United States District Court, S.D. Alabama, Northern Division
K. DuBOSE, UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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). 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).
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.
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).
Summary Judgment Standard
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.
need consider only the cited materials, but it may consider