RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Ailor, et al. v. City of Maynardville, TN No. 01-6562 ELECTRONIC CITATION: 2004 FED App. 0141P (6th Cir.) File Name: 04a0141p.06 Knoxville, Tennessee, Robert R. Kurtz, ELDRIDGE, IRVINE & GAINES, Knoxville, Tennessee, for Appellant. Jon G. Roach, Nathan D. Rowell, WATSON & HOLLOW, UNITED STATES COURT OF APPEALS Knoxville, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT SUHRHEINRICH, J. delivered the opinion of the court, in _________________ which ROGERS, J. joined. COLE, J. (pp. 24-26), delivered a separate opinion concurring in part and dissenting in part. HARRY TRUMAN AILOR and X BETTY DARLENE LYNCH , - _________________ Plaintiffs-Appellants, - OPINION - No. 01-6562 - _________________ v. > , SUHRHEINRICH, J. Plaintiffs-Appellants Betty Lynch - (“Lynch”) and Harry Ailor (“Ailor”) (collectively CITY OF MAYNA RDVILLE , - “Plaintiffs”) appeal from the order of the district court TENNESSEE, - granting summary judgment in favor of Defendant-Appellee Defendant-Appellee. - City of Maynardville, Tennessee (“City”), in this action N brought pursuant to the Clean Water Act1 (“CWA”), and the Resource Conservation and Recovery Act2 (“RCRA”). For Appeal from the United States District Court the reasons that follow, we AFFIRM the judgment of the for the Eastern District of Tennessee at Knoxville. lower court. No. 01-00241—James H. Jarvis, District Judge. I. Background Argued: September 16, 2003 A. Clean Water Act Decided and Filed: May 17, 2004 The Federal Water Pollution Control Act, or Clean Water Before: SUHRHEINRICH, COLE and ROGERS, Circuit Act, 33 U.S.C. §§ 1251-1387 (2001), mandates that toxic Judges. 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 COUNSEL ARGUED: Kelly O. Herston, HERSTON LAW OFFICE, Knoxville, Tennessee, for Appellant. Jon G. Roach, 1 33 U.S.C. §§ 1251-13 87 (200 1). WATSON & HOLLOW, Knoxville, Tennessee, for Appellee. ON BRIEF: Kelly O. Herston, HERSTON LAW OFFICE, 2 42 U.S.C. §§ 6901 et. seq.
1 No. 01-6562 Ailor, et al. v. City of Maynardville, TN 3 4 Ailor, et al. v. City of Maynardville, TN No. 01-6562
Pollution Discharge Elimination System (“NPDES”) permits. and/or 33 U.S.C. § 1319(g)(6). Lakeland, 224 F.3d at 524. 33 U.S.C. § 1342. Permit holders are subject to state and Lakeland also held that a proceeding before the Tennessee federal enforcement actions, as well as suits by private Department of Environment and Conservation (“TDEC”) is citizens. See 33 U.S.C. §§ 1319 (“State enforcement, not “court enforcement” for purposes of §§ 1319(a) and compliance orders”) and 1365 (“Citizen suits”). 1365(b). Id. at 521-22. The CWA’s citizen’s suit provision permits any individual B. Facts who has an interest which is or may be adversely affected to sue to enforce any limitation established by a NPDES permit. The City owns and operates a sewage treatment plant along § 1365(a) and (g). The CWA limits the remedies available to Bull Run Creek. In the past, the treatment plant has citizen plaintiffs to injunctive relief, the assessment of civil overflowed, discharging raw sewage and other pollutants into penalties, and attorney’s fees. See 33 U.S.C. § 1365(a), (d); the creek. Plaintiff Lynch owns approximately 100 acres of see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., land in Union County, along Bull Run Creek, downstream Inc., 528 U.S. 167, 175 (2000). No compensatory damages from the plant. Plaintiff Ailor owned approximately 36 acres are authorized under the CWA. See Middlesex County of land along Bull Run Creek, downstream from the plant Sewage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 18 until approximately October of 2000. Both parties have (1981). Furthermore, civil penalties are payable to the United obtained drinking water from private wells located on their States Treasury. Laidlaw, 528 U.S. at 175. The CWA also property. “does not permit citizen suits for wholly past violations.” Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 1. The City U.S. 49, 64 (1987); see also Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 106-07 (1998) (holding that citizen The City operates its sewage treatment plant under an plaintiffs lack standing to seek civil penalties for wholly past NPDES permit. Because of repeated violations of its NPDES violations). permit in the early 1990s, the Tennessee Department of Environment and Conservation (“TDEC”) commenced Citizen suits are merely intended to supplement, not enforcement proceedings against the City in 1993. On supplant, enforcement by state and federal government November 16, 1993, J.W. Luna, the Commissioner of the agencies. Gwaltney, 484 U.S. at 60. Such agency suits trump TDEC, issued an Order and Assessment against the City, in the CWA’s citizen suit provision, provided that: (1) they are which he found that “[f]rom January 1991, thru December initiated prior to the commencement of a citizen’s suit, 1992, the [City’s] self monitoring information revealed the § 1319(g)(A)(i); (2) are diligently prosecuted, id.; and (3) are following NPDES permit violations”: brought in a court of the United States or any State court. § 1365(b)(1)(B). See generally Jones v. City of Lakeland, 224 Biochemical Oxygen Demand . . . . 99 violations F.3d 518 (6th Cir. 2000) (en banc). Likewise, where a “State Total Suspended Solids . . . . . . . . . . 4 violations has commenced and is diligently prosecuting an action under Ammonia . . . . . . . . . . . . . . . . . . . . 27 violations a State law comparable to” the CWA, citizen suits are Fecal Coliform . . . . . . . . . . . . . . . . 9 violations precluded. § 1319(g)(6)(A)(ii). However, in Lakeland, this Chlorine . . . . . . . . . . . . . . . . . . . . . . 9 violations Court held that an action under the Tennessee Water Quality Control Act is not comparable to 33 U.S.C. § 1365(a)(1)(B) No. 01-6562 Ailor, et al. v. City of Maynardville, TN 5 6 Ailor, et al. v. City of Maynardville, TN No. 01-6562
The Commissioner also found that the City failed to submit Action “shall become final and not subject to review” unless an Industrial User Survey to the Tennessee Division of Water a timely written petition for a hearing were filed with the Pollution Control within one hundred twenty (120) days after Tennessee Water Quality Control Board. the NPDES permit was issued. Thereafter, through hearings and meetings between the The Commissioner found that “[b]y discharging wastewater Board and the City, an Agreed Order (“Order”) was entered effluent from the plant in violation of the terms and on July 18, 1995, assessing a civil penalty against the City conditions of the NPDES permit,” the City had violated and requiring it to develop and implement a corrective action TENN. CODE ANN . § 69-3-108(b)(3) and (6), which makes it plan to bring its plant into compliance with the NPDES unlawful to discharge any wastes in excess of the amount permit.3 The Board adopted the facts and conclusions of law allowed by the permit. The Order further found that, by set forth in the Commissioner’s Order and Assessment. failing to submit an Industrial User Survey, the City had violated TENN. CODE ANN . § 69-3-114(b) (2003). The Order The Order required the City to do the following: and Assessment therefore 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 1. The Respondent [the City] shall initiate a corrective action plan that addresses at a minimum the continuous collection system rehabilitation following: program within sixty (60) days of entry of this (a) A review of “Mini-Systems”; Order. (b) Smoke Testing for a representative portion of the collection systems; 2. The Respondent shall submit a complete (c) Dry weather flow measurements; Industrial User Survey to the Tennessee (d) A physical survey of the systems; and Division of Water Pollution Control within (e) Wet weather flow monitoring; ninety (90) days of entry of this Order. 2. [S]ubmit to the Division (Knoxville Field Office) for 3. The Respondent shall bring the plant into approval, within sixty (60) days of approval of the compliance with the Act and NPDES permit corrective action plan, an engineering report that #TN0022870 within ninety (90) days of entry evaluates the current hydraulic and organic loading at the of this Order. wastewater treatment plant and recommends alternatives for additional treatment capacity including a time 4. The Respondent shall pay a Civil Penalty to the schedule for completion of treatment plant expansion. Department, hereby assessed in the amount of TWENTY FIVE THOUSAND DOLLARS ($25,000.00), to be paid [in various 3 The Agreed Order stated that the “cause came to be heard before a increments]. quorum of the Water Quality Control Board upon the Commissioner’s Order and Assessment dated Novemb er 16, 1993, directed to the The Order and Assessment indicated that, pursuant to Resp ondent, Town of Maynardville, the Respondent’s appeal and the joint TENN. CODE ANN . § 69-3-109 (a)(3), an Order for Corrective motion of the parties,” and that “the Board approved their settlement of this matter as embodied herein.” No. 01-6562 Ailor, et al. v. City of Maynardville, TN 7 8 Ailor, et al. v. City of Maynardville, TN No. 01-6562
3. [W]ithin one hundred eighty (180) days of approval Lynch and Ailor again filed suit against the City, this time in of the engineering report, submit to the Division federal court, under the CWA, the RCRA, and state law. The (Knoxville Field Office) for approval plans and complaint alleged that the City’s sewage treatment plant specifications for the expansion of the wastewater “frequently overflows, thereby discharging untreated sewage treatment plant and correction of inflow and infiltration. and other pollutants into Bull Run Creek,” and that “[t]his frequent discharge of raw sewage, and other pollutants, past 4. [I]mplement and complete all remedial activities set and present, has caused Plaintiffs serious bodily injury and forth in the above approved plans and specifications in loss of value in Plaintiffs’ property.” Plaintiffs sought accordance with those time schedules (included and as remedial relief, compensatory damages, punitive damages, approved by the Division) but in no event any later than and litigation costs, including reasonable attorney’s fees.4 thirty-six (36) months from the approval of such plans and specifications. 3. District Court Proceedings The order further assessed a civil penalty against the City in On September 10, 2001, the City moved for summary the amount of $18,750, of which $16,875 was to be paid only judgment. The City argued that summary judgment was if the City failed to comply with the Order. The City paid appropriate because the City was the subject of an $1,875 to the TDEC on July 18, 1995. enforcement action commenced by the State which was being diligently prosecuted under 33 U.S.C. § 1319(g)(6)(A)(ii). The Order also stated that the Division reserved the right to Furthermore, the City asserted that it had complied with the request modifications to the “corrective action report, terms of the corrective action. In support, the City attached engineering report, plans and specifications and/or any time several affidavits. The City Recorder, Hazel Gillenwater, schedules encompassed therein as deemed necessary by the attested that, as of September 6, 2001, the City was operating Director to achieve compliance with the Act.” within the NPDES permit. John West, an environmental The City completed all of the required actions under the Order and placed the new wastewater treatment plant on line 4 in November, 2000, and received the final inspection report Spe cifically, in their prayer for relief, Plaintiffs requested the on February 26, 20015. The City spent approximately 1.7 following: million dollars in upgrading the plant. WHEREFORE, Plaintiffs sue Defendants for an Order compelling Defendants to provide remedial relief for all harm 2. Plaintiffs done to Plaintiffs’ prop erty as a resu lt of the acts alleged herein, compensatory damages in an amount not to exceed $750,000, On January 30, 1998, Lynch and Ailor filed suit against the punitive damages in an amount not to exceed $50 0,00 0, the costs City in state court, seeking compensatory damages under of this litigation pursuant to 33 U.S.C. § 1365 (d) and 42 U.S.C. § 6972(e), including reasonable attorney’s fees and all further several theories of state law. On February 7, 2001, two and and general relief to which Plaintiffs are entitled . Plaintiffs one-half months after the City’s wastewater treatment plant dem and a trial by jury. was in full operation, Plaintiffs gave the City notice of a pending lawsuit, as required under the CWA and RCRA. See 33 U.S.C. § 1365(b); 42 U.S.C. § 6972(b). On May 16, 2001, No. 01-6562 Ailor, et al. v. City of Maynardville, TN 9 10 Ailor, et al. v. City of Maynardville, TN No. 01-6562
specialist for TDEC, stated in his affidavit that he had the Plaintiffs also did not assert, let alone offer proof, that the responsibility for monitoring, compliance, and enforcement City was in violation of the NPDES permit as of May 2001 or of the City’s wastewater treatment facilities and NPDES September 2001. permit. West stated that “[t]he City substantially complied with all aspects of the Order such that no further penalty In its reply to Plaintiffs’ response to the motion for payments were necessary. Finally, he stated that as of summary judgment, filed on October 3, 2001, the City September 7, 2001, “[r]ecent inspections revealed that the asserted that from the time of the enforcement action taken by City is operating its Wastewater Treatment Plan and the TDEC, the City had “moved expeditiously to remedy the Collection System in substantial compliance with the laws deficiencies in its plant.” The City reiterated that its relative to its operation of the Wastewater Treatment Plant and is meeting the effluent standards specified by the NPDES new waste water treatment plant was completed and permit.” In his affidavit, Arthur S. Baker, a professional waste water treatment plant operations began on engineer employed by Lamar Dunn & Associates, Inc., the November 20, 2000. Phase I of the City’s Waste Water City’s consulting engineers, stated that as of September 6, Collection Rehabilitation was completed on January 25, 2001, the City had “completed the necessary improvements 2001 and the City’s Phase 2 Waste Water Collection to its Wastewater Treatment Plant and the replacement and System Rehabilitation was completed on May 31, 2001. rehabilitation of Phase I and Phase II of its Wastewater . . . The new plant has been operating for more than ten Collection System.” (10) months with no discharges in violation of its NPDES permit. The City also asserted that Plaintiffs’ complaint should be dismissed because they sought recovery of compensatory or The reply brief also stated that punitive damages, which are not available under the CWA. [t]hroughout the process of the state of Tennessee’s In their response to the City’s motion for summary Enforcement Action, it has been abundantly clear that the judgment, Plaintiffs did not provide any evidence to problem which the City faced in its operation of its controvert the City’s assertion that it had completed its wastewater treatment was due primarily to an old plant obligations under the Order. Rather, Plaintiffs alleged in which was no longer able to satisfactorily treat the relevant part as follows: wastewater being generated by a growing population. Once the City’s new wastewater treatment plant The plaintiffs claim that they have suffered property commenced operation, its discharges have met its damages and personal injuries as a result of the NPDES permit.” defendant’s actions. Compl. ¶ 11. In addition, if the plaintiffs prevail in this action, they are entitled to The City therefore asserted that, as demonstrated by the recover their reasonable attorneys’ fees and litigation affidavit of the TDEC representative, the case was moot costs, including environmental testing and expert witness based upon events subsequent to November 20, 2000. fees, all of which are typically substantial in environmental cases. 33 U.S.C. § 1365(d). Significantly, the City also stated that its discharge from its wastewater treatment plant had substantially met its NPDES permit with no violations for the past four months, and only No. 01-6562 Ailor, et al. v. City of Maynardville, TN 11 12 Ailor, et al. v. City of Maynardville, TN No. 01-6562
minor violations occurring in February (chlorine limit), only to a moot federal claim.” Lastly, the court noted that March (chlorine limit and ammonia/nitrogen), and May because Plaintiffs’ complaint under the CWA was already (ammonia/nitrogen). moot by the time the federal complaint was filed, “[i]t would be illogical to allow the plaintiffs to recover attorney’s fees The district court granted summary judgment to the City on for a claim filed under the CWA.” November 5, 2001. The district court noted that the TDEC enforcement action did not preclude Lynch’s and Ailor’s On November 12, 2001, Plaintiffs filed a motion to alter or citizen suit under the CWA in light of Jones v. City of amend judgment. Plaintiffs’ motion was based principally on Lakeland, 224 F.3d 518 (6th Cir. 2000) (en banc). the City’s admission in its reply brief that it violated its Nevertheless, the district court granted the motion, stating that NPDES permit several times after the upgraded treatment the relief available to Lynch and Ailor under both the CWA plant went on-line in November of 2000. In support, and RCRA had already been granted. The court concluded Plaintiffs attached a letter from TDEC, Division of Water that, “under the unique facts of this case, a claim under the Pollution Control, stating that, based on the City’s Discharge CWA is moot at this time and was moot at the time it was Monitoring Reports (“DMRs”), the City had violated the filed.” NPDES permit in February, March and May of 2001. Also attached were two letters from Michael Payne, Chief [T]he State of Tennessee initiated an enforcement action wastewater plant operator, to John West, stating that the City against the City of Maynardville in 1993. As a result of incurred an overflowing manhole on February 25, 2001, and that state action, the City was fined and forced to come April 3, 2001. West also indicated that, in both instances the up with a plan for remedying its effluent problem. The overflow subsided the same day. City of Maynardville did what was requested by the State of Tennessee and ultimately, at an expense of more than In its response, the City stated that the manhole overflows $1 million, expanded its treatment plant which went on- were unrelated to the operations of the wastewater treatment line in November 2000. It is undisputed that the plant itself. Further, the City stated that the incidents expansion of the treatment plant has remedied the occurred prior to the completion of Phase II of the City’s overflow problem, since there is no evidence that any collection system rehabilitation project. Finally, the City overflow has occurred since November of 2000. reasserted that because it had corrected the deficiencies in its Plaintiffs then filed this lawsuit in this court in May collection and treatment systems, Plaintiffs’ CWA suit was 2001. At the time plaintiffs filed the lawsuit here under moot. the CWA, the State had already obtained, through its administrative procedures, any remedy which plaintiffs The district court summarily denied the motion, “[g]ood might have obtained with a citizens suit under the CWA. cause not being shown.”
(Emphasis Added.) Plaintiffs filed this timely appeal, claiming that the City did not carry its “heavy burden” required to establish mootness, The court further observed that the RCRA would not “give and that their RCRA claim was improperly dismissed. the plaintiffs any right or remedy not available under the CWA.” The district court declined to exercise jurisdiction over supplemental state law claims which were “appended No. 01-6562 Ailor, et al. v. City of Maynardville, TN 13 14 Ailor, et al. v. City of Maynardville, TN No. 01-6562
II. Analysis 1. Standing We review the district court’s grant of summary judgment “[S]tanding concerns only whether a plaintiff has a viable de novo. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, claim that a defendant’s unlawful conduct ‘was occurring at 892 (6th Cir. 2003) (citations omitted). Summary judgment the time the complaint was filed.’” Cleveland Branch, is proper when there is no dispute as to a material issue of fact NAACP v. City of Parma, Ohio, 263 F.3d 513, 525 (6th Cir. and the moving party is entitled to judgment as a matter of 2001), cert. denied, 535 U.S. 971 (2002) (quoting Laidlaw, law. Fed. R. Civ. P. 56(c). 528 U.S. at 184). “The Supreme Court has consistently held that jurisdiction is tested by the facts as they existed when the A. CWA Claim action [was] brought and that after vesting, it cannot be ousted by subsequent events.” Id. at 524. To establish initial Plaintiffs argue that the district court erred in granting the standing to bring suit, a plaintiff must demonstrate (1) he or City’s motion for summary judgment on the grounds that she has suffered an “injury in fact” that is (a) concrete and Plaintiffs’ CWA claims were moot. Plaintiffs submit that the particularized and (b) actual or imminent, as opposed to City did not carry its “heavy burden” of persuading the court conjectural or hypothetical; (2) the injury is fairly traceable to that further violations of the NPDES are not likely to recur, as the defendant’s challenged action; and (3) it is likely, not required by Laidlaw. Laidlaw holds that a defendant’s speculative, that the injury will be redressed by a favorable voluntary cessation of a challenged practice does not decision. Id. at 523-24 (citing Lujan v. Defenders of Wildlife, ordinarily moot a case. Laidlaw, 528 U.S. at 189 (citation 504 U.S. 555, 560-61 (1992)). omitted). In other words, voluntary cessation of the challenged conduct does not ordinarily moot a case unless Mootness addresses whether the plaintiff continues to have “subsequent events ma[ke] it absolutely clear that the an interest in the outcome of the litigation. City of Parma, allegedly wrongful behavior could not be reasonably expected 263 F.3d at 525. “[A] case is moot when the issues presented to recur.” Id. (internal quotation marks omitted). The are no longer ‘live’ or the parties lack a legally cognizable “heavy burden” of establishing that the challenged conduct interest in the outcome.” Powell v. McCormack, 395 U.S. cannot reasonably be expected to start up again lies with the 486, 496 (1969). In other words, “[i]f events that occur party asserting mootness. Id. subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give meaningful relief, then the case is As noted above, the district court held that Plaintiffs’ CWA moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F.3d claim was “moot [at the time of summary judgment] and 1330, 1336 (11th Cir. 2001). moot at the time it was filed.” Although the district court characterized it as mootness, the latter half of the district As the district court implicitly recognized, this case raises court’s statement implicates standing. See id. at 191 both standing and mootness concerns. See generally Laidlaw, (discussing distinctions between standing and mootness). We 528 U.S. at 180-92 (discussing distinctions between the two therefore begin our analysis with standing. doctrines). By the time Plaintiffs gave notice of intent to sue in February 2001 and filed suit sixty days later on May 16, 2001, the State of Tennessee had already procured the relief Plaintiffs sought in their complaint, namely remedial efforts to stop violations of the NPDES permit. In fact, by the time No. 01-6562 Ailor, et al. v. City of Maynardville, TN 15 16 Ailor, et al. v. City of Maynardville, TN No. 01-6562
of Plaintiffs’ suit, the State of Tennessee had already been at upgraded its wastewater treatment system, and the last the task for approximately seven years, beginning with the reported TKN violation occurred on May 15, 1984. Id. Commissioner’s Order and Assessment on November 16, 1993. By the time of Plaintiffs’ federal action, per orders of The respondents, two environmental groups, sent notice in the State of Tennessee, the City had installed and made February 1984 to the company, the EPA, and the Virginia operational a new wastewater treatment plant, at a cost of Board of their intent to file a citizen suit under the CWA over $1 million, to bring it into compliance with its NPDES based on the company’s violations of its permit conditions. permit. Thus, by the time Plaintiffs’ suit was initiated, Id. The respondents filed suit in June 1984. Id. The Plaintiffs essentially no longer had an “injury in fact” that company moved to dismiss for lack of subject matter was “actual or imminent.” But for the fortuity of four minor jurisdiction under the Act, arguing that the language of discharges in February, March, and May of 2001, Lynch § 505(a) [33 U.S.C. § 1365(a)], which allows private citizens clearly lacked standing,5 because the relief requested in the to bring suit against any person “alleged to be in violation” of complaint was by that time for wholly past violations. the Act, required the defendant to be violating the Act as of the time of suit. Id. at 54-55. The company contended that, The district court’s sense that Plaintiffs’ standing was because its last recorded violation occurred several weeks problematic is bolstered by comparison with the Supreme before the respondents filed their complaint, the district court Court’s decision in Gwaltney. In that case, the Virginia State lacked jurisdiction over the action. Id. at 55. Water Control Board issued a NPDES permit to the petitioner Gwaltney of Smithfield, Ltd., in 1974 authorizing Gwaltney The Supreme Court agreed, holding that “[t]he most natural to discharge seven pollutants, including fecal coliform, reading of ‘to be in violation’ is a requirement that citizen- chlorine, and total Kjeldahl nitrogen (TKN), from the plaintiffs allege a state of either continuous or intermittent company’s meat-packing plant on the Pagan River in violation–that is, a reasonable likelihood that a past polluter Smithfield, Virginia. Id. at 53. Between 1981and 1984, the will continue to pollute in the future.” Id. at 57. The Court company repeatedly violated the conditions of the permit by observed that “the pervasive use of the present tense exceeding effluent limitations on five of the seven covered throughout § 505,” especially in the definition of “citizen” as pollutants. Id. In March 1982, the company installed new “‘a person . . . having an interest which is or may be adversely equipment to improve its chlorination system, and the last affected’ by the defendant’s violations of the Act,” id. at 59 reported chlorine violation occurred in October 1982. Id. (quoting § 1365(g)), made plain that “the harm sought to be The new chlorination system also helped control the addressed by the citizen suit lies in the present or future, not discharge of fecal coliform, the last of which occurred in in the past.” Id. The Court reasoned in relevant part: February 1984. Id. at 54. In October 1983, the company Any other conclusion would render incomprehensible § 505's notice provision, which requires citizens to give 60 days’ notice of their intent to sue to the alleged violator as well as to the Administrator and the State. 5 § 1365(b)(1)(A). If the Administrator or the State Ailor, in any event, clearly lack ed stan ding. The com plaint reflects that he did not own the property at the time the federal complaint was commences enforcement action within that 60-day filed. He no longer had an “injury in fact” that is fairly red ressab le by a period, the citizen suit is barred, presumably because favorable decision since the CWA “does not permit citizen suits for governmental action has rendered it unnecessary. wholly past violations.” Gwaltney, 484 U.S. at 64. No. 01-6562 Ailor, et al. v. City of Maynardville, TN 17 18 Ailor, et al. v. City of Maynardville, TN No. 01-6562
§ 1365(b)(1)(B). It follows logically that the purpose of same might be said of the discretion of state enforcement notice to the alleged violator is to give it an opportunity authorities. Respondents’ interpretation of the scope of to bring itself into complete compliance with the Act and the citizen suit would change the nature of the citizens’ thus likewise render unnecessary a citizen suit. If we role from interstitial to potentially intrusive. We cannot assume, as respondents urge, that citizen suits may target agree that Congress intended such a result. wholly past violations, the requirement of notice to the alleged violator becomes gratuitous. Id. at 60-61.
Id. at 59-60. The Court further observed that Notwithstanding its conclusion that § 505 does not permit citizen suits for wholly past violations, the Supreme Court Adopting respondents’ interpretation of § 505's remanded for further proceedings, because the respondents jurisdictional grant would create a second and even more had also alleged in their complaint that the company was disturbing anomaly. The bar on citizen suits when continuing to violate its NPDES permit when they filed suit. government enforcement action is under way suggests Id. at 64. The Supreme Court concluded that § 505 confers that the citizen suit is meant to supplement rather than to jurisdiction over citizen suits when the citizen-plaintiffs make supplant governmental action. The legislative history of a good-faith allegation of continuous or intermittent violation. the Act reinforces this view of the role of the citizen suit. Id. The Court rejected the company’s argument that this The Senate Report noted that “[t]he Committee intends construction of § 505 would permit citizen-plaintiffs to pursue the great volume of enforcement actions [to] be brought their suits to conclusion even if their allegations of ongoing by the State,” and that citizen suits are proper only “if the noncompliance became false at some later point in the Federal, State, and local agencies fail to exercise their litigation because the defendant begins to comply with the enforcement responsibility.” S.Rep. No. 92-414, p. 64 Act, reasoning that “[l]ongstanding principles of mootness” (1971), reprinted in 2 A Legislative History of the Water would prevent maintenance of suit when there was no Pollution Control Act Amendments of 1972, p. 1482 reasonable expectation of recurrence. Id. at 66-67. (1973) (hereinafter Leg. Hist.). Permitting citizen suits for wholly past violations of the Act could undermine the Like the citizen-plaintiffs in Gwaltney, Plaintiffs did not supplementary role envisioned for the citizen suit. This file their federal complaint until several weeks after the last danger is best illustrated by an example. Suppose that recorded violation, and after the defendant polluter had the Administrator identified a violator of the Act and installed new treatment systems to bring itself into issued a compliance order under § 309(a). Suppose compliance with its NPDES permit. Like Gwaltney, the further that the Administrator agreed not to assess or remedial efforts were not prompted by the citizen-suit; indeed otherwise seek civil penalties on the condition that the the remedial actions preceded the citizen suits. In neither case violator take some extreme corrective action, such as to was the citizen suit prompted by state or federal agency install particularly effective but expensive machinery, inaction. that it otherwise would not be obliged to take. If citizens could file suit, months or years later, in order to seek the Furthermore, the Supreme Court’s concern in Gwaltney that civil penalties that the Administrator chose to forgo, then citizen suits for wholly past violations would undermine the the Administrator’s discretion to enforce the Act in the supplementary role envisioned by Congress is equally public interest would be curtailed considerably. The applicable here. By the time Plaintiffs filed their federal No. 01-6562 Ailor, et al. v. City of Maynardville, TN 19 20 Ailor, et al. v. City of Maynardville, TN No. 01-6562
action, the Board and the City had not only entered into, but further noted, the mootness doctrine evens out the playing enforced, an Order requiring the City to implement a field. See id. at 66. corrective action plan to bring it into compliance with the CWA, and the City had expended over a $1 million to that 2. Mootness end. By the terms of the Order, the Board had agreed to forgo “civil penalties on the condition that the violator [the As the district court observed in its order granting summary City] take some extreme corrective action, such as to install judgment, “[i]t is undisputed that the expansion of the particularly effective but expensive machinery, that it treatment plant has remedied the overflow problem, since otherwise would not be obliged to take.” Gwaltney, 484 U.S. there is no evidence that any overflow has occurred since at 61. Thus, the true nature of Plaintiffs’ suit in this case was November 2000.” The only overflows, which came to light not “interstitial” but “potentially intrusive” because the State because of the City’s self-reporting, involved two manholes had not “failed to exercise [its] enforcement responsibility.” on Main Street, not into Bull Run Creek. Plaintiffs’ Id. at 60. In short, all of the concerns expressed in Gwaltney complaint alleges violations pertaining to only Bull Run are present in this case, and point to the conclusion that, given Creek. the unique facts of this case, Plaintiffs in essence lacked standing to file suit. Furthermore, although the City’s discharge from its wastewater treatment plant exceeded its NPDES permit limits At the same time, Gwaltney also recognized that standing in February, March, and May 2001, shortly after the new is conferred by good faith allegations of continuous or wastewater system began operating, Defendants established intermittent violations. Id. at 64. We must therefore examine that as of the time of summary judgment in November 2001, the complaint. As noted above, the complaint alleged that the the City was in compliance with the NPDES permit. The City’s frequent discharges of pollutants “past and present . . . City presented undisputed evidence from both the City caused Plaintiffs serious bodily injury and loss of value in Recorder, Hazel Gillenwater, and an environmental specialist Plaintiffs’ property.” As relief, the complaint sought merely for TDEC, John West, that the City had remedied the “an Order compelling Defendants to provide remedial relief deficiencies in the operation of its wastewater treatment plant. for all harm done as a result of the acts alleged herein, In short, the City met its “heavy burden” of demonstrating compensatory damages . . . , punitive damages . . ., the costs that the alleged violations were not likely to recur, since they of this litigation . . . , and all further and general relief to were largely caused by an outdated wastewater treatment which Plaintiffs are entitled.” It is arguable whether Plaintiffs plant, which had been replaced by the time Plaintiffs filed properly alleged continuing violations. Cf. Gwaltney, 484 their federal action. At the same time, Plaintiffs have not met U.S. at 64 (holding that the plaintiffs’ complaint satisfied the their burden as the nonmoving party on summary judgment jurisdictional requirements of § 505 and conferred standing of establishing a realistic prospect that the violations alleged because their complaint alleged in good faith that “Gwaltney in the complaint would continue, having presented no was continuing to violate its NPDES permit when plaintiffs evidence to demonstrate recurrence. Cf. Comfort Lake Ass’n. filed suit”). Although “slim,” we nonetheless can give Lynch v. Dresel Contracting, Inc., 138 F.3d 351, 355 (8th Cir.1998) the benefit of the doubt and assume standing. See Arizonans (holding that citizen plaintiffs offered no evidence to for Official English v. Arizona, 520 U.S. 43, 66-67 (1997) contradict stipulation agreement to the effect that defendant (holding that a court assumes without deciding that standing store construction was complete and NPDES permit had been exists in order to analyze mootness). As the Gwaltney Court terminated; stating that the plaintiff had therefore not met “its No. 01-6562 Ailor, et al. v. City of Maynardville, TN 21 22 Ailor, et al. v. City of Maynardville, TN No. 01-6562
burden to rebut the factual underpinnings of a well-supported The record reflects that, at the State’s prompting, the City motion for summary judgment”). In short, as the district had, by the time of summary judgment, actually met its court held, even if Lynch could survive the standing permit obligations by remedying the underlying problem, challenge, the case is moot, because the injuries suffered in replacing an old wastewater treatment plant at substantial the complaint had been remedied by events subsequent to the cost. Here, Plaintiffs had the opportunity before the district filing of the lawsuit, with no showing of a reasonable court at summary judgment to offer proof that the challenged likelihood of recurrence. practices were likely to continue, but failed to meet their burden under Rule 56. Laidlaw is distinguishable. In Laidlaw, environmental groups brought suit against the holder of a NPDES permit, Finally, the record also reflects that, in this case, it is the alleging violation of mercury discharge limits and seeking machinations of the citizen-plaintiffs, and not the defendant declaratory and injunctive relief. Laidlaw, 528 U.S. at 175- polluter, that appear to undermine the purposes and goals of 76. The Supreme Court held that the action would not be the Act. Had Plaintiffs been truly compelled to commence rendered moot by the company’s compliance with its permit litigation because of federal or state reluctance to solve a limits, or its closure of the challenged facility, absent a serious environmental problem, they would certainly have showing that either event made it absolutely clear that the done so at least by 1998, when they filed suit in state court. permit violations could not reasonably be expected to recur, Instead, they waited until the final chapter of the state agency and remanded the case to the district court for further proceedings to bring a CWA claim. The only plausible proceedings. Id. at 193. explanation for the timing of their federal suit is the possibility of reasonable costs and attorney fees. Indeed, at However, in Laidlaw, in contrast with this case, the citizen oral argument, counsel for Plaintiffs openly admitted that they suit was instituted prior to any action by a state agency, and were primarily interested in expert costs and attorney fees. thus was truly supplementary. Id. at 175-77. Further, in However, because Plaintiffs never had a valid claim for civil Laidlaw, the defendant company’s lawyer reached a penalties or injunctive relief, they cannot in any way be settlement with the state environmental agency on the last day considered the “prevailing or substantially prevailing party,” before the 60-day notice period expired, so as to prevent the see 33 U.S.C. § 1365(d), attorney fees are not warranted in citizen suit, and the agreement required merely that the this case.6 company pay $100,000 in civil penalties and make “every effort” to comply with its permit obligations. Id. at 177. Thus, in Laidlaw, there was a genuine concern that the 6 In Buckhann on B d. & Care H ome v. West Virginia D ep’t o f Hea lth defendant might be “free to return to its old ways” if the court & Hum an Servs., 532 U.S. 598 (2001), the Sup reme Court held th at the were to find the claim moot based on the defendant’s fee-shifting provisions o f the Fair Housing Amend ments Act and the voluntary cessation of the challenged practice. Id. at 189. Americans W ith Disabilities Ac t require a pa rty to secure either a judgment on the merits or a court-ordered consent decree in order to Here, although the City was not subject to a court order, its qualify as a “prevailing party” for purposes of attorney fees, rejecting the conduct was certainly not “voluntary” in the same sense as catalyst theory. It is an open question whether the catalyst theory remains the defendant polluter in Laidlaw. viable in the context of environmental statutes like the C W A that limit attorneys’ fees to a prevailing party or substantia lly prevailing party. See In this case, the record establishes that Plaintiffs were not Marisa L. Ugalde, The Future of Environmental Citizen Suits After compelled to file suit because of federal and state inaction. Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 8 E NVTL .L AW . 589, 614 (2002). No. 01-6562 Ailor, et al. v. City of Maynardville, TN 23 24 Ailor, et al. v. City of Maynardville, TN No. 01-6562
B. RCRA Claim ______________________________________________ Plaintiffs also argue that the district court erred in CONCURRING IN PART, DISSENTING IN PART dismissing their RCRA claim. The district court concluded ______________________________________________ that dismissal was warranted because the relief available under the RCRA is no different than that available under the R. GUY COLE, JR., Circuit Judge, concurring in part and CWA. dissenting in part.
Under 42 U.S.C. § 6972 of the RCRA, citizens are In holding that Lynch’s suit is moot, the majority overlooks authorized to bring suit in substantially the same capacity as evidence in the record that establishes the existence of a provided for in the CWA. 42 U.S.C. § 6972 (2001). genuine issue of material fact on whether the City has Likewise, the relief available under § 6972 of the RCRA is demonstrated that its alleged violations will not recur. The virtually identical to that available under the CWA, i.e., City must satisfy “the formidable burden of showing that it is injunctive relief, civil penalties, and attorney fees. See 42 absolutely clear the allegedly wrongful behavior could not U.S.C. § 6928(a). The RCRA, like the CWA, does not reasonably be expected to recur.” Friends of the Earth, Inc. provide for compensatory damages. See Mehrig v. KFC v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (emphasis Western, Inc., 516 U.S. 479 (1996) (holding that RCRA does added). No doubt the City has demonstrated significant not authorize private cause of action to recover prior cost of improvement in its wastewater treatment, but mere significant cleaning up toxic waste); Walls v. Waste Res. Corp., 761 F.2d improvement falls short of the “absolutely clear” showing that 311, 316 (6th Cir. 1985). Thus, the district court did not err the Supreme Court requires. in dismissing the RCRA claim. Indeed, in November 2001—nearly six months after suit III. Conclusion was filed and after the City had completed both Phases I and II of the state’s order—the state warned of the new plant’s For the foregoing reasons, the judgment of the district court “very limited digester capacity.” Although the state is AFFIRMED. “underst[ood] that there are plans to convert the old final clarifies to digesters,” this sheds no light on whether and when the plans would be implemented and exactly what those plans would entail—let alone that they would be successful. An undefined probability that current plant deficiencies may be cured in the future falls short of the City’s burden under Friends of the Earth. And the state similarly expressed its “concern . . . about the status of the [City’s] collection system rehabilitation program.” The majority relies heavily on the fact that the last violation took place in May 2001. But summary judgment was granted to the City only six months later. Given the City’s years of chronic violations, this period of compliance is fairly brief, No. 01-6562 Ailor, et al. v. City of Maynardville, TN 25 26 Ailor, et al. v. City of Maynardville, TN No. 01-6562
and its significance is further undermined by the state’s Although I believe that Lynch should be allowed to proceed November report, which noted that “during the winter and to trial, I concur with the majority’s dismissal of the suit by spring . . . the flows may be much higher.” The continued Ailor on grounds of standing. As for the balance of the deficiencies in the City’s facility, combined with the majority’s decision, I respectfully dissent. possibility of increased flows in the winter and spring, made premature a finding—based on only six months of compliance during the summer and fall—that the City had made it “absolutely clear” that all the problems had passed. Nor does the state’s determination that the City is in “substantial compliance” with its obligations necessarily shield the City from this suit. Our decision in Jones v. City of Lakeland, 224 F.3d 518, 524 (6th Cir. 2000) (en banc), made it clear that a seal of approval from the state of Tennessee does not automatically close the courthouse door for private individuals seeking to enforce federal clean-water statutes. We noted that in the Tennessee proceedings, “the plaintiffs and other similarly affected citizens are, at the discretion of the TDEC, denied access to both the courts and to a meaningful opportunity to participate at significant stages of the administrative decision-making process, to adequately safeguard their legitimate interests as mandated by the Clean Water Act.” Id. at 522. We would not be faithful to City of Lakeland if the state’s determination of “substantial compliance” required us to overlook the abovementioned evidence that the City’s plant might still produce NPDES violations. Finally, I disagree with the majority’s emphasis on the plaintiffs’ pursuit of attorneys’ fees. It is unsurprising that Lynch’s lawyer is interested in these fees—the whole purpose of fee-shifting statutes is to encourage attorneys to take cases that would otherwise be financially undesirable. That counsel is interested in compensation for his services does little to disparage the motivations of his client, Lynch, who seems reasonably to believe that the continued threat of prohibited toxic waste in his drinking water—even after the new plant was up and running—merits the intervention of the courts.