Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Black Warrior Riverkeeper, Inc. v. Metro Recycling Inc.

United States District Court, N.D. Alabama, Southern Division

December 18, 2017

BLACK WARRIOR RIVERKEEPER, INC., et al., Plaintiffs,
v.
METRO RECYCLING, INC., Defendant.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Background

         Metro 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.

         Plaintiffs 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.

         Metro 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”).

         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.

         On 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.

         Pursuant 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.[1] 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 limit.
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.

         The parties agree that the notice of intent states the violation occurred on February 3, 2016 when it actually occurred on Jan. 28, 2016.

         II. Standard of Review

         Metro 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).

         In 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) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.