Opinion
Civ. No. 03-880 (JNE/JGL).
July 9, 2004
Richard B. Bates, Esq., Bates Law Office, appeared for Plaintiff River Ravine Rescue, Inc.
George C. Hoff, Esq., and Amanda K. Morken, Esq., Hoff, Barry Kuderer, P.A., appeared for Defendant City of South St. Paul, Minnesota.
ORDER
This is a citizen suit brought by River Ravine Rescue, Inc. against the City of South St. Paul (City) under the Clean Water Act (CWA), 33 U.S.C. § 1365(a) (2000). River Ravine Rescue alleges that the City violated the CWA by conveying storm water and pollutants to area surface waters without a permit issued under the National Pollutant Discharge Elimination System (NPDES). The case is before the Court on cross-motions for summary judgment. For the reasons set forth below, the Court concludes that the City is entitled to summary judgment.
By letter to the Court after the motion hearing, River Ravine Rescue asked whether additional briefing would be appropriate. Insofar as River Ravine Rescue seeks leave to submit a supplemental memorandum, the Court denies the request.
I. BACKGROUND
The CWA prohibits the discharge of any pollutant from a point source into navigable waters unless the discharge complies with the terms of an NPDES permit. See 33 U.S.C. § 1311(a), 1342 (2000); Mississippi River Revival, Inc. v. City of Minneapolis, 319 F.3d 1013, 1014 (8th Cir. 2003). "NPDES permits establish discharge conditions aimed at maintaining the chemical, physical, and biological integrity of the Nation's waters." Mississippi River Revival, 319 F.3d at 1014-15. NPDES permits are required for storm water discharges from construction activity that disturbs at least five acres of total land area. 40 C.F.R. § 122.26(a)(1)(ii), (b)(14)(x). NPDES permits are also required for storm water discharges from construction activity that disturbs less than five acres of total land area if the activity is part of a common plan of development that disturbs at least five acres. Id. The Environmental Protection Agency (EPA) delegated its authority to issue NPDES permits to the Minnesota Pollution Control Agency (MPCA) for point sources in Minnesota. Mississippi River Revival, 319 F.3d at 1015; see 33 U.S.C. § 1342(c); Minn. Stat. § 115.03, subd. 5.
In April 2002, the City received a petition for local improvement from owners of properties on Evans and Outlook Avenues. The property owners sought the construction of curbs, gutters, and storm sewers, and the installation of bituminous paving. In August 2002, the City approved the petition and requested bids. The next month, the City selected a contractor for the Evans and Outlook Avenues project. Meanwhile, in May 2002, the City approved a project to build housing in a subdivision called Wilson Heights. The next month, the City awarded a contract for the Wilson Heights project.
In October 2002, the City applied for an NPDES permit for the Wilson Heights project. The application listed the total land area to be disturbed as 4.95 acres. Later that month, the MPCA returned the application because the area to be disturbed did not meet the five-acre threshold.
In January 2003, River Ravine Rescue commenced this action. In its Complaint, River Ravine Rescue alleged that the Wilson Heights project and the Evans and Outlook Avenues project constituted a common plan exceeding five acres and that the City violated the CWA by failing to obtain an NPDES permit. River Ravine Rescue sought a declaratory judgment that the City was violating the CWA, an injunction ordering the City to apply for an NPDES permit, civil penalties, attorney fees, and costs.
After River Ravine Rescue brought suit, the City applied for an NPDES permit. In the application, the City listed the amount of land to be disturbed at 6.60 acres. The MPCA issued the permit in July 2003. Three months later, the MPCA sent a Notice of Violation (NOV) to the City. The NOV described the violation as follows:
Documentation submitted by the City indicates that construction activity disturbed more than 5 acres of land and the City was required to obtain an NPDES permit for this construction activity. Application for the MPCA's National Pollutant Discharge Elimination System (NPDES)/State Disposal System (SDS) General Storm Water Permit (Permit) was received on July 2, 2003. The City's application indicates the City construction began on September 5, 2002, which was verified by inspection on September 30, 2002.
Because the City had obtained an NPDES permit, the MPCA did not require any further corrective actions.
II. DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the party opposing the motion to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The parties dispute whether the case is moot. "[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not be reasonably expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); see Mississipi River Revival, 319 F.3d at 1016 n. 3. Because it obtained an NPDES permit, the City argues that it has satisfied its burden to demonstrate that River Ravine Rescue's claims are moot. The Court agrees.
In this case, the sole violation of the CWA alleged by River Ravine Rescue is that the City failed to obtain an NPDES permit. The record reveals that the MPCA issued an NPDES permit to the City. There is no evidence in the record that discharges without a permit will resume. The Court declines to speculate that the City will allow the resumption of discharges without a permit. See Mississippi River Revival, 319 F.3d at 1017. Thus, the City has satisfied its burden of demonstrating that it is absolutely clear the allegedly wrongful behavior — discharges without an NPDES permit — could not be reasonably expected to recur.
River Ravine Rescue seeks to avoid the consequences of this conclusion by arguing that the City's permit is not valid. Neither party addresses whether the Court can entertain River Ravine Rescue's challenge to the MPCA-issued permit. The Court's research reveals that such a challenge must be brought in state court. See, e.g., Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 874 (7th Cir. 1989) ("Appropriately, the courts have denied federal judicial review of state-issued permits."); District of Columbia v. Schramm, 631 F.2d 854, 863 (D.C. Cir. 1980) ("The state courts are the proper forums for resolving questions about state NPDES permits. . . ."); Natural Res. Def. Council, Inc. v. Outboard Marine Corp., 702 F. Supp. 690, 693-94 (N.D. Ill. 1988) ("It follows, then, that direct review of EPA-uncontested state-issued permits is confined to state courts."); Mississippi River Revival, Inc. v. Minn. Pollution Control Agency, No. C1-01-23, 2001 WL 856275, at *2 (Minn.Ct.App. July 31, 2001) ("Direct review of state-issued permits is generally confined to state courts."). Accordingly, the Court declines to consider River Ravine Rescue's arguments regarding the validity of the City's NPDES permit.
River Ravine Rescue also maintains that its claim for civil penalties is not moot. River Ravine Rescue first argues that "civil penalties attach irrevocably to a violator at the time of the violation." River Ravine Rescue next argues that "civil penalties constitute punishment that cannot be satisfied by commitments to future compliance." Finally, River Ravine Rescue asserts that "if penalties could be mooted by post-complaint compliance, it would read the penalty provision out of the statute and have a devastating effect on citizen enforcement." The Eighth Circuit rejected all three arguments in Mississippi River Revival. The Eighth Circuit characterized the first argument as one that "simply ignores the . . . mootness standard adopted by the Supreme Court in Laidlaw." Mississippi River Revival, 319 F.3d at 1016. With regard to the second argument, the Eighth Circuit stated:
In addition, plaintiffs argue that claims for civil penalties cannot be moot because "penalties punish a polluter for violating the law." We doubt this argument affects the mootness analysis under Laidlaw. Instead, it goes to the merits of plaintiffs' claim for civil penalties, assuming that claim is not moot. But even if the argument is relevant to the issue of mootness, we conclude it is without merit.Id. at 1017. As to River Ravine Rescue's third argument, the Eighth Circuit noted: "The Clean Water Act authorizes the EPA to seek civil penalties for past violations, and such a claim would not be mooted by the defendant's subsequent compliance. But the Act limits citizen suit plaintiffs to remedies that will redress ongoing and future injury, so the Laidlaw standard applies." Id. at 1016 (citation omitted).
In short, the City clearly demonstrated that discharges without an NPDES permit can not be reasonably expected to recur. See id. Accordingly, the Court concludes that River Ravine Rescue's claims for declaratory and injunctive relief and civil penalties are moot. See id. at 1016-17. The Court turns to the parties' dispute regarding whether River Ravine Rescue is entitled to recover its attorney fees and costs.
The CWA provides that a court, "in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney fees and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d). The Eighth Circuit summarized the law regarding what constitutes a "prevailing party" for purposes of section 1365(d) as follows:
A party prevails either by "obtain[ing] an enforceable judgment . . . or comparable relief through a consent decree or settlement . . . [that] directly benefit[s the plaintiff] at the time of the judgment or settlement." The Supreme Court has made clear "`that a plaintiff [must] receive at least some relief on the merits of his claim before he can be said to prevail,'" such that the relief "materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Further, the change in the relationship must be "judicially sanctioned;" a voluntary change in the relationship between the parties as a result of a lawsuit is insufficient to trigger a shift in the general rule that parties pay their own fees.Sierra Club v. City of Little Rock, 351 F.3d 840, 845 (8th Cir. 2003) (alterations in original) (citations omitted). In this case, River Ravine Rescue can point to no actual relief on the merits of its claims against the City. That the City obtained an NPDES permit after River Ravine Rescue brought suit is insufficient to deem River Ravine Rescue a prevailing party. Accordingly, the Court declines to award River Ravine Rescue its attorney fees and costs.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:1. The City's Motion for Summary Judgment [Docket No. 9] is GRANTED.
2. River Ravine Rescue's Motion for Summary Judgment [Docket No. 12] is DENIED.
3. River Ravine Rescue's Complaint [Docket No. 1] is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.