Friends of Warm Mineral Springs, Inc. v. McCarthy
| Decision Date | 08 May 2015 |
| Docket Number | CASE NO. 8:13-cv-3236-T-23TGW |
| Parties | FRIENDS OF WARM MINERAL SPRINGS, INC., et al., Plaintiffs, v. GINA MCCARTHY, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
In a one count complaint (Doc. 45), Friends of Warm Mineral Springs and Juliette Jones sue three officials at the Florida Department of State and the City of North Port, Florida. Under the "citizen suits" section of the Clean Water Act (CWA), the plaintiffs argue that the defendants violate the Clean Water Act by allowing "offsite" sand, fifty-five-gallon drums, and plastic sheeting to remain in Warm Mineral Springs — a 200-foot-deep, warm water, spring-fed pond in North Port. Both the plaintiffs and the defendants move (Docs. 79, 81, 82) for summary judgment.
The parties agree that Warm Mineral Springs contains "offsite" sand, fifty-five-gallon drums, and plastic sheeting.2 Although no party definitively establishes when or how the sand, the drums, or the sheeting appeared in the spring, the parties agree — and the cited materials confirm — that the sand, the drums, and the sheeting each appeared in the spring more than five years before the beginning of this action.3
The plaintiffs argue that the presence of the sand, the drums, and the sheeting in the spring is a continuing violation of the Clean Water Act, 33 U.S.C. § 1311(a), which states, "Except as in compliance with this section and sections 1312,1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." The parties agree that each of the sand, the drums, and the sheeting constitutes a "pollutant" under Section 1311(a)4 and that someone "discharged" the sand, the drums, and the sheeting into the spring more than five years before the start of this action.5 As a result, the defendants argue (among other things) that the applicable, five-year limitation bars this action.
"Legal claims brought under the [Clean Water Act] are subject to the general federal five-year statute of limitations established by 28 U.S.C. § 2462, wherein the claim is barred if suit is not brought within five years of the date the claim first accrues." Nat'l Parks & Conservation Ass'n, Inc. v. Tenn. Valley Auth., 502 F.3d 1316, 1322 (11th Cir. 2007) (discussing the Clean Air Act); see also Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77, 88 n.14 (2d Cir. 2006)(Walker, J.) (); c.f. United States v. Banks, 115 F.3d 916, 918 (11th Cir. 1997) (). Although "[a] claim first accrues on the date that a violation first occurs," National Parks, 502 F.3d at 1322, explains that:
Under the continuing violations doctrine, the statute of limitations is tolled for a claim that otherwise would be time-barred where the violation giving rise to the claim continues to occur within the limitations period. In determining whether to characterize a violation as "continuing," it is important to distinguish between the "present consequences of a one-time violation," which do not extend the limitations period, and "a continuation of a violation into the present," which does.
(citation omitted).
Because the parties agree that the sand, the drums, and the sheeting appeared in the spring more than five years before the start of this action (and therefore the plaintiffs' claim accrued more than five years before the start of this action), the five-year limitation bars this action unless the continued presence of the sand, the drums, and the sheeting constitutes a "continuing" violation of the Clean Water Act. National Parks demonstrates the correct method for determining whether a violation is "continuing." Considering a claim under the Clean Air Act, National Parks, 502 F.3d at 1322-23, explains:
The plain language of the Act states, "No major emitting facility . . . may be constructed . . . unless" the proponent of the construction ormodification fulfills the enumerated requirements. 42 U.S.C. § 7475(a). From this language, it follows that "violations of the preconstruction permitting requirements occur at the time of construction, not on a continuing basis."
(citations omitted).
Section 1311(a) states, "Except as in compliance with [particular sections of the Clean Water Act], the discharge of any pollutant by any person shall be unlawful." Under the plaintiffs' theory, a violation of Section 1311(a) occurs continuously while a pollutant remains in water. Under the defendants' theory, a violation of Section 1311(a) occurs only at the introduction of a pollutant into water.
Citing (among other precedent) National Parks and conducting a similar analysis, United States v. Rutherford Oil Corp., 756 F. Supp. 2d 782, 790-91 (S.D. Tex. 2010) (Rosenthal, J.), thoroughly and persuasively explains why Section 1311(a) forbids the introduction of a pollutant into water, not the continuing presence of a pollutant in water:
To determine whether an ongoing obligation is imposed, courts look first to the language of the statute. "Where a statute is unambiguous and there is no room for interpretation or construction of [a] provision, [a court] cannot circumvent its clear words." Courts have split as to whether the CWA creates a continuing obligation to remedy the effects of violations. The section of CWA at issue prohibits the "discharge of any pollutant," "[e]xcept in compliance with" with certain other sections of the CWA. 33 U.S.C. § 1311(a). For the purposes of this case, the CWA defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12)(A). "Addition" can mean either "the act or process of adding" or "the result of adding." Section 1311(a)'s use of the phrase "in compliance with"and the placement of "by any person" behind the word "discharge" point[] toward the former definition, which indicates a discrete action, instead of the result of that action. Ordinarily, one speaks of an action done "by a person," "in compliance with" rules. This ordinary meaning is dispositive. Once the violator stops adding a pollutant in violation of a permit, the violation itself is over. What remains are the effects of the violation, but absent a continuing obligation that is itself violated, the effects are not themselves violations. A discharge in violation of the obligation at issue under § 1311(a) is not a continuing violation on the basis that the discharger fails to remedy its effects.
(citations and footnotes omitted). In short, Section 1311(a) prohibits only the release of a pollutant, not the presence of a pollutant. Thus, in this action, the release of the sand, the drums, and the sheeting into the springs (not their presence in the springs) constitutes the violation of Section 1311(a). Because the sand, the drums, and the sheeting were released into the springs more than five years before the start of this action, the five-year limitation in 28 U.S.C. § 2462 bars this action.
In response, the plaintiffs cite Atlantic States Legal Foundation, Inc. v. Hamelin, 182 F. Supp. 2d 235, 248 n.20 (N.D.N.Y. 2001) (Scullin, J.), and a string of citations from Hamelin to argue that the presence in the spring of the sand, the drums, and the sheeting nonetheless constitutes a continuing violation of Section 1311(a). However, Hamelin, which resolved a motion to dismiss, held only that "at this stage of the proceedings, doubts with respect to whether the allegations of continuing violations are a sham are resolved in favor of the citizen-plaintiff." (internal quotation marks omitted). For that narrow conclusion, Hamelin relies on the same string of citationson which the plaintiffs rely — a string of citations that contains only unpersuasive or inapplicable precedent.
The string of citations (that the plaintiffs repeat exactly from Hamelin) states:
See Informed Citizens United, Inc. v. USX Corp., 36 F. Supp. 2d 375, 377 (S.D. Tex. 1999)[(Kent, J.)] ( that several courts have found that "a violation is 'continuing' for purposes of the statute until illegally dumped fill material has been removed" (citations omitted)); Sasser v. Administrator, United States E.P.A., 990 F.2d 127, 129 (4th Cir. 1993) [(Butzner, J.)] ; United States v. Reaves, 923 F. Supp. 1530, 1534 (M.D. Fla. 1996) [(Schlesinger, J.)] ; United States v. Cumberland Farms of Conn., Inc., 647 F. Supp. 1166, 1183 (D. Mass. 1986) [(Young, J.)] .
Hamelin, 182 F. Supp. 2d at 248 n.20.
The oldest cited opinion, Cumberland Farms relies on United States v. Tull, 615 F. Supp. 610 (E.D. Va. 1983) (Doumar, J.), and Chesapeake Bay Foundation, Inc. v. Gwaltney, 791 F.2d 304 (4th Cir. 1986) (Winter, J.). Tull considers a violation of an injunction requiring remediation, not a violation of the Clean Water Act. Rutherford Oil, 756 F. Supp. 2d at 791 (discussing Tull). The distinction is important because "a violator's refusal to comply with an injunction requiring remediation . . . [is relevant] in imposing a civil penalty . . . but does not suggest that the failure is itself a continuing violation of the underlying statute." Rutherford Oil, 756 F. Supp. 2dat 792. Equally unhelpful, Gwaltney, 791 F.2d 304, is both inapposite and vacated by Gwaltney of...
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