Waste Services of Decatur, LLC v. Decatur County, Tennessee
Filing
145
ORDER DENYING WASTE SERVICES OF DECATUR, LLC AND WASTE INDUSTRIES, LLC'S 68 MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO STAY. Signed by Chief Judge S. Thomas Anderson on 3/29/19. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
WASTE SERVICES OF DECATUR,
LLC,
Plaintiff/Counter-Defendant,
v.
DECATUR COUNTY, TENNESSEE,
Defendant/Counter-Plaintiff,
v.
WASTE INDUSTRIES, LLC,
Defendant.
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Case No. 1:17-cv-01030-STA-jay
ORDER DENYING WASTE SERVICES OF DECATUR, LLC AND WASTE
INDUSTRIES, LLC’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION
TO STAY
Before the Court is Waste Services of Decatur, LLC and Waste Industries, LLC’s Motion
to Dismiss or, in the Alternative, Motion to Stay (ECF No. 68) filed on May 17, 2018. Decatur
County, Tennessee has responded in opposition to the Motion. For the reasons set forth below,
the Motion is DENIED.
BACKGROUND
This is a dispute between Decatur County, Tennessee, and Waste Services of Decatur, LLC
(hereinafter “Waste Services”), over alleged violations of environmental laws and regulations
arising out of Waste Services’ operation of the Decatur County Landfill. Waste Services seeks the
dismissal of Decatur County’s claims under the Resource Conservation and Recovery Act
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(“RCRA”), 42 U.S.C. § § 6901, et seq. In support of its Motion to Dismiss, Waste Services
contends that Decatur County failed to satisfy the RCRA’s 60/90-day notice period by bringing
judicial claims over issues outside of the scope of Decatur County’s written notice of intent to sue
(“NOI”).
The Court should dismiss those claims for failure to comply with the RCRA notice
requirements. In the alternative, Waste Services argues that the Court should stay further judicial
proceedings, while the parties pursue regulatory action before the Tennessee Department of
Environment and Conservation. Such a stay is warranted under the Burford abstention doctrine
and/or the primary jurisdiction doctrine.
STANDARD OF REVIEW
RCRA’s notice requirements “are mandatory conditions precedent to commencing suit
under the RCRA citizen suit provision.” Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989).
As such, the notice period is “a jurisdictional prerequisite.” Walls v. Waste Resource Corp., 761
F.2d 311, 316 (6th Cir. 1985). Federal Rule of Civil Procedure 12(b)(1) allows a party to move to
dismiss a claim for lack of subject matter jurisdiction. “Federal courts are courts of limited
jurisdiction and the law presumes that a cause lies outside this limited jurisdiction.” Boegh v.
EnergySolutions, Inc., 772 F.3d 1056, 1064 (6th Cir. 2014) (quoting Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 377 (1994) (internal quotation marks omitted). As such, “federal courts
have a duty to consider their subject matter jurisdiction in every case and may raise the issue sua
sponte.” New Hampshire Ins. Co. v. Home Sav. & Loan Co. of Youngstown, Ohio, 581 F.3d 420,
423 (6th Cir. 2009) (citation omitted).
A party moving to dismiss for lack of subject matter jurisdiction “may either attack the
claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.” Crugher v.
Prelesnik, 761 F.3d 610, 613 (6th Cir. 2014). “A facial attack goes to the question of whether the
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plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of
the complaint as true for purposes of Rule 12(b)(1) analysis.” Cartwright v. Garner, 751 F.3d 752,
759 (6th Cir. 2014). By contrast, “[a] factual attack challenges the factual existence of subject
matter jurisdiction” in which case the court may receive evidence to determine “whether subject
matter jurisdiction exists, including evidence outside of the pleadings.” Id. 1 In the final analysis,
the plaintiff has the burden to prove that the federal court has jurisdiction to hear the claim. Kiser
v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014).
ANALYSIS
I. RCRA Notice Requirements
RCRA provides for citizen suits against any person or entity in violation of the Act but
only after giving 60-days’ notice of the alleged violation to the Environmental Protection Agency,
the state in which the alleged violation occurred, and the person or entity who allegedly committed
the violation. 42 U.S.C. § 6972(b)(1)(A). For citizen suits against a past or present operator of a
disposal facility, a plaintiff must give 90-days’ notice. 42 U.S.C. § 6972(b)(2)(A). Compliance
with the pre-suit notice requirement is “mandatory.” Hallstrom, 493 U.S. at 31.
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Waste Services describes its attack as a factual one. In support of its Motion to Dismiss,
Waste Services has adduced a number of facts about the administrative investigation and review
process being carried out by TDEC. Decatur County has raised evidentiary objections to the
admissibility and relevance of some of these facts. The Court finds it unnecessary to reach these
issues. Most of the evidentiary materials relate to Waste Services’ argument for Burford abstention
and a stay pursuant to the primary jurisdiction doctrine and whether abstention is appropriate in
this case based on the state of Tennessee’s involvement in the dispute. But the threshold issue
presented in Waste Services’ Motion to Dismiss under Rule 12(b)(1) is whether Decatur County’s
pre-suit notice satisfies RCRA. Decatur County attached a copy of its notice letter to its Amended
Counterclaim (ECF No. 65-17), making it proper for the Court to consider on a Rule 12(b) motion.
Fed. R. Civ. P. 10(c). And because the Court holds that Decatur County’s notice letter has met the
notice requirements for filing a citizen suit under RCRA, the Court need not decide whether the
additional evidence presented by Waste Services is admissible or relevant to the Court’s
determination.
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The United States Supreme Court has remarked in dicta that RCRA’s notice provisions
strike a balance between the public interest in “citizen enforcement of environmental regulations
and avoiding burdening the federal courts with excessive numbers of citizen suits.” Id. at 29
(citing RCRA’s legislative history). The interim created by the pre-suit notice period gives
agencies with the duty to enforce environmental regulations the time to investigate and exercise
appropriate oversight as well as afford an alleged violators the opportunity to take corrective action
and “to bring itself into complete compliance,” thereby avoiding the need for the citizen suit or the
intervention of the courts.
Id. (quoting Gwaltney of Smithfield, Inc. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 60 (1987) (“The bar on citizen suits when governmental
enforcement action is under way suggests that the citizen suit is meant to supplement rather than
to supplant governmental action”).
The issue presented in Waste Services’ Motion to Dismiss is whether Decatur County
complied with the RCRA pre-suit NOI requirements as to its claims against Waste Services for
violations of the Act. RCRA’s implementing regulations set out the particulars a proper notice of
an alleged violation must include: (1) “the specific permit, standard, regulation, condition,
requirement, or order which has allegedly been violated;” (2) “the activity alleged to constitute a
violation;” (3) “the person or persons responsible for the alleged violation;” (4) “the date or dates
of the violation;” and (5) “the full name, address, and telephone number of the person giving
notice.” 40 C.F.R. § 254.3(a). The regulation states that the notice must provide “sufficient
information to permit the recipient to identify” each of these particulars. Id.
The Court holds Decatur County’s notice satisfied RCRA’s requirements and gave Waste
Services sufficient information to identify the nature of the alleged violations. The NOI (ECF
No. 65-17), a nine-page letter from Decatur County’s lawyers dated April 12, 2017, contained each
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of the facts necessary to give Waste Services proper notice of the alleged RCRA violation. First,
the NOI gave Waste Service sufficient notice of the specific regulation that the landfill had
violated. The first paragraph of the NOI identified the Clean Water Act and the Solid Waste
Disposal Act, as amended by RCRA, as the governing statutes. NOI 1 (ECF No. 65-17, Page ID
1973.) In the section of the NOI under the heading “Open Dump,” the NOI identified 42 U.S.C.
§ 6903(14), § 6943 and § 6944 and corresponding regulations on open dumps. Id. at Page ID
1975. This satisfied the first element of 40 C.F.R. § 254.3(a)’s required notice.
Likewise, the NOI gave Waste Services sufficient notice of “the activity alleged to
constitute a violation.” The first paragraph of the letter stated that “site operators have accepted
various types of industrial waste, also known as ‘special waste,’ including but not limited to
Secondary Aluminum Smelter (‘SAS’) waste and bag house dust, known to produce leachate with
extraordinarily high levels of ammonia and heavy metals.” Id. at Page ID 1973. With specific
reference to the alleged “open dump” violation, the NOI identified the source of leachate discharge
as “at or near” an underdrain near Cell 3 at the landfill. Id. at Page ID 1974. The NOI went on to
detail observations and testing results from water samples taken during a February 2017 site
inspection. Id. These details were sufficient to inform Waste Services of the nature of the alleged
“open dump” violation. And there is no real dispute that the NOI included the rest of the elements
required under 40 C.F.R. § 254.3(a). Decatur County identified Waste Services as the alleged
violator and provided sufficient information about the date of the alleged violating activity and
Decatur County’s contact information. The Court concludes that Decatur County’s NOI met the
requirements of RCRA.
Waste Services argues that Decatur County’s NOI did not satisfy RCRA’s notice
requirements, specifically the second element, i.e. to identify “the activity alleged to constitute a
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violation.” Waste Services argues that “[t]he alleged pollution, source of pollution, and evidence
of pollution identified by the NOI are not those alleged in the Amended Complaint.” Waste Servs.’
Mem. in Support 14 (ECF No. 68-22). But none of Waste Services’ points about each of these
details is convincing.
Both the NOI and the Amended Counterclaim clearly identified the high levels of ammonia
found in water leaching from the landfill, and specifically near Cell 3, and running off into nearby
waterways. This is the alleged pollution itself. Both the NOI and the Amended Counterclaims
described the relationship between aluminum smelter waste deposited at the landfill and the high
ammonia levels measured in the landfill’s leachate. As far any supposed variations in the
measurements alleged in the NOI and the Amended Complaint, nothing in RCRA or its
implementing regulations required Decatur County to identify with particularity all of its
measurements and observations to substantiate how much alleged pollution was involved in the
violations of RCRA. This leaves Waste Services’ criticism that the NOI refers to leaking and
draining leachate “at or near” the underdrain whereas the Amended Counterclaim alleges that
leachate comes from the underdrain. The notice required by RCRA and 40 C.F.R. § 254.3(a) only
requires “sufficient information” to allow a recipient like Waste Services to identify the source of
pollution. The Court concludes that the NOI meets this standard. Therefore, Waste Services’
Motion to Dismiss must be DENIED.
II. Burford Abstention and the Primary Jurisdiction Doctrine
This leaves Waste Services’ alternative request to stay this action pending the outcome of
administrative proceedings before TDEC. Waste Services first argues that the Court should
abstain from exercising jurisdiction over the RCRA claims under Burford v. Sun Oil Co., 319 U.S.
315 (1943). “Burford instructs federal courts to avoid hearing cases where doing so would
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interfere with a state’s regulatory efforts.” Ky. Waterways Alliance v. Ky. Utils. Co., 905 F.3d 925,
939 (6th Cir. 2018) (citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491
U.S. 350, 361 (1989)). Nevertheless, the Supreme Court has described Burford abstention as an
“extraordinary and narrow exception” to federal jurisdiction. Atkins v. CGI Techs. and Solutions,
Inc., 724 F. App’x 383, 389 (6th Cir. 2018) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 728 (1996)).
The Sixth Circuit recently reversed a district court’s decision to abstain from exercising its
jurisdiction over a RCRA claim under Burford. The Court of Appeals observed that in addition to
RCRA’s pre-suit notice requirements, RCRA also bars a citizen suit where a state (or the EPA)
responds in “one of three statutorily prescribed ways,” the so-called “diligent prosecution bar.”
Ky. Waterways Alliance, 905 F.3d at 939 (citing 42 U.S.C. § 6972(b)(2)(C)). The Sixth Circuit
reasoned that in the context of RCRA, Burford abstention “effectively add[s] a new component to
th[e] bar precluding citizen suits where a state is already trying to remedy the problem, regardless
of the regulatory mechanism it is using.” Ky. Waterways Alliance, 905 F.3d at 939 (citing Chico
Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20, 31 (1st Cir. 2011) (“To abstain in situations
other than those identified in the statute . . . threatens an ‘end run around RCRA.’”)); PMC Inc. v.
Sherwin–Williams Co., 151 F.3d 610, 619 (7th Cir. 1998) (same); see also Boyes v. Shell Oil
Prods. Co., 199 F.3d 1260, 1270 (11th Cir. 2000) (holding that abstention based
on Burford and the primary jurisdiction doctrine was improper because RCRA preempted state
law).
The upshot is that where a citizen has complied with RCRA’s pre-suit notice requirements
and brings its citizen suit, federal courts have an obligation to exercise their jurisdiction and hear
RCRA claims. Id. Otherwise, Burford abstention risks the courts’ “substitut[ing] our own
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judgment about the appropriate balance of state and federal interests for the ex-ante determination
that Congress made regarding this balance when it enacted RCRA.” Id. (citing 42 U.S.C. §
6972(b)(2)(A)–(F)). The Sixth Circuit’s result is consistent with the balance of authority from
other district courts confronted with the same question. Adkins v. VIM Recycling, Inc., 644 F.3d
483, 505 (7th Cir. 2011) (collecting cases); see also Pub. Emps. for Envtl. Responsibility v. Gipson
Cnty., No. 3:15-0020, 2015 WL 4663173, at *3 (M.D. Tenn. Aug. 6, 2015); Natural Res. Def.
Council, Inc. v. Cnty. of Dickson, Tenn., No. 3:08-0229, 2010 WL 1408797, at *7 (M.D. Tenn.
Apr. 1, 2010). Having already concluded that Decatur County gave Waste Services proper notice
of its citizen suit, staying Decatur County’s claims under Burford is not warranted. There is no
reason to find that allowing Decatur County to press its RCRA claims in court will interfere with
TDEC’s role in addressing the conditions at the Decatur County Landfill. Waste Services’ Motion
to Stay as a matter of Burford abstention is DENIED.
For similar reasons, the Court declines to stay the proceedings under the primary
jurisdiction doctrine. The primary jurisdiction doctrine permits a court in its discretion to “refer a
matter to the relevant agency whenever enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, have been placed within the special competence of an
administrative body.” U.S. ex rel. Wall v. Circle C Const., L.L.C., 697 F.3d 345, 352 (6th Cir.
2012) (citations omitted); United States v. W. Pac. R.R. Co., 352 U.S. 59 (1956). “In the context
of cases involving state administrative schemes, the Burford abstention and primary jurisdiction
doctrines are different labels for the same thing.” Parents League for Effective Autism Servs. v.
Jones-Kelley, 565 F. Supp. 2d 905, 913 (S.D. Ohio 2008) (quoting College Park Holdings, LLC v.
Racetrac Petroleum, Inc., 239 F. Supp. 2d 1322 (N.D. Ga. 2002)); see also PMC, Inc., 151 F.3d
at 619 (remarking that primary jurisdiction “amounts to the same thing” as Burford abstention).
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Just as the Court found the arguments for Burford abstention unconvincing, so the Court
also rejects Waste Services’ arguments for applying the doctrine of primary jurisdiction. A stay
for the purpose of the Court referring this matter to TDEC will not afford complete relief among
the parties and would essentially block Decatur County’s right to have the Court consider its claims
under federal law, claims arising under the laws of the United States and over which the Court has
original jurisdiction under 28 U.S.C. § 1332. For these reasons, Waste Services’ alternative
Motion to Stay is DENIED.
CONCLUSION
The Court holds that Decatur County’s NOI gave Waste Services sufficient information to
allow Waste Services to identify the nature of the RCRA allegations and satisfied the Act’s
prerequisites for bringing its citizen suit. The Court will exercise its jurisdiction over Decatur
County’s RCRA claims and finds no basis for Burford abstention or a stay of the proceedings
under the primary jurisdiction doctrine. Therefore, Waste Services’ Motion to Dismiss or, in the
alternative, Motion for Stay is DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: March 29, 2019
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