Cox v. Bd. of Cnty. Comm'rs of Franklin Cnty.

• Decision Date: 31 January 2020
• Docket Number: Case No. 2:18-cv-1631
• Citation: 436 F.Supp.3d 1070
• Parties: Jeffery COX, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, Ohio, Defendants.
• Court: U.S. District Court — Southern District of Ohio

436 F.Supp.3d 1070

Jeffery COX, Plaintiff,

v.BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, Ohio, Defendants.

Case No. 2:18-cv-1631

United States District Court, S.D. Ohio, Eastern Division.

Signed January 31, 2020

Dennis David Altman, Justin Derek Newman, Robin Burgess, AltmanNewman Co LPA, Cincinnati, OH, for Plaintiff.

Joseph R. Durham, Eastman & Smith Ltd, Columbus, OH, Harold J. Anderson, III, Solid Waste Authority of Central Ohio, Grove City, OH, for Defendant.

Opinion and Order

JAMES L. GRAHAM, United States District Judge

Plaintiff Jeffery Cox brings this citizen suit under the Clean Water Act, 33 U.S.C. § 1365, against Defendant Board of County Commissioners of Franklin County, Ohio. Cox alleges that there are ongoing illegal discharges into the municipal separate storm sewer system and this has created water quality problems in numerous waterways in Franklin County. Cox alleges that due to these discharges and the County's failure to remedy them, the County is in violation of the CWA, Ohio law and the National Pollutant Discharge Elimination System Permit ("NPDES Permit") issued to the County.

This matter is before the Court on the County's motion to dismiss. The motion is threefold, raising challenges relating to subject matter jurisdiction, standing and the statute of limitations. For the reasons set forth below, the motion is largely denied.

I. Background

Congress enacted the Clean Water Act for the purpose of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act prohibits " ‘the discharge of any pollutant by any person’ unless done in compliance with some provision of the Act." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) (quoting 33 U.S.C. § 1311(a) ). The Act authorizes the issuance of NPDES permits which "place limits on the type and quantity of pollutants that can be released into the Nation's waters." Id. "Additionally, permit-holders are generally required both to monitor their effluent discharges and to report these results." Am. Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 539 (6th Cir. 2004) (citing 33 U.S.C. § 1318 ).

Franklin County holds a NPDES Permit for its storm sewer system. The municipal separate storm sewer system, or "MS4," is a system of conveyances which gather and control the flow of storm water. See NPDES Permit, at 23; 40 C.F.R. 1222.26(b)(13) (defining storm water as runoff, snow melt runoff, and surface runoff and drainage). The MS4 gathers storm water from "road drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains." NPDES Permit, at 23. The MS4 discharges the gathered storm waters into surface waters through point sources called outfalls. See NPDES Permit, at 23.

The County is responsible for hundreds of outfalls, including ones which discharge into the Alum Creek, Big Darby Creek, Big Walnut Creek, Blacklick Creek, Hellbranch Run, Little Darby Creek, Olentangy River, Rocky Fork Creek, Scioto River and Walnut Creek.

According to the Complaint, Jeffrey Cox moved into his home on West Kanawha Avenue in Sharon Township, Ohio in 2016. He alleges that he almost immediately began to observe (and continues to observe) "noxious sewage odors and gases" being emitted from the storm sewer and curb inlets on his street. Complaint, at ¶ 20. He contends that this storm sewer is part of the County's MS4 which discharges into the nearby Olentangy River. Cox further alleges that discharges, including sewage, from non-storm water sources into the MS4 are responsible for the noxious emissions. Cox avers that, due to the "ongoing unlawful discharges of non-storm water and other pollutants from numerous outfalls of the MS4, including from the outfall at the end of West Kanawha Avenue to the Olentangy River, Mr. Cox has sharply curtailed his use and enjoyment of nearby rivers and creeks." Complaint, at ¶ 24.

Cox alleges that the problems he has observed on his street are not isolated. He alleges that the NPDES Permit requires the County to conduct water quality tests, known as "dry weather screenings." Results from past screenings, he asserts, show unacceptably high pathogen levels and indicate illicit discharges, including sewage, at hundreds of outfalls throughout the County's MS4. He alleges that a primary source of the illicit discharges are home sewage treatment systems (HSTSs) which are improperly connected to the MS4.

On August 20, 2018, Cox sent a Notice of Intent to File Citizen Suit Under the CWA ("Notice Letter") to the Board of County Commissioners, the Director of the Ohio Environmental Protection Agency and the United States EPA. Therein, Cox alleged, inter alia , that the County has violated and continues to violate effluent standards and limitations under the CWA. See Notice Letter, at 4.

Cox alleged in his Notice Letter that there are "illicit connections" discharging pollutants into the MS4. Notice Letter, at 5. He asserts that a majority of these illicit connections are pipes which connect HSTSs to the MS4. He alleges that some HSTSs do not work properly and thus discharge pollutants such as sewage into the MS4. Cox claims that during dry weather screenings, the County has detected the presence of sewage. Cox concludes that because the County has not "eliminated these illicit connections," the County is in violation of the CWA. Notice Letter, at 6.

At the request of the Ohio EPA, the State of Ohio commenced a suit on October 17, 2018 against the County (hereinafter the "State Action"). The State of Ohio asserted five claims against the County. On November 9, 2018, the Ohio EPA reached a Proposed Consent Decree with the County. Cox alleges that the Proposed Consent Decree lacks meaningful enforcement mechanisms and "allow[s] the County to continue to engage in wholesale violations of Ohio Revised Code Chapter 6111, the NPDES Permit, and provisions of the CWA." Complaint, at ¶ 16. Cox adds that the Proposed Consent Decree contains vague standards whereby the County can avoid eliminating illicit discharges if doing so would not be "feasible." Id. at ¶ 17. And he alleges that the Proposed Consent Decree fails to address the majority of violations which were alleged in the Notice Letter. Id. at ¶ 19.

Dissatisfied with the Proposed Consent Decree and State Action, Cox filed the present suit against the County. The Complaint contains ten causes of action. In Count One, Cox alleges that the County violated the CWA by failing "to trace and locate sources of non-storm water discharged from outfalls" and failing to "eliminate those sources." Id. at ¶ 76.

In Counts Two and Three, Cox alleges violations of the CWA and NPDES Permit for the County's failure to eliminate known illicit discharges to the MS4 and for allowing discharges mixed with sources of non-storm water.

Cox asserts in Count Four that the County failed to develop a comprehensive storm sewer map of the entire MS4, as required by the NPDES Permit. In Count Five, Cox alleges that the County failed to follow the Permit's requirement that the County, through ordinance or other regulatory mechanisms, prohibit illicit discharges into the MS4. Cox avers in Count Six that the County failed to satisfy the Permit's requirement that it "submit to the Ohio EPA a list of all on-site sewage disposal systems connected to discharge to the MS4 system." Id. at ¶ 99.

In Count Seven, Cox alleges that the County failed to "reduce the discharge of pollutants from the MS4 to the maximum extent practicable," as required by the CWA and Ohio law. Id. at ¶ 103.

In Counts Eight and Nine, he alleges "programmatic violations" related to: (1) the Stormwater Management Program ("SWMP") developed under the NPDES Permit, and (2) the Illicit Discharge Detection and Elimination Program ("IDDE") developed under the Permit. Cox asserts that the County has failed to adequately develop the SWMP and IDDE programs required by the Permit.

Lastly, Cox alleges in Count Ten that the County has been negligent in operating and maintaining the MS4.

The County has filed a motion to dismiss, arguing that the Court lacks subject matter jurisdiction because Cox did not comply with the statutory notice requirements in 33 U.S.C. § 1365(b). On this point, the County first argues that Cox did not identify the date or dates of the alleged violations in the Notice Letter and thus did not provide sufficient notice under § 1365(b)(1)(A). The County then argues that because the Ohio EPA is diligently prosecuting the alleged violations, Cox is statutorily barred under § 1365(b)(1)(B) from bringing this suit.

The County also argues that Cox lacks standing to bring this suit. The County contends that the alleged injuries he suffered in Sharon Township, where he resides, are not redressable and that he has not suffered any tangible harm from the alleged violations occurring outside of Sharon Township. In addition, the County argues that the vast majority of violations alleged by Cox are time-barred.

II. Standard of Review

The County brings its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), claiming that the Court lacks subject matter jurisdiction over this case. When a defendant raises the issue of lack of subject matter jurisdiction, the plaintiff has the burden of proving jurisdiction in order to survive the motion. See Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

Section 1365 of the CWA authorizes citizen suits against governmental instrumentalities which are alleged to be in violation of a federal or state effluent standard or limitation. 33 U.S.C. § 1365(a). The statute confers federal district courts with jurisdiction over such citizen suits. Id.

However, a citizen suit may not be commenced unless: (1) the plaintiff has given the alleged violator sixty-days' notice of the alleged violation and (2) the federal or ...