U.S. v. Alcoa Inc.

• Decision Date: 26 May 2000
• Docket Number: No. 4:99CV61AS.,4:99CV61AS.
• Citation: U.S. v. Alcoa Inc., 98 F.Supp.2d 1031 (N.D. Ind. 2000)
• Parties: UNITED STATES of America, Plaintiff, v. ALCOA INC., Defendants.
• Court: U.S. District Court — Northern District of Indiana

98 F.Supp.2d 1031

UNITED STATES of America, Plaintiff, v. ALCOA INC., Defendants.

No. 4:99CV61AS.

United States District Court, N.D. Indiana, South Bend Division.

May 26, 2000.

Clifford D. Johnson, United States Attorney's Office, South Bend, IN, Joseph Williams, United States Environmental Protection Agency, Office of Regional Counsel, Chicago, IL, Lois J. Schiffer, Francis J. Biros, David S. Christensen, Stacey H. O'Bryan, United States Department of Justice, Environmental Enforcement Section, Washington, DC, for Plaintiff.

Anthony S. Benton, Susan K. Roberts, William P. Kealey, Stuart and Branigin, Lafayette, IN, Diane W. Whitney, Ronald W. Zdrojeski, Lee D. Hoffman, James A. Thompson, LeBoeuf Lamb Greene and MacRae, Hartford, CT, Barry M. Hartman, Lance W. High, Kirkpatrick and Lockhart, Washington, DC, Richard W. Hosking, Paul K. Stockman, Kirkpatrick and Lockhart, Pittsburgh, PA, for Defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

This cause is before the Court on Alcoa Inc.'s Motion to Dismiss, or in the Alternative Motion to Strike dated August 20, 1999. Alcoa Inc. ("Alcoa") moves for dismissal of all counts related to the third paragraph of the Prayer for Relief in the Complaint filed by the Plaintiff United States of America for failure to state a claim for which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Alternatively, Alcoa moves this Court to strike the third paragraph of Plaintiffs Prayer for Relief pursuant to Fed.R.Civ.P. 12(f) because allegedly there is no legal basis to support that request. The third paragraph in the Plaintiffs Prayer for Relief requests that the Court "Order Defendant to develop and carry out a plan, subject to approval by the EPA, for appropriate remediation of contaminated sediments in the Elliot Ditch/Wea Creek watershed." The Plaintiff has also requested additional injunctive relief and civil penalties which could be in excess of ten million dollars. The only issue before the Court at this time is whether, as a matter of law, sediment remediation is an available remedy under Section 309(b) of the Clean Water Act. 33 U.S.C. § 1319(b). At a pretrial conference on January 14, 2000, the parties were given the opportunity to argue their motions. They were also allowed to submit unlimited supplemental briefs for the purpose of fully informing the Court on this issue. The Court has considered all the submissions of the parties, and for the reasons set out below, the Defendant's Motion to Dismiss for Failure to State a Claim is hereby DENIED.

I. BACKGROUND

In the process of producing aluminum ingots and other aluminum products, Alcoa, Inc. discharges a number of regulated substances from its Lafayette, Indiana facility into Elliot Ditch. The Ditch flows into Wea Creek, and ultimately into the Wabash River. These discharges are covered by a National Pollutant Discharge Elimination System (NPDES) permit which Alcoa received in 1985, and which authorizes the discharges with strict limits for certain pollutants. Alcoa is required to monitor its effluent discharges daily and report the results to the Indiana Department of Environmental Management (IDEM). Alcoa has exceeded its authorized discharge limitations on numerous occasions. Based on Alcoa's monthly Discharge Monitoring Reports (DMR's), the Lafayette plant exceeded its daily effluent discharge limits for a total of at least 408 separate violations between 1993 and 1999, and it continues to do so. (Compl. at ¶ 48). Each day a facility exceeds an effluent limit constitutes a separate violation and subjects Alcoa to fines of up to $25,000 per day for discharges before January 31, 1997, and $27,500 per day for discharges after that date. (Id. at ¶ 49 citing 33 U.S.C. § 1319(d)).

The Government alleges that Alcoa's discharge violations have contaminated the sediments in Elliot Ditch and Wea Creek to such an extent that these sediments now present a persistent and ongoing risk of harm to human health and the environment. The Government is most concerned about the presence of Polychlorinated Biphenyls (PCBs), which even at low levels may result in acute and chronic toxicity to human health and the environment. Indiana State health officials have advised that fish taken from Elliot Ditch and Wea Creek should not be eaten because PCB concentrations found in fish samples from the area were above the United States Food and Drug Administration action levels for PCBs. (Compl. at ¶ 13). Alcoa's own sampling has consistently revealed significant levels of PCBs in the sediments and in fish found downstream of the facility in the Elliot Ditch/Wea Creek watershed. (Gov.'s Br. in Res. at 6.) In addition, the Government alleges that Alcoa is the only Facility that uses Elliot Ditch and Wea Creek for industrial discharges, making it the sole source of PCBs and other contaminants to the watershed.

Alcoa used PCBs in its manufacturing processes from the 1950s through at least the 1970s, and some residue remains in equipment, buildings and soil. Alcoa's permit allows for the discharge of minute amounts of PCBs, but 63 test samples out of 2,049 taken since 1993 indicate an amount of PCBs in the effluent discharge in excess of the limit. PCBs absorb into organic sediments, resist breaking down, and tend to accumulate in greater amounts as they move upward through the food chain. (Gov.'s Br. in Res. at 6.)

Therefore, on June 11, 1999, the United States commenced this action against Alcoa for violating its NPDES permit pursuant to the Clean Water Act (CWA), FWPCA Section 402, 33 U.S.C. § 1319(b), in which it is seeking a variety of remedies. In addition to fines and an injunction that Alcoa comply with its permits, the Government has asked for an injunction requiring the Defendant to develop and carry out a plan, subject to approval by the EPA, for appropriate remediation of contaminated sediments in the Elliot Ditch/Wea Creek watershed. (Gov.'s Prayer for Relief at ¶ 3.) The Defendant challenges this remedy as unavailable under the statute in question and asks the Court to dismiss it under Fed.R.Civ.P. Rule 12(b)(6) for failure to state a claim, or in the alternative, to strike the third paragraph pursuant to Fed.R.Civ.P. Rule 12(f).¹

II. JURISDICTION

This cause of action arises under 33 U.S.C. § 1319(b), the enforcement provision of the Clean Water Act. The statute grants authority to United States district courts to grant appropriate relief, including a permanent or temporary injunction, to restrain violations and to require compliance.

III. STANDARD OF REVIEW

To succeed on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the defendant must prove that even assuming the plaintiffs allegations are true, the complaint fails to state a claim upon which relief can be granted. In reviewing a motion to dismiss, the court looks only at the legal sufficiency of the complaint and not the merits, Triad Assoc., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir.1989), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990), taking the plaintiffs factual allegations as true and drawing all reasonable inferences in the plaintiffs favor. Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850, 853 (7th Cir.1999). This does not mean, however, that the court is required to accept legal conclusions that may be alleged in the complaint or that may be drawn from the pleaded facts. Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 107 S.Ct. 2489, 96 L.Ed.2d 381, (1987); see also, Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir.1976). Dismissal is appropriate if it appears beyond doubt that no relief could be granted under any set of facts that could be proved in support of the plaintiffs claim. Veazey, 194 F.3d at 853, citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

IV. DISCUSSION

In 1972, Congress enacted the Clean Water Act (the "CWA"), for the stated purpose of restoring and maintaining the "chemical, physical and biological integrity of the nation's waters." FWPCA § 101(a); 33 U.S.C. § 1251(a). Congress declared it to be a national priority to clean up the nation's sadly polluted waterways and make them safe for fish, wildlife, and recreation in and on the water. It is now the "national policy" that the "discharge of toxic pollutants in toxic amounts" shall be prohibited. FWPCA § 101(a)(3); 33 U.S.C. § 1251(a)(3). Beginning with Section 301, the Act establishes a broad prohibition against "the discharge of any pollutant by any person" unless the discharge is in compliance with the Act's permit requirements, effluent limitations, and other enumerated provisions. FWPCA § 301(a); 33 U.S.C. § 1311(a).

Section 309(b) is the enforcement provision for violations of Section 402, which requires a permit for effluent discharges (an "NPDES Permit"), and § 404, which requires a permit for dredge and fill activities affecting navigable waters, including wetlands. FWPCA §§ 309(b), 402 and 404; 42 U.S.C. §§ 1319(b), 1342 and 1344. Section 309(b) gives the Administrator the authority to bring suit in federal district court for "appropriate relief, including a permanent or temporary injunction," and grants the district court "jurisdiction to restrain such violations and to require compliance." FWPCA § 309(b); 33 U.S.C. § 1319(b). The sole issue before the Court at this time is the scope of the court's discretion to fashion an equitable remedy under Section 309(b) of the Clean Water Act. The Government asserts that the jurisdictional language "to restrain such violations and to require compliance" is broad enough to encompass the remedy it seeks, an injunction ordering Alcoa to clean up sediments allegedly contaminated with PCBs as a direct result of Alcoa's violations of its NPDES Permits. The Government asserts that traditional concepts of a court's equitable discretion and the purposes of the Clean Water Act support its...