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Quad Cities Waterkeeper Inc. v. Ballegeer

United States District Court, C.D. Illinois, Rock Island Division

September 29, 2016

QUAD CITIES WATERKEEPER INC., an Illinois not for profit corporation, and PRAIRIE RIVERS NETWORK, an Illinois not for profit corporation, Plaintiffs,
v.
DAVID G. BALLEGEER, an individual, BALLEGEER TRUCKING, INC., an Illinois corporation, BALLEGEER EXCAVATING, INC., an Illinois corporation, and FRANCIS BALLEGEER, an individual, Defendants.

          ORDER

          SARA DARROW UNITED STATES DISTRICT JUDGE

         Plaintiffs Quad Cities Waterkeeper (“Waterkeeper”) and Prairie Rivers Network (“PRN”), conservation organizations, are suing Defendants David G. Ballegeer, Ballegeer Trucking, Inc., Ballegeer Excavating, Inc., and Francis Ballegeer under the citizen suit provision of the Clean Water Act (“CWA”), 33 U.S.C. § 1365(a)(1). Before the Court are Plaintiffs' renewed motion for summary judgment, ECF No. 122; Defendants' motion for leave to file excess pages in response to it, ECF No. 123; and Plaintiffs' motion for leave to file excess pages in reply to that, ECF No. 126. For the following reasons, all the motions are GRANTED.

         BACKGROUND[1]

         David Ballegeer owns and operates a trucking and excavation company. JUMF ¶ 1. His brother Francis Ballegeer owns several hundred acres of property adjacent to the Green River in Henry County, Illinois. Id. at ¶ 3. At some time prior to 1976, David Ballegeer claims, [2] the previous owner of the property had built a two earthen berms, or levees, on the property “on top of the farm land, ” AMF ¶ 40, at what the parties identify as Site 4 and Site 5, id. at ¶¶ 33-34. See Pfs.' Notice of Intent 6, Compl. Ex. A, ECF No. 1-1. However, the levees were not, to the Ballegeers' knowledge, constructed before 1972. Agreed Pretrial Order 4, ¶ 45, ECF No. 119-1. In 1976, the Green River flooded, washing out one of the levees, which the Ballegeers rebuilt. Id. at ¶ 35. Beginning in 1980 and continuing until 1984, the Ballegeers constructed a new levee out of earth that spanned the entire riverine length of the property. Id. at ¶¶ 48-51. Sometime after 1985, David Ballegeer began bringing concrete generated by his company down to the property. JUMF ¶¶ 4, 6. This waste concrete, previously used for such domestic architecture as driveways, garage floors, and housing, was pushed onto the banks of the Green River to shore up the levees, id. at ¶ 7, AMF ¶ 65, 70-71, because over the years, the banks of the Green River had eroded to meet the levees, AMF ¶ 66. The concrete placed there included asphalt and rebar. Over the years, the Ballegeers have added more concrete at various points along the river and levee in response to flooding, adding brick and concrete slabs at several locations, totaling additions of hundreds of linear feet of concrete and other construction waste. Concrete and rebar ended up in the river, as well as dirt resulting from the creation and maintenance of the levee. The Ballegeers assert that their artificial concrete scree, both atop and at the base of the levee, known as riprap, is structurally necessary to maintain the levee and protect the property from flooding. AMF ¶ 73.

         Neither of the Ballegeers ever received authorization from the United States Army Corps of Engineers (“Corps”) to create or maintain the levee, or received any kind of permit under the CWA.

         Plaintiffs filed this lawsuit on July 19, 2012, alleging, inter alia, in their first two claims for relief, that Defendants had discharged concrete, rebar, dirt, and other pollutants on the banks and bed of the Green River in violation of the CWA. Compl. ¶¶ 53- 62. Both sides moved for summary judgment, ECF Nos. 36, 61, on a number of grounds, most of which are no longer at issue. Relevantly here, Plaintiffs moved for summary judgment on their first two claims for relief, arguing that the placement of concrete and other materials described above was an illegal discharge of a pollutants pursuant to 33 U.S.C. § 1311(a), and that it was not exempted from the statute by any permit. See Mar. 26, 2015 Order 22, ECF No. 88. Defendants agreed that the concrete and rebar they had discharged were pollutants within the meaning of the CWA, but argued that it was permitted to discharge these materials nevertheless under the authority of either of two “nationwide permits, ” or of the CWA's statutory maintenance exception, 33 U.S.C. § 1344(f)(1). Id. at 22-23. The Court determined that Defendants' concrete placements were not authorized by either of the nationwide permits, id. at 23-26, but declared that it could not determine from the evidence available at that time whether Defendants' placement of concrete could qualify as maintenance of the levee under § 1344(f)(1), and thus be exempted from the CWA's ban on the emission of pollutants. Mar. 26, 2015 Order 27. The Court elaborated that this was so because it was not possible to determine what the “original fill design” of the levee had been, and thus whether the placements of concrete were maintenance of that levee. Id.

         Based on the Court's ruling, the parties prepared for a trial on this limited question only-whether the otherwise-illegal placements of concrete and other waste materials next to and in the Green River were exempted from the prohibitions of the CWA by the maintenance exception. Agreed Pretrial Order 4-7, ¶¶ 1-14. (Plaintiffs' other remaining claim was voluntarily dismissed. Proposed Pretrial Order 46, ECF No. 93.) However, Plaintiffs argued for the first time in their trial brief that the Corps had promulgated regulations limiting the maintenance exception to maintenance of structures constructed prior to 1972, or to levees that had received construction permits. Pls.' Trial Br. 3-5. They also argued that this limitation was inferable from the language of the maintenance exception itself, and had been recognized by other federal courts. Id. In response to the new, potentially dispositive argument, the Court vacated the looming jury trial and ordered another round of summary judgment briefing on the applicability of the maintenance exception. Jan. 29, 2016 Minute Entry. The fruit of this order was borne in the form of the motions currently before the Court.

         DISCUSSION

         Plaintiffs seek summary judgment on their two remaining claims, arguing that Defendants' concrete placement is not covered by the CWA's maintenance exception (or any other exception, but the maintenance exception is the only one that remains at issue). Mot. Summ. J. 11, 12-15. Plaintiffs argue that Corps regulations and the language of the maintenance exception itself require the structures maintained under the exception to predate the passage of the CWA in 1972 or have subsequently been permitted. Id. Because Defendants concede neither condition is met, Plaintiffs claim the maintenance exception cannot apply. Id. In the alternative, Plaintiffs argue that Defendants' cannot show their concrete placements were for the purpose of maintenance of an existing structure, as they must have been under the maintenance exception. Id. at 11, 15-24. Defendants respond that the CWA does not require maintained structures to predate 1972 or be permitted, Resp. Mot. Summ. J. 24-32, ECF No. 124, and that their concrete placements were for the purpose of maintaining the levee, without exceeding the scope of its “original fill design.” Id. at 32-46.

         I. Legal Standard on a Motion for Summary Judgment

         Federal Rule of Civil Procedure 56 provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting Anderson, 477 U.S. at 248); see also Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (“The court [at summary judgment] has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.”).

         The party seeking summary judgment must base its motion on record evidence, Fed.R.Civ.P. 56(c) (listing acceptable kinds of evidence), or at least point out the record's lack of evidence supporting its opponent's claims or defenses on issues where the adverse party bears the ultimate burden of proof, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014). To defeat a properly supported motion, the non-moving party must respond with “evidence of specific facts creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). When evaluating a motion for summary judgment, “the party opposing the motion gets the benefit of all facts that a reasonable jury might find, ” Loudermilk v. Best Pallet Co., Inc., 636 F.3d 312, 314 (7th Cir. 2011), as well as the benefit of all inferences a reasonable trier of fact could draw from those facts, id. at 315.

         II. The CWA

         The CWA prohibits “the discharge of any pollutant” into federally protected waters without a permit from the Corps. 33 U.S.C. §§ 1311(a), 1344(a). “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters[3] from any point source.”[4] § 1362(12). The CWA defines “pollutant” broadly to include not only traditional contaminants but also solids such as “dredged spoil, solid waste . . . biological materials, . . . rock, sand . . ..” Id. at § 1362(6). The CWA authorizes that Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill materials into navigable waters. Id. at § 1344(a). The Corps may proceed via a formal notice and comment process to designate specific disposal sites for the discharge of dredged or fill material, id., but is also authorized to issue via regulation “general permits, ” for which no application is necessary, and which categorically allow certain discharges of dredged or fill material that have “only minimal adverse environmental effects . . . .” Id. at ยง 1344(e)(1). The promulgation of the permits themselves requires notice and comment, but once issued, activities may fall ...


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