Ailor v. City of Maynardville, Tennessee
| Decision Date | 17 May 2004 |
| Docket Number | No. 01-6562.,01-6562. |
| Citation | 368 F.3d 587 |
| Parties | Harry Truman AILOR and Betty Darlene Lynch, Plaintiffs-Appellants, v. CITY OF MAYNARDVILLE, TENNESSEE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John E. Eldridge, Robert R. Kurtz (briefed), Eldridge, Irvine & Gaines, Knoxville TN, Kelly O. Herston (argued and briefed), Herston Law Office, Knoxville, TN, for Plaintiff-Appellant.
Jon G. Roach (argued and briefed), Nathan D. Rowell (briefed), Watson & Hollow, Knoxville, TN, for Defendant-Appellee.
Before: SUHRHEINRICH, COLE and ROGERS, Circuit Judges.
SUHRHEINRICH, J. delivered the opinion of the court, in which ROGERS, J. joined. COLE, J. (pp. 601-02), delivered a separate opinion concurring in part and dissenting in part.
Plaintiffs-Appellants Betty Lynch ("Lynch") and Harry Ailor ("Ailor") (collectively "Plaintiffs") appeal from the order of the district court granting summary judgment in favor of Defendant-Appellee City of Maynardville, Tennessee ("City"), in this action brought pursuant to the Clean Water Act1 ("CWA"), and the Resource Conservation and Recovery Act2 ("RCRA"). For the reasons that follow, we AFFIRM the judgment of the lower court.
The Federal Water Pollution Control Act, or Clean Water Act, 33 U.S.C. §§ 1251-1387 (2001), mandates that toxic discharges into the nation's waterways be monitored and regulated. To accomplish this, the CWA authorizes the Administrator of the Environmental Protection Agency ("EPA") or authorized state agencies, to issue National Pollutant Discharge Elimination System ("NPDES") permits. 33 U.S.C. § 1342. Permit holders are subject to state and federal enforcement actions, as well as suits by private citizens. See 33 U.S.C. §§ 1319 () and 1365 ("Citizen suits").
The CWA's citizen's suit provision permits any individual who has an interest which is or may be adversely affected to sue to enforce any limitation established by a NPDES permit. § 1365(a) and (g). The CWA limits the remedies available to citizen plaintiffs to injunctive relief, the assessment of civil penalties, and attorney's fees. See 33 U.S.C. § 1365(a), (d); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 175, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). No compensatory damages are authorized under the CWA. See Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 18, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). Furthermore, civil penalties are payable to the United States Treasury. Laidlaw, 528 U.S. at 175, 120 S.Ct. 693. The CWA also "does not permit citizen suits for wholly past violations." Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987); see also Steel Co. v. Citizens for a Better Env't., 523 U.S. 83, 106-07, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ().
Citizen suits are merely intended to supplement, not supplant, enforcement by state and federal government agencies. Gwaltney, 484 U.S. at 60, 108 S.Ct. 376. Such agency suits trump the CWA's citizen suit provision, provided that: (1) they are initiated prior to the commencement of a citizen's suit, § 1319(g)(A)(i); (2) are diligently prosecuted, id.; and (3) are brought in a court of the United States or any State court. § 1365(b)(1)(B). See generally Jones v. City of Lakeland, 224 F.3d 518 (6th Cir.2000) (en banc). Likewise, where a "State has commenced and is diligently prosecuting an action under a State law comparable to" the CWA, citizen suits are precluded. § 1319(g)(6)(A)(ii). However, in Lakeland, this Court held that an action under the Tennessee Water Quality Control Act is not comparable to 33 U.S.C. § 1365(a)(1)(B) and/or 33 U.S.C. § 1319(g)(6). Lakeland, 224 F.3d at 524. Lakeland also held that a proceeding before the Tennessee Department of Environment and Conservation ("TDEC") is not "court enforcement" for purposes of §§ 1319(a) and 1365(b). Id. at 521-22.
The City owns and operates a sewage treatment plant along Bull Run Creek. In the past, the treatment plant has overflowed, discharging raw sewage and other pollutants into the creek. Plaintiff Lynch owns approximately 100 acres of land in Union County, along Bull Run Creek, downstream from the plant. Plaintiff Ailor owned approximately 36 acres of land along Bull Run Creek, downstream from the plant until approximately October of 2000. Both parties have obtained drinking water from private wells located on their property.
The City operates its sewage treatment plant under an NPDES permit. Because of repeated violations of its NPDES permit in the early 1990s, the Tennessee Department of Environment and Conservation ("TDEC") commenced enforcement proceedings against the City in 1993. On November 16, 1993, J.W. Luna, the Commissioner of the TDEC, issued an Order and Assessment against the City, in which he found that "[f]rom January 1991, thru December 1992, the [City's] self monitoring information revealed the following NPDES permit violations":
Biochemical Oxygen Demand ......................... 99 violations
Total Suspended Solids ............................ 4 violations
Ammonia ........................................... 27 violations
Fecal Coliform .................................... 9 violations
Chlorine .......................................... 9 violations
The Commissioner also found that the City failed to submit an Industrial User Survey to the Tennessee Division of Water Pollution Control within one hundred twenty (120) days after the NPDES permit was issued.
The Commissioner found that "[b]y discharging wastewater effluent from the plant in violation of the terms and conditions of the NPDES permit," the City had violated Tenn.Code Ann. § 69-3-108(b)(3) and (6), which makes it unlawful to discharge any wastes in excess of the amount allowed by the permit. The Order further found that, by failing to submit an Industrial User Survey, the City had violated Tenn.Code Ann. § 69-3-114(b) (2003). The Order and Assessment therefore required the City to do the following:
1. The Respondent [the City] shall initiate a continuous collection system rehabilitation program within sixty (60) days of entry of this Order.
The Respondent shall submit a complete Industrial User Survey to the Tennessee Division of Water Pollution Control within ninety (90) days of entry of this Order.
3. The Respondent shall bring the plant into compliance with the Act and NPDES permit # TN0022870 within ninety (90) days of entry of this Order.
4. The Respondent shall pay a Civil Penalty to the Department, hereby assessed in the amount of TWENTY FIVE THOUSAND DOLLARS ($25,000.00), to be paid [in various increments].
The Order and Assessment indicated that, pursuant to TENN.CODE ANN. § 69-3-109(a)(3), an Order for Corrective Action "shall become final and not subject to review" unless a timely written petition for a hearing were filed with the Tennessee Water Quality Control Board.
Thereafter, through hearings and meetings between the Board and the City, an Agreed Order ("Order") was entered on July 18, 1995, assessing a civil penalty against the City and requiring it to develop and implement a corrective action plan to bring its plant into compliance with the NPDES permit.3 The Board adopted the facts and conclusions of law set forth in the Commissioner's Order and Assessment.
The Order required the City to do the following:
1. [S]ubmit to the Division (Knoxville Field Office) for approval, on or before the 1st day of May, 1996, a corrective action plan that addresses at a minimum the following:
(a) A review of "Mini-Systems";
(b) Smoke Testing for a representative portion of the collection systems;
(c) Dry weather flow measurements;
(d) A physical survey of the systems; and
(e) Wet weather flow monitoring;
2. [S]ubmit to the Division (Knoxville Field Office) for approval, within sixty (60) days of approval of the corrective action plan, an engineering report that evaluates the current hydraulic and organic loading at the wastewater treatment plant and recommends alternatives for additional treatment capacity including a time schedule for completion of treatment plant expansion.
3. [W]ithin one hundred eighty (180) days of approval of the engineering report, submit to the Division (Knoxville Field Office) for approval plans and specifications for the expansion of the wastewater treatment plant and correction of inflow and infiltration.
4. [I]mplement and complete all remedial activities set forth in the above approved plans and specifications in accordance with those time schedules (included and as approved by the Division) but in no event any later than thirty-six (36) months from the approval of such plans and specifications.
The order further assessed a civil penalty against the City in the amount of $18,750, of which $16,875 was to be paid only if the City failed to comply with the Order. The City paid $1,875 to the TDEC on July 18, 1995.
The Order also stated that the Division reserved the right to request modifications to the "corrective action report, engineering report, plans and specifications and/or any time schedules encompassed therein as deemed necessary by the Director to achieve compliance with the Act."
The City completed all of the required actions under the Order and placed the new wastewater treatment plant on line in November, 2000, and received the final inspection report on February 26, 20015. The City spent approximately 1.7 million dollars in upgrading the plant.
2. Plaintiffs
On January 30, 1998, Lynch and Ailor filed suit against the City in state court, seeking compensatory damages under several theories of state law. On February 7,...
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