CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtWILLIAM J. HAYNES
Docket NumberNo. 1:10-00084
Decision Date11 April 2011


No. 1:10-00084


Dated: April 11, 2011



Plaintiff, Association Concerned Over Resources and Nature, Inc. ("ACORN"), filed this action under the Clean Water Act, ("CWA"), 33 U.S.C. § 1365(a)(1) and the Resource Conservation and Recovery Act, ("RCRA"), 42 U.S.C. § 6972(a)(1)(A), against the Defendant, Tennessee aluminum Processors, Inc., ("TAP"). Plaintiff's claims arise out of Defendant's alleged improper disposal of aluminum slag waste at Defendant's facility located in Mount Pleasant, Tennessee. In sum, Plaintiff alleges that Defendant operates an open dump stockpiled with aluminum slag waste that results in the repeated and ongoing discharge of pollutants, including leachate containing ammonia and chlorides, into an unnamed tributary of Quality Creek and the city of Mount Pleasant's sewerage system.

Before the Court is the Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) and (6) (Docket Entry No. 11), contending, in sum: (1) that the Court lacks subject matter jurisdiction because Plaintiff's notice letter fails to comply with the notice requirements under the CWA and the

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RCRA; (2) that citizen suits will not lie against wholly past violations; (3) that groundwater is not regulated under the CWA; and (4) that the RCRA bars citizens from enforcing "open dump" claims.

In its response (Docket Entry No. 18), Plaintiff contends, in essence: (1) that its notice letter provided sufficient information for Defendant to identify the violations and to comply with the CWA and RCRA; (2) that the CWA and RCRA claims are actionable because Defendant's violations are continuing and are not wholly past; (3) that the CWA does not regulate ground water is irrelevant; and (4) the RCRA does not distinguish between maintaining an open dump and open dumping.

For the reasons set forth below, the Court concludes that Plaintiff has stated claims for relief and Defendant's motion to dismiss should be denied as Plaintiff has alleged sufficient facts to provide the requisite notice and otherwise state plausible CWA and RCRA claims in its pleadings.


Plaintiff is a nonprofit corporation organized under the laws of Tennessee with its principal office in Columbia, Tennessee. (Docket Entry No. 1, Complaint, at ¶ 8). Plaintiff's mission is to educate the public about the threats to the environment and public health in Mount Pleasant, Tennessee. Id. Plaintiff consists of members who own property and reside on or near Defendant's facility and Quality Creek, as well as members who own property and reside downstream of Defendant's facility. Id.

The Defendant, a Tennessee corporation with its principal office in Mount Pleasant, Tennessee, operates an aluminum processing/smelting facility in Mount Pleasant. Id. at ¶ 10, 27. In or about 1983, Defendant began disposing of the aluminum dross waste in slag waste stockpile at Defendant's facility. Id. Defendant's practice of maintaining the slag waste stockpile continues to the present. Id.

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On August 16, 1989, Defendant and the Tennessee Department of Health and Environment, Division of Water Pollution Control, ("DWPC") Office of Water Management, entered into an Agreed Order requiring Defendant to cover the stockpile in a manner that would prevent rainfall from coming into contact with the stockpile, to submit and implement a remedial action plan by August 15, 1990, to assure that all of the aluminum dross was stored or disposed of in a manner that eliminated the unlawful discharge of pollutants into Tennessee waters and to pay a civil penalty up to $30,000 if Defendant did not comply with the order. (Docket Entry No. 11, Exhibit 1 at 6-7)1

Plaintiff alleges that by late December 1991, Defendant had stored approximately 125,000 cubic yards of slag waste in the slag waste stockpile. (Docket Entry No. 1, at ¶ 28). According to Plaintiff, despite repeated requests and orders of the Tennessee Department of Environment and Conservation ("TDEC") demanding that Defendant remove all of the slag waste from the facility, a 2001 survey found that the slag waste stockpile still contained 118,750 cubic yards of slag waste. Id. The solid waste in the slag waste stockpile contains, amongst other constituents, aluminum, ammonia, chlorides, lead and manganese. Id. at ¶ 29.

On October 8, 2003, TDEC and Defendant entered into an Agreed Order, issued by the Tennessee Solid Waste Disposal Control Board that ordered Defendant to remove the stockpile at the rate of 24,000 tons of stockpiled material per year and pay a civil penalty in the amount of

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$100,000, portions of which were waivable upon Defendant's compliance with the schedule. (Docket Entry No. 11, Exhibit 2 at 10-16).

On June 2, 2010, Plaintiff sent its Notice of Intent to File Citizen Suit against the Defendant under the CWA and RCRA to the Defendant, the Administrator of the U.S. Environmental Protection Agency ("EPA"), the EPA Regional Administrator, TDEC, and the United States Attorney General. (Docket Entry No. 1, at ¶¶ 4-5). Plaintiff's notice letter states, in relevant part:

The purpose of this letter is to notify Tennessee Aluminum Processors, Inc. ("TAP"), that the Association Concerned Over Resources and Nature, Inc. ("ACORN") . . . intends to file suit in sixty (60) days under the federal Clean Water Act ("CWA"), 33 U.S.C. § 1365(a)(1), and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(b), in Federal District Court against TAP for violations of the CWA and RCRA resulting from the disposal of solid waste from aluminum processing at the TAP facility in Mount Pleasant; Tennessee. This solid waste contains aluminum, ammonia and chlorides. . . . Following are the violations that will be addressed in the citizen suit.


A. Discharging Pollutants to Surface Waters Without an NPDES Permit

Since at least 1989 TAP has violated the Clean Water Act, 42, U.S.C. § 1311(a) and 40 C.F.R. § 122.21, by discharging leachate from an aluminum processing waste pile on its property through discrete conveyances to an unnamed tributary of Quality Creek, waters of the State of Tennessee and the United States, without an NPDES permit for the discharges pursuant to 33 , U.S.C. § 1342. The leachate contains high levels of ammonia and chlorides, which are pollutants under the CWA. These discharges are continuing and will continue in the future. On January 22, 2010, 1300 mg/1 ammonia and 33000 chloride was measured in the discharge to the unnamed tributary, and as recently as March 25,2010,1200 mg/1 ammonia was measured in the discharge to the unnamed tributary. The requirement for an NPDES permit authorizing these discharges arose at the time that TAP first knew or should have known that waste pile leachate was being discharged into surface waters. Each day since that time is a violation of the CWA.

B. Violations of NPDES Permit No. TNR050000 and TNR053682

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TAP is covered under the NPDES Tennessee Storm Water Multi-Sector General Permit for Industrial Activities, Permit No, TNR050000, and is registered under Tracking No. TNR052682. TAP has violated and is violating Section 3.1.2 of this Permit by discharging unauthorized materials other than storm water without an NPDES permit. Since at least 1989, TAP has been discharging leachate from an aluminum processing waste pile at the site without an NPDES permit issued for the discharges, as described in I. A.., above. Each day that waste pile leachate has been discharged by TAP is a violation of the Permit and the CWA.

C. Violations of the Pretreatment Requirements of the Clean Water Act

Since at least January 2010, TAP has violated and continues to violate the Clean Water Act, 42 U.S.C. § 1311(a), by discharging industrial wastewater into the City of Mount Pleasant sewer system without complying with 42 U.S.C. § 1317 and rules promulgated by the U.S. Environmental Protection Agency ("EPA") and the Tennessee Department of Enviromnent and Conservation ("TDEC") to implement the industrial pretreatment program. Leachate from the TAP aluminum processing waste pile containing high levels of ammonia has been and continues to be introduced into the Mt. Pleasant sewer collection system pipes and manholes as a result of ground water contamination. These high levels of ammonia continue to pass through and/or interfere with the operation of the City of Mount Pleasant publicly owned treatment works ("POTW") and continue to cause or contribute to ammonia effluent limit violations of the City of Mount Pleasant's NPDES Permit No. TN0020800.

Industrial Pretreatment rules apply to "pollutants from non-domestic sources covered by Pretreatment Standards which are indirectly discharged into or transported by truck or rail or otherwise introduced into POTWs," 40 C.F.R. § 403.1(b) (See also TDEC Pretreatment Requirements at Rule 1200-4-14-.01). In addition to the prohibition of 33 U.S.C. § 1311(a), Tenn. Code Ann. § 69-3-125(a)(1)(C) makes it illegal to fail to complete a filing requirement of a pretreatment program. TAP continues to indirectly discharge or otherwise introduce covered pollutants (ammonia) into the City of Mount Pleasant POTW, but has violated 33 U.S.C. § 1311(a) and Tenn. Code Ann. § 69-3-125(a)(l)(C) by failing to apply for and obtain a pretreatment permit from the City of Mount Pleasant pretreatment program.

40 C.F.R. § 403.5(a) makes it a violation of the CWA to "introduce into a POTW any pollutant(s) which cause Pass Through or Interference" (See also TDEC Rule 1200-4-14.05(l)(a)). TAP has violated this provision by introducing ammonia contaminated leachate into the City of Mount Pleasant POTW since at least January 2010, including, but not limited to, the following dates:

• January 21,2010


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