United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
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. Searles' motion to dismiss is now
pending before the Court. For the reasons that follow, that
motion will be denied.
Factual and Procedural Background
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 basins located on Easthampton Road, and
eventually into Mill River through connected pathways of
wetlands and waterways.
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.
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”.]
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”.
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 lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1) which plaintiff opposes.
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.
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”.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Dismissal should be allowed only if, taking all
plaintiff's allegations as true, subject matter
jurisdiction cannot be justified. Id.