Historic Green Springs, Inc. v. Louisa Cnty. Water Auth.

• Decision Date: 30 June 2011
• Docket Number: Civil Action No. 3:09–CV–00079.
• Citation: 74 ERC 1312,833 F.Supp.2d 562
• Parties: The HISTORIC GREEN SPRINGS, INC., et al., Plaintiffs, v. LOUISA COUNTY WATER AUTHORITY, Defendant.
• Court: U.S. District Court — Western District of Virginia

833 F.Supp.2d 562

74 ERC 1312

The HISTORIC GREEN SPRINGS, INC., et al., Plaintiffs,

v.LOUISA COUNTY WATER AUTHORITY, Defendant.

Civil Action No. 3:09–CV–00079.

United States District Court,

W.D. Virginia,

Charlottesville Division.

June 30, 2011.

Tammy Lynn Belinsky, Attorney at Law, Copper Hill, VA, David Sandburg Bailey, Jeter Marvin Watson, Environmental Law Group, PLLC, Richmond, VA, for Plaintiffs.

Jonathan Todd Blank, Jacob Scott Woody, Meghan Mitchell Cloud, McGuire Woods LLP, Charlottesville, VA, Richard Harrison Sedgley, Aqua Law PLC, David Ellis Evans, McGuire Woods LLP, Richmond, VA, for Defendant.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

Plaintiffs amended their original complaint, alleging numerous violations of the Clean Water Act, the Virginia State Water Control Law, and Defendant's Virginia Pollution Discharge Elimination System permit, issued by the Virginia Department of Environmental Quality. The matter is now before the court upon consideration of Defendant's motion to dismiss, which has been fully briefed and argued.

Defendant asserts that the amended complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for its failure to state, on its face, the statutory prerequisites that would entitle Plaintiffs to relief under the Clean Water Act (the “CWA,” or the “Act”). In Defendant's view, Plaintiffs have failed to comply with the notice and delay requirements of citizen enforcement actions under the Act, and therefore their claims are barred. Additionally, Defendant contends that claims asserted by the Historic Green Springs, Inc. (“HGSI”) should be dismissed pursuant to Rule 12(b)(1) because HGSI has not alleged a sufficiently particularized injury-in-fact.

As stated herein, I find that HGSI has standing to proceed as a Plaintiff in this suit, and I will deny Defendant's motion to dismiss pursuant to Rule 12(b)(1). Nonetheless, because Plaintiffs failed to provide the required 60–day notice for all the violations alleged in the amended complaint, the motion to dismiss pursuant to Rule 12(b)(6) will be granted; however, rather than striking the complaint from the court's active docket, I will allow ten days' leave for Plaintiffs to file a motion for leave to file a second amended complaint.

I. Factual Background

The crux of the original and amended complaints is that Defendant's Zion Crossroads Wastewater Treatment Plant discharges pollution, in the form of treated sewage wastewater, into Camp Creek, a tributary of the South Anna River and the Chesapeake Bay, about 400 yards upstream from Aspen Hill Farm, the home of Plaintiffs Mr. and Mrs. Murphy. Plaintiff HGSI asserts its claims in this matter based on its status as the holder of a conservation easement on Aspen Hill Farm.¹ Plaintiffs state that Defendant's discharge of treated wastewater adversely impacts and injures Mr. and Mrs. Murphy's use of Camp Creek “for wildlife and livestock watering, as well as for recreational and aesthetic uses.” “In particular,” Plaintiffs allege, “the water is no longer fit for watering cattle, so that this important agricultural use is impaired” by “Defendant's discharges.”

On September 18, 2009, Plaintiffs sent a “Notice Letter” to the Administrator of the U.S. Environmental Protection Agency (“EPA”), to the Virginia Department of Environmental Quality (“VDEQ”), and to Defendant, of Plaintiffs' intent to file a citizen enforcement action under Section 505 of the Clean Water Act, 33 U.S.C. § 1365. Plaintiffs alleged that Defendant had committed numerous violations of the CWA, the Virginia State Water Control Law, and Defendant's VDEQ-issued Virginia Pollutant Discharge Elimination System (“VPDES”) permit. The Notice Letter included a list of specific violations upon which Plaintiffs intended to bring suit. On November 30, 2009, Plaintiffs filed their original complaint in this court. The original complaint alleged the violations listed in the Notice Letter, including alleged violations of the mass and concentration limits and monitoring and reporting requirements in the Zion Crossroads VPDES permit for the period July 2003 through November 2009; a copy of the Notice Letter, with the list of specific violations, was attached to the complaint as an exhibit.

Thereafter, in the course of discovery having conducted a comprehensive review of Defendant's operating records, Plaintiffs filed a motion for leave to amend the original complaint. Plaintiffs asserted that a review of the records revealed additional violations that required “substantial amendment” to their claims. Leave to amend was granted, and Plaintiffs filed their first amended complaint on February 15, 2011.

Plaintiffs' amended complaint added numerous claims to those presented in the original complaint, and the amended complaint was accompanied by an entirely new list of alleged violations, which was attached as Exhibit B to the amended complaint. The amendments add over 400 new alleged violations, summarized as follows: mass and concentration limit excesses reported to VDEQ in corrected Discharge Monitoring Reports (“DMRs”) filed during the summer of 2010; allegations of reporting violations, including the alleged erroneous DMRs that were corrected; and alleged violations of the mass and concentration limits and alleged monitoring and reporting violations for the period December 2009 though May 2010.

II. Failure to State a Claim

Regarding motions to dismiss for failure to state a claim upon which relief may be granted, I apply the pleading standard established by Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). See alsoFed.R.Civ.P. 12(b)(6), Fed.R.Civ.P. 8. Plaintiffs must allege facts that “state a claim to relief that is plausible on its face,” facts that “have nudged their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A claim is plausible if the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and if there is “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949.

While extrinsic evidence is generally not to be considered at the Rule 12(b)(6) stage, a court may consider a document attached to a motion to dismiss if “it was integral to and explicitly relied on in the complaint and the plaintiffs do not challenge its authenticity.” Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 234 (4th Cir.2004) (quoting Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir.1999)). Furthermore, “a court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed.” Witthohn v. Fed. Ins. Co., 164 Fed.Appx. 395, 396–97 (4th Cir.2006); see also Davis v. George Mason University, 395 F.Supp.2d 331, 335 (E.D.Va.2005) (“when a plaintiff fails to introduce a pertinent document as part of his complaint, the defendant may attach the document to a motion to dismiss the complaint and the Court may consider the same without converting the motion to one for summary judgment.”) (citations omitted); Gasner v. Dinwiddie, 162 F.R.D. 280, 282 (E.D.Va.1995) (permitting district court to take judicial notice of public documents, such as court records, even when the documents are neither referenced by nor integral to plaintiff's complaint).

Under the Clean Water Act, no citizen may commence a cause of action “prior to sixty days after the plaintiff has given notice of the alleged violation” to the Administrator of the EPA, the state in which the violation occurred, and the alleged violator. 33 U.S.C. § 1365(b)(1)(A). The required notice must be given in “such a manner as the Administrator [of the EPA] shall prescribe by regulation.” 33 U.S.C. § 1365(b). The corresponding federal regulation, 40 C.F.R. § 135.3(a), states that the 60–day notice must include information sufficient to allow the alleged violator

to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the persons or person responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

In Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), the Supreme Court of the United States dealt with the 60–day notice requirement as it applied to citizen suits under the Resource Conservation and Recovery Act of 1976 (“RCRA”). The Court held that “the notice and 60–day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision.” Id. at 31, 110 S.Ct. 304. The Court further held that “a district court may not disregard these requirements at its discretion.” Id. The Court went on to conclude that, when a citizen suit fails to meet the notice and 60–day delay requirement, “the district court must dismiss the action as barred by the terms of the statute.” Id. at 33, 110 S.Ct. 304.

Recently, in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387 (4th Cir.2011) [hereinafter “Gaston III ”], the United States Court of Appeals for the Fourth Circuit, addressing the 60–day notice requirement as applied to the Clean Water Act, specifically followed the holding in Hallstrom.Gaston III “conclude[d] that compliance with the notice and delay provisions of § 1365(b)(1)(A) of the Clean Water Act is a mandatory condition precedent to the commencement of a suit under this Act.” 629 F.3d at 399.Gaston III concluded further “that compliance with the requirements of 40 C.F.R. § 135.3(a) is a mandatory condition precedent to filing suit under ...