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AMERICAN CANOE ASS'N v. DISTRICT OF COLUMBIA WATER & SEWER AUT.

March 2, 2004.

AMERICAN CANOE ASSOCIATION, INC., et al, Plaintiffs,
v.
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant



The opinion of the court was delivered by: HENRY KENNEDY, District Judge

MEMORANDUM OPINION

This action is brought under the citizen suit provision, 33 U.S.C. § 1365, of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1251-1387. Plaintiffs American Canoe Association, Inc., Potomac Conservancy, Inc., and Canoe Cruisers Association of Greater Washington, Inc. (collectively "plaintiffs") charge that the District of Columbia Water and Sewer Authority ("WASA"), an independent authority of the District of Columbia government, has violated the terms and conditions of a permit, National Pollutant Discharge Elimination System ("NPDES") permit number DC0021199 ("Permit"), issued to WASA by the Environmental Protection Agency ("EPA") to operate the Potomac Interceptor Sewer and Upper Potomac Interceptor Relief Sewer. Alleging that these permit violations have resulted in the emission of hydrogen sulfide from the sewers, plaintiffs seek injunctive and other relief. Before the court are the parties' cross-motions for summary judgment [Docket ## 61, 65]. Upon consideration of the motions, the respective oppositions thereto, and the record of this case, the court concludes that defendant's motion for summary judgment must be granted and plaintiffs' Page 2 motion for summary judgment must be denied.

I. BACKGROUND

 A. Clean Water Act

  In passing the Federal Water Pollution Control Act, 33 U.S.C. § 1251-1387, Congress established a comprehensive regulatory scheme to control the discharge of waste and pollutants into the nation's navigable waters. The Act's objective is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. The CWA makes unlawful any pollutant discharges into navigable waters, except as authorized by other provisions of the CWA, 33 U.S.C. § 1311(a), 1342, and requires the promulgation of effluent limitations which set the maximum allowable quantities, rates and concentrations of different pollutants that may be discharged into waters. 33 U.S.C. § 1362(11). The EPA enforces the CWA through the National Pollutant Discharge Elimination System, under which the EPA has the discretion to issue permits, or delegate that power to states, for the discharge of otherwise prohibited effluents, after a public hearing and subject to conditions set by the EPA 33 U.S.C. § 1342(a)(1).

  While the EPA and states generally enforce NPDES permit terms, private citizens may also enforce the CWA: "[A]ny citizen may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this chapter . . . " 33 U.S.C. § 1365(a). The CWA defines "citizen" as "a person or persons having an interest which is or may be adversely affected." 33 U.S.C. § 1365(g). Further, under the citizen suit provision, "effluent standard or limitation" includes "a permit or condition thereof issued under section 1342 [the NPDES permitting regime]." 33 U.S.C. § 1365(f)(6).

 B. Factual Background Page 3

  WASA operates the Blue Plains Sewage Treatment Plant ("Blue Plains"), Potomac Interceptor Sewer ("PI"), and Upper Potomac Interceptor Relief Sewer ("UPI"), which together carry sewage from the District of Columbia and Loudoun, Montgomery, and Fairfax Counties, to Blue Plains for treatment. There are approximately 34 vents installed along the PI and UPI sewer mains. The EPA issued a NPDES permit to WASA on January 22, 1997 to operate the Blue Plains sewage collection system and related sewer interceptors and overflows. See generally Def's App. at 228-84 (NPDES Permit No. DC0021189, Jan. 22, 1997) ("1997 Permit"). Section II.B.1 of the permit ("M&O Clause") requires WASA to:
properly operate, inspect and maintain all facilities and systems of treatment and control (and related appurtenances including sewers, intercepting chambers, interceptors, combined sewer overflows, pumping stations and emergency bypasses) which are installed or used by the permittee to achieve compliance with the conditions of this permit.
Id. at 19.

  Plaintiffs claim that WASA has violated, and continues to violate, its 1997 Permit and, therefore, puts it in violation of 33 U.S.C. § 1342, which constitutes the NPDES program. More specifically, plaintiffs allege violation of the 1997 Permit's M&O Clause because WASA has failed to fulfill its obligation to the National Park Service ("Park Service" or "NPS") to install "odor controlled carbon filters" on vents located on Park Service property. Compl. ¶ 18. Because most of the PI and UPI sewer vents are "not equipped with any sort of filtration system or other means of controlling hydrogen sulfide emissions," WASA is in violation of its permit. Furthermore, plaintiffs contend that the PI and UPI vents have emitted and continue to emit, intermittently, hydrogen sulfide, which directly and adversely affects the "health, economic, recreational, aesthetic and environmental interests" of plaintiffs and their members. Id. ¶ 12. Page 4

  On August 6, 1999, plaintiffs wrote WASA, the EPA, and other local and federal authorities to provide notice of the alleged violations and of plaintiffs' intent to pursue a citizen suit in federal district court. See Compl. at Ex. 1 (Bookbinder Ltr. to Williams, Linton & Johnson, Aug. 6, 1999). Shortly thereafter, on October 22, 1999, plaintiffs filed the present suit seeking a declaratory judgment that WASA has violated and continues to violate its permit and the CWA, an injunction against further violations, an order requiring WASA to conduct monitoring of the PI and UPI sewer vents, appropriate civil penalties, and attorneys' and expert witnesses' fees.

  In December 1999, WASA filed a motion to dismiss on the grounds that (1) plaintiffs had no Article III standing to bring a suit, Def.'s Mot. to Dismiss at 7-18; (2) plaintiffs failed to state a claim upon which relief can be granted, id. at 18-23; and (3) the statute of limitations barred plaintiffs' action. Id. at 23-25. In its November 19, 2000 order, this court denied WASA's motions to dismiss. Am. Canoe Ass'n v. Dist. of Columbia Water & Sewer Auth., No. 99-2798, slip op. at 12 (D.D.C. Nov. 19, 2000) ("Nov. 2000 Order") [Docket #19]. After engaging in discovery, the parties filed the cross-motions for summary judgment presently before the court.

  II. ANALYSIS

 A. Legal Standards

  1. Summary Judgment

  Under Fed.R.Civ.P. 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Page 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment maybe granted. Anderson, 477 U.S. at 249-50.

  2. Effect of Previous Motion to Dismiss

  A previous motion to dismiss, granted or denied, may have an effect on a subsequent motion for summary judgment. In general, "[t]he ruling on a motion to dismiss for failure to state a claim for relief is addressed solely to the sufficiency of the complaint and does not prevent summary judgment from subsequently being granted based on material outside the complaint." 10A WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE: CIVIL 3D § 2713 at 233 (2d. ed. 1998); see also Wilderness Soc'y v. Griles, 824 F.2d 4, 16 (D.C. Cir. 1987) ("In sum, while a motion to dismiss may be decided on the pleadings alone, construed liberally in favor of the plaintiff, a motion for summary judgment by definition entails an opportunity for a supplementation of the record, and accordingly a greater showing is demanded of the plaintiff"). However, a summary judgment motion "may not be made on the same grounds and with the same showing that led to the denial of a previous motion to dismiss." See id. (citing Mayer v. Distel Page 6 Tool & Mach. Co., 556 F.2d 798 (6th Cir. 1977). Even if different language is used in a summary judgment motion than in a previous motion to dismiss, so long as the same legal theory supports both motions, the denial of the motion to dismiss serves as the law of the case*fn1 and on these grounds, a court may deny a motion for summary judgment. See In re Midwest Milk Monopolization Litig., 380 F. Supp. 880 (D. Mo. 1974).

 B. Jurisdiction

  Jurisdiction is a threshold matter without which this court has no authority to decide other potentially dispositive issues in this case. See Ticor Title Ins. Co. v. FTC, 814 F.2d 731, 757 (D.C. Cir. 1987) (Green, J., concurring) (holding that "lower courts must always wrestle with [jurisdictional issues] before reaching any questions of justiciability, since courts may not decide issues over which they lack jurisdiction"); Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981) ("The federal courts are courts of limited jurisdiction, and they lack the power to presume the existence of jurisdiction in order to dispose of a case on any other grounds."); Am. Farm Bureau v. EPA, 121 F. Supp.2d 84, 91 (D.D.C. 2000) ("The court must address the issue of jurisdiction as a threshold matter, because absent jurisdiction the court lacks the authority to decide the case on any other grounds."). Therefore, before considering the parties' cross-motions for summary judgment on the merits, the court must consider the two jurisdictional issues raised by WASA-notice and standing. The notice ...


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