Lovelace et al v. City of Shelby, NC

Filing 22

CONSENT DECREE. Signed by District Judge Martin Reidinger on 8/5/15. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:14-cv-00037-MR-DLH

JOSEPH D. LOVELACE and
STONY G. YEARWOOD,

)
)
)
Plaintiffs,
)
)
vs.
)
)
CITY OF SHELBY, NORTH
)
CAROLINA,
)
)
Defendant.
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___________________________________ )
CONSENT DECREE
Whereas, Plaintiffs Joseph D. Lovelace and Stony G. Yearwood (“Plaintiffs”) own or
reside in the property at 312 Windsor Drive, Shelby, North Carolina; and
Whereas, Defendant City of Shelby (“Defendant”) is a municipality that operates a
wastewater collection system (“Collection System”) in Cleveland County, North Carolina
pursuant to National Pollutant Discharge Elimination System Permit No. NC0024538 (“NPDES
Permit”) and System-Wide Wastewater Collection System Permit No. WQCS00037 (collection
system permit); and
Whereas, on or about December 12, 2013, Plaintiffs provided a notice of intent to file suit
to various agencies, persons and entities, including the United States Environmental Protection
Agency, the North Carolina Department of Environment and Natural Resources (NCDENR), and
the City of Shelby. Plaintiffs alleged that Defendant had caused unauthorized discharges of
pollutants from a manhole located at 312 Windsor Drive, Shelby, North Carolina, onto Plaintiffs’
property and/or into waters of the United States, namely Hickory Creek, as well as from a toilet

in Plaintiffs’ residence on the following dates: February 5, 2010, August 19, 2010, January 17,
2013, May 5, 2013, July 3, 2013 and July 5, 2013; and
Whereas, on or about February 14, 2014, Plaintiffs commenced this action as a citizen suit
under the federal Clean Water Act (“CWA”), 33 U.S.C. § 1365(a)(1), making the same allegations
as those set out above (“Litigation”). Specifically, Plaintiffs claimed that Defendant was
discharging pollutants without an NPDES Permit in violation of the CWA and in violation of its
NPDES and collection system permits on the dates referenced hereinabove. Plaintiffs also claimed
that Defendant caused a nuisance and trespassed on Plaintiffs’ property, and have otherwise caused
damages resulting from its negligence; and
Whereas, Defendant has denied all such allegations and purported violations and asserted
various affirmative defenses, and further does not admit any liability arising out of the facts alleged
in the Complaint; and
Whereas, Defendant has undergone assessments and repair efforts to systematically
evaluate and address any issues with the collection system, which is the basis of the Litigation,
including, but not limited to: performing a large scale Inflow and Infiltration study; rodding,
jetting, and videoing of relevant sewer lines; purchasing specialized bucket cleaning machines for
large diameter sewers; removing large roots and heavy debris from sewer lines and performing
other labor on the sewer lines; purchasing specialized flow monitoring equipment to be placed in
the collection system at strategic locations to average daily flows and peak flows when rainfall
occurred; replacing missing manhole covers along the sewer lines; purchasing an acoustic testing
device for evaluation of the collection system for potential blockages; inspecting the manhole in
front of Plaintiffs’ property on or about January 1, 2014, January 11, 2014, February 11, 2014 and
February 20, 2014; and evaluating the relevant lines per the City’s regularly scheduled
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maintenance plans. The costs to the City for the above referenced efforts for the relevant sewer
lines have exceeded $150,000.00; and
Whereas, the parties wish to compromise and resolve all claims between and among them
without admission of liability or further proceedings; and
Whereas, the parties, in consultation with counsel, hereby agree to resolve the Litigation
and any issues that arose or could have arisen in connection with the Litigation in accordance with
the terms of this Consent Decree, believing that settling the matters without further litigation is the
most appropriate means of resolving the matters; and
Whereas, a copy of the proposed Consent Decree was received by the Attorney General of
the United States and the Administrator of the United States Environmental Protection Agency
more than forty-five (45) days before entry of this Consent Decree as required by 33 U.S.C.
§1365(c)(3); and
The Parties recognize, and the Court by entering this Consent Decree finds, that this
Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between
the Parties and that this Consent Decree is fair, reasonable, and in the public interest.
NOW, THEREFORE, WITHOUT THE TRIAL OR ADJUDICATION OF ANY
ISSUE OF FACT OR LAW AND WITHOUT ANY ADMISSION BY DEFENDANT OF
ANY VIOLATIONS OR WRONGDOING ALLEGED IN THE LITIGATION, AND UPON
CONSENT AND AGREEMENT OF THE PARTIES, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED AS FOLLOWS:
I.
1.

JURISDICTION

Jurisdiction. This Court has jurisdiction over the parties and subject matter of this action

pursuant to Section 505(a) of the Clean Water Act, 33 U.S.C. §1365(a) and 28 U.S.C. §1331.
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II.
2.

RELIEF

Injunctive Relief. Defendant, in order to determine the cause(s) of the sanitary sewer

overflows at 312 Windsor Drive, and moreover to establish base and peak flows for major sewer
lines within the surrounding basin, agrees to complete the Flow Monitoring assessment pursuant
to the terms and conditions set forth in the Flow Monitoring Plan (“FMP”) attached hereto as
Exhibit A and incorporated by reference as if fully set forth herein. This FMP shall continue for
one year and no more as outlined in detail in Exhibit A.
3.

Attorneys’ and Expert Fees. Defendant will reimburse Plaintiffs for the reasonable

litigation costs in the amount of $25,281.49 and no more, incurred as a result of this Litigation.
Such payment by Defendant shall be due within fifteen (15) days after entry of this Consent Decree
by the Court. Defendant shall bear its own costs incurred in connection with the Litigation.
4.

Damages for State Law Claims. Defendant will pay or cause to be paid to Plaintiffs by

and through their attorneys, Davis & Whitlock, PC, the amount of FIFTY THOUSAND AND
00/100 DOLLARS ($50,000.00). Such payment by Defendant shall be due within fifteen (15) days
after entry of this Consent Decree by the Court.
5.

Release. Plaintiffs Joseph D. Lovelace and Stony G. Yearwood, on behalf of themselves

and their heirs, personal representatives, executors, administrators, successors and/or assigns
(hereinafter collectively referred to as “Releasors”) hereby release and forever discharge City of
Shelby, North Carolina, and their respective officers, directors, managers, present and former
employees, present and former agents, insurance companies or risk pools, successors and assigns
(hereafter collectively referred to as “the Releasees”) of and from any and all claims, actions or
causes of action, demands, damages, costs, interest, judgments, expenses, liabilities, attorneys’
fees and legal costs, of any nature whatsoever, without limitation, specifically including any and
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all claims, arising out of or in any way related to those events and claims as described in the civil
action filed in the United States District Court, Western District of North Carolina (Asheville
Division), Civil Action Number 1:14-CV-00037, entitled “Joseph D. Lovelace and Stony G.
Yearwood v City of Shelby, North Carolina.” Releasors specifically discharge any claim(s) they
may have against the Releasees for negligence, trespass, nuisance, violations of the terms of
relevant permits, violations of the Clean Water Act, North Carolina law, or any other federal, state,
city, county or local statute or ordinance, the common law, and any and all claims for relief which
are, were or could have been the subject of the aforementioned lawsuit, all to the end that all claims
which are or might be in controversy between Releasors and the Releasees may be forever put to
rest, it being Releasors’ intention to forever discharge and release all of their past, present and
future claims against the Releasees for all consequences resulting or potentially resulting from
those events referred to in the aforementioned lawsuit. Releasors acknowledge that if they later
discover facts different from, or in addition to, those which they now know or believe to be true
concerning the events and subject matter of the aforementioned lawsuit, that nevertheless this
Release shall be and remain effective in all respects. This Release is expressly not intended to
cover any violations of State or Federal law which arise in the future and could not have been the
subject of the aforementioned lawsuit.
III.
6.

GENERAL PROVISIONS

Advice of Counsel. The parties to this Consent Decree all mutually represent and warrant

that they have carefully reviewed this Consent Decree, have had such opportunity as necessary to
consult with counsel of their choosing, fully understand its terms, and enter into it freely and
voluntarily.

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7.

No Admission of Liability. Defendant disputes the allegations complained of by Plaintiffs

in the Litigation and this Consent Decree represents the parties’ compromise of such disputed
claims. This Consent Decree and the compliance with it shall not be construed as, shall not
constitute, and are not intended to be an admission concerning the validity of any claim or
allegation in the Litigation, or an acknowledgment by Defendant of any wrongdoing or liability,
which is expressly denied.
8.

No Oral Modification. Except as provided herein, no modification of the Consent Decree

shall be effective without written approval by the parties and the Court. The terms of this Consent
Decree can be changed or modified by a written instrument signed by all parties, including their
privies, representatives, agents, successors or assigns, but shall not take effect unless and until
approved by the Court.
9.

Consideration. The parties hereby expressly stipulate to the adequacy and sufficiency of

consideration in and for all mutual covenants contained herein.
10.

Privies, Successors and Assigns. This Consent Decree is intended to and shall inure to the

benefit of and be binding upon their parties and a respective representatives, privies, successors
and assigns unless otherwise stated herein. Plaintiffs warrant and represent that neither Plaintiffs
nor either one of them have assigned any rights or interests in the Litigation or any property
relevant to the Litigation.
11.

Continuing Jurisdiction; Termination. The United States District Court for the Western

District of North Carolina shall have continuing jurisdiction to interpret and enforce the terms and
conditions of this Consent Decree to resolve disputes arising hereunder, and for such other actions
as they be necessary or appropriate in the construction or execution of the Consent Decree.
Notwithstanding the Court’s continuing jurisdiction, this Consent Decree shall terminate as to
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Defendant after the parties’ compliance with the measures and requirements listed herein and
payment of the amounts identified herein having been made to Plaintiff.
12.

Third Parties. This Consent Decree shall not be construed to create rights in, or grant any

cause of action to, any third party not party to this Consent Decree.
13.

Severability. The provisions of this Consent Decree shall be severable and should any

provision be declared by any court of competent jurisdiction to be inconsistent with the Federal
law, and therefore unenforceable, the remaining provisions of this Consent Decree shall remain in
full force and effect.
14.

Effect of Entry or Lack of Entry. In the event of entry of this Consent Decree, the

litigation is dismissed with prejudice. Upon approval and entry of this Consent Decree by the
Court, this Consent Decree shall constitute a final judgment of the Court as to the Parties. In the
event the court should reject this proposed Consent Decree, this Consent Decree shall be of no
further force and effect and the parties shall be fully restored and returned to their respective
positions nearly prior to the Consent Decree’s lodging with the court so as to maintain the status
quo.
15.

Effective date. The Effective Date of this Consent Decree shall be the date upon which

this Consent Decree is entered by the Court.
IT IS SO ORDERED.
Signed: August 5, 2015

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APPROVED FOR ENTRY:
DAVIS & WHITLOCK, PC
BY: /s/ Jamie Whitlock
James S. Whitlock, Esq.
Gary A. Davis, Esq.
Attorneys for Plaintiffs
21 Battery Park Avenue, Suite 206
Asheville, NC 28801
[e-mail]
[e-mail]
CRANFILL SUMNER & HARTZOG, LLP
BY: /s/ Mica Worthy
Patrick H. Flanagan, Esq.
Mica Nguyen Worthy, Esq.
Attorneys for Defendant City of Shelby
Post Office Box 30787
Charlotte, North Carolina 28230
[e-mail]
[e-mail]

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