Flint Riverkeeper, Inc. v. S. Mills, Inc.

276 F.Supp.3d 1359

FLINT RIVERKEEPER, INC., et al., Plaintiffs,

v.SOUTHERN MILLS, INC., d/b/a TenCate Protective Fabrics, Defendant.

No. 5:16–CV–435 (CAR)

United States District Court, M.D. Georgia, Macon Division.

Signed May 12, 2017

Donald D.J. Stack, Tyler Joseph Sniff, Stack & Associates, P.C., Robert Hutton Brown, Atlanta, GA, for Plaintiffs.

Gregory W. Blount, Gainesville, GA, Justin T. Wong, William Middleton Droze, Atlanta, GA, for Defendant.

ORDER ON MOTION TO DISMISS

C. ASHLEY ROYAL, SENIOR JUDGE

Plaintiffs Flint Riverkeeper, Inc., Jere Michael Cox, Shelby Cox Moore, Granville Cliff Moore, and Sean Draime claim Defendant Southern Mills's discharge of industrial wastewater violates the Federal Water Pollution Control Act of 1972 (Clean Water Act, or CWA), 33 U.S.C. §§ 1251, et seq. , and Georgia law. Before the Court is Defendant's Motion to Dismiss. The Court has carefully considered the parties' arguments and the relevant law, and finds Plaintiffs' CWA claim, and by extension Plaintiffs' state-law claims, are properly before this Court under Rules 12(b)(1) and 12(b)(6). Thus, the Court DENIES Defendant's Motion to Dismiss [Doc. 11]. The Court also DENIES Plaintiffs' Motions for Hearing and Leave to File Surreply [Docs. 15, 16] as unnecessary.

BACKGROUND

In this suit, Plaintiffs allege Defendant is violating the CWA and certain state laws by unlawfully discharging polluted industrial wastewater into tributaries of the Flint River, both overland and via groundwater with a direct hydrological connection to surface water. Defendant seeks dismissal of Plaintiffs' CWA claim, contending the Court lacks subject matter jurisdiction, and Plaintiffs fail to state a claim under the CWA. Upon dismissal, Defendant then asks the Court to decline supplemental jurisdiction over Plaintiffs' state-law claims. For purposes of this Motion, the Court accepts all factual allegations in Plaintiffs' Amended Complaint as true and construes them in the light most favorable to Plaintiff.

Defendant's Land Application System

Defendant manufactures protective fabrics at Plant Ray, a dyeing and finishing facility in Molena, Georgia. Defendant utilizes a land application system (LAS) to treat industrial wastewater generated at Plant Ray. In an LAS, a manufacturer irrigates pretreated wastewater on the ground, allowing vegetation and soil bacteria to break down pollutants.¹ Defendant's LAS consists of three spray fields, where Defendant discharges its wastewater through a series of spray heads.²

Because Defendant sprays excess amounts of industrial wastewater containing high levels of sodium, the spray fields have lost soil structure and become oversaturated.³ Consequently, wastewater leaves the spray fields both over the land and under the land. The overland wastewater discharges occur during precipitation events, when storm water washes Defendant's wastewater from the spray fields over the land, along ditches and other channels on Defendant's property, and directly into surface waters.⁴ The underground wastewater discharges occur when Defendant's wastewater seeps underneath the spray fields and enters surface waters indirectly through groundwaters that have a direct hydrological connection to surface waters.⁵ As a result, Defendant's wastewater enters tributaries of the Flint River by both overland and underground routes.⁶

Plaintiff Flint Riverkeeper is a Georgia non-profit corporation dedicated to restoring and preserving the habitat along the Flint River. Plaintiffs Cox, Shelby Moore, Granville Moore, and Draime own real property adjacent to various Flint River tributaries. Upon sampling the water on their properties, Plaintiffs discovered high levels of sodium, calcium, potassium, nitrates, and other chemicals.⁷

Defendant's Permits

Defendant possesses two state-issued permits relevant to this case: (1) a National Pollutant Discharge Elimination System (NPDES) permit; and (2) an LAS permit. An NPDES permit allows the discharge of specified wastewater otherwise prohibited by the CWA.⁸ Defendant maintains an NPDES permit authorizing the discharge of storm water mixed with certain pollutants from its LAS fields.⁹ Defendant's LAS permit allows Defendant to operate its LAS under Georgia law provided Defendant complies with various effluent limitations and monitoring requirements.¹⁰

Federal Lawsuit

In accordance with the CWA, Plaintiffs mailed Defendant a Notice of Intent to Sue if Defendant continued to discharge wastewater from its LAS (the "Notice Letter").¹¹ Because Defendant continued its discharge, Plaintiffs filed suit on September 30, 2016, raising a claim under the CWA and claims under Georgia law for trespass, nuisance, and negligence.¹² Plaintiffs seek damages, civil penalties under the CWA, and a permanent injunction requiring Defendant to comply with the CWA. Defendant's Motion to Dismiss is now ripe for ruling.

DISCUSSION

The CWA prohibits the discharge of any pollutant into "navigable waters" except as authorized by specified sections of the Act.¹³ To enforce this prohibition, the CWA enables citizens to file a civil action against any person violating the Act.¹⁴ Defendant contends Plaintiffs' CWA claim must be dismissed for lack of subject matter jurisdiction and failure to state a claim.¹⁵ The Court discusses each in turn below.

A. Lack of Subject Matter Jurisdiction

Defendant contends the Court must dismiss Plaintiffs' CWA claim for lack of subject matter jurisdiction because Plaintiffs fail to allege ongoing violations of the CWA. The Court disagrees.

1. Legal Standard

District courts are courts of limited jurisdiction and may not hear a case where the court lacks jurisdiction over the subject matter of the dispute.¹⁶ The party bringing the claim bears the burden of establishing subject matter jurisdiction.¹⁷ A motion to dismiss for lack of subject matter jurisdiction may be based on either a facial or factual challenge to the complaint.¹⁸ Facial attacks require the court to accept the allegations set forth by plaintiff as true and determine from the face of the complaint whether "the plaintiff has sufficiently alleged a basis of subject matter jurisdiction."¹⁹ "In this sense, a facial challenge equips a plaintiff with safeguards similar to those afforded by a Rule 12(b)(6) motion for failure to state a claim and limits the court to a comparable scope of review."²⁰ "If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."²¹

2. Analysis

The CWA confers jurisdiction over citizen suits "for ongoing or continuous violations, not for those that are wholly in the past."²² Thus, for jurisdictional purposes, the plaintiff must allege "a state of either continuous or intermittent violation—that is, a reasonable likelihood that a past polluter will continue to pollute in the future."²³ "[A] good-faith allegation of violations that continued at the time suit was filed is sufficient for jurisdictional purposes."²⁴

Here, Plaintiffs' allegations easily satisfy this "low standard."²⁵ In the Complaint, Plaintiffs allege Defendant's "LAS is overburdened and oversaturated" with polluted wastewater, causing "loss of soil structure and increased runoff," and thus Defendant's unpermitted discharges of wastewater "are continuous or intermittent [or] have the potential to recur."²⁶ Although Defendant argues it ceased discharging polluted wastewater after receiving Plaintiffs' Notice Letter, Plaintiffs clearly allege Defendant "has refused and failed to cease the violations of the CWA alleged in the Notice Letter."²⁷ Accepting these allegations as true for purposes of this Motion, the Court finds Plaintiffs have established subject matter jurisdiction.

B. Failure to State a Claim

Defendant also contends the Court must dismiss Plaintiffs' Complaint for failure to adequately state a CWA claim.

1. Legal Standard

Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief."²⁸ Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."²⁹ In the same vein, a complaint may not rest on "naked assertions devoid of further factual enhancement."³⁰ "Factual allegations must be enough to raise a right to relief above the speculative level."³¹

On a motion to dismiss, the Court must accept as true all well-pleaded facts in a plaintiff's complaint.³² To avoid dismissal pursuant to Rule 12(b)(6) of the Federal Rules, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."³³ A claim is plausible where the plaintiff alleges factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."³⁴ The plausibility standard requires that a plaintiff allege sufficient facts "to raise a reasonable expectation that discovery will reveal evidence" that supports a plaintiff's claims.³⁵

2. Analysis

To establish a CWA violation, a citizen-plaintiff must prove the defendant (1) discharges a pollutant (2) into "navigable waters" (3) from a point source (4) without an NPDES permit.³⁶ Here, Defendant seeks dismissal because (1) its discharge of pollutants into groundwaters does not constitute discharge into "navigable waters"; (2) its LAS is not a point source; and (3) it is operating in accordance with its NPDES permit.³⁷ The Court addresses each argument below.

a. Navigable Waters

Plaintiffs allege Defendant's wastewater discharge enters Flint River tributaries by both overland and underground routes. Defendant does not challenge the sufficiency of Plaintiffs' allegations that the overland discharge enters "navigable waters." However, Defendant does seek dismissal of Plaintiffs' claim regarding groundwater, arguing its discharge of pollutants into...