Soundkeeper, Inc. v. A & B Auto Salvage, Inc.

• Citation: 19 F.Supp.3d 426
• Decision Date: 15 May 2014
• Docket Number: No. 3:12–CV–00841 CSH.,3:12–CV–00841 CSH.
• Court: U.S. District Court — District of Connecticut
• Parties: SOUNDKEEPER, INC., Connecticut Fund for the Environment, Inc., and Conservation Law Foundation, Inc., Plaintiffs, v. A & B AUTO SALVAGE, INC. and A & B Auto Scrap Metal, LLC, Defendants.

19 F.Supp.3d 426

SOUNDKEEPER, INC., Connecticut Fund for the Environment, Inc., and Conservation Law Foundation, Inc., Plaintiffs

v.A & B AUTO SALVAGE, INC. and A & B Auto Scrap Metal, LLC, Defendants.

No. 3:12–CV–00841 CSH.

United States District Court, D. Connecticut.

Signed May 15, 2014.

Reed W. Super, Super Law Group, LLC, New York, NY, Roger F. Reynolds, Connecticut Fund for the Environment, New Haven, CT, Zachary Knox Griefen, Conservation Law Foundation, Montpelier, VT, for Plaintiffs.

John P. Clifford, Jr., John Joseph Robacynski, Rome, Clifford, Katz & Koerner, LLP, Hartford, CT, for Defendants.

RULING ON DEFENDANTS' MOTION TO DISMISS

CHARLES S. HAIGHT, JR., Senior District Judge.

I. INTRODUCTION

Plaintiffs Soundkeeper, Inc., Connecticut Fund for the Environment, Inc., and Conservation Law Foundation, Inc. (collectively, “Plaintiffs”) bring this lawsuit “under the citizen suit enforcement provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ” (hereafter “the Clean Water Act,” “the Act,” or “the CWA”) in order to address and abate occurrences which Plaintiffs contend constitute “ongoing and continuous violations of the Act.” [Doc. 1] at 1.

Plaintiffs allege that Defendant A & B Auto Salvage, Inc. and Defendant A & B Scrap Metal LLC (collectively, “Defendants”) continue to “discharge polluted storm water runoff from their automobile salvage and scrap metal recycling facility located at 54 Wrobel [Place], East Hartford, CT 06108 ... into waters of the United States without authorization, in violation of Sections 301(a) and 402(p)(2)(B) of the Act, 33 U.S.C. §§ 1311(a) and 1342(p)(2)(B), and that “Defendants have failed to obtain coverage under [or to] comply with the conditions of an individual National Pollutant Discharge Elimination System ... [P]ermit or the State of Connecticut[ ] General Permit for the Discharge of Stormwater Associated with Industrial Activity issued by the Connecticut Department of Energy and Environmental Protection” in violation of Sections 402(p)(3)(A) and (p)(4)(A) of the Act, 33 U.S.C. §§ 1342(p)(3)(A) and (p)(4)(A), and of 40 C.F.R. §§ 122.26(c)(1) and (e)(1). Id. at 1–2.

Defendants move to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). [Doc. 17]. Defendants contend both (1) that this “action is barred under Section 309(g), 33 U.S.C. § 1319(g) as the result of a 1982 Administrative Order rendering judgment issued by the State of Connecticut Department of Energy & Environmental Protection;” and, in addition, (2) that this action is barred by a 2010 State of Connecticut Department of Energy & Environmental Protection “agency determination [which] expressly stated that registration [for the property] under the General Permit was not required under the Clean Water Act.” [Doc. 17–1] at 1–2 (emphasis omitted). Since Defendants contend that “all claims [contained within] the Complaint are dependent on the failure to register under the General Permit,” Defendants contend that all such claims “fail as a matter of law and must be dismissed for lack of subject matter jurisdiction.” Id. at 2.

This Ruling resolves that motion.

II. LEGAL STANDARDS

A motion to dismiss for lack of subject matter jurisdiction is governed by Fed.R.Civ.P. 12(b)(1), under which a case is properly dismissed “when the court lacks the statutory or constitutional power to adjudicate the case.” Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996). Both the moving and non-moving parties “may use affidavits and other materials beyond the pleadings themselves in support or in opposition to a challenge to subject matter jurisdiction” and the “district court also may inquire, by affidavits or otherwise, into the facts as they exist.” Tuccio Development, Inc. v. Town of Ridgefield, No. 3:06–CV–01821, 2008 WL 749855 at *1 (D.Conn. March 19, 2008) (quoting Matos v. United States Dept. of Housing & Urban Development, 995 F.Supp. 48, 49 (D.Conn.1997) and Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ) (internal quotation marks omitted).

Parties asserting that subject matter jurisdiction exists—here, Plaintiffs—bear the burden of proving it by a preponderance of the evidence; all ambiguities and inferences will be drawn in their favor. Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir.2005). The overarching function of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “is merely to assess the legal feasibility of the complaint, not to assay the weight of evidence which might be offered in support thereof” and, accordingly, the “issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims.” Bici v. Napolitano, No. 3:10–CV–01991, 2012 WL 642781 at *1 (D.Conn. Feb. 28, 2012) (emphasis added) (internal quotation marks omitted) (quoting Mytych v. May Dept. Stores Co., 34 F.Supp.2d 130, 131 (D.Conn.1999) and United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990) ).

III. BACKGROUND

Plaintiffs' Complaint avers that Defendants' businesses involve automobile salvage and scrap metal recycling, the housing of vehicles, motors, batteries, oils, automotive fluids, paints, and the maintaining of scrap piles containing asphalt, industrial scrap metal, and non-ferrous materials including aluminum and steel, all to be found at their facility property located at 54 Wrobel Place, East Hartford, CT 06108. According to the Complaint, the moving, processing, and crushing of vehicles leads to the release of pollutants including paint, sediment, glass, copper

, lead, zinc, nickel, cadmium, arsenic, mercury, and other metals, as well as non-metal pollutants; the Complaint also avers that machinery at the facility may also release fuel, oil, lubricants, and pH-affecting substances, which, according to Plaintiffs, are then carried via stormwater under fences and into ditches, streams, and, ultimately, the Hockanum River.

Defendants have attached to their Motion to Dismiss the July 9, 2010 Department of Energy and Environmental Protection¹ (hereafter “DEEP”) Inspection Report on which they partially rely in their contention that Plaintiffs' Complaint ought to be dismissed in its entirety. See [Doc. 17–1] at 22. This July 9, 2010 DEEP Inspection Report concluded, subsequent to an examination of the property, that Defendants did not need to register for a stormwater General Permit.

Plaintiffs, opposing Defendants' motion to dismiss, point to a subsequent DEEP Memorandum which is dated April 25, 2012 and which notes that “a stormwater swale along the west side of the property ... may constitute a point source discharge associated with industrial activity ... [and] appears to potentially receive stormwater from scrap areas.” [Doc. 1–2] at 2 (emphasis added). The April 25, 2012 Memorandum further notes:

It appears that A & B Auto has a stormwater point source discharge associated with industrial activity from their property, which would require registration for the Stormwater General Permit. A & B Auto should engage a professional engineer and/or a Certified Hazardous Materials Manager to evaluate the site as soon as possible, but also during wet weather to determine the manner of runoff from the site.

Id. at 1.

Defendants apparently received a letter from DEEP concerning the conclusions and observations contained within the April 25, 2012 DEEP Memorandum and, as suggested therein, Defendants hired an engineering firm to provide an evaluation of their property. Defendants have submitted this engineering firm's resulting report as an attachment to their Supplemental Memorandum in Support of their Motion to Dismiss. See [Doc. 28] at 5. This engineering firm report, dated November 12, 2012, noted that while the engineering firm, in a July 24, 2012 inspection of the property, “did identify a drainage swale running along the western boundary of the property,” it found “no indication of any drainage to the swale from the areas of the property where industrial activity occurs,” and furthermore over the course of four inspections the engineering firm found “no indications of channelized runoff from the operational areas of the property.” Id. at 5–6. “Based on this information and the recently conducted site inspections,” the engineering firm expressed its belief “that the 54 Wrobel place property owned by A & B Auto Salvage [did] not require a stormwater permit at [that] time.” Id. at 7.

Defendants have also provided the Court with an October 26, 2012 DEEP Memorandum which noted that DEEP staff, in a Department site visit conducted in response to a request for the same from the engineering firm Defendants had employed, “did not observe evidence of a point source discharge from the A & B site located at 54 Wrobel Place in East Hartford as defined by the Industrial Stormwater GP ... [rather, Department] staff recommended that A & B modify some areas on site in order to improve the site's topography relative to stormwater flow and reduce the chances of channelized discharge.” Id. at 14.² The October 26, 2012 DEEP report further stated that the engineering firm hired by Defendants “had evaluated the site during wet weather and determined there were no point source discharges,” and noted that the engineering firm would “provide a report to the Department indicating such, and provide evidence that site modifications were completed as discussed.” Id.

On April 6, 2012, prior to the April 25, 2012 Memorandum discussed supra, Plaintiffs served Defendants with a “Notice of Violation and Intent to File Suit under the Clean Water Act” as set forth at 40 C.F.R. Part 135. Plaintiffs filed this action's lawsuit on June 6, 2012.

IV. DISCUSSION

“The Clean Water Act ... is a cornerstone of the federal effort to protect the environment,” and “is the principal legislative source of the EPA's authority—and responsibility—to abate and...