Brewer v. City of Bristol

Decision Date12 December 1983
Docket NumberNo. CIV-2-83-217.,CIV-2-83-217.
Citation577 F. Supp. 519
PartiesFrank BREWER, et al., Plaintiffs, v. CITY OF BRISTOL, Tennessee, et al., Defendants.
CourtU.S. District Court — Eastern District of Tennessee

Susan Emery McGannon and Ogden Stokes of Donelson, Stokes & Bartholomew, P.A., Nashville, Tenn., for defendants; Craig H. Caldwell and Frank Winston of Caldwell, Johnson, Winston & Massengill, P.C., Bristol, Tenn., of counsel for defendant City of Bristol, Tennessee (and the individual defendants, Thomas Moore, Charles B. Peters, Jr., Ewell L. Easley, Jack Hurlbert and Walter B. Miller); and G. Walter Bressler and J.D. Bowie, Bristol, Va., of counsel for defendant City of Bristol, Virginia (and the individual defendants W. David Fletcher, Thomas E. Adams, C. David King, Ron Morgan and Hugh Cooper).

ORDER

HULL, District Judge.

The report and recommendation of the United States Magistrate is hereby adopted and approved.

Accordingly, it is ORDERED that the defendant's motion to dismiss or stay this action be DENIED.

REPORT AND RECOMMENDATION

Oct. 25, 1983.

ROBERT P. MURRIAN, United States Magistrate.

This matter was referred to the undersigned United States Magistrate pursuant to 28 U.S.C. § 636(b) and the Rules of this Court for a report and recommendation regarding the disposition by the District Court of the defendants' motion to dismiss pursuant to Rule 12(b), Federal Rules of Civil Procedure, or, in the alternative, to stay this proceeding. The plaintiffs assert two counts in their complaint. The first count alleges that the defendants have violated the provisions of Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1376. The defendants contend that because of a pending State of Tennessee proceeding with regard to the alleged violations this court should dismiss, or at least stay, this proceeding under the doctrine of abstention. The second count alleges violations of the First, Fifth and Fourteenth Amendments to the United States Constitution and is brought pursuant to the provisions of 42 U.S.C. § 1983. The defendants allege that this count should be dismissed because the plaintiffs have failed to state a claim upon which relief can be granted.

The plaintiffs in this action are riparian land owners owning real property adjoining and underlying Boone Lake and the South Fork of the Holston River in upper East Tennessee. The defendant City of Bristol maintains a sewage collection system and the Bristol Sewage Treatment Plant # 2 in Sullivan County, Tennessee, from which it discharges wastewater into Beaver Creek and the South Fork of the Holston River. The City of Bristol makes these discharges pursuant to a National Pollutant Discharge Elimination System (NPDES) permit which became effective on July 1, 1977. The plaintiffs contend that on thirty dates between May 15, 1983, and July 25, 1983, the City of Bristol violated the terms of its permit and the FWCPA by discharging untreated and inadequately treated municipal sewage containing fecal coliforms, sewage sludge, suspended solids, settleable solids, floating solids, biochemical oxygen demand and other pollutants into Beaver Creek and the South Fork of the Holston River. The plaintiffs contend that the defendants' alleged violations have created a massive sludge bank in Boone Lake, gross bacterial contamination of Beaver Creek and portions of Boone Lake, and repugnant odors near Beaver Creek and portions of Boone Lake. The plaintiffs allege that they use Boone Lake for navigational and recreational and aesthetic enjoyment in activities such as boating, sport fishing, water skiing and swimming. This discharge of the pollution they allege has irreparably damaged their access to and use of these waters for such purposes.

The plaintiffs further allege that by letter dated May 27, 1983, notice of the alleged violations was given to the defendants, to the Administrator of the U.S. Environmental Protection Agency, to the Regional Administrator of the U.S. Environmental Protection Agency for Region IV, and to the chief administrative officer of the water pollution control agency for the State of Tennessee. Since this action was not filed until August 1, 1983, the plaintiffs have apparently satisfied the 60-day notice requirement set out in 33 U.S.C. § 1365(b).

The plaintiffs make the following demand for relief:

(1) that the Court direct the defendants to institute and install effective control techniques and devices, and adopt other necessary procedures to prevent the continued discharge of pollution in violation of the FWPCA.
(2) that the Court direct the defendants to apply forthwith to the Tennessee Department of Health and Environment for a permit for this discharge.
(3) that the Court direct the defendants to perform necessary work in the restoration of Beaver Creek and Boone Lake caused by their discharge of pollutants in violation of the FWPCA.
(4) that the Court order a moratorium on all new taps onto the defendants' sewage collection and treatment system until the defendants comply with the FWPCA.
(5) that the Court direct the defendants to properly install and operate effluent sampling equipment and flow measuring devices.
(6) that the Court direct the defendants to notify the Tennessee Department of Health and Environment, U.S. Environmental Protection Agency, and this Court within five days of any noncompliance with any effluent limitation, and within twenty-four hours of any bypass.
(7) that the Court direct the defendants to perform regular maintenance on their sewage collection system and bypass points.
(8) that the Court assess against the defendants civil penalties in the amount of $10,000 per day for each day of violation of the FWPCA by the defendants, pursuant to 33 U.S.C. § 1319(d).
(9) that the Court award the plaintiffs their costs of litigation in this action including reasonable attorney and expert witness fees.

On August 16, 1983, the Commissioner of the Tennessee Department of Health and Environment issued a Complaint and Memorandum of Assessment for Civil Penalty against the City of Bristol. In his complaint, the Commissioner alleged that the failure of the City of Bristol to provide representative sampling of wastewater, bypassing required treatment, and exceeding the permit limitations at least with respect to solids and fecal coliform violated the terms and conditions of the City of Bristol's NPDES permit. The Commissioner further alleged violations of T.C.A. §§ 69-3-108(b)(1)(3) and (6); 69-3-114(a) and (b).

The Commissioner's complaint, which has been appealed by the City of Bristol, orders, inter alia, the city to

(1) make no further connections or line extensions to its wastewater collection and treatment system, except for those structures presently under construction;
(2) repair and make operational to design specifications the effluent diffuser;
(3) relocate flow monitoring and flow-proportional composite sampling for the influent and total effluent so that representative samples may be made;
(4) provide a synopsis of the average daily flow from 1978 to present;
(5) remove and dispose of the sludge bed adjacent to the treatment plant outfall;
(6) provide an engineering report evaluating the feasibility and desirability of placing the former Bristol # 1 facility on line to treat influent and surge flows which currently overload and/or completely bypass the treatment works;
(7) provide a program of monitoring of combined sewer overflows and manhole bypasses into Beaver and Cedar Creeks;
(8) provide a comprehensive update of the POTW industrial user pretreatment program including a list of contributing industries and a generic list of all potential source parameters which may enter Beaver Creek and/or Boone Lake during combined sewer overflows and blown manhole bypass events;
(9) provide complete rehabilitation of the treatment plant delivery system, inclusive of the Bristol, Virginia contributions;
(10) expand and improve the sewage treatment plant or build a new one to adequately treat wastewater collected by the system;
(11) pay the department nominal damages in the amount of $1000.

The Commissioner's Memorandum of Assessment for Civil Penalty requests that a civil penalty of $180,000 be assessed against the City of Bristol.

Pursuant to T.C.A. § 69-3-110, the City has the right to appeal the order within thirty days by filing an appropriate petition with the Commissioner. A hearing before the Tennessee Water Quality Control Board is provided for. An appeal from the Board's decision may be taken to the Davidson County Chancery Court, and then ultimately to the Tennessee Supreme Court. T.C.A. § 69-3-111. Apparently, the City of Bristol is at this time seeking a hearing by the Board for review of the Commissioner's order.

I. Abstention

The defendants, without answering the plaintiffs' complaint, move the court to abstain from assuming jurisdiction over this action, or alternatively stay this action pending the outcome of the state court action. This motion raises important issues of federalism regarding the respective roles of the state and federal courts in the enforcement of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251, et seq.

At the outset it is necessary that one briefly examine the complex statutory structure that Congress has built through the FWPCA. The FWPCA was first enacted in 1948. Act of June 30, 1948, 62 Stat. 1155. The Act initially placed emphasis on state enforcement of water quality standards. However, local enforcement proved ineffective and Congress substantially altered the Act through 1972 amendments to it. 33 U.S.C. §§ 1251, et seq. See also Middlesex Cty. Sewerage Auth. v. Nat. Sea Clammers, 453 U.S. 1, 12, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981). The amendments created various federal minimum effluent standards. 33 U.S.C. §§ 1311-1317. The Act makes it "unlawful for any person to discharge a pollutant without obtaining a permit and complying with its...

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