdiction. Natural Resources Defense Council v. Texaco Refining & Marketing, Inc., 2 F.3d 493, 503 (3d Cir.1993).

Nonetheless, the doctrine of mootness precludes a court from adjudicating claims that no longer present a concrete and substantial controversy which can be redressed through specific relief. See U.S. v. Michigan Nat’l Corp., 419 U.S. 1, 4, 95 S.Ct. 10, 11, 42 L.Ed.2d 1 (1974). A defendant bears a “heavy burden” to prove that a lawsuit is moot. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988). The Supreme Court has emphasized that a defendant asserting mootness must demonstrate that it is “absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.” Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 66, 108 S.Ct. 376, 386, 98 L.Ed.2d 306 (1987) (emphasis in the original); U.S. v. Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). In addition, the Supreme Court has distinguished between mootness of the entire case and mootness of one form of relief:

Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests.... [T]he remaining live issues supply the constitutional requirement of a case or controversy-

Powell v. McCormack, 395 U.S. 486, 496-97 n. 8, 89 S.Ct. 1944, 1951 n. 8, 23 L.Ed.2d 491 (1969).

While the Supreme Court in Gwaltney did not specifically address whether mootness bars damage claims in addition to claims for injunctive relief, the appellate courts which have ruled on the matter have answered the question in the negative: In Clean Water Act eases, the mooting of injunctive relief does not moot a plaintiffs prayer for civil penalties and thus does not moot the case as a whole. Natural Resources Defense Council v. Texaco Refining & Marketing, Inc., 2 F.3d 493, 503 (3d Cir.1993); Atlantic States Legal Foundation, Inc. v. Pan American Tanning Corp., 993 F.2d 1017, 1020-21 (2d Cir.1993) (“We hold ... that a defendant’s ability to show, after suit is filed but before judgment is entered, that it has come into compliance with limits on the discharge of pollutants will not render a citizen suit for civil penalties moot.”); Atlantic States Legal Foundation v. Tyson Foods, Inc., 897 F.2d 1128, 1135-36 (11th Cir.1990) (stating that “the mooting of injunctive relief will not moot the request for civil penalties as long as such penalties were rightfully sought at the time the suit was filed.”); Gwaltney III, 890 F.2d at 696-97 (4th Cir.1989) (“[T]he penalty factor keeps the controversy alive between plaintiffs and defendants in a citizen suit ... even