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Cooper v. Toledo Area Sanitary District

United States District Court, N.D. Ohio, Western Division

May 30, 2017

Matt Cooper, Plaintiff
v.
Toledo Area Sanitary District, Defendant

          MEMORANDUM OPINION

          JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE

         This matter is before me on the Defendant's motion to dismiss (Doc. No. 13) pursuant to Fed.R.Civ.P. 12(b)(1), Plaintiff's opposition (Doc. No. 29), and Defendant's reply (Doc. 32). In addition, the Plaintiff's motion to strike portions of Paul Bauman's affidavit (Doc. No. 26) is also at issue.

         Brief Background

         Plaintiff Matt Cooper brings this action against the Toledo Area Sanitary District seeking declaratory and injunctive relief for alleged violations of the Clean Water Act, 33 U.S.C. § 1365(a), the Ohio Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and Ohio Rev. Code § 6111. (Doc. No. 1 at ¶ 81). The Plaintiff contends the Defendant failed to comply with the National Pollution Discharge Elimination System, Permit No. OHG 870001, regarding the discharge of pesticides near or in the waters of the state.

         In its motion, the Defendant seeks dismissal for lack of subject matter jurisdiction for three reasons. First, the Defendant contends Plaintiff did not meet the statutory notice requirements necessary to trigger federal jurisdiction under the Clean Water Act. Second, Defendant contends that because there are no current violations, the complaint is not redressable thereby undermining the Plaintiff's standing to bring suit. Third, the Defendant argues its subsequent actions to correct any deficiencies render Plaintiff's claim moot. The Plaintiff vigorously contests the motion.

         Applicable Legal Standard

         The Sixth Circuit recently affirmed the standard of review in a motion to dismiss under Fed.

         R. Civ. P. 12(b)(1):

“Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) ‘come in two varieties: a facial attack or a factual attack.'” Carrier v. Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). “A facial attack on the subject-matter jurisdiction” . . . . “questions the sufficiency of the pleading.” Gentek Bldg. Prods., Inc., 491 F.3d at 330 (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). “When reviewing a facial attack, a district court takes the allegations in the complaint as true, ” just as in a Rule 12(b)(6) motion. Id. (citing Ohio Nat'l Life Ins. Co., 922 F.2d at 325). . . .
A factual attack, on the other hand, raises a factual controversy requiring the district court to “weigh the conflicting evidence to arrival at the factual predicate that subject-matter does or does not exist.” Gentek Bldg. Prods., Inc., 491 F.3d at 330 (citing Ohio Nat'l Life Ins. Co., 922 F.2d at 325).

Wayside Church v. Van Buren County, 847 F.3d 812, 816-17 (6th Cir. 2017).

         In reviewing a factual challenge, a court may examine evidence, including evidence outside of the pleadings, of its power to hear a case. Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014). It is axiomatic that the “[p]laintiff bears the burden of establishing that subject matter jurisdiction exists.” Id. (Citation omitted).

         Discussion

         The Clean Water Act was enacted with the purpose of restoring and maintaining the chemical, physical and biological integrity of the nation's waters. 33 U.S.C. § 1251(a). “The Clean Water Act permits citizen suits ‘against any person (including . . . any other governmental . . . agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of an effluent standard or limitation, ' relevantly defined here as “a permit or condition thereof issued under [the NPDES program].” Askins v. Ohio Dept. of Agriculture, 809 F.3d 868, 872 (6th Cir. 2016) citing 33 U.S.C. § 1365(a)(1), (f)(6).

         Notice Requirements

         District courts have jurisdiction over citizen suits seeking enforcement of the Clean Water Act. 33 U.S.C. § 1365(a). A citizen suit must provide notice “prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to ...


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