Harpeth River Watershed Ass'n v. City of Franklin, 3:14-1743

• Decision Date: 03 March 2016
• Docket Number: No. 3:14-1743,3:14-1743
• Parties: HARPETH RIVER WATERSHED ASSOCIATION, Plaintiff, v. THE CITY OF FRANKLIN, TENNESSEE, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

HARPETH RIVER WATERSHED ASSOCIATION, Plaintiff, v. THE CITY OF FRANKLIN, TENNESSEE, Defendant.

No. 3:14-1743

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 3, 2016

Judge Sharp

MEMORANDUM

This is a citizen's suit under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., brought by Plaintiff Harpeth River Watershed Association ("HWRA"), whose professed mission is to restore and preserve the Harpeth River Watershed, against Defendant City of Franklin, which owns the Franklin Sewage Treatment Plaint. The essence of Plaintiff's complaint is that, since at least 2009, Defendant has discharged pollutants, including untreated sewage, ammonia, and toxic wastewater into the Harpeth River and its tributaries in violation of National Pollutant Discharge Elimination System ("NPDES") Permit No. TN0028827 issued to the sewage plant through Tennessee's EPA approved NPDES program. The allegedly unpermitted discharges and other permit violations have, in Plaintiff's view, significantly impacted water quality and aquatic life in the Harpeth River.

The Amended Complaint spans 54 pages and is in six counts. Count 1 alleges that Defendant's spills of raw sewage from its system violate its NPDES permit; Count 2 alleges that Defendant has failed to prepare a plan to optimize its operations and reduce its nutrient discharge; Count 3 alleges that Defendant has failed to conduct in-stream monitoring in the Harpeth River; Count 4 alleges that Defendant has violated the permit limits on the toxicity of its effluent discharge into the river; Count 5 alleges that Defendant violated the permit limits for ammonia discharges into the river; and Count 6 alleges that Defendant has operated without an accurate flow meter.

Defendant has filed a Motion to Dismiss Count 1 in part, and Counts 2 through 6 in full.¹ That Motion has been fully briefed, not only by the parties, but also, with respect to Counts 1 to 3, by the United States through an Amicus Curiae brief, to which the Defendant responded. The Court also heard oral argument on the Motion on November 4, 2015.²

I. Governing Standards

Defendant's Motion to Dismiss is based upon both Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, although Defendant does not clearly differentiate between which Count (or portion of a Count) is subject to dismiss under which standard. Generally speaking, in considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must take "all well-pleaded material allegations of the pleadings" as true. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6^th Cir. 2010). The factual allegations in the complaint "need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead 'sufficientfactual matter' to render the legal claim plausible, i.e., more than merely possible." Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)). Thus, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of [its] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted).).

As for motions under Rule 12(b)(1), the Sixth Circuit has summarized the applicable standard of review as follows:

A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack). United States v. Ritchie, 15 F.3d 592, 598 (6^th Cir. 1994). A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis. Id.

A factual attack challenges the factual existence of subject matter jurisdiction. In the case of a factual attack, a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case. Id. Plaintiff bears the burden of establishing that subject matter jurisdiction exists. DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516 (6^th Cir. 2004).

Cartwright v. Garner, 751 F.3d 752, 759-60 (6^th Cir. 2014).

With these standards in mind, the Court addresses the arguments by the parties, roughly in the order presented by Defendant in its initial Memorandum.

II. Permit Provisions Allegedly Beyond the Scope of the NPDES Program

The CWA "mandates that toxic discharges into the nation's waterways be monitored and regulated." Ailor v. City of Maynardville, 368 F.3d 587, 590 (6^th Cir. 2004). "The Act is enforced through effluent limitations guidelines and NPDES permits that set technology-based dischargelimits for categories and subcategories of water pollution point sources." Citizens Coal Council v. U.S. E.P.A., 447 F.3d 879, 883 (6^th Cir. 2006).

"States may request permission from the U.S. EPA to administer a state-NPDES program after the U.S. EPA promulgates certain guidelines that govern monitoring, reporting, enforcement, funding, personnel, and manpower." Askins v. Ohio Dep't of Agric., 809 F.3d 868, 872 (6^th Cir. 2016). Indeed, "[i]n administering these programs, states are free to treat the EPA's pollution limits as a floor and impose more stringent requirements." W. Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 162 (4th Cir. 2010). "In other words, [u]nder this 'cooperative federalism' scheme, EPA establishes the minimum requirements that must apply to all entities regulated under the CWA, and states may adopt more stringent standards where they see fit." Nw. Envtl. Advocates v. U.S. E.P.A, 2006 WL 2669042, at *2 (N.D. Cal. Sept. 18, 2006).

The Environmental Protection Agency ("EPA") has formulated regulations governing the procedures it "will follow in approving, revising, and withdrawing State programs and the requirements State programs must meet to be approved by the Administrator." 40 C.F.R. § 123.1. Those regulations include a provision that reads:

(I) Nothing in this part precludes a State from:

(1) Adopting or enforcing requirements which are more stringent or more extensive than those required under this part;

(2) Operating a program with a greater scope of coverage than that required under this part. If an approved State program has greater scope of coverage than required by Federal law the additional coverage is not part of the Federally approved program.

Id. § 123.1 (I). The State of Tennessee's NPDES permit program was approved by the EPA on December 28, 1977. See, NPDES STATE PROGRAM INFORMATION,http://www.epa.gov/npdes/npdes-state-program-information (all websites last visited on Feb. 27, 2016).

"Permit holders are subject to state and federal enforcement actions, as well as suits by private citizens." Ailor, 368 F.3d at 590. As a supplement to these actions, "[t]he CWA's citizen's suit provision permits any individual who has an interest which is or may be adversely affected to sue to enforce any limitation established by a NPDES permit." Id.

Noting that the regulations permit States to adopt more stringent requirements, but also provide that requirements with a greater scope of coverage are not part of the federally approved program, Defendant argues that the former requirements can be the subject of a citizen' suit under the CWA, but the latter cannot. That is, "[u]nder EPA's own regulation, requirements that have a greater scope of coverage than 'required' by federal law are BTS [beyond the scope], not part of the approved program and, therefore, not enforceable in federal courts." (Docket 50 at 16).

Defendant claims there are "three permit conditions subject to the BTS defense" id. in the Amended Complaint: (1) "overflows" that are not discharges (Count 1); (2) nutrient management plans (Count 2); and (3) in- stream monitoring and receiving stream investigations (Count 3). In this regard, and utilizing Section 123.1(i)(2) as the guidepost, Defendant posits that "[w]hether the NPDES regulations can somehow be stretched to authorize the permit condition is not the issue." (Id. at 4). Rather,

the issue is what is required by Federal law? For instance, does the federal law require that non-discharging overflows be prohibited? Similarly, does the federal program require nutrient management plans for POTWs [publicly-owned treatment works] or ambient monitoring?

(Id., emphasis in original).

Defendant relies on the district and Second Circuit decisions in Atlantic States LegalFoundation, Inc. v. Kodak, 809 F. Supp. 1040 (W.D. N.Y. 1992), aff'd, 12 F.3d 353 (2nd Cir. 1993), and the district court's decision in Long Island Soundkeeper Fund v. New York City Department of Environmental Protection, 27 F. Supp. 2d 380 (E.D.NY 1998) for the proposition that a "BTS permit condition . . . included in the State-issued permit . . . does not magically make that condition subject to a CWA citizen suit." (Docket No. 18 at 3).³ Save for the fact that the trial court in Atlantic States specifically recognized that "liability in this case must be determined in light. . .of the conditions of [defendant's] Permit," and that, unlike here, the citizen's suit was based on discharges not expressly limited by the permit, those cases support Defendant's position. Nevertheless, the Court finds the more recent Eleventh Circuit's opinion in Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11^th Cir. 2004) and the district court's decision in Ohio Valley Environmental Coalition, Inc. v. FOLA Coal Co., 2013 WL 6709957 (S.D. W. Va. Dec. 19, 2013) more persuasive.

Atlantic States involved a New York...