Coosa Riverkeeper, Inc. v. Oxford Water Works & Sewer Bd.

• Decision Date: 16 June 2017
• Docket Number: Case No.: 2:16-cv-01737-JEO
• Parties: COOSA RIVERKEEPER, INC., Plaintiff, v. OXFORD WATER WORKS AND SEWER BOARD, Defendants.
• Court: U.S. District Court — Northern District of Alabama

COOSA RIVERKEEPER, INC., Plaintiff, v. OXFORD WATER WORKS AND SEWER BOARD, Defendants.

Case No.: 2:16-cv-01737-JEO

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

June 16, 2017

MEMORANDUM OPINION

In this action, plaintiff Coosa Riverkeeper, Inc. ("Riverkeeper") alleges defendant Oxford Water Works and Seward Board ("Oxford") is in violation of the Clean Water Act ("CWA") on account of illegal discharges from the Oxford Tull C. Allen Wastewater Treatment Plant ("the Oxford Plant") into the Choccolocco Creek. (Doc. 1 ("Complaint")). See 33 U.S.C. §§ 1251-1376. Oxford has moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim. See FED. R. CIV. P. 12(b)(1) and (12)(b)(6). (Docs. 6 & 7). Riverkeeper has moved to strike one of Oxford's arguments in its reply brief. (Doc. 22). Riverkeeper has also moved to file an amended complaint (doc. 26) and Oxford has moved for a protective order (doc. 18). Upon consideration, the court finds the motion to dismiss is due to be granted in part and denied in part, the motion to strike is due to be denied, the motion amend the complaint is due to be granted, and the motion for a protective order is moot.

I. BACKGROUND

Congress enacted the Clean Water Act ("CWA") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. The CWA "establishe[s] a National Pollution Discharge Elimination System ["NPDES"] . . . that is designed to prevent harmful discharges into the Nation's waters." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007). "Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). The NPDES permit "defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the [Act]." EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 (1976). "The Environmental Protection Agency ('EPA') initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials. If authority is transferred, then state officials . . . have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight." Nat'l Ass'n of Home Builders, 551 U.S. at 650 (citations omitted). The State ofAlabama is authorized to administer the NPDES permit system in Alabama and does so through the Alabama Department of Environmental Management ("ADEM").

A citizen may bring a civil suit to enforce the provisions of the CWA. 33 U.S.C. § 1365, et seq. The Act provides for a 60-day notice period prior to the institution of a citizen suit to give the violator an opportunity to bring itself into compliance with the CWA. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174-75 (2000) ("... [C]itizens lack statutory standing under § 505(a) to sue for violations that have ceased by the time the complaint is filed."). The CWA "also bars a citizen from suing if the [Environmental Protection Agency] or State has already commenced, and is 'diligently prosecuting,' an enforcement action." Id. (quoting 33 U.S.C. § 1365(b)(1)(B)).

Riverkeeper alleges in this action that the Oxford Plant has continuously violated the CWA since 1992. It further asserts that the plant has been subject to multiple violation notices, enforcement actions, and administrative orders. (Complaint at ¶ 1). Despite this history, Riverkeeper alleges, the Oxford Plant continues to violate its NPDES permit. (Id. at ¶ 2). Riverkeeper states that it "repeatedly warned ... ADEM of the high levels of E. coli¹ and chlorine comingfrom the plant's discharge pipe into the Choccolocco Creek." (Doc. 13 at 4 (footnote omitted)).

Riverkeeper sent a 60-day notice to the Oxford Plant, Oxford officials, and State authorities on August 3, 2016, informing them of Riverkeeper's intention to file a citizen's suit to address the multitude of violations at the plant, including unpermitted E. coli, chlorine, and formaldehyde discharges. (Complaint at ¶ 3 and Ex. 1 (Doc. 1 at 24-49)). The State of Alabama brought a civil enforcement action in state court against Oxford on September 30, 2016. (Id. at Ex. 2 & Attachment A (Doc. 1 at 50-70)).

Riverkeeper filed the present suit on October 24, 2016, alleging in three counts that Oxford has violated the CWA. Specifically, Riverkeeper alleges (1) Oxford discharged E. coli and chlorine in violation of its permit discharge limitations; (2) Oxford failed to properly report its daily violations of its permit; and (3) the Oxford plant is discharging formaldehyde without a permit. (Complaint at 15-20). The claims all concern Oxford's NPDES Permit No. AL0058408 that was issued to the Oxford Waterworks and Sewer Board in 1989. It was reissued by ADEM on August 28, 2013, and expires on August 31, 2018. (Complaint at ¶ 34). Riverkeeper's claims concern wastewater releases from Outfall 0011, a discharge pipe to Choccolocco Creek, which is authorized underOxford's NPDES permit. (Id. at ¶ 32). Riverkeeper seeks (1) a declaration by this court that Oxford violated the CWA; (2) injunctive relief, compliance verification, outside sampling, modification of the NPDES permit to require sampling, and limits on formaldehyde; (3) an order ensuring enforcement of pretreatment standards for formaldehyde; (4) civil penalties; and (5) attorney's fees. (Id. at 20-21).

Riverkeeper filed a motion to intervene in the state court action on October 3, 2016. (Doc. 7-1 at 2). That motion has been granted. (See Court Exh. 1 at doc. 35).² The "Complaint in Intervention" includes the following claims: (1) self-reported discharge violations (Count I); (2) monitoring violations (Count II); (3) unpermitted discharges (Count III); (4) reporting violations (Count IV); (5) improper sampling procedures (Count V); and (6) maintenance and operation of the plant violations (Count VI). (Id. at 8-28).

Oxford has moved to dismiss this case premised on three grounds. First, because the State of Alabama is "diligently prosecuting" a state court action for violations of its NDPES permit, Oxford argues this lawsuit is barred under 33 U.S.C. § 1365(b)(1)(B).³ (Doc. 7 at 2). Second, Oxford argues this court lacksjurisdiction over the case because Riverkeeper's formaldehyde claim concerns past discharges and Riverkeeper cannot show that such discharges are likely to recur in the future. (Id.) Third, Oxford argues that Riverkeeper's formaldehyde claims are barred as a matter of law by the "long-standing 'permit shield'" defense. (Id.) The court conducted a hearing on the motion to dismiss, and the parties have submitted post-hearing briefs. (Docs. 31 & 33).

II. MOTION TO DISMISS STANDARD

The standard of review on a motion to dismiss is typically straight-forward. This case is an exception. Because certain of Oxford's challenges in the motion concern to subject-matter jurisdiction and are presented under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the standard of review may vary.

When presented with a facial attack on the complaint, the court determines whether the complaint has sufficiently alleged subject-matter jurisdiction. Sinaltrainal [v. Coca-Cola Co.], 578 F.3d [1252,] 1260 [(11th Cir. 2009)]. The court proceeds as if it were evaluating a Rule 12(b)(6) motion; that is, it views the complaint inthe light most favorable to the plaintiff and accepts all well-pled facts alleged in the complaint as true. Id.

On the other hand, a factual attack questions "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). When a court is confronted with a factual attack, the standard of review is considerably different:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—it's very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed. 2d 212 (1981)).

Black Warrior Riverkeeper, Inc. v. Shannon, LLC, 2:13-CV-00763-RDP, 2014 WL 1246473, *3 (N.D. Ala. Mar. 24, 2014) (J. Proctor).

Oxford initially moves to dismiss Riverkeeper's claims for lack of subject-matter jurisdiction premised on the allegation that ADEM is currently "diligently prosecuting" an enforcement action concerning Riverkeeper's claims. The first question is whether the "diligent prosecution" bar in the CWA (33 U.S.C. §1365(b)(1)(B)) is a jurisdictional mandate. If it is jurisdictional, the review standards of FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) are applicable. If it is not jurisdictional, this aspect of the motion is to be reviewed pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737, 745 (5th Cir. 2012).

To the extent that Oxford challenges the court's subject-matter jurisdiction over the formaldehyde claims because they are "wholly past" and because of the applicability of the "permit shield defense" (id. at 18-21), the foregoing standards apply.

A. Diligent Prosecution under § 1365(b)(1)(B)

Whether the diligent prosecution bar is jurisdictional has...