Clean Water Action v. Searles Auto Recycling, Corp.

Filing 21

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, defendants motion to dismiss (Docket No. 5) is DENIED. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts
CLEAN WATER ACTION,
Plaintiff,
v.
SEARLES AUTO RECYCLING, CORP.,
Defendant.

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Civil Action No.
16-12067-NMG

MEMORANDUM & ORDER
Gorton, J.
Plaintiff Clean Water Action, a nationwide, non-profit,
public benefit corporation that works to protect the nation’s
water resources (“plaintiff”), claims that defendant Searles
Auto Recycling Corp. (“Searles” or “defendant”) has violated the
Clean Water Act (“the CWA”), 33 U.S.C. § 1251 et seq., by
failing to comply with the requirements of its Stormwater
Permit.
Court.

Searles’ motion to dismiss is now pending before the
For the reasons that follow, that motion will be denied.

I. Factual and Procedural Background
Searles operates an automobile salvage yard on Easthampton
Road, in Northampton, MA (“the Facility”).

When rainwater or

snowmelt come into contact with the Facility, the subsequent
stormwater runoff is contaminated with pollutants because the
Facility conducts several of its industrial operations outside.
The polluted stormwater flows from the Facility into catch

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basins located on Easthampton Road, and eventually into Mill
River through connected pathways of wetlands and waterways.
Clean Water Action alleges that its members have
recreational, aesthetic and environmental interests in Mill
River including using its water and the surrounding area for
fishing, wildlife observation and other outdoor activities.
In May, 2016, Clean Water Action sent Searles a
60-day Notice of Violations and Intent to File Suit
Regarding NonCompliance with Federal CWA’s Industrial
Stormwater Discharge Requirements [“the notice”.]
After receiving the notice, Searles retained professionals, who
investigated the Facility and prepared a Notice of Intent for
Storm Water Discharges Associated with Industrial Activity
(“NOI”).

In July, 2016,

the United States Environmental

Protection Agency (“the EPA”) issued Searles a Multi-Sector
General Permit ID: MAR 053878 (“Stormwater Permit” or “Permit”)
pursuant to the CWA’s National Pollutant Discharge Elimination
System (“NPDES”).

Among other things, the Permit requires in §§

2.1 and 2.5 that Searles “minimize effluent discharges” by
implementing adequate “control measures”.
In August, 2016, Searles notified Clean Water Action that
the EPA had issued it a Stormwater Permit to demonstrate its
compliance with the CWA.

In October, 2016, Clean Water Action

filed a complaint alleging that Searles’ was in violation of the
CWA.

Shortly thereafter, Searles filed a motion to dismiss for
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lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1) which plaintiff opposes.
II.

Legal Analysis
A. Legal Standard

Federal subject matter jurisdiction is never presumed.
Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998).

To

survive a motion to dismiss for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the party
invoking federal jurisdiction bears the burden of proving its
existence. Id.
When evaluating such a motion, a court must accept all
well-pled factual allegations as true and draw all reasonable
inferences in favor of the nonmoving party. Sanchez ex rel.
D.R.-S. v. United States, 671 F.3d 86, 106–07 (1st Cir. 2012).
In its analysis, a court may consider materials outside the
pleadings and engage in preliminary fact-finding to make its
ultimate legal conclusion. Skwira v. United States, 344 F.3d 64,
71-2 (1st Cir. 2003).

Furthermore, under the First Circuit

Court of Appeals’ well-pled complaint rule, a court must
disregard statements that “merely offer legal conclusion[s]
. . . or [t]hreadbare recitals of the elements of a cause of
action”. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st
Cir. 2011).

Dismissal should be allowed only if, taking all

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plaintiff’s allegations as true, subject matter jurisdiction
cannot be justified. Id.
B. Analysis
Defendant moves to dismiss plaintiff’s complaint for lack
of subject matter jurisdiction on the grounds that plaintiff
failed 1) to meet the statutory requirements necessary to bring
suit under the CWA’s Citizen Suit Provision and 2) to establish
Article III standing.
1. Motion to Dismiss Under the Citizen Suit Provision
of the Clean Water Act
The CWA includes a private cause of action against a person
“who is alleged to be in violation of an . . . effluent standard
or limitation”. 33 U.S.C. § 1365(a)(1).

A citizen may not,

however, bring suit for “wholly past violations”, and to
establish jurisdiction the “citizen-plaintiff must make goodfaith allegation[s] of a continuous or intermittent violation”.
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 67(1987).
Pursuant to the CWA the EPA issues general permits,
including Industrial Stormwater Permits, such as the one issued
to Searles.

33 U.S.C. §§ 1311, 1342.

Once a facility is

granted a permit, “any permit noncompliance constitutes a
violation of the CWA and is grounds for enforcement action.” 40
C.F.R. 122.41(a).

To remain in compliance with its Permit, and

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thus with the CWA, Searles is required to monitor its control
measures and, if it appears that those measures are ineffective,
it must take corrective action.

Specifically, whenever a visual

assessment “shows evidence of stormwater pollution" corrective
action is required. Id.
Defendant maintains this Court lacks subject matter
jurisdiction because plaintiff has failed to make a “good-faith
allegation” that defendant is continuously or intermittently
violating the CWA. Gwaltney of Smithfield, Ltd., 484 U.S. at 67.
It asserts that, at the time plaintiff filed suit, defendant had
acquired its Permit and was therefore in compliance with the
CWA.
Relying on Gwaltney of Smithfield, Ltd., 484 U.S. at 55,
plaintiff counters that possession of a Stormwater Permit is not
dispositive of compliance with the CWA.

According to plaintiff,

defendant has violated the CWA by failing to comply with its
Permit, both at the time of the complaint’s filing and
thereafter.

Specifically, plaintiff alleges that defendant has

not implemented adequate control measures as is required by its
Stormwater Permit.

In support of that assertion, plaintiff

submits a declaration by a Clean Water Action member, Sarah
Moffett, who describes specific instances in which she witnessed
visual indications of inadequate control measures, including

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excessive particulate matter leaving the facility and entering
catch basins on Easthampton road.
Plaintiff’s factual allegations are neither “threadbare
recitals of the elements of a cause of action” nor conclusory
legal statements.

Instead plaintiff provides specific factual

allegations which, if true, demonstrate plausible inadequate
control measures.

Plaintiff has therefore alleged that

defendant is continuing to violate its Permit and consequently
the CWA. See Berberian v. Town of Andover, No. 12-10247-RBC,
2012 WL 1866293, at *3 (D. Mass. May 21, 2012).

Thus, this

Court has federal question subject matter jurisdiction. Id.
2. Article III Standing
Defendant further contends plaintiff’s complaint should be
dismissed because plaintiff lacks Article III standing, citing
U.S. Const. art. III, § 2, cl. 1.

At the pleading stage, “the

plaintiff bears the burden of establishing sufficient factual
matter to plausibly demonstrate [its] standing to bring the
action”. Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st
Cir. 2016).
To establish Article III Standing under the CWA, an
organization must show that one of its members satisfies the
following three requirements: 1) has sustained an injury in fact
which is 2) caused by the violation and 3) redressable. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also Town
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of Norwood v. F.E.R.C., 202 F.3d 392, 405-406 (1st Cir. 2000)
(holding an environmental organization must identify at least
one member who has standing in order for the organization to
file suit).

Finally, an organization aiming to establish

standing must prove that the interest at issue is germane to the
organization’s purpose and that the claim or requested relief is
not dependent on the participation of each member of the
organization. Hunt v. Washington State Apple Adver. Comm’n 432
U.S. 333, 343 (1977).
Applying those requirements to this case, first plaintiff
asserts that its complaint alleges that Clean Water Action
members “live, recreate, and work in and around . . . Mill
River” and submits declarations provided by two of its members,
Margaret Byrne and Joe Smith, who describe their individual use
and enjoyment of Mill River, near the Facility.

Byrne’s

declaration indicates she is a regular hiker and is distressed
with how polluted water will impact the wildlife and natural
resources present in Mill River.

Smith describes that he does

not eat fish he catches in Mill River because of his concerns
regarding the water quality due to the alleged pollution by
Searles.
It is well established that aesthetic and recreational
interests constitute injury in fact in relation to Article III
standing. Conservation Law Found., Inc. v. Am. Recycled
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Materials, Inc., No. CV 16-12451-RGS, 2017 WL 2622737, at *3 (D.
Mass. June 16, 2017) citing Sierra Club v. Morton, 405 U.S. 727,
735 (1972).

Assuming they are true, plaintiff’s factual

allegations and the submitted declarations support the
reasonable inference that defendant’s alleged noncompliance
constitutes an injury in fact for the purposes of standing.
With respect to the second factor, relying on Friends of
the Earth v. Gaston Copper Recycling, 2014 F.3d 149, 15457,
defendant contends plaintiff’s allegations are too speculative
to show causation.

Plaintiff replies that it has established

causation by alleging that defendant is failing to implement
adequate control measures in violation of its Permit and that it
has members who use and enjoy the water in Mill River.
To meet the causation requirement for Article III standing
at the pleading stage, the nonmoving party must demonstrate that
the injury in fact is “fairly traceable” to the defendant by
“show[ing] that a defendant discharges a pollutant that causes
or contributes to the kind of injuries alleged”. Maine People's
All. v. Holtrachem Mfg. Co., LLC., 211 F. Supp. 2d 237, 253 (D.
Me. 2002) citing Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S. Ct. 693, 705, 145
L. Ed. 2d 610 (2000).

Under the CWA a plaintiff does not need

to show with “scientific certainty” that defendant’s actions
caused the alleged injury.

Conservation Law Found., Inc., 2017
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WL 2622737, at *3 (citing Interfaith Cmty. Org. v. Honeywell
Int'l, Inc., 399 F.3d 248, 257 (3d Cir. 2005)).
Plaintiff has submitted facts that support the reasonable
inference that defendant is not in compliance with its Permit
and that consequently Clean Water Action members are suffering
harm, including inter alia the multiple declarations given by
its members describing visual particulate matter leaving the
Facility and the impact such discharge has on their use and
enjoyment of Mill River.

Collectively, such facts support the

reasonable inference that plaintiff’s alleged injury is “fairly
traceable” to defendant’s actions. Id.
Third, to establish redressability, plaintiff must show
that the alleged injury “is likely to be redressed by a
favorable decision”.

Valley Forge Christian Coll. v. Americans

United for Separation of Church & State, Inc., 454 U.S. 464, 472
(1982) (internal citations and quotation marks omitted).

The

express purpose of the CWA is to restore
the chemical, physical, and biological integrity of the
nation’s waters [and thus w]here a plaintiff complains of
harm to water quality because a defendant exceeded its
permit limits, an injunction will redress that injury at
least in part.
Pub. Interest Research Grp. of New Jersey, Inc. v. Powell
Duffryn Terminals Inc., 913 F.2d 64, 73 (3d Cir. 1990).
In the present case, plaintiff alleges that injunctive
relief will redress its injuries by causing defendant to control
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its discharges adequately and that a civil penalty will deter
defendant and other industrial facilities from violating the CWA
in the future.

Assuming plaintiff’s factual assertions are

true, this Court can reasonably infer that defendant is acting
in violation of the CWA by failing to comply with its Permit.
Thus, plaintiff is correct in asserting that injunctive relief
and a civil penalty would serve as adequate redress. Id.

In

sum, plaintiff has plausibly alleged that it has at least one
member who meets the three elements of Article III Standing.
Finally, with respect to organizational standing, plaintiff
has alleged facts showing that Clean Water Action is germane to
the present case and that neither the claim nor the relief
requested require the participation of individual Clean Water
Action members in the lawsuit. See Hunt, 432 U.S. at 343.
Plaintiff contends that the mission of Clean Water Action is to
protect water resources and the present action seeks to enforce
an alleged violation of the CWA.

Furthermore, Plaintiff asserts

that thousands of its members live in Northampton, indicating
that the organization is acting appropriately as a proxy for its
members.

Accordingly, the motion to dismiss based upon lack of

standing will be denied.

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ORDER
In accordance with the foregoing, defendant’s motion to
dismiss (Docket No. 5) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated August 7, 2017

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