StarLink Logistics Inc. v. ACC, LLC

642 F.Supp.3d 652

STARLINK LOGISTICS INC., Plaintiff, v. ACC, LLC and Smelter Service Corp., Defendants.

No. 1:12-cv-00011

United States District Court, M.D. Tennessee, Nashville Division, Nashville Division

Filed November 23, 2022

Ariel Mestel Fox, Chris Kim Kahn, Christopher S. Habel, Simon Y. Svirnovskiy, Stephen N. Haughey, Frost, Brown & Todd, LLC, Cincinnati, OH, Katharine B. Fischman, Lucas T. Elliot, Frost Brown Todd LLC, Nashville, TN, for Plaintiff.

Charles M. Molder, Dalton M. Mounger, Kori Jones, Mounger & Molder, PLLC, Columbia, TN, Clifton David Briley, Sharon Orenstein Jacobs, William Joseph Haynes, III, Bone, McAllester & Norton, PLLC, Nashville, TN, for Defendants.

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Many federal environmental laws—including the Clean Water Act, 33 U.S.C. §§ 1251-1389 ("CWA"), and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k ("RCRA")—contain "citizen-suit" provisions. These provisions authorize "interstitial" enforcement by private citizens, but only when the government has been properly offered the chance to bring its own enforcement action and has failed to do so. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60-61, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In this case, the latest chapter in the long-running legal saga between Plaintiff StarLink Logistics, Inc. ("Plaintiff") and Defendant ACC, LLC ("Defendant"), Plaintiff asserts citizen-suit claims under the CWA and RCRA, alleging that Defendant has for decades unlawfully discharged pollution from a now-closed landfill into a stream and lake on Plaintiff's neighboring property.

Now pending before the Court are three dispositive motions: Defendant's Motion for Judgment on the Pleadings (Doc. No. 247), and two cross-motions for summary judgment, one filed by Plaintiff (Doc. No. 257) and one by Defendant (Doc. No. 254). All three motions are accompanied by supporting memoranda of law (Doc. Nos. 248, 255, 258), and all three are fully briefed and ripe for decision with Responses (Doc. Nos. 252, 265, 270) and Replies (Doc. Nos. 253, 272, 274) having been filed.

Plaintiff's claims do not respect the limited role of the citizen suit. In particular, Plaintiff's citizen-suit claims run headlong into a decade-old consent order designed to address the concerns of the Tennessee Department of Environment and Conservation ("TDEC") with respect to the landfill. Under that consent order, it is undisputed that Defendant has already excavated the waste from the former landfill and relocated it to a separate, lined area. Plaintiff cannot simply plow forward with its claims as though the consent order did not exist. Doing so would threaten to "change the nature of the citizens' role from interstitial to potentially intrusive"—a result the Supreme Court has warned against. See Gwaltney, 484 U.S. at 61, 108 S.Ct. 376.

For these reasons, and those that follow, Defendant's Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. Further, to the extent that Plaintiff's claims are not included within the Court's grant of summary judgment, Plaintiff's claims will be DISMISSED for lack of subject-matter jurisdiction. Plaintiff's cross-motion will accordingly be DENIED, and Defendant's Motion for Judgment on the Pleadings will be DENIED as moot.

BACKGROUND

I. Factual Background¹

The procedural history of this case is tortuous, and some of the legal issues implicated are complex. However, the underlying material facts are straightforward and undisputed.

Plaintiff and Defendant are neighboring landowners in Maury County, Tennessee. Defendant was created to establish a landfill on its property (the "Landfill") dedicated solely to receiving waste from defendant Smelter Service Corp.'s operations.²

(Doc. No. 266 at ¶ 1). Defendant constructed and operated the Landfill pursuant to a "registration" or "permit" issued on July 1, 1981 by the Tennessee Department of Public Health (the predecessor to TDEC). (Id. at ¶ 2; Doc. No. 271 at ¶ 8). Defendant operated the Landfill between August 1981 and September 1, 1993. (Doc. No. 266 at ¶ 3; Case No. 1:18-cv-00029, Doc. No. 119 at ¶ 17). During that time, the only waste disposed in the Landfill consisted of byproducts from Smelter Service Corp.'s aluminum recycling operations at its secondary aluminum smelting plant—specifically, byproducts known as aluminum "slag" (also called "salt cake") and "baghouse dust." (Doc. No. 266 at ¶¶ 1, 3, 5-7; Case No. 1:18-cv-00029, Doc. No. 119 at ¶¶ 14-15). TDEC accepted the closure of the Landfill in 1996. (Doc. No. 271 at ¶ 9; Case No. 1:18-cv-00029, Doc. No. 119 at ¶ 19).

Plaintiff owns a 1,485-acre tract of land located at 786 Arrow Lake Road in Mount Pleasant, Tennessee, which is directly adjacent to, and downstream from, Defendant's property. (Doc. No. 266 at ¶ 9; Case No. 1:18-cv-00029, Doc. No. 119 at ¶¶ 1, 12). A stream, known as Sugar Creek, is impounded to form Arrow Lake on Plaintiff's property. (Case No. 1:18-cv-00029, Doc. No. 119 at ¶ 2).

Soon after Defendant began disposing of Smelter Service Corp.'s salt cake and baghouse dust, waste in the Landfill came into contact with groundwater. (Doc. No. 266 at ¶ 11.) As groundwater infiltrated the waste, it formed something known as "leachate"—essentially, a substance consisting of dissolved chloride salts and ammonia that have leached out of the waste and into the water. (Id. at ¶ 12).³ Plaintiff's claims against Defendant in this case are all based on leachate and sediment emanating from the Landfill and entering Sugar Creek and Arrow Lake.

II. Procedural Background

To put this case in its proper context, it is necessary to describe in some detail the administrative, state-court, and federal-court proceedings that have taken place over the last decade involving remediation of the Landfill.

A. TDEC's Enforcement Efforts and the 2012 Consent Order

TDEC and Defendant have long been aware of, and have long been attempting to remedy, problems with leachate emanating from waste in the Landfill. The Tennessee Supreme Court described the lengthy history of TDEC and Defendant's efforts at remediation, from the 1980s through early 2011, as follows:

TDEC and ACC learned, within a few years of when the landfill became operational, that high levels of chlorides and ammonia were being discharged from the landfill into groundwater and surface water that drained into Sugar Creek and Arrow Lake. The leaching of chloride and ammonia continued after the landfill's closure and caused areas west of the landfill, including Sugar Creek and Arrow Lake, to become polluted. ACC worked with TDEC to identify and remedy the leaching. ACC performed extensive investigative efforts to determine the cause of the leaching and performed multiple remedial measures but was unsuccessful in abating the pollution. In December 2003, at TDEC's request, ACC submitted a Corrective Action Plan ("the Plan") that evaluated available data, described the limitations of available options due to the site conditions, and identified three remaining options to mitigate the release of contaminated leachate from the landfill: clean closure/waste removal, leachate collection/treatment, and natural or enhanced site attenuation.... After a January 2004 public meeting, TDEC approved ACC's plan to build a wetlands system downgradient of the site to retain and buffer leachate and improve water quality and habitat. The wetlands system was constructed but was not successful.

In June 2008, TDEC requested that ACC submit a modified plan because the rate of discharge of contaminants from groundwater was increasing. In August 2008, ACC submitted a modified plan ("the Modified Plan") that TDEC approved in April 2010. The Modified Plan acknowledged that the discharge problem stemmed from a failure to accurately characterize the landfill's hydrogeology features during the permitting and development process, identified options for reducing the release of chlorides from the landfill and for removal of the contaminated material, and provided a strategy and schedule to evaluate, select, and implement ways to address the contaminated discharge....

In January 2011, representatives of ACC and TDEC's Divisions of Solid Waste Management and Water Pollution Control met to discuss the necessary level of contaminant reduction for Sugar Creek. ACC discussed the potential remedy of removing the waste from the landfill and planned to do test excavations of waste material to assess the feasibility of the remedy.

StarLink Logistics Inc. v. ACC, LLC, 494 S.W.3d 659, 662-63 (Tenn. 2016) (footnote omitted).

In June 2011, TDEC and Defendant's longstanding negotiations culminated in an administrative consent order. (Case No. 1:18-cv-00029, Doc. No. 119 at ¶ 37; see Doc. No. 16-2). The consent order was filed in Davidson County Chancery Court pursuant to provisions of Tennessee law that authorize TDEC and private parties to submit consent orders for judicial approval in order to obtain the legal force of a court judgment. (Case No. 1:18-cv-00029, Doc. No. 119 at ¶ 37.)

Plaintiff intervened in the Chancery Court action to challenge the adequacy of the consent order. StarLink Logistics, Inc. v. ACC, LLC, No. 12-1435-II, 2014 WL 7001397, at *3 (Tenn. Ch. Jan. 29, 2014). After Plaintiff, Defendant, and TDEC tried (and failed) to privately resolve the disagreement over the scope of the consent order, the Chancery Court dismissed Defendant's petition seeking approval of the consent order and remanded the matter to the Tennessee Solid Waste Disposal Board (the "Board") for a contested case hearing. Id. at *3-4.

On May 17, 2012, TDEC notified Plaintiff that TDEC and Defendant would submit an Amended and Restated Consent Order (the "2012 Consent Order," see Doc. No. 41-17 at 34-59) to the Board for approval. Id. at *4. The 2012 Consent Order went well beyond the original consent order in terms of the concrete action...