UNITED STATES ENVIRONMENTAL PROTECTION AGENCY BEFORE THE ADMINISTRATOR IN THE MATTER OF: ANDREW H. HOLT and ELEANORE F. HOLT, dfbfa A LIVESTOCK, DRESDEN, TENNESSEE DOCKET NO: CWA-04-2015-4506 RESPONDENTS. CORRECTED MEMORANDUM IN SUPPORT OF MOTION TO STRIKE AMENDED ANSWER AND CERTAIN PORTIONS OF INITIAL ANSWER TABLE OF CONTENTS TABLE OF AUTHORITIES 11. 3 A. Respondents? Amended Answer Was Not Timer Filed as a Matter of Course, Nor Did Respondents Properly Move this Court for Leave to Amend Their Answer, and Should Therefore Be Stricken from this Proceeding. 3 Respondents? New Affirmative Defense and Amended Denials in Their Amended Answer are Unduly Prejudicial andfor Futile, and the Court Should Therefore Not Grant Respondents Leave to Amend Their Answer. .. 5 1. Tenth Defense Complainant?s Failure to Comply with Section 309 ofthe CWA 3 2. Paragraphs I9, 46, and 49 Addition of Exhibit 9 3. Paragraph 53 Transcript ofVoicemail from Mr. Jack 9 The First, Second, Third, and Feurth Defenses Asserted in Respondents? Initial and Amended Complaints are Legally Insuf?cient and are Outside of the Purview of this Adjudicatory Body, and Should Therefore he Stricken from this 10 1. First Defense - Violation ofArticle 1, Section 1 of the US. 10 2. Second Defense Violation of Article 111, Section 1 of the US. Constitution .. 12 3. Third Defense Violation of Twelfth Amendment to the U.S. l2 4. Fourth Defense Violation of Fourteenth Amendment to the US. I3 D. The Defenses ofNecessity and Acts of God Asserted in the Sixth Defense in Initial and Amended Complaints are Legally Insuf?cient and Should Therefore be Stricken from this l5 E. The Defenses of Laches, License, Estoppel, and Applicable Statute of Limitations in the Ninth Defense Asserted in Respondents? Initial and Amended Complaints are Legally Insuf?cient and Should Therefore be Stricken from this 19 2. License 20 3. 23 4. Applicable Statute of 24 111. Conclusion 26 CERTIFICATE OF SERVICE 27 EXHIBITS A-K ii TABLE OF AUTHORITIES Constitutional Provisions U.S. Const. art. I, 14 US. Const. amend. 15 Statutes 33 24 Fed. R. Civ. P. 8(a) 5 Fed. R. Civ. P. 3 Tenn. Code Ann. 69-3?10] 24 Rules 40 C.F.R. 4 40 C.F.R. 4 United States Supreme Court Cases Atlas Roofing Co. v. Occupational Safety Health Review Comm'n, 430 US. 442 15 Crowell v. Benson, 285 US. 22 14 Curtis v. Loether, 415 US. 189 14 Foman v. Davis, 371 US. 178 (1962) 6 Heckler v. Cmtv. Health Servs., 467 US. 51 24, 25 Johnson v. Zerbst, 304 US. 458 (1938) 22 Morton v. Ruiz, 415 US. 199 (1974) 12 RR. Co. v. Reeves, 77 US. 176 (18?0) 17' United States v. Baileyr 444 US. 394 17 United States v. Oakland Cannabis Buyers? Coon, 532 US. 483 (2001) 1? Weinberaer v. Salfi, 422 U.S. 749 (1975) 13 United States Court of Appeals Cases Bell v. Allstate Life Ins. Co.. 160 F.3d 452 (8th Cir. 8 Groves v. Prickett, 420 F.2d 1119 (9th Cir. 1970) 23 Las Vegas lee Cold Storage v. Far West Bank, 893 F.2d 1182 (10th Cir. 6 Morgan v. Heckler. 779 F.2d 544 (9th Cir. 1985) 28 Pub. Interest Research Grn. ofN.J., Inc. v. Powell Terminals? Inc., 913 F.2d 64 Satehell v. Dilworth, 7'45 F.2d 7'81 (2d Cir. 1984) 6 Sierra Club v. Chevron U.S.A.. Inc., 834 F.2d 1517' (9th Cir. 198??) 28 Tenn. Valley Auth. v. Whitman, 336 F.3d 1236(11th Cir. 14 iv United States v. Marine Shale Processors, 8] F.3d 1329(5t11 Cir. 1996) United States District Court Cases D.S. Am. (E.) v. Chromaarafx Imaging Svs.. 873 F. Supp. 786 (E.D.N.Y. DelCostello v.1nt?1 Brotherhood of Teamsters, 462 US. 151 Doe v. Columbia Univ., 165 F.R.D. 394 (S.D.N.Y. . . In re Mayo. 112 BR. 607' (Bankr. D. Vt. .. McCann v. Frank E. Hall 85 Co.. 109 F.R.D. 363 (ND. 111. Jan. 30. Telectronics Proprietary. Ltd. v. Medtronic. Inc.. 687 F. Supp. 832 (S.D.N.Y. 1988) U.S. Pub. Interest Research Group v. Atl. Salmon of Me. LLC. 215 F. Supp. 2d 239 (D. Me. 2002) United States v. Amoco Oil Co. 580 F. Supp. 1042 (WD. Mo. 1984) . . United States v. Noble Oil Co.. 1988 U.S. Dist LEXIS 11526 (D. NJ. 1988) .. Environmental Appeals Board Cases In re Carney Indus. Inc.. 7 E.A.D. 171 (EAB, June 9, 1997) In re Bollman Hat Co., 8 E.A.D. 177 (EAB .. In re Carroll Oil Co.. 10 E.A.D. 635 (EAB .. . In re Envtl. Prot. Sens. 13 E.A.D. 506 (EAB In re Lazarus. Inc.. 7' E.A.D. 318 (EAB 1997) In re Louisville Gas Elec. Co.. Trimble Cntv. Power Plant. I E.A.D. 687100 1981) In re Ocean State Asbestos Removal. Inc.. 7 BAD. 522 (EAB In re Serv. Oil. Inc.. 14 E.A.D. 133 (EAB . . 2716,17!' 13 25 US Environmental Protection Agency Administrative Law Judge ALJ Cases In re Aeierno, 2007 EPA ALI LEXIS 9 (EPA. Feb. 28, 2007) 3, 22, 25 In re Chem-Solv, Inc., 2014 EPA ALJ LEXIS 14 (EPA. June 5, 2014) 6 In re lsoehem N. Am. LLC, 2007'' EPA ALI LEXIS 37 (EPA. Dec. 27, 8 In re Minn. Metal Finishing, Inc.. 2007 EPA ALI LEXIS I (EPA. Jan. 9, 23 In re Strong Steel Prods. LLC, 2003 EPA ALJ LEXIS 191 (EPA. Oct. 9 Treatises 5 C. Wright A. Miller, Federal Practice Procedure 1228, at 339 (1969) .. 6 Restatement (Second) ot'Torts, 26 Exhibits Exhibit A: State of Tennessee General State Operating Permit for Class II Concentrated Animal Feeding Operations, Permit No. SOPCD0000 (eff. Nov. 1, 2010) Exhibit B: State of Tennessee General NPDES Permit for Class II Concentrated Animal Feeding Operation, Permit No. TNA000000 (eff. Aug. 7, 2004) Exhibit C: Tenn. Comp. R. Regs. Exhibit D: Natural Resources Conservation Serv., Conservation Practice Standard, Waste Treatment Lagoon, No. 359 (Aug. 2000) Exhibit E: U.S. Dep?t of Agric., Natural Resources Conservation Serv., Agricultural Waste Management Field Handbook, 210-VI-AWMFH, amend. 3 (Aug. 2009) Exhibit F: Smith Assoc., Inc., Comprehensive Nutrient Management Plan, A Livestock (Jan. 16, 2008) Exhibit G: A Livestock 201 1 Weekly Inspection Log vi Exhibit H: Exhibit 1: Exhibit J: Exhibit K: A Livestock 2011 Rain Daily Inspection Log A Livestock 2013 Weekly Inspection Log A Livestock 2013 Daily Rainfall Record National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Tennessee and the United States Environmental Protection Agency Region 4 (Oct. 12, 2007) vii COMES NOW the Complainant, the United States Environmental Protection Agency, Region 4 (EPA), by and through its counsel in the above-styled action, and respectfully requests the Court: strike Respondents? Amended Answer, ?led on November 17, 2015, in its entirety, or, alternatively, strike the Tenth Defense asserted in Respondents? Amended Answer, and strike Paragraphs 19, 46, 49, and 53 in and Exhibit A to the Amended Answer; and strike the First, Second, Third, Fourth, Sixth, and Ninth Defenses asserted in Respondents? Initial Answer, ?led September 16, 2015, and Amended Answer, to the extent that the Court allows the Amended Answer to remain on the record. As ground therefore states as follows: 1. Facts Complainant ?led its Administrative Complaint and Notice of Proposed Penalty Assessment (?Initial Complaint?) on August 13, 2015. Respondents timer ?led their Answer to Administrative Complaint and to Notice ofProposed Penalty Assessment (?Initial Answer?) on September 16, 2015. In their Initial Answer, Respondents raised as defenses the constitutionality of the enforcement proceeding in this matter, a number ofaf?rmative defenses, and alleged lack of Clean Water Act jurisdiction over the matter. In a letter to both Complainant and Respondents dated September 18, 2015, the Of?ce of the Administrative Law Judges informed the parties of a pilot program, pursuant to which the parties are required to ?le all documents and correspondence with the Headquarters Hearing Clerk, Ms. Sybil Anderson. Complainant subsequently ?led a Memorandum in Support oflvlotion for Leave to Amend Administrative Complaint (?Motion for Leave to Amend") on October 2, 2015 to correct one typographic error in its Initial Complaint and to clarify the receiving waterbody at is3ue. 1 Chief Judge Biro was then designated as the Administrative Law Judge to preside in this proceeding via an Order of Designation dated October 16, 2015. In the Order of Designation, the parties were once again reminded of the requirement to ?le all documents and correspondence in this matter with the Headquarters Hearing Clerk rather than with the Regional Hearing Clerk. This Court granted Complainant?s Motion for Leave to Amend on October 22, 2015. Order Granting Motion to File Amended Complaint. Consistent with the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the RevocationfSuspension or Temiination of Permits (hereinafter, ?Consolidated Rules of Practice" or at 40 CPR. the Court also directed Respondents to file their Answer to the Amended Complaint within 20 days of the Order Granting Motion to File Amended Complaint. Therefore, Respondents? Answer to the Amended Complaint was due no later than November I 1, 2015. On November 17, 2015, Respondents? counsel sent an ?Answer to Amended Complaint and Notice of Proposed Penalty Assessment" (hereinafter ?Amended Answer?) via electronic mail to Ms. Patricia Bullock, the Region 4 Regional Hearing Clerk, and simultaneously served copies of the Amended Answer on omplainant?s attorney and to the Headquarters Hearing Clerk. The Amended Answer adds one new af?rmative defense: ?Respondents aver that the provisions of 33 1319 were not complied with and therefore the complaint should be dismissed." Amended Answer, 10th Defense. Respondents also modi?ed their previous defenses in Paragraphs 19, 46, 49, and 53 of their Initial Answer. II. Arguments Although the CROP do not speci?cally provide for motions to strike, 40 C.F.R. 0) grants this Court the authority to all other acts and take all measures necessary for the maintenance oforder and for the ef?cient, fair and impartial adjudication of issues arising in proceedings governed by the 40 CPR. 22.16 speci?cally allows parties to make dispositive motions. While the Federal Rules of Civil Procedure do not apply to proceedings under Part 22, the Federal Rules of Civil Procedure may be relied upon for guidance. 111i m, 2007' EPA ALJ LEXIS 9, (EPA. Feb. 28, 200?). Fed. R. Civ. P. 12(1?] allows a court to strike from a pleading an insuf?cient defense or any redundant, immaterial, impertinent, or scandalous matter. A. Respondents? Amended Answer Was Not Tinter Filed as a Matter of Course. Nor Did Respondents Pronerlv Move this Court for Leave to Amend Their Answer, and Should Therefore Be Stricken from this Proceeding. Pursuant to 40 C.F.R. 22. 14(c), a respondent shall have 20 additional days from the date of service of the amended complaint to ?le its answer. This is consistent with ChiefJudge Biro?s Order Granting Motion to File Amended Complaint, which directed Respondents to ?le their Answer to the Amended Complaint no later than 20 days from the date of that Order, October 22, 2015. document is ?led when it is received by the appropriate Clerk.? 40 C.F.R. Respondents disregarded both this Court?s Order and the CROP when they failed to timely ?le their Amended Answer as a matter of course under 40 C.F.R. Respondents? emailed their Amended Answer to the Regional Hearing Clerk on November 17, 2015, and simultaneously served a copy of the Amended Answer 0n the Headquarters Hearing Clerk. Because Respondents had until November 11, 2015 to ?le their Amended Answer as a matter of course, they were six days late with their ?ling, and are therefore not entitled to amend their Answer as a matter of course pursuant to 40 CPR. Notwithstanding the 20-day deadline before which Respondents could have filed their Answer to the Amended Complaint as a matter of course, 40 C.F.R. 22.15(e) allows Respondents to amend their Answer only upon motion granted by the Presiding Officer. ?All motions, except those made orally on the record during a hearing, shall: (I) Be in writing; (2) State the grounds therefor, with particularity; (3) Set forth the relief sought; and (4) Be accompanied by any af?davit, certi?cate, other evidence or legal memorandum relied upon." 40 C.F.R. Respondents failed to respect this Court?s authority when they did not properly move the Court for leave to amend their Answer; they simply ?led their Amended Answer (albeit untimely) with no explanation as to why the Court should allow such a late Amended Answer to be ?led. Nor did Respondents explain the basis for why the (hurt should allow Respondents to add an af?rmative defense or amend their admissions or denials. Complainant therefore respectfully requests that the Court strike Respondents? Amended Answer in its entirety because of Respondents? failure to timely amend the Answer as a matter of course or to request leave to amend the Answer. B. Respondents? New Affirmative Defense and Amended Denials in Their Amended Answer are Undulv Preiudicial and/or Futile, and the Court Should Therefore Not Grant Respondents Leave to Amend Their Answer. 40 C.F.R. 22.15(b) requires Respondents to include in their Answer, inter a?a, circumstances or arguments which are alleged to constitute the grounds of any defense. Section 22.15(b} is modeled after Fed. R. Civ. P. Courts that have interpreted Rule 8(e) have consistently held that: The rule that a party must plead an affirmative defense or risk losing it is indispensable to the concept of fundamental procedural due process which is embodied in the Federal Rules ofCivil Procedure. Parties must give fair notice to their adversaries of their claims and defenses to provide them with a meaningful opportunity to meet and defend those actions. Such notice is requisite to the design of a full discourse of all meritorious matters before the matter is taken under advisement. or decided by a jury. In re Mayo, I 12 B.R. 607, 660 (Bankr. D. Vt. 1990); also Telectronies Proprietary. Ltd. v. Medtronic Inc., 68? F. Supp. 832. 840-41 (S.D.N.Y. 1988). ?Failure to plead an af?rmative defense in the answer results in ?the waiver of that defense and its exclusion from the case.? Satchel] v. Dilworth. 745 F.2d 781, 784 (2d Cir. I984), citing 5 C. Wright 8: A. Miller, Federal Practice Procedure 1278. at 339 (1969). "[W]here a party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial." Las Vegas Ice Cold Storage v. Far West Bank. 893 F.2d 1182, 1185 (10th Cir. 1990). Although the United Slates Supreme Court has held that leave to amend shall be freely given, a court will consider whether there was any undue delay, bad faith, or dilatory motive on the movant?s part, repeated failure to cure de?ciencies by previous amendment, undue prejudice, or futility ofamendment. Foman v. Davis, 3?1 U.S. 178, 181?82 (1962). ?The Environmental Appeals Board has ?expressly adopted? the liberal policy regarding pleadings and amendments found in 15 and described in Foman v. Davis." In re Chem-Solv, Inc., 2014 EPA ALI LEXIS l4, June 5, 2014), citing In re Lazarus. Inc., 7 E.A.D. 318, 333 (EAB I997) In re Carroll Oil Co., 10 BAD. 635, 649 (EAB 2002). ?The burden is on the party opposing the amendment to show prejudice, bad faith, undue delay or futility." 111i Isochern N. Am" LLC. 2007 EPA LEXIS *33 (EPA. Dec. 27, 2007'). The most signi?cant of the Foman factors is whether the amendment would unduly prejudice the opposing party. In re Carroll Oil Co., 10 E.A.D. at 650. ??Undue prejudice1 is that which is more than is appropriate orjusti?ed." Doe v. Columbia Univ., 165 F.R.D. 394 (S.D.N.Y. 1996). As this Court explained in m: Nearly every amendment results in some prejudice to the non-moving party. New discovery and some delay inevitably follow when a party signi?cantly supplements its pleadings. The test in each case, then, must be whether Line prejudice would result. The district court, in exercising its discretion, must balance the general policy behind FRCP Rule 15 that controversies should be decided on the merits-~ against the prejudice that would re3ult from permitting a particular amendment. Only where the prejudice outweighs the moving party's right to have the case decided on the merits should the amendments be prohibited. In balancing these interests, the court will consider the position of both parties and the effect the request might have on them. Thus, the court will inquire into the hardship to the moving party it?leave to amend is denied, the reasons for the moving party failing to include the material to be added in the original pleading, and the injustice resulting to the party opposing the motion should it be granted. 2007 EPA ALI LEXIS 37, at *34-35 (emphasis in original), citing McCann v. Frank B. Hall Q, 109 F.R.D. 363, 365 (ND. 111. Jan. 30, 1986). In determining whether prejudice is "undue," courts have considered whether an amendment would require an opponent to expend signi?cant additional resources to conduct discovery and prepare for trial, signi?cantly delay resolution of dispute, or raise new theories of the liability. E, Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1993). ?An af?rmative defense must sufficiently apprise the opposing party of the nature of the defense, providing the opposing party with adequate notice of the relevant elements of the defense.? mi Strong Steel Prods. LLC, 2003 EPA ALJ LEXIS 191, *25 (E.P.A. Oct. 27, 2003). Moreover, a proposed amendment is futile if it could not withstand a motion to dismiss. Isochem, 2007 EPA ALI LEXIS 37, at *33. 1. Tenth Defense Complainant?s Failure to Comply with Section 309 of the CWA Respondents? Amended Answer raises the new Tenth Affirmative Defense, alleging that Complainant failed to comply with the requirements of Section 309 of the CWA, 33 U.S.C. 1319, in pursuing enforcement against them. The Tenth Defense, as alleged in the Amended Answer, is unduly prejudicial to Complainant. Respondents allege no factual basis whatsoever to support this defense, nor do they suf?ciently apprise Complainant of the nature of the defense, thereby depriving Complainant of adequate notice of the relevant elements of the defense. Complainant is thus completely unable to guess as to how to counter such a defense during prehearing exchange andfor a hearing on the matter. The EPA is not aware of the manner in which Respondents claim the Agency has violated Section 309 of the CWA, as the Agency is of the opinion that it has followed the letter of the law as it pertains to enforcement in this matter. Nor is the EPA aware of any af?rmative defense to liability established through Section 309 that would absolve Respondents of their liability for the alleged violations. Although a hearing date has not yet been set for this matter, this newly-alleged defense will cause the EPA to expend signi?cant additional resources to conduct discovery and prepare for a hearing. Moreover, the Tenth Defense as alleged by Respondents is futile. Complainant is unaware of any provision of Section 309 of the CWA, 33 U.S.C. 1319, that would give rise to a defense for Respondents. On the contrary, Section 309(g)(7) of the CWA, 33 U.S.C. provides that, ?No action by the EPA under [Section 309(g)] shall affect any persons obligation to comply with any section of this chapter or with the terms and conditions of any permit issued pursoant to [inter section [402 of the For the foregoing reasons, Complainant requests that the Court deny Respondents? Motion to Amend its Answer in its entirety, or, alternatively, strike the Tenth Defense in Respondents? Amended Complaint. 2. Paragraphs 19, 46, and 49 Addition of Exhibit A Respondents have amended Paragraphs 19, 46, and 49 of their Answer to attempt to introduce Exhibit A. Exhibit A to Respondents? Amended Answer is a photocopy ofa mailing from the Tennessee Department of Environment and Conservation to Mr. Holt dated January 13, 2010, indicating that, although the 2004 CAFO General Permit expired on August 5, 2009, permittees were not required to submit notice of intent until 30 days after the effective date of the ?nal permit. The information presented in Exhibit A to Respondents? Amended Answer is immaterial to Respondents? liability under the CWA. The 2010 CAFO General Permit became effective on November I, 2010 (gt; Amended Complaint at 11 23 and Exh. A hereto); therefore, Respondents had until December I, 2010 to submit their N01 to obtain valid permit coverage. However, as admitted by Respondents, Respondents did not submit a N01 for permit coverage until June 1, 2011, over three months after their unauthorized February 2011 discharges and six months after the deadline for obtaining coverage. Amended Answer at 57. For the foregoing reasons, Complainant requests that the Court deny Respondents? Motion to Amend their Answer in its entirety, or, alternatively, strike the amendments to Paragraphs 46, and 49 in and Exhibit A to Respondents? Amended Answer. 3. Paragraph 53 Transcript of Voieemail from Mr. Jack Wade Respondents have also amended Paragraph 53 of their Answer to introduce the transcript of a voicemail from Mr. Jack Wade, then-inspector for TDEC, in support of their defenses of 9 license and estoppel. Respondents allege that Mr. Wade left Respoodents the following voicemail on February 24, 20] 1:1 Hey Andy, I am back in my of?ce here. I need some information from you when you get a chance. It?s not an emergency on my end here. I?m sowing that you are still under that TNA 000164, the general permit for class twos and 1 did ot know whether you had switched over to the SOPCD or not. That is what I?m wanting to know, and it looks like about 6.2 inches is a 25 year rain, and Patrick, my manager, said that will be a permitted discharge. Don?t let ?er break through those dams. You go ahead and give me a call when you get a chance. For the reasons discussed in Sections ll.D.2 (License) and [1.0.3 (Estoppel), m, this information goes to futile defenses. Therefore, Complainant requests that the Court deny Respondents? Motion to Amend their Answer in its entirety, or, alternatively, strike the amendments to Paragraph 53 in Respondents? Amended Answer. C. The First, Second, Third, and Fourth Defenses Assorted in Respondents? Initial and Amended Complaints are Legally Insuf?cient and are Outside of the Purview of this Adjudicatory Body, and Should Therefore he Stricken from this Proceeding. I. First Defense Violation of Article 1, Section 1 of the US. Constitution In their First Defense, Respondents allege that, the extent the Administrative Complaint relies on regulations promulgated by the or the Tennessee Department of Complainant avers that it has not heard this alleged voicemail from Mr. Wade, and thus has not been able to ascertain its veracity. Complainant therefore does not waive its right to contest the admissibility of this voicemail in any subsequent motions or hearings on this matter. 10 Environment and Conservation or other regulatory agency, these regulations have been promulgated by unelected of?cials and their rules violate Article I, SectiOn of the United States Constitution.? This defense is baseless. While it is true that Article I, Section 1 ofthe US. Constitution vests all legislative powers in Congress, it was Congress who passed the Clean Water Act and delegated to the Administrator of the EPA the authority to administer the Act. 33 U.S.C. 1251(d) (?Except as otherwise expressly provided in this chapter, the Administrator ofthe Environmental Protection Agency . . . shall administer [the ?The power of an administrative agency to administer a congressionally created and funded program necessarin requires the formulation of policy and the making of rules to ?ll any gap left, implicitly or explicitly, by ongress.? Morton v. Ruiz, 415 US. 199, 231 (1974). Because Congress enacted the CWA and thereby delegated to the EPA and its Administrator the authority to administer it, Respondents? defense that the Complaint may not rely on regulations promulgated by the EPA is legally unsupported and should be struck from the record. Furthermore, ?an ALJ is generally precluded from passing upon the constitutionality of the very procedure he is called upon to administer, in that federal agencies have neither the power nor competence to pass on the constitutionality of the administrative action.? Weinberger Lani, 422 U.S. 749, 7'65 (1975). It is therefore not appropriate fer Respondents to raise such constitutional defenses in this administrative forum. For the foregoing reasons, Complainant requests that the Court strike Respondents? First Defense from their Initial andfor Amended Answers. 11 2. Second Defense Violation of Article Section 1 of the US. Constitution In their Second Defense, Respondents contend that the EPA is acting as both the prosecutorial body and thejudicial body in violation ofthe separation ofpowers and Article 111, Section 1 of the United States Constitution. This defense is also without merit. ?[T]he statutory and constitutional restrictions which apply to a court and which prevent it from substituting its judgment for that of the Agency do not apply to the In re Louisville Gas Elec. Co.. Trimble Cntv. Power Plant. 1 E.A.D. 687, 690(10 1981). The United States Supreme COurt has upheld ?the plenary power of an administrative agency to adjudicate certain questions of fact because signi?cant Article 111 review of legal and factual issues was preserved." Tenn. Valley Auth. v. Whitman, 336 F.3d 1236, 1259 (11th Cir. 2003), (citing Crowell v. Benson. 285 US. 22, 55-60 (1932)). Moreover, similar to the First Defense asserted by Respondents, this presents a constitutional defense upon which this Court lacks the authority to rule. For the foregoing reasons, Complainant requests that the Court strike Respondents? Second Defense from their lnitial andlor Amended Answers. 3. Third Defense Violation of Twelfth Amendment to the U.S. Constitution In their Third Defense, Respondents contend that the claim violates their rights to trial by jury under the Twelfth Amendment of the United States Constitution. Respondents incorrectly cite the Twelfth Amendment in this defense, as it is the Seventh Amendment that 12 guarantees right to trial by jury. U.S. Const. art. I, 7. hereforc, this defense is legally insufficient as pled. However, assuming that Respondents had correctly cited the US. Constitutional provision for a right to ajury, this defense remains meritless. Despite Respondents? c0ntention, "the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication." Curtis v. LLther, 415 US. 189, 194 (1974). The Supreme Court has further held that ?the Seventh Amendment does not prohibit Congress from assigning the function and initial adjudication to an administrative forum with which the jury would be incompatible." Atlas Roofing Co. v. Occupational Safetv Health Review Commln, 430 US. 442, 450 (1971?). Moreover, similar to the First and Second Defenses asserted by Respondents, this presents a constitutional defense upon which this Court lacks the authorin to rule. For the foregoing reasons, Complainant requests that the Court strike Respondents? Third Defense from their Initial and/or Amended Answers. 4. Fourth Defense Violation of Fourteenth Amendment to the US. Constitution In their Fourth Defense, Respondents contend that ?the statutes, regulations and rulings relied upon in bringing this Complaint violate the 14th Amendment of the United States Constitution and Article 1, Section 8 of the Tennessee Constitution in that it is an effort to take their liberty or property without proper due process of law.? Respondents incorrectly cite the 13 Fourteenth Amendment, as it is the Fifth Amendment that guarantees due process in Federal proceedings. US. Const. amend. V. Therefore, this defense is legally insufficient as pled. However, assuming that Respondents had correctly cited the U.S. Constitutional provision for due process, this defense is still baseless. To the extent that Respondents allege that the underlying regulations, statutes and rulings by this Court and the Environmental Appeals Board violate Respondents? due process, Complainant urges this Court to strike this defense because, like Respondents? First, Second, and Third Defenses, this presents a constitutional defense upon which this Court lacks the authority to rule. challenges to regulations, even challenges based upon due process claims, are rarely entertained in Agency enforcement proceedings.? In re Ocean State Asbestos Removal. Inc.. 7 BAD. 522, 557-58 (EAB 1998), citing In re BJ. Carney Indus, Inc., 7' BAD. I71 (EAB, June 9, I997). ?However, where the constitutionality ofthe statute or regulation is not at issue, but instead where the issue is whether the statute or regulation is being applied in a manner that satisfies constitutional requirements, such challenges will be entertained." In re Ocean State Asbestos, 7' BAD. at 558. Nevertheless, Respondents fail to allege how any acts or omissions of the EPA in the instant matter have deprived them of due process. ?[C]ourts consider holistically the question of whether the government has afforded due process to a party in an administrative proceeding. That is, the court?s inquiry will go beyond the particular procedural issues in question to examine whether, viewing the proceeding as a whole, a defendant was adequately informed of the evidence underlying the government's charges and had the opportunity to challenge the evidence during the proceedings." In re Envtl. Prot. Servs., I3 E.A.D. 506, 564 (EAB 2008). The EAB, ?in considering due process arguments challenging l4 EPA administrative actions on grounds of inadequate notice, has observed that in order to establish a due process violation in an administrative proceeding, ?the aggrieved party must show both inadequate notice and prejudice caused by lack of notice.? citing In re Bollman Hat 8 BAD. 177, 190 n.10 (EAB 1999). Respondents fail to allege either inadequate notice or prejudice caused by lack of notice in their Answer, and, therefore, their defense of lack ofdue process is legally insuf?cient. Complainant thus requests that the Court strike Respondents? Fourth Defense in their Initial and Amended Answers from the record. D. The Defenses of Necessity and Acts of God Assorted in the Sixth Defense in Respondents? Initial and Amended Complaints are Legally Insuf?cient and Should Therefore he Stricken from this Proceeding.2 In their Sixth Defense, Respondents aver the defenses of necessity and Acts of God, and state in support thereof that there were ?periods of heavy rain which necessitated the action taken by [Mr. Holt] and that his actions were reasonable, practical and prudent under the circumstances.? necessity defense traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils.W United States v. Oakland Cannabis Buyers? Coon, 532 US. 483, 490 {2001), quoting United States v. Bailey, 444 US. 394. 410 (1980). Similarly, when construing whether an Act of God excuses violations of the 2 Complainant?s Memorandum in Support of Motion to Strike Amended Answer and Certain Portions of Respondents? Initial Answer, filed on December 2015, inadvertently omitted the full discussion ofComplainant?s basis for moving to strike Respondents? Sixth Defense. It is now included herein for completeness. 15 law, the United States Supreme Court has held, ?If [a person] could have prevented the accident by the exercise of due diligence and care, and did not, he is liable.? R.R. Co. v. Reeves, 77 US. 176, 188 (1870). The unauthorized discharges from Respondents? Facility were not physical incidents beyond Respondents? control. Quite to the contrary, the discharges occurred because Respondents consistently maintained high levels of hog waste in their wastewater lagoons that did not provide suf?cient volume for the storm, as required by the 2004 CAFO General Permit (Exh. hereto) and Tenn. Comp. R. Regs. (Exh. hereto). The 2004 CAFO General Permit, which was the General Permit in effect at the time Respondents began operating their Facility, prohibited wastewater discharges except when either chronic or catastrophic rainfall events caused an overflow of process wastewater from a facility properly designed, constructed, maintained and operated to contain all runoff from a 25-year, 24- hour rainfall event. 2004 CAFO General Permit at 11(2) (Exh. B). Further, the 2004 CAFO General Permit required that all permittees develop, submit for State approval, implement and keep on site a site-specific NMP that, among other things, ?[i]dentifles appropriate site speci?c conservation practices to be implemented, including, as appropriate, buffers or equivalent practices to control runoff of pollutants to waters of the state (these practices must meet minimum standards set in the NRCS Field Of?ce Practice Standard andfor the NRC Animal Waste Handbook 1_d. at NRC Conservation Practice Standard No. 359, ?Waste Treatment Lagoon,? states that, 3 The correct name ofthis reference is the NRCS Agricultural Waste Management Field Handbook. 16 ?The maximum operating level for a waste lagoon shall be the required lagoon volume, less the 25-year, 24-hour storm event precipitation plus any runoff from drainage areas that enters the lagoon from the storm event.? NRCS Conservation Practice Standard No. 359, at 359-3 (Aug. 2000) (Exh. hereto). Likewise, the NRCS Agricultural Waste Management Field Handbook indicates that, ?Storage ponds should provide capacity for normal precipitation and runoff (less evaporation) during the storage period,? as well as a minimum of 12 inches of freeboard. USDA, NRCS, Part 651, Agricultural Waste Management Field Handbook, 210-VI-AWMF H, amend. 31, at p. 10-23 (Aug. 2009) {Exh. hereto). Even more conservatively, Respondents? own unapproved 2008 NMP indicated that Lagoon No. was designed to accommodate the depth of the 25-year, 24-hour storm event (6.56 inches), plus a freeboard of three feet. Smith Assoc., Inc, Comprehensive Nutrient Management Plan, A 8; Livestock, tbl. 6, at 6 (Jan. 16, 2008) (Exh. hereto). The 25-year, 24-hour storm event precipitation for Dresden, Tennessee is 6.5 inches. ?ee l4 Nat?l Atmospheric and Oceanic Admin. Atlas, vol. 2, ver. 3, Dresden, Tennessee, ?Point Precipitation Frequency Estimates,? available at map al? L.l. Smith Assoc, Inc., Comprehensive Nutrient Management Plan, A Livestock, tbl. 6, at 6 (Jan. 16, I 2008) (Exh. F). TherefOre, accmding to the NRCS Agricultural Waste Management Field Handbook, Respondents should have maintained at least 13.5 inches of available freeboard in their waste lagoons to provide sufficient volume for the 25-year, 24-hour storm, plus 12 inches of additional freeboard. If Respondents had followed their own NMP, they would have maintained at least 42.5 inches of available freeboard in their waste lagoons (6.5 inches for the 1? 25-year, 24?hour storm, plus 36 inches of additional freeboard for a margin ofsafety. On the contrary, Respondents routinely maintained less than the required available freeboard in the weeks, and even months, leading up to each of the unauthorized discharge events. For the unauthorized discharges in February 201 1, Respondents had failed to maintain the required 18.5 inches of freeboard in Lagoon No. 1 since the week of December 1 l, 2010, and operated the primary wastewater lagoon at dangerously high levels for eleven weeks. 2011 Weekly Inspection Log (Exh. hereto). During that time, the average precipitation was more than one inch per week hardly coming close to the 25-year, 24-hour rain event. 201 1 Rain 85 Daily Inspection Log (Exh. hereto). Yet Respondents maintained an average of only 13.5 inches of freeboard in the Lagoon. Although the rain event from February 24 to 25, 2011 totaled 7.6 inches exceeding the 25?year, 24-hour storm event - the fact remains that Respondents did not have a valid permit that would have authorized such a discharge. Nor did they maintain the additiOnal minimum of 12 inches of freeboard required pursuant to the Agricultural Waste Management Field Handbook, which liker would have provided a suf?cient buffer from the discharge of hog waste from the Lagoon. Similarly, for the unauthorized discharge in August 2013, Respondents had failed to maintain the required 18.5 inches ofl'reeboard in Lagoon No. 1 since the week of February 25, 2013, and once again operated the primary wastewater lagoon at dangerously high levels for 24 weeks (almost seven months). For these 24 weeks, Respondents maintained an average of only 10.4 inches of freehoard in Lagoon No. I. 2013 Weekly Inspection Log (Exh. I hereto). During that time, the average precipitation was approximately 1.6 inches, a far cry from the 25- 18 year, 24?hour storm event of 6.5 inches. 2013 Daily Rainfall Record (Exh. hereto). At no time between February 25, 2013 and August 6, 2013 did the precipitation levels exceed the 25- year, 24-hour rain event. Moreover, in the 24 weeks leading up to the August 6, 2013 discharge event. Lagoon No. 1 had less than 6.5 inches of freeboard on at least three separate occasions: May 19, 2013; June 2, 2013; and August 4, 2013. 2013 Weekly Inspection Log (Exh. 1). Although it appears that Respondents did notify TDEC on February 24, 2011 and August 6, 2013 of their anticipated discharges, they had no permit under which TDEC could have authorized such discharges, nor would it have been appropriate for TDEC to do so considering the circumstances. For the foregoing reasons, Complainant requests that the Court deny Respondents? Motion to Amend their Answer in its entirety, or. alternatively, strike the Sixth Defense in Respondents? Amended Complaint. E. The Defenses of Laehes, License. Estoppel, and Applicable Statute of Limitations in the Ninth Defense Assorted in Respondents? Initial and Amended Cemplaints are Legally Insuf?cient and Should Therefore he Stricken from this Proceeding. l. Laches In their Ninth Defense, Respondents raise the af?rmative defense of laches, yet fail to assert any facts whatsoever to support such a defense. D.S. Am. v. hromagrafx Imaging 8355., 873 F. Supp. 7'86, 7'98 (E.D.N.Y. 1995) (simply pleading words such as "estoppel" and "laches" without more is not a sufficient statement of these defenses). See also Telectronics l9 Proprietary. Ltd. v. Medtronic. Inc., 687' F. Supp. 832, 840-41 (S.D.N.Y. 1988); Aeierno, 2007' EPA ALJ LEXIS 9, at *50-54. ?Under the doctrine of laches, a court denies relief when a claimant has engaged in such unreasonable delay or negligence in asserting a claim that it results in prejudice to the opposing party. It is well settled that the doctrine of laches does not bar the enforcement ofstatutes intended to protect public health and the environment.? Acierno, 2007 EPA ALJ LEXIS 9, at *53. Ealso United States v. Amoco Oil Co.. 580 F. Supp. 1042, 1050 (WD. Mo. 1984) (?defense of laches does not apply to the United States when it acts in its sovereign capacity"). For the foregoing reasons, Complainant requests that the Court strike Respondents? defense of laches from their Initial and Amended Answers. 2. License In their Ninth Defense, Respondents assert the defenses of license. Complainant avers that Respondents? license, waiver andfor release defenses are legally insuf?cient and should be struck from the Amended Answer. waiver is ordinarily an intentional relinquishment or abandonment ofa known right or privilege.? Johnson v. Zerbst, 304 U.S. 45 8, 464 (1938). A waiver of enforcement ofa statute or its requirements to protect public health and the environment is not easily construed against the Government. _S_e_e United States v. Noble Oil Co.. 1988 U.S. Dist LEXIS 11526 at *30-31 (D. NJ. 1988); In re Minn. Metal Finishing. Inc.. 2007 EPA ALI LEXIS 1, at *115 (E.P.A. Jan. 9, 2007). Moreover. ?a right created by federal law may not be unintentionally waived." 9% v. Prickett, 420 F.2d 1 119. 1125 (9th Cir. 1970). Though waiver may be implied from the Government's conduct, such conduct must be "clear, decisive and unequivocal of purpose." 20 In their Amended Answer, Respondents point to a voicemai] from Mr. Jack Wade, then- TDEC inspector, indicating that the February 24, 201 1 discharge would be ?a permitted discharge." Amended Answer at 1] 53. Respondents rely on this voicemail message as evidence that the EPA waived its right to enforce the provisions against Respondents with respect to the February 24, 201 1 discharge. Complainant disagrees that a statement by a TDEC employee amounts to a ?clear, decisive, and unequivocal? waiver ol?the right to enforce the CWA. First, Mr. Wade?s statements were anything but ?clear?; they were based on the false assumption that Respondents had valid permit coverage at the time of the February 24, 201 1 discharge. showing that you are still under that [2004 CAFO General Permit] and I did not know whether you had switched over to the [2010 CAFO General Permit] or not?) (emphasis added). As the evidence will show and Complainant alleged in its Initial and Amended Complaints, the 2004 CAFO General Permit expired on August 5, 2009, although TDEC allowed permittees until 30 days after the effective date of the 2010 CAFO General Permit to submit Notices of Intent for coverage under the 2010 CAFO General Permit. The 2010 CAFO General Permit was effective November 1, 2010; therefore, Respondents had until December 1, 2010 to submit their N01 to obtain valid permit coverage. However, as admitted by Respondents, Respondents did not submit a N01 for permit coverage until June 1, 201 1, over three months after their unauthorized February 2011 discharges and six months after the deadline for obtaining coverage. Initial Complaint at 1] 56 and Initial Answer at II 56; Amended Complaint at 57' and Amended Answer at 11 57. 21 Second, as outlined in Complainant?s Complaints, TDEC noti?ed Respondents subsequent to Mr. Wade?s voicemail that they did not retain valid permit coverage as of the date of their alleged February 24 and 25, 2011 CWA violations. Amended Complaint at ll 56. Moreover, as Respondents have admitted, on April 5, 2012, TDEC further issued Respondents a Notice ofViolation for failure to obtain coverage under a valid permit. Initial Complaint at 11 57 and Initial Answer at 11 Amended Complaint at 11 58 and Amended Answer at 11 53. Notwithstanding Respondents? claims that TDEC may have waived its rights to enforce the CWA and the Tennessee Water Quality Control Act of 1977, Term. Code Ann. 69-3-10] e_t 3:91,, pursuant to Section 309(g)(1)(A) ofthe CWA, 33 U.S.C. 1319(g)(1)(A), the EPA retains the authority to directly enforce violations of the CWA by seeking civil penalties. Egg mi Serv. Oil. Inc., 14 E.A.D. 133, 13? (EAB 2008); Acierno, 2007'' EPA LEXIS 9, at *58-60. Moreover, the National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Tennessee and the United States Environmental Protection Agency Region 4 dated October 12, 2007, states that, if the EPA determines that the State?s action (or inaction) against a violator was not timely or appropriate, the may proceed with any or all enforcement options available under the CWA against the discharger in violation." (Exh. hereto, at VI.B.2, p. 23). The MOA states that the "[n]othing in [the should be construed to constitute or create a valid defense to regulated parties in violation of environmental statutes, regulations, or permits." at VI.D., p. 24. Respondents? Answers point to no evidence that the EPA clearly, decisively, and unequivocally waived its right to directly enforce the CWA. 22 For the foregoing reasons, Complainant requests that the Court strike Respondents? defense of license from their Initial andi?or Amended Answers. 3. Estoppel In their Ninth Defense, Respondents assert the defense of estoppel. Complainant avers that Respondents? estoppel defense is legally insuf?cient and should be struck from the Amended Answer. To make a showing ofestoppel, Respondents must show: (1) that Complainant made a de?nite misrepresentation of fact to Respondents; Complainant had reason to believe that Respondents would rely upon the misrepresentation of fact; (3) Respondents did in fact rely on the misrepresentation; and (4) Respondents, in their reliance on the misrepresentation, worsened their condition. Restatement (Second) ofTorts, 894(1); also l-leekler v. Cmtv. Health m, 467' US. 51, 59 (1984}. ?[Tlhose who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.? Heckler, 46? US. at 63. ?When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is well settled that the Government may not be estopped on the same terms as any other litigant." at 60. Moreover, as the United States Supreme Court stated in Heckler, ?Written advice, like a written judicial opinion, requires its author to re?ect about the nature of the advice that is given to the citizen, and subjects that advice to the possibility of review, criticism, and reexamination. The necessity for ensuring that governmental agents stay within the lawful scope of their authority . . . argues strongly for the cenclusion that an estonpel cannot be erected on the basis of the oral advice . . . 467 U.S. at 65 (emphasis added). 23 defendant raising equitable estoppel against the government must show that the government engaged in ?affirmative misconduct.? At a minimum, the government of?cial must have intentionally or misled [the part},r claiming estoppel]. Mere negligence does not rise to the level of affirmative misconduct.? U.S. Pub. Interest Research Group v. Atl. Salmon of Me. LLC, 2 5 F. Supp. 2d 239, 259-60 (D. Me. 2002), citing United States v. Marine Shale Processors, 81 F.3d 1329, 1349?51 (5th Cir. also Morgan v. Heckler. 7T9 F.2d 544, 545 (9th Cir. 1985) against the government requires the four traditional elements of estoppel and affinnative misconduct beyond mere negligence, and . . . estoppel will apply only where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by the imposition of liability"). Not only were Mr. Wadeis statements made orally, precluding an estoppel claim, Respondents have presented no facts to support that Mr. Wade, TDEC, or Complainant acted with affirmative misconduct that caused serious injustice. As discussed M, Mr. Wade?s statement was not made to either intentionally or recklessly mislead Respondents. For the foregoing reasons, Complainant requests that the Court strike Respondents? defense ofestoppel from their Initial and/or Amended Answers. 4. Applicable Statute of Limitations In their Ninth Defense, Respondents assert that Complainant?s claims are barred by the applicable statute of limitations, yet again fail to assert any facts whatsoever to support such a defense. _S_e_e Chromagrafx, 87'3 F. Supp. at 798, discussed w. The CWA does not provide a relevant statute of limitations. Ego Pub. Interest Research Grp. ofN..I.. Inc. v. Powell Terminals. Inc., 913 F.2d 64, 74 {3d Cir. 1990). In absence ofan express statute of limitations, ?courts ?borrow" the most suitable statute available.? 24 DchostelIo v. Int?l Brotherhood ofTeamsters, 462 U.S. 151, 158 (1983). In the case of CWA enforcement matters, courts have generally applied 28 U.S.C. 2462 to enforcement proceedings by the EPA. E, Egg Sierra Club v. Chevron U.S.A.. Inc., 834 F.2d 1517, 1521 (9th Cir. 198'?) [2462] clearly applies to enforcement actions brought by the 28 U.S.C 2462 states: Except as otherwise provided by Act of Congress, an action, Suit or proceeding for the enforcement of any civil ?ne, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim ?rst accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. In the present case, Complainant is not seeking civil penalties for any alleged violations by Respondents outside of the applicable ?ve?year statute of limitations period. Complainant alleges violations by Respondents on February 24 and 25, 201 and August 6, Complainant ?led its Initial Answer on August 13, 2015, well within the applicable five?year statute of limitations ?1 Although Complainant has evidence of more than three alleged violations from Respondents? Facility (namely, an unauthorized discharge on or about December 16, 2009 of approximately 250 to 500 gallons of wastewater to the unnamed tributary to Mud Creek), Complainant was clear in both its Initial and Amended Complaints that it is not seeking civil penalties for any alleged violations outside of the applicable statute oflimitations. ?g Initial Answer at ll 76, n.4; Amended Answer at 11 77", n.4. 25 period. Therefore, Respondents defense that Complainant?s claims are time?barred is without merit. For the foregoing reasons, Complainant requests that the Court strike Respondents? defense of statute oflimitations from their Initial and Amended Answers. 111. Conclusion Prior to filing this Motion, the undersigned contacted the opposing party as to the relief requested herein and said opponent indicated that he opposes this Motion. In View of the foregoing. Complainant respectfully requests that the Court grant the Motion to Strike Respondents? Amended Answer and Certain Portions of Respondents? Initial Answer. Date: [Lire If Respectfully submitted, ?guzanne nnor Counsel for Complainant US. Environmental Protection Agency Region 4 (404) 562-9701 Armor.Suzanne@epa.gov 26 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the date noted below, 1 have served to the Headquarters Hearing Clerk the original and one copy of the foregoing Corrected Memorandum in Support of Motion to Strike Respondents? Amended Answer and Certain Portions of Respondents? Initial Answer, in In re Andrew H. Holt and Eleanore F. Holt d/b/o A Livestock, Docket No. CWA-04-2015-4506. I also certify that I have served a true and correct copy of the same on the parties listed below in the manner speci?ed. Sybil Anderson (Via internal mail) Headquarters Hearing Clerk US. Environmental Protection Agency Of?ce of Administrative Law Judges 1200 Avenue, NW. Mail Code 1900R Washington, DC 20460 John M. Miles (Via Certi?ed Mail, Return Receipt Requested) 511 South Third Street (7012 047'0 0001 4027 2243) PO. Box 3 Union City, Tennessee 3828] Dated: A "/Suzanne @rmor Counsel for Complainant U.S. Enviromnental Protection Agency, Region 4 61 Street, SW. Atlanta, Georgia 30303-8960 27