Culbertson v. Coats American, Inc.

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: O'KELLEY
• Citation: Culbertson v. Coats American, Inc., 913 F.Supp. 1572 (N.D. Ga. 1995)
• Decision Date: 20 December 1995
• Docket Number: Civil No. 94-CV-135-WCO.
• Parties: Thomas W. CULBERTSON, Margaret Page Culbertson and Thomas W. Culbertson, Inc.; and S. Alton Smith, Susan T. Smith and Frances P. Moore v. COATS AMERICAN, INC.

913 F. Supp. 1572

Thomas W. CULBERTSON, Margaret Page Culbertson and Thomas W. Culbertson, Inc.; and S. Alton Smith, Susan T. Smith and Frances P. Moore v. COATS AMERICAN, INC.

Civil No. 94-CV-135-WCO.

United States District Court, N.D. Georgia, Gainesville Division.

December 20, 1995.

COPYRIGHT MATERIAL OMITTED

David H. Pope, Carr Tabb & Pope, Atlanta, GA, for Thomas W. Culbertson, Margaret Page Culbertson, Thomas W. Culbertson, Inc., S. Alton Smith, Susan T. Smith, and Frances P. Moore.

Gregory W. Blount, Constangy Brooks & Smith, Atlanta, GA, Peter J. McGrath, Jr., Jonathan D. Oechsle, Moore & Van Allen, Charlotte, NC, for Coats American, Inc.

ORDER

O'KELLEY, District Judge.

The captioned case is before the court for consideration of defendant's motion for summary judgment 37-1, plaintiffs' motion for partial summary judgment 39-1, and plaintiffs' motion to supplement the record 59-1. Plaintiffs' motion to supplement the record is hereby GRANTED 59-1. A hearing on the pending summary judgment motions was held before this court on Thursday, November 30, 1995.

FACTS

Defendant Coats American, Inc. ("Coats American") operates a textile facility in Stephens County, Georgia (the "Facility"). Coats American discharges treated wastewater from the Facility into Eastanollee Creek in Toccoa, Georgia. Plaintiffs own land or maintain residences on Eastanollee Creek, downstream of the Facility.

The Federal Water Pollution Control Act, popularly known as the Clean Water Act, 33 U.S.C. §§ 1251 to 1387 (the "CWA"), prohibits the discharge of any pollutant into the navigable waters of the United States except in compliance with applicable provisions of the CWA. Authority to discharge pollutants in compliance with the CWA may be granted through a National Pollutant Discharge Elimination System Permit ("NPDES" permit), issued by the Administrator of the United States Environmental Protection Agency ("EPA"), or by a state under delegation of authority from EPA. The state of Georgia, through its Department of Natural Resources, Environmental Protection Division ("EPD"), has been delegated authority to issue NPDES permits in compliance with the applicable requirements of the CWA, the regulations issued thereunder, and applicable state law and state rules and regulations. The issuance of permits by the Director of EPD is authorized by the Georgia Water Quality Control Act, O.C.G.A. §§ 12-5-20 to 12-5-53 (the "GWQCA"). The rules and regulations promulgated pursuant to the GWQCA are found in the Rules of the Georgia Department of Natural Resources, Environmental Protection Division, Water Quality Control, Chapter 391-3-6 (the "Georgia Rules").

EPD issued to Coats American NPDES Permit No. GA 002038, effective December 30, 1988 (the "1988 Permit"). The 1988 Permit authorized Coats American's discharge into Eastanollee Creek, subject to the permit terms and conditions. The permit limited the concentration of copper in discharge from the Facility to 20.0 parts per billion ("ppb") daily maximum, limited the concentration of zinc to 83 ppb daily maximum, and prohibited the discharge of foam or floating solids in other than trace amounts. The copper and zinc limitations were applicable for the period beginning January 1, 1990 through November 1, 1992. The permit contained a schedule of interim measures to be taken prior to January 1, 1990, including the development of engineering specifications for any necessary wastewater treatment equipment upgrades and the submission of periodic progress reports to EPD. The 1988 permit also prohibited the discharge of toxic wastes in concentrations or combinations which are harmful to humans, fish or aquatic life.

The CWA requires each state to develop water quality standards which include standards for all toxic pollutants for which EPA has published criteria. EPA's list of toxic pollutants includes copper, zinc and lead. EPD has established water quality standards for copper, zinc and lead which are contained in Chapter 391-3-6.03 of the Georgia Rules. Section 304(l) of the CWA, 33 U.S.C. § 1314(l), requires each state to submit to EPA a list of waters within the state which, after application of certain effluent limitations, cannot reasonably be anticipated to attain the state's water quality standards due to toxic pollutants (the "304(l) list"). Section 304(l) then requires the state to identify point sources of toxic pollutants for each water segment identified on the 340(l) list. For each identified point source, the state must establish an individual control strategy ("ICS") which the state determines will produce a reduction in the discharge of toxic pollutants sufficient, in combination with existing controls on point and nonpoint sources of pollution, to achieve the applicable water quality standard as soon as possible, but not later than three years after the establishment of the ICS.

EPD listed Eastanollee Creek on Georgia's 304(l) list and identified the Coats American Facility as a source of copper and zinc which EPD believed to be impairing the water quality of the creek. EPD developed an ICS for the Coats American Facility which was embodied in a unilateral modification to the 1988 permit, effective February 2, 1990 (the "1990 Modification"). The discharge limit for copper was lowered to 9 ppb daily maximum, and the discharge limit for zinc was lowered to 82.8 ppb daily maximum for the period of December 31, 1991 to November 1, 1992. The 1990 Modification extended the final compliance deadline for copper and zinc from January 1, 1990 to December 31, 1991, and adjusted the interim schedule to reflect the new compliance date.

On May 15, 1990, in Administrative Order No. EPD-WQ-1626, EPD modified the schedule for performance of the interim measures required by the 1990 Modification. Order No. EPD-WQ-1626 did not modify the December 31, 1991 effective date of the copper and zinc concentration limits in the 1990 Modification. On October 24, 1991, Coats American and EPD entered into Consent Order No. EPD-WQ-1807 which further modified the schedule for performance of the interim measures contained in the 1990 Modification. Order No. EPD-WQ-1807 also set a new deadline of November 1, 1992 for compliance with the copper and zinc limitations of the 1988 permit, as modified by the 1990 Modification.

On October 30, 1992, EPD issued NPDES Permit No. GA 0002038, effective October 30, 1992 through September 30, 1996 (the "1992 permit"), to replace the expiring 1988 permit. The 1992 permit does not contain effluent concentration limits relating to copper or zinc for the period from October 30, 1992 through June 3, 1993. For the period from June 4, 1993 to September 30, 1996, the 1992 permit limits the concentration of lead in the Facility discharge to 10 ppb daily maximum and limits the concentration of zinc to 93 ppb daily maximum. The 1992 permit also requires Coats American to monitor the levels of lead in its discharge on a monthly basis, but does not contain a lead concentration limit. The permit continues the 1988 permit conditions relating to foam and to monthly monitoring and reporting to EPD. The 1992 permit contains a temperature limitation, prohibiting the discharge of wastewater warmer than 90°F or of wastewater which would increase the instream water temperature more than 5°F.

Like the 1988 permit, the 1992 permit prohibits the discharge of toxic wastes in concentrations which are harmful to humans, fish or aquatic life. The 1992 permit also requires Coats American to develop, upon EPD request, a program for "whole effluent biomonitoring" if EPD believes the Facility discharge includes toxic substances in concentrations or combinations harmful to humans, fish or aquatic life. EPD has requested that Coats American develop such a program, and Coats American has conducted bioassay testing of Facility discharge since February, 1993.

On the same date the 1992 permit was issued, EPD issued Administrative Order No. EPD-WQ-1942 which extended the compliance date for the 1992 permit temperature limitation to July 1, 1993. Order No. EPD-WQ-1942 also required Coats American to determine whether more than trace amounts of foam were occurring in Eastanollee Creek as a result of the Facility discharge, and required Coats American to have an independent consultant experienced in fish health assessment conduct a study of fisheries in Eastanollee Creek and deliver proposals for any upgrades of the Facility's discharge necessary for compatibility with a balanced fish population in Eastanollee Creek.

On July 1, 1993, EPD issued Administrative Order No. EPD-WQ-2012 which set January 1, 1995 as the date by which Coats American was required to either comply with the copper and zinc effluent limitations of the 1992 permit, or submit a final report proposing site-specific effluent limitations. The order also set forth a schedule of required interim measures. On August 18, 1993, on motion of EPD, the Superior Court of Stephens County, Georgia, entered judgment against Coats American in accordance with Order No. EPD-WQ-2012. On December 28, 1994, EPD issued Amendment No. 1 to Order No. EPD-WQ-2012, which revised the interim schedule and extended the final compliance date to January 1, 1997. On March 2, 1995, on motion of EPD, the Superior Court of Stephens County entered judgment against Coats American in accordance with Amendment No. 1 to Administrative Order No. EPD-WQ-2012.

Plaintiffs filed the instant action on November 16, 1994, seeking civil penalties, injunctive relief, costs and attorney's fees pursuant to the citizen suit provision of the CWA. See 33 U.S.C. § 1365. Plaintiffs also seek damages for state law claims of trespass, nuisance, negligence, and negligence per se. Defendant moved this court for summary judgment as to all of plaintiffs' claims. Plaintiffs seek summary judgment as to their claims under the CWA.

LEGAL ANALYSIS

I. Summary Judgment Standard

Summary judgment...