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Black Warrior Riverkeeper, Inc. v. Southeastern Cheese Corporation

United States District Court, S.D. Alabama, Northern Division

January 24, 2017

BLACK WARRIOR RIVERKEEPER, INC., Plaintiff,
v.
SOUTHEASTERN CHEESE CORPORATION, et al., Defendants.

          ORDER

          KRISTI K. DuBOSE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants Southeastern Cheese Corporation and Southeastern Energy and Fertilizer, LLC (hereinafter “SCC”)'s Motion to Dismiss (Doc. 7), which has been converted to a motion for summary judgment (Doc. 20), Plaintiff Black Warrior Riverkeeper, Inc. (“Riverkeeper”)'s Response to SCC's Motion to Dismiss (Doc. 12), SCC's Reply (Doc. 14), Riverkeeper's Supplemental Brief (Doc. 17), SCC's Supplemental Reply Brief (Doc. 18), and Riverkeeper's Brief in Opposition (Doc. 23). After consideration of all briefs and evidence submitted, testimony and arguments presented at the evidentiary hearing conducted by the Court on December 7, 2016, and the relevant law, the Court finds that SCC's Motion for Summary Judgment is GRANTED for the reasons set forth herein. Accordingly, SCC's motion for leave to file a reply (Doc. 25) is MOOT.

         I. Introduction/Proceedings

         On June 5, 2015, the Alabama Department of Environmental Management (“ADEM”) filed a complaint against SCC in the Circuit Court of Marengo County, Alabama for alleged violations of the Alabama Water Pollution Control Act (“AWPCA”) and ADEM regulations arising out of two separate occurrences, including an illegal discharge into the unnamed tributary (“UT”) to Cottonwood Creek on April 1, 2015. (Doc. 1-1 at pp. 10-14). At the time, SCC did not have a National Pollutant Discharge Elimination System (“NPDES”) permit to discharge into the UT to Cottonwood Creek. (Doc. 1-1 at p. 13). ADEM sought injunctive relief and a civil penalty. (Doc. 1-1 at pp. 13-14).

         On August 6, 2015, at the request of ADEM and SCC, the Circuit Court of Marengo County entered a Consent Decree. (Doc. 7-1 at pp. 5-25). Pursuant to the Consent Decree, SCC has two choices to address its violations of the Clean Water Act (“CWA”): 1) SCC can submit a revised Nutrient Management Plan (“NMP”) to ADEM, along with an Engineering Report containing a schedule for implementation of the NMP and details describing how SCC will implement its NMP to ensure that SCC's wastewater will be applied in a beneficial manner and not discharged into the UT or, 2) SCC can submit to ADEM an application to discharge a NPDES permit for stormwater runoff from the spray fields. (Doc. 7-1 at p. 10).

         The Consent Decree further provides that after submittal to and acceptance by ADEM of the required NMP or application for NPDES permit, SCC must comply with the NMP or the NPDES permit. (Doc. 1-1 at p. 11). The Consent Decree sets forth civil penalties that were paid by SCC, including $30, 000 to the Alabama Clean Water Partnership and $20, 000 to ADEM, for violations through June 2015. (Doc. 7-1 at pp. 11-12). The Consent Decree also contains a provision for per day penalties to be paid by SCC for future failure to comply with requirements of the Decree, up to $12, 000. (Doc. 7-1 at pp. 12-13). The Circuit Court of Marengo County retained jurisdiction for the purpose of implementing and enforcing the terms and conditions of the Consent Decree and for the purpose of adjudicating any dispute that might arise between the parties under the Consent Decree. (Doc. 7-1 at p. 15). The case remains pending in the Circuit Court of Marengo County. (Doc. 21 at p. 57). Riverkeeper has not intervened in the Marengo County case.

         On December 24, 2015, Riverkeeper provided SCC with notice of alleged violations of the CWA and its intent to file suit after 60 days if the alleged violations continued. (Doc. 1 at p. 5). Riverkeeper alleged that SCC violated the CWA by intentionally discharging wastewater into the UTS of cottonwood creek from its engineered pipe at Sprayfield # 1 on November 1, 3, and 4 and on December 17 through December 22, 2015. (Doc. 1 at pp. 16-17). Riverkeeper also alleged that SCC violated the CWA by discharging wastewater from its engineered pipe at Sprayfield #2 on November 9 and December 14, 17, and 18, 2015. (Doc. 1 at p. 20).[1] On February 25, 2016, Plaintiff filed its complaint against Defendants alleging that SCC violated the CWA by illegally discharging industrial wastewater into UTs of Cottonwood Creek and, ultimately, into Cottonwood Creek (Doc. 1 at p. 1). Riverkeeper seeks injunctive relief, assessment of civil penalties, and an award of litigation fees. (Doc. 1).

         On March 22, 2016, SCC filed a motion to dismiss Riverkeeper's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted and pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. (Doc. 7). The primary basis for SCC's motion is its argument that ADEM is currently diligently prosecuting it for unpermitted discharges from its sprayfields, which are the same complaints made in Riverkeeper's action, and Riverkeeper is, therefore, precluded from maintaining a citizen suit. (Doc. 7 at pp. 1-3).

         On December 7, 2016, the Court held an evidentiary hearing regarding subject matter jurisdiction. On December 15, 2016, the Court converted the motion to dismiss (Doc. 7) to a motion for summary judgment. (See Doc. 20).

         II. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other ...

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