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Conservation Law Foundation, Inc. v. Plourde Sand and Gravel Co. Inc.

United States District Court, District of New Hampshire

November 6, 2014

Conservation Law Foundation, Inc., Plaintiff
Plourde Sand and Gravel Co., Inc., Defendant No. 2014 DNH 235

Zachary K. Griefen, Esq. Thomas F. Irwin, Esq. George D. Bisbee, Esq. Daniel E. Will, Esq. Joshua M. Wyatt, Esq.


Steven J. McAuliffe United States District Judge

This is a citizen suit brought by the Conservation Law Foundation (“CLF”). CLF alleges that Plourde Sand and Gravel Co., Inc. (“Plourde”) violated the Federal Water Pollution Control Act (the “Clean Water Act, ” the “Act, ” or “CWA”), 33 U.S.C. § 1251 et seq., by discharging storm water associated with its industrial activities, as well as other pollutants, into waters of the United States. Specifically, CLF alleges in count I that Plourde has been discharging pollutants from at least one point source into the Merrimack River, without authorization under a valid National Pollution Discharge Elimination System (“NPDES”) permit as required by the CWA. In count II, CLF alleges that Plourde violated the CWA by failing to obtain either an individual NPDES permit or coverage under the Multi-Sector General Permit issued by the Environmental Protection Agency (the “EPA”). In count III, CLF alleges that Plourde violated the CWA by failing to comply with its permit requirements. CLF seeks declaratory and injunctive relief, as well as civil penalties, costs, and attorney’s fees.

Plourde moves to dismiss CLF’s complaint pursuant to Rules 12(b)(1) and 12(b)(6)[1] of the Federal Rules of Civil Procedure, arguing that CLF has not alleged sufficient facts to demonstrate that it has constitutional standing to maintain this lawsuit, and it has not complied with the statutory preconditions to filing suit.

Because CLF has pled sufficient facts in its complaint, as supplemented by the declaration of one of its members, to support associational standing to pursue its claims, and has sufficiently complied with the notice provisions described in 33 U.S.C. § 1365(b)(1) and 40 C.F.R. § 135.3(a), the motion to dismiss (document no. 32) is denied.


Plourde operates a sand and gravel processing facility in Hooksett, New Hampshire, near the Merrimack River. CLF is a regional non-profit organization with more than 4, 000 members, including more than 450 members in New Hampshire, dedicated to protecting the environment, including protecting New Hampshire’s waterways from the significant adverse water quality impacts of storm water pollution.

CLF alleges in its complaint that Plourde maintains earth material piles — including sand, gravel, overburden, raw materials, intermediate product, finished product, by-product, and waste product — at its facility. CLF further asserts that Plourde engages in industrial activities, such as storing, moving, and processing materials using heavy machinery and equipment, and that the materials, heavy machinery and equipment, maintenance areas, loading areas, shipping areas, vehicles, and onsite refueling of activities, are all exposed to storm water and snow-melt, and on occasion, equipment and material may be sprayed down with water under certain conditions.

When the industrial materials and equipment located at Plourde’s facility are exposed to storm water, says CLF, the water becomes contaminated with dust, suspended solids, dissolved solids, fines, hydrocarbons (oil, grease, and fuel), heavy metals, sediment, road salt, trash, and other pollutants. The polluted water is then discharged, CLF alleges, via various point sources, such as site grading, surface water channels, subsurface hydrological connections, and detention ponds, into two surface-water wetlands complexes located in the northeasterly and southeasterly areas of Plourde’s facility. CLF claims that the south detention pond-wetlands discharges polluted water into the Merrimack River via surface water flows and a culvert, and the north detention pond-wetlands discharges polluted water into the Merrimack River via surface water flows and a man-made conduit.

CLF contends that these activities harm both its organization, whose interest is protection of New England’s and New Hampshire’s environment and waterways, and its members, who use and enjoy New England's and New Hampshire's waterways, including waters of the United States affected by Plourde’s industrial activities, such as the Merrimack River, for recreational and aesthetic purposes, including boating, swimming, fishing, hunting, and sightseeing.

In addition to the allegations in CLF’s complaint, CLF also offers a declaration from one of its members, Mark Feigl, of Concord, New Hampshire, who regularly makes use of the approximately four mile stretch of the Merrimack River in the area of Plourde’s facility to swim, canoe, and hunt. Feigl states in his declaration that he is “concerned ab[o]ut the water quality and overall environmental health of the river . . ., the surrounding tributaries, streams, wetlands, and ponds that may flow into the Merrimack River.” He also expressed “concerns” that the river is not safe for his daughter, his dog, or himself, and he limits the quantity of duck harvested from the Merrimack River and ponds near the Plourde facility that he serves friends and family.

CLF claims that Plourde’s alleged discharge of pollutants into the detention ponds, wetlands, and eventually the Merrimack River without obtaining a permit violates the CWA. The CWA prohibits the “discharge of any pollutant” into navigable waters from any “point source” without an NPDES permit. 33 U.S.C. § 1311(a); 40 C.F.R. § 122.2. “Discharge of a pollutant” includes “surface runoff which is collected or channelled by man.” 40 C.F.R. § 122.2. “Point source” is defined broadly to mean “any discernible, confined, and discreet conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discreet fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged.” Id.[2] “Pollutants” include “solid waste, incinerator residue, filter backwash, . . . garbage, . . . chemical wastes, . . . wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Id.

Additionally, the CWA requires a permit for “a discharge associated with industrial activity.” 33 U.S.C. § 1342(p)(2)(B). The EPA regulations implementing this section provide that “[s]torm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 C.F.R. § 122.26(a), (b)(14).

CLF asserts that Plourde is in violation of the CWA because it is discharging storm water associated with its industrial activities, and other pollutants as described above, without first obtaining (and complying with) an NPDES permit. Since the CWA was amended in 1987, it has required that facilities engaged in certain industrial activities, such as Plourde’s, obtain storm water discharge permits. 33 U.S.C. §§ 1342(a)(1), 1342(p)(2), 1342(p)(3)(A), 1342(p)(4), 1342(p)(6).

The CWA authorizes a “citizen” defined as “a person or persons having an interest which is or may be adversely affected, ” to file suit to enforce the CWA’s permitting requirements. 33 U.S.C. §§ 1365(a), (g). The statute and its implementing regulations impose a notice requirement on citizen suits requiring a would-be plaintiff to give notice of the alleged violation to the EPA, the State in which the alleged violation occurred, and the alleged violator, at least sixty days before filing a citizen suit. Id. at § 1365(b)(1)(A).

In an effort to comply with the statutory notice requirement, CLF sent Plourde, the EPA Administrator, and the Commissioner of the New Hampshire Department of Environmental Services (“NHDES”) a letter on December 3, 2012.[3] Receiving no adequate response from Plourde, and the EPA and NHDES having not filed any enforcement action, CLF filed suit on May 1, 2013. Plourde now moves to dismiss the suit because it claims CLF lacks Article III standing and has not adequately complied with the statutory notice requirements.

Standard of Review

In deciding a motion to dismiss for lack of standing under Federal Rule of Civil Procedure 12(b)(1), a court must “accept as true all well-pleaded factual averments in the plaintiff’s complaint and indulge all reasonable inferences therefrom in his favor.” Katz v. Pershing, LLC, 72 F.3d 64, 70 (1st Cir. 2012) (internal quotation marks omitted). In determining whether a plaintiff has sufficiently alleged its standing to sue, a court may consider affidavits and other such materials outside the pleadings. Gonzalez v. United States, 284 F.3d 281, 287-88 (1st Cir. 2002). “[A] suit will not be dismissed for lack of standing if there are sufficient allegations of fact . . . in the complaint or supporting affidavits.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 65 (1987) (internal quotations omitted).

Allegations of standing, even in the context of a motion to dismiss, must be reasonably definite, factual, and relate either directly or inferentially to each material element necessary to establish standing. See United States v. AVX Corp., 962 F.2d 108, 115 (1st. Cir. 1992) (rejecting “conclusory allegations” and “generalized averments” of standing and requiring “reasonably definite factual allegations, either direct or inferential, ...

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