Frilling v. Village of Anna

• Decision Date: 14 March 1996
• Docket Number: No. C-3-95-194.,C-3-95-194.
• Citation: 924 F. Supp. 821
• Court: U.S. District Court — Southern District of West Virginia
• Parties: William FRILLING, et al., Plaintiffs, v. VILLAGE OF ANNA and Honda of America Manufacturing, Inc., Defendants.

924 F. Supp. 821

William FRILLING, et al., Plaintiffs, v. VILLAGE OF ANNA and Honda of America Manufacturing, Inc., Defendants.

No. C-3-95-194.

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

March 14, 1996.

COPYRIGHT MATERIAL OMITTED

Rodney Robinson Blake, Jr., Sidney, OH, Kevin Halsey, A.J. Blake, Portland, OR, for William Frilling, Judy Frilling, Ralph Katterhenry.

Gordon Dale Arnold, Freund, Freeze and Arnold, Dayton, OH, for Village of Anna.

Theodore Allen Boggs, Elizabeth E. Tulman, Mary Ellen Fairfield, Vorys Sater Seymour & Pease, Columbus, OH, for Honda of America Manufacturing Inc.

DECISION AND ENTRY SUSTAINING MOTION OF DEFENDANT HONDA OF AMERICA MANUFACTURING, INC., FOR PARTIAL SUMMARY JUDGMENT (DOC. # 11) AS TO COUNTS TEN, ELEVEN, AND TWELVE; DECISION AND ENTRY OVERRULING MOTION OF DEFENDANT VILLAGE OF ANNA FOR PARTIAL SUMMARY JUDGMENT (DOC. # 12) AS TO COUNTS ONE, TWO, THREE, FOUR, FIVE, SIX AND SIXTEEN; PLAINTIFFS' REQUEST FOR ORAL ARGUMENT (DOC. # 15) ON MOTION OF DEFENDANT VILLAGE OF ANNA FOR PARTIAL SUMMARY JUDGMENT (DOC. # 12) DENIED; DEFENDANT VILLAGE OF ANNA'S REQUEST FOR ORAL ARGUMENT (DOC. # 18) ON ITS MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. # 12) DENIED; PLAINTIFFS' COUNSEL INSTRUCTED TO AUTHENTICATE, PURSUANT TO RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE, SPECIFIED EXHIBITS WITHIN TWENTY (20) DAYS OF THE DATE OF THIS DECISION; LEAVE OF COURT GRANTED FOR DEFENDANT VILLAGE OF ANNA TO FILE SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT, WITHIN TWENTY (20) DAYS OF THE DATE OF THIS DECISION, RELATING TO THE EFFECT OF THE CONSENT ORDER'S CIVIL LIABILITY PROVISION ON DEFENDANT VILLAGE'S POTENTIAL CIVIL LIABILITY FOR VIOLATIONS OCCURRING BEFORE THE DATE OF THE CONSENT ORDER

RICE, Chief Judge.

This case arises from circumstances surrounding the allegedly impermissible discharge of pollutants into Clay Creek by Defendant Village of Anna ("Village"), and indirectly by Defendant Honda of America Manufacturing, Inc. ("Honda"), owner of the Honda Engine Plant ("Plant") located near Anna, Ohio, which discharges sanitary and industrial wastewater to Defendant Village's publicly owned treatment works ("POTW"). Plaintiff William Frilling, Plaintiff Judy Frilling, and Plaintiff Ralph Katterhenry ("Plaintiffs") own land through which Clay Creek runs. In their Complaint (Doc. #1), they allege the following: Defendant Village has violated and will continue to violate its National Pollutant Discharge Elimination System ("NPDES") permit (number 1PB00004*DD) by exceeding the following final effluent limitations contained in the permit: suspended solids, oil and grease, ammonia, fecal coliform, carbonaceous biochemical oxygen demand ("CBOD5") and dissolved oxygen, in violation of 33 U.S.C. § 1311 and O.R.C. §§ 6111.04 and 6111.07 (Count One, violations of final effluent limitations in NPDES permit, against Defendant Village); Defendant Village has violated and will continue to violate the general effluent limitations contained in its NPDES permit¹ by its discharges into Clay Creek (Count Two, violations of general effluent limitations in NPDES permit, in reference to water quality standards, against Defendant Village); Defendant Village has violated and will continue to violate the sludge disposal limitations in its NPDES permit² by its discharges into Clay Creek (Count Three, sludge disposal NPDES permit violations, against Defendant Village); Defendant Village has violated and will continue to violate § 301 of the Clean Water Act ("CWA"), as codified at 33 U.S.C. § 1311, by discharging sulfates into Clay Creek although its NPDES permit contains no parameters which authorize such discharges (Count Four, sulfates CWA violations, against Defendant Village); Defendant Village has violated and will continue to violate regulations promulgated to implement § 405 of the CWA, as codified at 33 U.S.C. § 1345, by its discharge of sewer sludge into Clay Creek (Count Five, sewer sludge CWA violations, against Defendant Village); Defendant Village has violated and will continue to violate state water quality standards in violation of 33 U.S.C. § 1312,³ as those standards are defined by O.A.C. § 3745-1-04 and O.A.C. § 3745-1-05(A), by its discharges into Clay Creek (Count Six, water quality CWA violations, against Defendant Village); a state law claim of public nuisance, against Defendant Village (Count Seven); a state law claim of private nuisance, against Defendant Village (Count Eight); a state law claim of trespass, against Defendant Village (Count Nine); Defendant Honda has violated and will continue to violate its Indirect Discharge permit (number 1PB00004100*AP) by causing impermissible "interference"⁴ with Defendant Village's POTW, a pretreatment permit violation (Count Ten, Indirect Discharge permit violations by causing impermissible interference with Village's POTW, against Defendant Honda); Defendant Honda has violated and will continue to violate its Indirect Discharge permit by slug loading, a pretreatment permit violation (Count Eleven, slug loading Indirect Discharge permit violations, against Defendant Honda); Defendant Honda has violated and will continue to violate 40 C.F.R. § 403.5(c)(1) and § 403.5(b)(4), which prohibit interference with a POTW, a violation of pretreatment standards (Count Twelve, regulatory violations, against Defendant Honda); a state law claim of private nuisance, against Defendant Honda (Count Thirteen); a state law claim of public nuisance, against Defendant Honda (Count Fourteen); and a state law claim of trespass, against Defendant Honda (Count Fifteen). In a Supplemental Complaint (Doc. # 25) filed on January 26, 1996, Plaintiffs set forth an additional claim under 33 U.S.C. § 1311 against Defendant Village, for impermissible discharges of sewage, occurring subsequent to May 12, 1995 (Count Sixteen, post-complaint sewage NPDES permit violations, against Defendant Village).

There are currently two motions pending before this Court: Defendant Honda's Motion for Partial Summary Judgment⁵ (Doc. # 11) as to Counts Ten, Eleven, and Twelve; and Defendant Village's Motion for Partial Summary Judgment (Doc. # 12) as to Plaintiffs' federal CWA claims, which are contained in Counts One, Two, Three, Four, Five, Six and Sixteen. This Court will now rule on both of these motions.⁶

This Court has federal question jurisdiction, under 28 U.S.C. § 1331, over those of Plaintiffs' claims which are based on the CWA and the regulations implementing the Act (Counts One, Two, Three, Four, Five, Six, Ten, Eleven, Twelve and Sixteen). This Court may properly exercise its supplemental jurisdiction over Plaintiffs' remaining state-law claims (Counts Seven, Eight, Nine, Thirteen, Fourteen and Fifteen) pursuant to 28 U.S.C. § 1367, as these claims are so related to the federal claims that they form part of the same case or controversy under Article III of the United States Constitution.

Before focusing on the merits of the motions, the Court will set forth the relative burdens of the parties once a motion for summary judgment is made. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Of course, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. at 2552-53. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial." quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 6th Cir.1987). The burden then shifts to the non-moving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the non-moving party to go beyond the unverified pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "if there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992). Of...