Patterson Farm, Inc. v. City of Britton, S.D.

• Decision Date: 30 September 1998
• Docket Number: No. Civ. 96-1043.,Civ. 96-1043.
• Citation: 22 F.Supp.2d 1085
• Parties: PATTERSON FARM, INC., a South Dakota corporation, by and through its president Ronald C. Patterson, Plaintiff, v. The CITY OF BRITTON, SOUTH DAKOTA, a municipal politic, Defendant.
• Court: U.S. District Court — District of South Dakota

22 F.Supp.2d 1085

PATTERSON FARM, INC., a South Dakota corporation, by and through its president Ronald C. Patterson, Plaintiff, v. The CITY OF BRITTON, SOUTH DAKOTA, a municipal politic, Defendant.

No. Civ. 96-1043.

United States District Court, D. South Dakota, Northern Division.

September 30, 1998.

COPYRIGHT MATERIAL OMITTED

Paula Sue Conard, St. Petersburg, FL, for Plaintiff.

Richard A Sommers, Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, SD, for Defendant.

ORDER ON MOTIONS

KORNMANN, District Judge.

INTRODUCTION

[¶ 1] Patterson Farm, Inc., is a farming corporation located near Britton, South Dakota. It owns the Northeast Quarter of Section Seven and the Northwest Quarter of Section Eight in Township 127 North, Range 57 West,¹ Marshall County, South Dakota. The City of Britton ("City") is a municipal corporation located in Marshall County, South Dakota. Plaintiff instituted this action under the citizen's suit provision of the Clean Water Act (CWA). 33 U.S.C. § 1365 (1982). Plaintiff also included pendent state law claims under SDCL 34A-2-21 and seeks injunctive relief and damages.

[¶ 2] In Counts I and V of the complaint, plaintiff asserts as a pendent state law claim that the City violated the one-time irrigation order issued by the South Dakota Department of Environment and Natural Resources (DENR) because the ground was saturated and frozen at the time of irrigation and no warning signs were posted at the border of the irrigation site, thus violating certain conditions of DENR's order. Plaintiff also claims that the municipal lagoons were negligently maintained which resulted in the unlawful drainage of sewage, pollutants, and contaminates on to plaintiff's property. These alleged circumstances constitute nuisance under state law.

[¶ 3] In Counts II and VI of the complaint, plaintiff asserts another pendent state law claim that the City was negligent, under SDCL 20-9-1, in its operation and maintenance of the industrial and municipal lagoons based on the same claimed facts referred to above. Counts III and VII of the complaint allege violations of state environmental statute, SDCL 34A-2-21. In Counts IV and VIII, plaintiff claims the City violated federal statutes, 33 U.S.C. §§ 1311, 1365, when it violated (1) the order issued by DENR; (2) other effluent standards or limitations; and, (3) best management practices as they relate to the municipal lagoons. Plaintiff also claims the City violated federal law when it operated the industrial lagoons without a National Pollutant Discharge Elimination System (NPDES) permit and allowed an unauthorized discharge of sewage and pollutants into navigable waters.

[¶ 4] In plaintiff's original complaint, the Environmental Protection Agency (EPA) and the DENR were included as defendants. These agencies filed motions to dismiss which were granted on September 27, 1997, Doc. 36.

[¶ 5] The City filed a motion for summary judgment on March 27, 1998, Doc. 38. The City claims that the Court lacks subject matter jurisdiction because there is no evidence of CWA violations, and thus, no federal question exists, resulting in a lack of jurisdiction to hear the pendent state law claims. The City also claims that plaintiff lacks standing to bring the citizen's suit because all alleged violations of the CWA are past violations for which there can be no recovery under the teaching of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Finally, the City argues that because it has no liability insurance, the doctrine of sovereign immunity applies to the pendent state law claims, and thus, it is entitled to summary judgment under SDCL 21-32A-1 and SDCL 32A-3.

[¶ 6] Plaintiff filed a cross motion for summary judgment on April 6, 1998, Doc. 45. Plaintiff restates the claims set forth in the complaint. First, plaintiff claims the City violated the DENR order dated November 7, 1995, by irrigating water from its industrial lagoons that may have exceeded effluent standards when the ground was both frozen and saturated. Second, plaintiff claims the City violated the DENR permit issued for the municipal lagoons when it failed to comply with monitoring requirements, including sampling the water being discharged from holes in two different dikes at the municipal lagoon facility. According to plaintiff, these violations of the permit and order constitute negligence per se. Third, plaintiff alleges continuing violations of the DENR permits for both the industrial and municipal lagoons, in that: (1) the City has failed to meet inspection and record keeping requirements; and (2) chemical analyses indicate that water and soil on plaintiff's land continue to be significantly salinized by lagoon seepage. Finally, plaintiff contends that because Congress intended for citizen's suit provisions to be express remedies under the CWA, the Act overrides applicable state law, and the doctrine of sovereign immunity does not apply for any reason. Moreover, plaintiff contends that the City failed to raise this defense in its Answer to the complaint, and thus, is barred from raising it at the summary judgment stage of the proceedings under Fed.R.Civ.P. 8(b).

DECISION

[¶ 7] Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Donaho v. FMC Corp., 74 F.3d 894, 898 (8th Cir.1996). The United States Supreme Court has held that:

The plain language of Rule 56(c) mandates the entry of summary judgment ... 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "A material fact dispute is genuine if the evidence is sufficient to allow a reasonable jury to return a verdict for the non-moving party." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir.1995). On cross motions for summary judgment, this Court will consider each motion separately, drawing inferences against each movant in turn on the disputed facts. Blackie v. Maine, 75 F.3d 716 (1st Cir.1996); 73 Am.Jur.2d Summary Judgment § 30 (1974).

[¶ 8] Section 505(a) of the CWA does not confer federal jurisdiction over citizen's suits for wholly past violations. Gwaltney, 484 U.S. at 66, 108 S.Ct. 376. However, if a plaintiff makes a good-faith allegation of continuous or intermittent violations, jurisdiction will attach; proof of such allegation is not necessary to invoke federal jurisdiction. Id. The Court finds that plaintiff has alleged, in good faith, continuous violations of the CWA by the City, including the failure to abide by the inspection and record keeping provisions of the NDPES permits. Public Interest Research Group v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir.1997); Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358 (5th Cir.1996); and Sierra Club v. Simkins Indus., 847 F.2d 1109 (4th Cir.1988).

I. Cross Motions for Summary Judgement

A. Industrial Lagoon Violations

1. Operation without a NPDES permit

[¶ 9] Plaintiff claims the City violated, prior to September 26, 1997, the CWA by operating the industrial lagoon facility without a NPDES permit as required by 33 U.S.C. § 1341. The City argues that it did not need a NPDES permit for the industrial lagoon facility and obtained one as a "no discharge" facility only to expedite authorization for irrigation in the future should it become necessary. Therefore, the City claims that operating without a permit until that time cannot form the basis of any actionable claim.

[¶ 10] The relevant federal regulation supports the City's argument that no NPDES permit was required for the industrial lagoon facility as a "no-discharge" facility. 33 U.S.C. § 1342; 40 C.F.R. §§ 122.2, 122.3(c) (1997). The industrial lagoon facility falls within the regulatory definition of a "publicly owned treatment works,"² and as such is specifically excluded from the NDPES permit requirement provisions. 40 C.F.R. §§ 122.1-122.3. The City is therefore entitled to summary judgment as to Counts IV and VIII with respect to this alleged violation.

2. Alleged violation of DENR order

[¶ 11] Plaintiff also claims that the City violated DENR's one-time discharge authorization dated November 7, 1995, by failing to abide by ground condition restrictions and water sampling requirements. The City denies this alleged violation, claiming that it did adhere to the order's water sample testing requirements, and cites the deposition testimony of Randy Hedge, the maintenance foreman for the City, to support its position. The City further contends that plaintiff has offered no acceptable evidence regarding rainfall over a three-month period or ground conditions at the time of irrigation to prove that it violated the authorization. Moreover, even if such a violation could be shown, it would be a purely past violation of the CWA, and thus would be barred under the citizen's suit provision of the Act. 33 U.S.C. § 1365; Gwaltney, 484 U.S. at 59-60, 108 S.Ct. 376.

[¶ 12] Viewing the facts in the light most favorable to the plaintiff, the Court agrees with the City that the alleged violation, assuming the allegation to be true, is a wholly past violation of the CWA. The DENR order authorizing a one-time discharge from the industrial ponds is, by its very nature, incapable of being violated in the future. For the City to violate the conditions set forth in the order in the future would require it to seek another discharge authorization from DENR because it is currently operating under...