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

Filing 11

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/18/2017. (PSM)

FILED
2017 Dec-18 AM 09:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLACK WARRIOR
RIVERKEEPER, INC., et al.,
Plaintiffs,
vs.
METRO RECYCLING, INC.,
Defendant.

)
)
)
)
)
)
)
)

2:17-cv-01050-LSC

Memorandum of Opinion
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
Page 1 of 18

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
Page 2 of 18

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

Page 3 of 18

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

1

The Court may properly examine both the face of the Complaint and any documents attached to
it when analyzing a motion to dismiss. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,
1284 (11th Cir. 2007). Plaintiffs have attached to their Complaint (1) a copy of the notice of intent
to sue, (2) a copy of the Second Settlement Agreement and Consent Decree, and (3) this Court’s
Order in the identically named case Black Warrior Riverkeeper, Inc. v. Metro, 2:07-cv-1527-LSC
(N.D. Ala. Mar. 10, 2014). The Court considers these documents in its Opinion.
Page 4 of 18

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)
(quoting Iqbal, 556 U.S. at 678). Conclusory statements of law may “provide the
framework of a complaint,” but the plaintiff is required to support them with
“factual allegations.” Iqbal, 556 U.S. at 679.

Page 5 of 18

The process for evaluating the sufficiency of a complaint has two steps. The
court “begin[s] by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679. Conclusory
statements and recitations of a claim’s elements are thus disregarded for purposes
of determining whether a plaintiff is entitled to survive a motion to dismiss. Id. at
678. Next, the court “assume[s] [the] veracity” of “well-pleaded factual
allegations” and “determine[s] whether they plausibly give rise to an entitlement
to relief.” Id. at 679. A complaint’s factual matter need not be detailed, but it
“must . . . raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
Documents which are incorporated as exhibits to the complaint may be
considered without converting a Fed. R. Civ. P. 12(b) motion to dismiss into a Fed.
R. Civ. P. 56 motion for summary judgment. Horsley v. Feldt, 304 F.3d 1125, 1134
(11th Cir. 2002); see also Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). “A
copy of a written instrument that is an exhibit to a pleading is a part of the pleading
for all purposes.” Fed. R. Civ. P. 10(c). “Where there is a conflict between
allegations in a pleading and exhibits thereto, it is well settled that the exhibits
control.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007) (quoting
Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940)).
Page 6 of 18

III.

DISCUSSION
A. COUNTS I & II: CLEAN WATER ACT VIOLATIONS
a. SUFFICIENCY OF NOTICE OF INTENT TO SUE
Plaintiffs assert Metro is in violation of Sections 301 and 402 of the CWA, 33

U.S.C. §§ 1311 and 1342, for discharging pollutants into the waters of the United
States or waters of the States without a permit issued pursuant to the NPDES.
They seek damages and an injunction against further violations by Metro. Before
the Court can reach the sufficiency of Plaintiffs’ allegations, it must determine
whether Plaintiffs have complied with the CWA’s notice-of-intent requirements
under § 1365(b). For Plaintiffs’ counts alleging CWA violations to avoid dismissal,
they must comply with § 1365(b). Section 1365(b) provides, “No action may be
commenced . . . prior to sixty days after the plaintiff has given notice of the alleged
violation (i) to the Administrator, (ii) to the State in which the alleged violation
occurs, and (iii) to any alleged violator of the standard, limitation, or order . . . .” 33
U.S.C. § 1365.
Hallstrom v. Tillamook County interpreted a provision in the Resource
Conservation and Recovery Act (“RCRA”) which contains similar wording to
§ 1365(b). Hallstrom held that the RCRA’s 60-day notice-of-intent requirement
was mandatory. 493 U.S. 20 (1989). Thus when a plaintiff does not send a notice of
Page 7 of 18

intent sixty days prior to beginning a suit, her complaint must be dismissed.
Because § 1365(b) of the CWA is a “direct analogue” of the notice-of-intent
provision of the RCRA, the Eleventh Circuit has held “the 60-day notice
requirement of 33 U.S.C. § 1365(b) is a mandatory condition precedent to the filing
of a citizen suit under the Clean Water Act.” Nat’l Envtl. Found. v. ABC Rail
Corp., 926 F.2d 1096, 1097 (11th Cir. 1991). “If a plaintiff fails to comply with this
notice requirement where it is applicable, the district court is required to dismiss
the action.” Id. at 1097-98.
The parties agree Plaintiffs have sent Metro, the Administrator of the EPA,
the Regional Administrator of Region IV of the EPA, and the Director of ADEM
notice-of-intent letters sixty days before commencing this suit. Their dispute,
therefore, is not about whether Plaintiffs have failed to comply with mandatory
statutory requirement of sending notice-of-intent letters as stated in Hallstrom and
applied to the CWA by ABC Rail Corp. Instead the parties argue about whether
Plaintiffs’ notice of intent complies with 40 C.F.R. § 135.3, which was created by
the Administrator of the EPA pursuant to authority granted to him by 33 U.S.C.
§ 1365(b). The Administrator of the EPA specified that notices of intent:
shall include sufficient information to permit the recipient to identify
the specific standard, limitation, or order which has allegedly been
violated, the activity alleged to be in violation, the person or persons
responsible for the alleged violation, the location of the alleged
Page 8 of 18

violation, the date or dates of such violation, and the full name and
address of the person giving the notice.
40 C.F.R. § 135.3 (emphasis added).
The chief defect in Plaintiff’s notice of intent is an erroneous statement of
the date on which Metro’s violation of the CWA occurred. The parties agree that
the actual date that Plaintiffs collected the run-off from Metro’s retention basin
was on January 28, 2016. Test results taken from that sample were received on
February 3, 2016, and indicated a heightened TSS. The parties further agree that
the notice of intent stated that the violation of the CWA occurred on February 3,
2016—and not on the date the Plaintiffs actually observed and collected run-off
from the retention basin. (See Doc. 4-1 at 3; Doc. 9 at 6 n.2.)The only disagreement
is whether this error renders the Plaintiffs’ notice of intent insufficient to comply
with 40 C.F.R. § 135.3.
The parties disagree over the standard of review of the notice of intent’s
terms for compliance with 40 C.F.R. § 135.3. In reviewing a notice of intent letter
for compliance with 40 C.F.R. § 135.3, National Parks & Conservation Ass’n, Inc. v.
Tennessee Valley Authority stated that “[t]he notice requirements are strictly
construed to give the alleged violator the opportunity to correct the problem before
a lawsuit is filed.” 502 F.3d 1316, 1329 (11th Cir. 2007). The issue the Court faces
is the somewhat contradictory task of attempting to “strictly construe” a
Page 9 of 18

regulation that requires the notice of intent to “include sufficient information to
permit the recipient to identify . . . the date or dates of such violation. 40 C.F.R.
§ 135.3 (emphasis added); see also Carney v. Gordon Cty., Georgia, No. CIVA
4:06CV36 RLV, 2006 WL 4347048, at *5 (N.D. Ga. Sept. 12, 2006) (“One other
difficulty with requiring ‘strict compliance’ with section 1365 and 40 C.F.R. § 135.3
is that section 135.3 itself uses the language ‘sufficient information to permit the
recipient to identify the specific standard, limitation, or order alleged to have been
violated.’”).
The Eleventh Circuit has found two purposes for the notice-of-intent
requirement. As stated above, one purpose is to give the alleged violator the
opportunity to correct any violation and avoid suit. Nat’l Parks & Conservation
Ass’n, Inc., 502 F.3d at 1329; see also ABC Rail Corp., 926 F.2d 1099. “[A]nother
purpose behind the notice requirement of § 1365 is to effectuate Congress’s
preference that the Act be enforced by governmental prosecution.” ABC Rail
Corp., 926 F.2d 1099.
Nat’l Parks & Conservation Ass’n has held a notice-of-intent letter does not
comply with 40 C.F.R. § 135.3 when its allegations of fact are overbroad. In Nat’l
Parks & Conservation Ass’n, the plaintiffs’ notice of intent letter alleged violations
of the Clean Air Act at ten of defendant’s coal-fired power plants stretched across
Page 10 of 18

three states. 502 F.3d at 1328. Specifically, the notice of intent letter only generally
alleged the defendant violated “all of the requirements of Subpart Da [40 C.F.R.
§§ 60.40da-52da],” which set emissions standards for several different pollutants
created by electrical utility steam generators. Id. at 1329-30. In the same vein, the
plaintiffs did not identify a specific time period in which the violations occurred,
instead stating that defendant had “failed every day” to comply with the EPA
regulations over a twenty-year period. Id. at 1330. Nat’l Parks & Conservation Ass’n
held that the overbroad assertions concerning the date of violation and which
pollutants caused such violations did not satisfy the notice requirement under 40
C.F.R. § 135.3:
The language of the regulation does not suggest that the notice may be
good enough if it generally orients the agency or violator as to the type
of violation . . . . [T]he recipient of the notice must understand from
the notice what the citizen is alleging—not what the citizen could
allege if the citizen knew more or cared about other possible
transgressions.
Id. at 1330 (quoting Karr v. Hefner, 475 F.3d 1192, 1200-01 (10th Cir. 2007)).
This Court recently dismissed claims brought under the citizen suit
provision of the CWA for failing to give sufficient notice under 40 C.F.R. § 135.3.
See Grayson v. Ala. & Gulf Coast Railway, LLC, 7:15-cv-1662-LSC, 2016 WL 397461
(N.D. Ala. Feb. 2, 2016). In Grayson, the plaintiffs’ notice of intent expressly stated
that the plaintiffs intended to sue for violations of 33 U.S.C. § 1321. Id. at *1.
Page 11 of 18

However, that code section could not be enforced by a citizen suit, and the
plaintiffs instead brought suit under a different code section, 33 U.S.C. § 1311. Id.
In dismissing the plaintiff’s claim for failing to comply with § 1365(b) and 40
C.F.R. § 135.3’s requirements, this Court stated “defendants could not have
reasonably understood that plaintiffs were alleging violations of a provision
different from the one cited and quoted in the notice letter.” Id. at *3.
Whether Plaintiffs’ specific mistake in stating the date of the violation in
their notice of intent prevents them from suing under § 1365(b) has not been
addressed directly by the Eleventh Circuit. It is clear that the notice of intent’s
compliance with the requirements of 40 C.F.R. § 135.3 is strictly construed. Nat’l
Parks & Conservation Ass’n, 502 F.3d at 1329. Plaintiffs urge the Court to adopt the
more relaxed standard under Carney v. Gordon Cty., Ga. that the notice be
“sufficiently specific to inform the alleged violator about what it is doing wrong, so
that it will know what corrective actions will avert a lawsuit.” 2006 WL 4347048,
at * 5. But Carney v. Gordon Cty., Ga. very clearly indicated that it was not seeking
to follow the “strict compliance standard” that the Eleventh Circuit has since
adopted. Id. (adopting the Seventh Circuit’s “sufficiently specific” standard
without adopting either the “substantial compliance” or “strict compliance”
standard).
Page 12 of 18

Nor can the Plaintiffs rely on Metro’s actual knowledge of Plaintiffs’ claim
or presence during Plaintiffs’ testing, as actual knowledge has no bearing on the
sufficiency of the notice-of-intent letter. 2 Nat’l Parks & Conservation Ass’n, 502
F.3d at 1330 (“[Plaintiffs] cannot rely on [defendant’s] participation in the EPA
administrative action involving similar allegations to substitute for the lack of
specificity in their letter.” (citing Save Our Health Org. v. Recomp of Minn., Inc., 37
F.3d 1334, 1337–38 (8th Cir. 1994) (complaint dismissed because plaintiff failed to
include alleged violations in notice, even though plaintiff claimed defendant had
independent knowledge of violations))). Like in Grayson v. Ala. & Gulf Coast
Railway, LLC, where the plaintiff misstated the statute he sought to recover under,
here the Plaintiffs have identified the incorrect date of Metro’s violation. 2016 WL
397461, at *3. As the Court strictly construes the requirements of 40 C.F.R.
§ 135.3, it holds Plaintiffs’ notice of intent did not have “sufficient information to
permit [the recipients] to identify . . . the date or dates of such violation” because
the notice of intent letter gave the wrong date of the violation. Because Plaintiffs
have not complied with the jurisdictional prerequisite as stated in 33 U.S.C. § 1365

2

Because the notice-of-intent requirement exists to encourage governmental action as much as
private compliance, Metro’s “actual knowledge” is not sufficient even if the Court adopted the
standard that Plaintiffs urge it to.
Page 13 of 18

and 40 C.F.R. § 135.3, Counts I and II are due to be DISMISSED from the
Complaint without PREJUDICE.
B. COUNT III: ENFORCEMENT OF THE SECOND DECREE
In addition to the CWA violation alleged under Counts I and II, Plaintiffs
allege Metro is liable for violating the Second Decree. As a preliminary step, the
Court must find that it has subject matter jurisdiction to hear the parties’ dispute
concerning the Second Decree. Plaintiffs argue the Court may hear the dispute as
part of its ancillary jurisdiction to enforce its Orders in the previous litigation
between the parties.
In Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994),
the parties settled a federal lawsuit based on diversity jurisdiction involving state
law claims. The parties arrived at an oral agreement settling all claims and recited
the agreement before the district court on the record. They then submitted a
stipulation of dismissal. The district court signed an order putting the stipulation of
dismissal into effect, but did not reserve jurisdiction over the settlement
agreement. Id. at 375. The parties subsequently disagreed about their obligations
under the settlement agreement and moved the district court to enforce the
agreement. Id.

Page 14 of 18

Kokkonen held the district court does not have ancillary jurisdiction over
enforcement of a settlement agreement unless it has explicitly retained jurisdiction
over the agreement in its order putting the agreement into effect. Id. at 380. In
making that holding, Kokkonen likewise stated that “[t]he situation would be quite
different if the parties’ obligation to comply with the terms of the settlement
agreement had been made part of the order of dismissal—either by separate
provision (such as a provision ‘retaining jurisdiction’ over the settlement
agreement) or by incorporating the terms of the settlement agreement in the
order.” Id. at 381. Thus, “enforcement of the settlement agreement is for state
courts, unless there is some independent basis for federal jurisdiction.” Id. at 382.
In earlier litigation between Plaintiffs and Metro, the Court granted the
parties’ motion to enforce the settlement between the parties that was reflected in
the Second Decree and ordered that the Court would retain its jurisdiction for one
year. See Order, Black Warrior Riverkeeper, Inc. v. Metro, 2:07-cv-1527-LSC (N.D.
Ala. Mar. 10, 2014). That same Order also dismissed the case. Id. Following the
Court’s dismissal of the case, and well after the year period that it specified it
would retain jurisdiction, Plaintiffs asked the Court to enforce certain parts of the
Second Decree that they believed Metro to be flouting. The Court then restated
that it no longer retained jurisdiction over the Second Decree, as the one-year
Page 15 of 18

period has expired. See Order, Black Warrior Riverkeeper, Inc. v. Metro, 2:07-cv1527-LSC (N.D. Ala. Mar. 2, 2017). No ancillary jurisdiction exists in this case
under Kokkonen.
Plaintiffs argue that the Court still retains ancillary jurisdiction because while
the Court’s Order states it retains jurisdiction for one year, it also states that “the
Court will enforce the settlement of the parties reflected in [the Second Decree].”
Order, Black Warrior Riverkeeper, Inc. v. Metro, 2:07-cv-1527-LSC (N.D. Ala. Mar.
10, 2014). The Second Decree—which the Court itself did not sign—states that
the Court:
shall retain jurisdiction over this case for the purposes of resolving
disputes arising under the Second Decree, entering orders modifying
the Second Decree, or effectuating or enforcing compliance with the
terms of the Second Decree.
(See Doc. 1 Ex. 2.) The Second Decree, stating a general retention of jurisdiction,
obviously conflicts with the Court’s Order stating that it will retain jurisdiction for
one year. Where there is a dispute between what the parties agreed to on the one
hand, and the Court’s Order putting that Second Decree in effect, the Order
controls. Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1279 (11th Cir. 2012)
(“To retain jurisdiction to enforce a settlement agreement, the court itself must
act; agreement by the parties is not enough.”). Anago Franchising, Inc. envisioned a
situation in which “a district court may lack jurisdiction to enforce a settlement
Page 16 of 18

agreement because it issued no order retaining jurisdiction[—or retaining
jurisdiction for a limited time—]even though the parties expressly provide for
ancillary jurisdiction in their stipulation for dismissal.” Id. Thus, “[t]he district
court must also issue an order specifically retaining jurisdiction in accordance with
Kokkonen because ancillary jurisdiction allows a district court to effectuate its
orders, not to enforce stipulations.” Id. at 1280. The Court’s Order provided for
retention of jurisdiction for one year, and since that year has expired, it no longer
retains ancillary jurisdiction.
Nor is Kokkonen’s requirement of an “independent basis for federal
jurisdiction” satisfied by the “the Clean Water Act jurisdictional statement in the
signed Second Decree.” (Doc. 9 at 15.) The parties cannot contract to the Court’s
retention of ancillary jurisdiction, nor can they “by stipulation invoke the judicial
power of the United States in litigation which does not present an actual ‘case or
controversy.’” Sosna v. Iowa, 419 U.S. 393, 398 (1975). The “independent basis”
for federal jurisdiction referred to in Kokkonen cannot be satisfied by the parties’
agreement that their dispute is governed by federal law.
Plaintiffs assert no other basis for subject matter jurisdiction in their
Complaint, and the Court declines to speculate as to possible additional bases not

Page 17 of 18

briefed by the parties. Thus, Plaintiffs’ Count III for violation of the Second Decree
is due to be DISMISSED without PREJUDICE.
IV.

CONCLUSION
For the reasons stated above, Metro’s Motion to Dismiss is hereby

GRANTED. Plaintiff’s Complaint is due to be DISMISSED without PREJUDICE.
An Order consistent with this Opinion will be entered separately.
DONE and ORDERED on December 18, 2017.

_____________________________
L. Scott Coogler
United States District Judge
190485

Page 18 of 18