United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE.
this Court is Metro Recycling Inc.
(“Metro”)'s Motion to Dismiss. (Doc. 4.) The
Motion has been fully brief and is now ripe for decision. For
the reasons described below, the Motion is due to be GRANTED.
owns and formerly operated a used-tire landfill, which
discharges pollutants into tributaries of Whites Creek, which
is itself a tributary of the Locust Fork of the Black Warrior
River. Members of Black Warrior Riverkeeper
(“Riverkeeper”) and Friends of Locust Fork River
(“FLFR”) (collectively “Plaintiffs”)
seek to recreate in the Locust Fork of the Black Warrior
River downstream from Metro's landfill. These parties
have engaged in past litigation under the Clean Water Act
(“CWA”) over the discharge of pollutants from
Metro's landfill. This litigation has resulted in a
number of settlement agreements between the parties.
filed their first suit on August 21, 2007 to halt the
discharge of pollutants from Metro's landfill without
first obtaining a National Pollutant Discharge Elimination
System (“NPDES”) permit as required under federal
and state law. The parties settled the action on October 15,
2008, executing a Settlement Agreement and Consent Decree
(the “Original Decree”). The Original Decree
included in its terms a requirement to discharge pollutants
only as allowed under an NPDES permit.
elected to close the landfill rather than continuing to
operate it. This did not affect its obligations under the
Original Decree, which included the creation of a
“run-off control system” and ceasing further
discharge of pollutants above a stated concentration from the
site. Plaintiffs and Metro continued negotiations on how to
ensure compliance with the Original Decree, which culminated
in the Second Settlement Agreement and Consent Decree (the
Second Decree further modified and supplemented the duties of
Metro stated in the Original Decree. It required Metro to
complete the closure of the landfill in accordance with a
Modified Closure Plan approved by the Alabama Department of
Environmental Management (“ADEM”). The Modified
Closure Plan laid out the requirements that Metro needed to
fulfill before it could complete its closure of the landfill.
Metro also agreed in the Second Decree that it would build a
retention basin that would capture runoff or seeps from the
landfill. The basin would be constructed according to
industry standards and Best Management Practices and in a way
that would prevent additional sediment and pollutants from
entering the tributary of White's Creek. After closure,
Metro was to conduct quarterly water monitoring at the top of
the retention basin spillway. If sampling indicated that the
retention basin was not working as intended, Metro agreed to
take corrective action.
January 28, 2016 Plaintiffs witnessed a discharge from the
landfill's retention basin, which they sampled. Test
results that were returned on February 3, 2016, measured a
Total Suspended Solids level of 89 mg/L, even though under
the Second Decree the TSS level of any discharge was not to
exceed 35 mg/L. Plaintiffs stated that the retention basin
was not functioning properly upon their visit even though the
state was in a drought condition at the time.
to 33 U.S.C. §§ 1365(b)(1)(A) and 40 C.F.R. §
135.3, Plaintiffs sent Metro a notice of their intent to sue
for the CWA violations alleged in this Complaint dated March
23, 2017. Plaintiffs sent the same notice to both
the Administrator of the Environmental Protection Agency
(“EPA”), the Regional Administrator of Region IV
of the EPA, and the Director of the Alabama Department of
Environmental Management (“ADEM”).
Plaintiffs' notice letter included the following:
[O]n February 3, 2016, Riverkeeper conducted sampling of the
outfall at the Retention/Settlement Pond during a site
inspection. The parties agreed to a limit of 35 mg/L for
Total Suspended Solids for any discharges at this outfall.
Second Decree ¶ II.L. However, the sample test result
for TSS on this date was 89 mg/L, over twice the stipulated
The failure to comply with the Second Decree's CWA
requirements and the February 3, 2016 violation demonstrate a
continuing pattern of pollution at Metro's landfill which
degrades and threatens waters of the U.S. in violation of the
CWA and state law, a pattern the previous litigation was
supposed to stop.
parties agree that the notice of intent states the violation
occurred on February 3, 2016 when it actually occurred on
Jan. 28, 2016.
Standard of Review
has challenged the sufficiency of Plaintiffs' Complaint
under Federal Rule of Civil Procedure 12(b)(1) and (b)(6).
The Court must “inquire into whether it has subject
matter jurisdiction at the earliest possible stage in the
proceedings.” Univ. of S. Alabama v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999). “The
burden for establishing federal subject matter jurisdiction
rests with the party bringing the claim.” Sweet Pea
Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247
(11th Cir. 2005).
regards to Federal Rule of Civil Procedure 12(b)(6), a
pleading that states a claim for relief must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
However, the facts alleged in the complaint must be specific
enough that the claim raised is “plausible.”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its
face.” (emphasis added)). A claim for relief is
plausible on its face when the complaint's “factual
content . . . allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Resnick v. AvMed, Inc., 693 F.3d
1317, 1325 (11th Cir. 2012) ...