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Georgia v. E Ridge, City of

ELR Citation: 27 ELR 20782
Nos. 4:94-CV-0281-HLM, 949 F. Supp. 1571/(N.D. Ga., 11/20/1996)

The court holds that a Tennessee municipality violated the Federal Water Pollution Control Act (FWPCA) by discharging raw sewage from a manhole without a national pollutant discharge elimination system permit. The court first holds that no genuine dispute exists as to whether discharges from the manhole, which was located a short distance across the state line in Georgia, occurred on the 19 dates alleged. The city has not introduced an affidavit or any other evidence to rebut the testimony, photographs, and videotape introduced by plaintiff Georgia and plaintiff-intervenors Georgia landowners. The court next holds that it may rely on eyewitness testimony to conclude that the discharges from the manhole contained raw sewage. Also, the photos and videotape support the court's conclusion that no genuine dispute exists concerning the presence of sewage in the manhole overflows. The court further holds that the unnamed tributary into which the discharges flowed is a "navigable water" as defined by the FWPCA. The tributary flows into a creek that flows into Tennessee, and thus flows into an interstate water. Also, eyewitness reports and test results support the conclusion that sewage flowed into the tributary. The court next holds that the manhole and the underlying sewer pipe is a point source under the FWPCA. Also, the city failed to establish a genuine dispute regarding the source of the sewage present in the tributary. And because overflows have violated the FWPCA on six occasions since plaintiffs filed their complaint, the case is not moot.

The court next rejects the city's argument that the FWPCA authorizes civil penalties only for violations that occur after the date on which the complaint is filed. To the contrary, a court must assess civil penalties under FWPCA §309(d) for any violation that plaintiff proves. The court next holds that the landowners are not entitled to punitive damages for their state-law claims, because Georgia does not allow punitive damages against governmental entities. The court also holds that Georgia's statute of limitations bars the landowners' claims for damages to real or personal property that occurred more than four years before Georgia filed its complaint. Also, the landowners were not entitled to due process before the city notified them that it would terminate their sewer service, because no Georgia statute or case recognizes a property interest with respect to sewer services. However, questions of fact regarding whether the termination notice amounted to anticipatory breach of contract and whether the city's alleged exacerbation of the discharges and failure to maintain the sewer line constituted a breach of contract preclude summary judgment on the landowners' breach of contract claim. The court also holds that the landowners may litigate both abatable and permanent nuisance claims, although they may not receive a damages award for both claims, and that they may simultaneously seek damages for both trespass and nuisance.

Counsel for Plaintiffs
Alan Gantzhorn, Ass't Attorney General
Attorney General's Office
40 Capitol Sq. SW, Atlanta GA 30334
(404) 656-3300

Counsel for Defendant
John M. Hull
Foster, Foster, Allen & Durrence
Pioneer Bank Bldg.
801 Broad St., Ste. 515, Chattanooga TN 37402
(423) 266-1141