Stephens v. Koch Foods, LLC, 2:07-CV-175.
| Citation | 667 F.Supp.2d 768 |
| Decision Date | 13 October 2009 |
| Docket Number | No. 2:07-CV-175.,2:07-CV-175. |
| Parties | Patricia STEPHENS, et al. v. KOCH FOODS, LLC. Patricia Stephens, et al. v. City of Morristown, Tennessee. |
| Court | U.S. District Court — Eastern District of Tennessee |
Gary A. Davis, Rebecca C. Vernetti, James S. Whitlock, Gary A. Davis & Associates, Hot Springs, NC, for Plaintiffs.
Gary C. Shockley, Baker, Donelson, Bearman & Caldwell, Nashville, TN, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Knoxville, TN, for Koch Foods, LLC.
Dan R. Pilkington, Jon G. Roach, Watson, Roach, Batson, Rowell & Lauderback PLC, Knoxville, TN, for City of Morristown, Tennessee.
The plaintiffs have filed this citizen's suit alleging violations of the Federal Water Pollution Control Act, commonly known as the Clean Water Act ("CWA"), 33 U.S.C. § 1251-1387 (2009), and state law nuisance, trespass, negligence, and inverse condemnation actions. This matter is before the Court on three separate motions for summary judgment. They are: (1) plaintiffs' motion for partial summary judgment as to both defendants, [Doc. 71]; (2) Defendant Koch Foods, LLC's ("Koch Foods") motion for partial summary judgment, [Doc. 63]1; and (3) Defendant City of Morristown's ("City") motion for summary judgment as to all claims, [Doc. 58]. The parties have filed lengthy responses and replies2, and all matters are ripe for review.3 The Court will discuss the issues in turn after summarizing the facts, including all pertinent permit clauses, and the standard of review.
The United States Environmental Protection Agency ("EPA") has issued the City a National Pollutant Discharge Elimination System permit ("NPDES permit"), No. TN 0023507, through the Tennessee Department of Environment and Conservation ("TDEC"), to which authority to implement the permitting provisions of the CWA have been delegated. The NPDES permit authorizes the Morristown Sewer Treatment Plant to discharge treated municipal wastewater into the Holston River at Mile 75. According to the permit, the City is a "control authority" for enforcing general pretreatment regulations. The City has contracted Veolia Water North America ("Veolia") for the operation of the Morristown sewer system. Under the NPDES permit and the Morristown Water Pollution Control Ordinance ("City Ordinance"), the City issues Industrial User Permits ("IUP") to industrial facilities. These permits authorize the discharge of wastewater into the Morristown sewer system under certain conditions.
More specifically, the permit states that the City "shall implement and enforce the Industrial Pretreatment Program in accordance with Section 403(b)(8) of the Clean Water Act, the Federal Pretreatment Regulations 40 CFR 403, Tennessee Water Quality Control Act Part 63-3-123 through 63-3-128 ...." The permit provides, in part, that the City shall:
a. Carry out inspection, surveillance, and monitoring procedures which will determine, independent of information supplied by the Industrial user (IU), whether the IU is in compliance with the pretreatment standards;
b. Require development, as necessary, of compliance schedules for each IU for the installation of control technologies to meet applicable pretreatment standards;
c. Require all industrial users to comply with all applicable monitoring and reporting requirements outlined in the approved pretreatment program and IU permit; [and]
d. Maintain and update, as necessary, records identifying the nature and character of industrial user discharges, and retain such records for a minimum of three (3) years[.]
....
In addition, the NPDES permit requires the City to "enforce 40 CFR 403.5 prohibited discharges." The permit also states that the City "shall at all times properly operate and maintain all facilities and systems (and related appurtenances) for collection and treatment which are installed or used by the [City] to achieve compliance with the terms and conditions of [the] permit." Finally, regarding overflows and upsets, the permits states, "Overflows are prohibited." An overflow "means the discharge to land or water of wastes from any portion of the collection, transmission, or treatment systems other than through permitted outfalls." An upset "means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based effluent limitations because of factors beyond the reasonable control of the [City]." Additionally,
An upset shall constitute an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the [City] demonstrates, through properly signed, contemporaneous operating logs, or other relevant evidence that:
i. An upset occurred and that the [City] can identify the cause(s) of the upset;
ii. The permitted facility was at the time being operated in a prudent and workmanlike manner and in compliance with proper operation and maintenance procedures;
iii. The [City] submitted information required under "Reporting of Noncompliance" within 24-hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days); and iv. The [City] complied with any remedial measures required under "Adverse Impact."
Koch Foods operates a poultry debone plant ("Plant 2") at 1620 Progress Parkway in the East Tennessee Progress Center Industrial Park ("ETPC"), Morristown, Tennessee. Plant 2 processes chickens by cutting the meat for breasts, wings, and tenders. The chickens are supplied by a separate Koch Foods facility in Morristown. After processing, the meat is taken to other Koch Foods facilities for cooking or further processing. The operations conducted at Plant 2 were once conducted at another Koch Foods facility ("Plant 1") located at 4901 East Morris Boulevard in Morristown. The operations of Plant 1 were transferred to Plant 2 in February 2005.
The City installed and operates (via Veolia) the Witt sewer line. The line includes four pump stations — Witt 1, Witt 2, Witt 3, and a station inside the ETPC. The sewer line runs from the ETPC through the Witt and Roe Junction Communities to the Morristown Sewer Treatment Plant.
On April 30, 2003, the City issued an Industrial User Permit ("IU permit"), No. 1017, to Koch Foods, Plant 1, which was to expire on May 1, 2005. The permit authorized the discharge of industrial wastewater into the Morristown sewer system from Plant 1's location on Morris Boulevard. In addition, it stated in Part one, section A, "During the period of May 1, 2003 to May 1, 2005, the permittee is authorized to discharge process wastewater to the City of Morristown sewer system from the below listed outfall(s)." These listed outfalls were named 001 and 002. Section B stated, The "Conventional Pollutants" category of this section listed 250 milligrams per liter of BOD and TSS and 100 milligrams per liter of FOG. The permit further stated that all three were "Subject to Surcharge Fee."
Also, Part five, section B, condition two stated, Condition five stated that the permit may be terminated for "failure to meet effluent limitations." Condition eleven stated the "General Prohibitive Standards," which included, in pertinent part:
The permittee shall not discharge wastewater into the public sewer, POTW [publicly owned treatment works], or any receiving stream any of the following described pollutants:
....
c. Solid of viscous substances such as ashes, cinders, sand, mud, straw, shavings, metal, glass, rags, feathers, tar, plastics, woods, paunch, or manure capable of causing obstructions or other interference with the proper operation of the treatment plant:
d. Any pollutant, including BOD and COD pollutants, released at a flow rate and/or pollutant concentration that either alone, or in interaction with other substances, will cause interference with the treatment plant or constitute an adverse environmental impact;
....
g. Pollutants which contain noxious, malodorous gases or substances in quantities that would constitute a public nuisance or hazard to life, or that might result in the creation of toxic gases, vapors, or fumes with the POTW;
....
p. Wastewater containing any element or compound known to act as a lacrimator, known to cause nausea, or known to cause odors constituting a public nuisance.
Furthermore, Section F stated that "significant noncompliance" includes:
a. Chronic violations of wastewater discharge limits, defined here as those in which sixty-six percent or more of all the measurements taken during a six-month period exceed (by any magnitude) the daily maximum limit or the average limit for the same pollutant parameter;
b. Technical Review Criteria (TRC) violations, defined here as those in which thirty-three percent or more of all the measurements for each pollutant parameter taken during a six-month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for all other pollutants except for pH).
Finally, Part six stated the following:
The City may accept waste for treatment at the POTW that contains excessive quantities of compatible pollutants. In the event the City elects to...
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