S. River Watershed Alliance, Inc. v. Dekalb Cnty.

• Decision Date: 31 August 2020
• Docket Number: Civil Action No. 1:19-cv-04299-SDG
• Parties: SOUTH RIVER WATERSHED ALLIANCE, INC. and Jacqueline Echols, Plaintiffs, v. DEKALB COUNTY, GEORGIA, Defendant.
• Court: U.S. District Court — Northern District of Georgia

484 F.Supp.3d 1353

SOUTH RIVER WATERSHED ALLIANCE, INC. and Jacqueline Echols, Plaintiffs,

v.DEKALB COUNTY, GEORGIA, Defendant.

Civil Action No. 1:19-cv-04299-SDG

United States District Court, N.D. Georgia, Atlanta Division.

Signed August 31, 2020

Jonathan Lee Schwartz, Jon L. Schwartz, Attorney at Law, P.C., Atlanta, GA, for Plaintiffs.

Maxwell R. Jones, Robert Todd Silliman, Uchenna Ekuma-Nkama, Dentons US LLP, Atlanta, GA, for Defendant.

OPINION AND ORDER

Steven D. Grimberg, United States District Court Judge

This matter is before the Court on Defendant DeKalb County, Georgia's (DeKalb) motion to dismiss [ECF 30] and motion to strike [ECF 43]. Following a careful review of the record, and with the benefit of oral argument, DeKalb's motion to strike is DENIED and its motion to dismiss is GRANTED .

I. BACKGROUND

The Court treats the following facts as true for purposes of this Order.¹ Plaintiff South River Watershed Alliance, Inc. (South River) is a non-profit membership organization which advocates to protect and restore the water quality and biodiversity of the South River and Chattahoochee River watersheds.² Plaintiff Jacqueline Echols is a member of South River who uses the watersheds for aesthetic, recreational, ecological, and biological purposes.³ DeKalb is a political subdivision of the State of Georgia.⁴

DeKalb owns and operates a Water Collection and Transmission System (WCTS) designed to collect and transport wastewater to three locations: (1) DeKalb's Snapfinger Creek water treatment facility; (2) DeKalb's Pole Bridge Creek water treatment facility; and (3) the City of Atlanta's R.M. Clayton water reclamation center.⁵ Pursuant to specific effluent limitations set forth in National Pollutant Discharge Elimination System (NPDES) permits issued by the Georgia Environmental Protection Department (EPD), DeKalb is required to collect the wastewater, transport it to these facilities, treat it, then discharge it into the respective surface waters.⁶ According to Plaintiffs, DeKalb has repeatedly spilled wastewater—including untreated sewage—into surface waters before the wastewater reached the treatment facilities.⁷

On December 13, 2010, the United States and Georgia—on behalf of the United States Environmental Protection Agency (EPA) and EPD, respectively—filed a Complaint against DeKalb for violations of the CWA and Georgia Water Quality Control Act (GWQCA) (hereinafter, the 2010 Complaint).⁸ The 2010 Complaint alleged that, since 2006, DeKalb's WCTS experienced hundreds of overflows of untreated wastewater—known as sanitary sewer overflows (SSOs)⁹ —that contained pollutants.¹⁰ Many of these overflows resulted in the discharge of sewage into the South River and Chattahoochee watersheds.¹¹

On December 21, 2011, United States District Court Judge William S. Duffey approved a Consent Decree executed by DeKalb, the EPA, and the EPD. United States v. DeKalb Cnty., Ga., No. 1:10-CV-4039-WSD, 2011 WL 6402203 (N.D. Ga. Dec. 20, 2011).¹² The stated objectives of the Consent Decree are for DeKalb "to use its best efforts to prepare and implement all plans, measures, reports, and construction, maintenance, and operational activities ... to achieve the goals of: (1) full compliance with the CWA, the GWQCA, and the regulations promulgated thereunder, and (2) the elimination of all SSOs.¹³ The Consent Decree required DeKalb to pay a one-time civil penalty in the amount of $453,000 to the United States and Georgia.¹⁴ It also required DeKalb to expend at least $600,000 on a Supplemental Environmental Project benefiting areas impacted by prior discharges.¹⁵

The Consent Decree additionally contained numerous provisions requiring DeKalb to remediate the WCTS. For example, the Consent Decree required DeKalb to implement a comprehensive program to ensure effective Capacity, Management, Operations, and Maintenance (CMOM), which included a Continuing Sewer Assessment and Rehabilitation Program.¹⁶ The Consent Decree established timelines for DeKalb to develop and submit certain projects to the EPA or EPD for review and approval, then once approved, for DeKalb to implement the programs.¹⁷ As part of the Continuing Sewer Assessment and Rehabilitation Program, DeKalb identified a list of "priority areas" that required more immediate improvement. These highest priority areas were included in the CMOM program and entitled the Priority Area Sewer Assessment and Rehabilitation Program (PASARP).¹⁸ As of 2018, the PASARP included approximately 838 miles of sewer line, representing 31% of the sewer line in the WCTS.¹⁹ The Consent Decree mandated that, within 8.5 years from its date of entry (i.e. , June 20, 2020), DeKalb identify, delineate, assess, and rehabilitate the WCTS in the priority areas.²⁰ In contrast, the remaining approximately 69% of sewer lines not included in the priority areas (i.e. , non-priority areas) were subject to assessment and rehabilitation under an Ongoing Sewer Assessment and Rehabilitation Program.²¹ Unlike the priority areas, the Consent Decree contained no timetable or deadline for DeKalb to assess and rehabilitate the non-priority areas.²²

At the time the Court entered the Consent Decree, DeKalb maintained a flow and rainfall monitoring program that could be used to "assess capacity availability in various sewer segments, and to prioritize sanitary sewers for rehabilitation, repair and/or replacement."²³ The Consent Decree stated that DeKalb "shall use the flow and rainfall monitoring data to develop a dynamic hydraulic model."²⁴ The Consent Decree defined "model" as a "computer-based dynamic hydraulic model."²⁵ The Consent Decree required DeKalb to integrate computer-based dynamic hydraulic models for all sewer sheds into one model for the entire WCTS by December 20, 2017.²⁶

The Consent Decree also contained a provision outlining the prospective penalties that could be assessed against DeKalb in the event of noncompliance. For example, for each spill of 10,000 gallons or less, a penalty of $500 may be assessed.²⁷ If a spill of more than 10,000 gallons occurs, a penalty ranging from $500 to $2,000 may be assessed.²⁸

Since the Court's entry of the Consent Decree, Plaintiffs allege DeKalb has violated its terms—as well as the CWA and NPDES permits—in numerous ways. For example, Plaintiffs allege and present evidence that, following entry of the Consent Decree (i.e. , 2012–2018), the frequency of sewage spills has met or exceeded the number that occurred prior to the entry of the Consent Decree (i.e. , 2005–2011).²⁹ Plaintiffs allege that, since July 25, 2014, there have been over 800 reported spills of untreated sewage from DeKalb's WCTS into public waterways.³⁰ Plaintiff also allege that DeKalb intentionally missed the December 20, 2017 deadline in the Consent Decree to integrate computer-based hydraulic models for all its sewer sheds—instead electing to implement a static hydraulic model (also known as a "steady-state" hydraulic mode).³¹ The EPA and PED expressly authorized DeKalb to implement the static model.³²

On July 15, 2019, Plaintiffs mailed DeKalb a notice letter, setting forth their intent to file a citizen suit under the CWA.³³ Plaintiffs subsequently initiated this action on September 24, 2019.³⁴ Plaintiffs filed their Amended Complaint on February 24, 2020, asserting one count against DeKalb under the CWA and seeking both monetary and injunctive relief.³⁵ DeKalb filed the instant motion to dismiss on March 9, 2020.³⁶ On April 14, 2020, Plaintiffs filed their response in opposition to DeKalb's motion to dismiss.³⁷ DeKalb filed its reply on May 11, 2020.³⁸ On the same day, DeKalb filed its motion to strike certain evidence relied on by Plaintiffs in their response brief—i.e. , a report from Randall Grachek and a declaration from Dustin Mimnaugh.³⁹ Plaintiffs filed a response in opposition to DeKalb's motion to strike on May 26, 2020.⁴⁰ DeKalb filed its reply on June 9, 2020.⁴¹

II. DISCUSSION

A. DeKalb's Motion to Strike

DeKalb requests that the Court strike the report of Randall Grachek and the declaration of Dustin Mimnaugh. DeKalb contends this evidence is not based on either individual's personal knowledge, but is instead impermissible speculation dressed up as opinion testimony. DeKalb additionally asserts the evidence is irrelevant to the resolution of the issues in this case. Plaintiffs, conversely, argue the evidence should be considered because they set forth facts within the knowledge of the offering individual.

Motions to strike are governed by Federal Rule of Civil Procedure 12(f). This rule permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are disfavored and viewed as "a drastic remedy to be resorted to only when required for the purposes of justice." TracFone Wireless, Inc. v. Zip Wireless Prod., Inc. , 716 F. Supp. 2d 1275, 1290 (N.D. Ga. 2010) (citing Stephens v. Trust for Pub. Land , 479 F. Supp. 2d 1341, 1346 (N.D. Ga. 2007) ). See also TracFone , 716 F. Supp. 2d at 1290 ("Motions to strike ... are often considered time wasters.").

Since Rule 12(f) only contemplates the striking of a pleading, this court routinely finds that a motion to strike "is not the appropriate vehicle for challenging the consideration of evidence." Green v. ADCO Int'l Plastics Corp. , No. 1:17-cv-337-WSD-LTW, 2017 WL 8810690, at *5 (N.D. Ga. Dec. 27, 2017), report and recommendation adopted , No. 1:17-cv-337-WSD-LTW, 2018 WL 739794 (N.D. Ga. Feb. 7, 2018). Put another way, "[m]otions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike." Nelson v. Jackson , No. 1:14-cv-02851-ELR-JFK, 2016 WL 9454420, at *1 (N.D. Ga. May 18, 2016), report and recommendation adopted as modified , No. 1:14-cv-02851-ELR, 2016 WL 9455425 (N.D. Ga. June 30, 2016). See also id. ("Rather than filing a motion to strike as under Rule 12, the proper method for...