Dissenting in part:
I concur in the majority’s decision to affirm the district court’s WACC determination, below-economic benefit penalty, and penalty explanation. However, for the reasons below, I dissent as to the majority’s affirmance of the district court’s least costly alternative analysis.
The majority’s rejection of CITGO’s “third tank only argument,” finding that a third and fourth storage tank were necessary, is correct. However, the majority does exactly what I believe the district court incorrectly did — adopt the government’s proposed least costly alternative in full without an individualized consideration. I would hold that the district court clearly erred in including the API separator and the aeration tank in the determination.
The only items that should be included in the least costly alternative analysis are the items that were necessary to prevent the charged violation. The record on appeal and the parties’ briefs focus on CIT-GO’s failure to have sufficient stormwater storage tank capacity and its failure to adequately maintain and clean the tanks, all of which undoubtedly led to the 2006 CWA violation. But, there is no basis in the record for the district court’s inclusion — and this court’s affirmance — of the API separator and the aeration tank. Neither the district court nor this court addresses how or why these two items were necessary to the prevention of CITGO’s CWA violation, beyond their being good business practices.
Although it may have been good practice to have the API separator and the aeration tank, the record makes abundantly clear that CITGO needed only a third and fourth storage tank — that were cleaned and maintained — to prevent the CWA violation in question. Accordingly, I would vacate the judgment as to the inclusion of the API separator and the aeration tank. Further, because the cost of each item is unclear, I would remand for the district court to recalculate the economic benefit and adjust the civil penalty as the district court deems appropriate with the guidance that this court does not find error as to its determination in any other respect.