Starlink Logistics, Inc. v. ACC, LCC

Filing 34

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 6/25/2012. (eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
STARLINK LOGISTICS, INC.,

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Plaintiff,

v.
ACC, LLC,
Defendant.

Case No. 1:12-cv-0011
Judge Trauger

MEMORANDUM
Pending before the court is the defendant’s Motion to Dismiss (Docket No. 15), to which
the plaintiff has responded (Docket No. 26), and the defendant has filed a reply (Docket No. 31).
For the reasons discussed herein, the defendant’s motion will be denied.
BACKGROUND
This case arises out of the alleged discharge of toxic pollutants from a landfill site in
Mount Pleasant, Tennessee. The plaintiff, Starlink Logistics, Inc., is the owner of an
approximately 1,485-acre tract of land that is located at 786 Arrow Lake Road in Mount Pleasant,
Tennessee.1 The defendant, ACC, LLC (“ACC”), owns property situated immediately east of
and adjoining Arrow Lake Road that contains an approximately 14-acre industrial landfill where
wastes (“the aluminum smelting wastes”)2 from a secondary aluminum smelting plant operated
by Smelter Services Corporation were previously disposed of. During the course of its

1

Unless otherwise noted, the allegations are drawn from the plaintiff’s Complaint.
(Docket No. 1.)
2

These wastes allegedly consisted of aluminum salt cake, slag, and bag house dusts.
1

approximately 22-year operation of this landfill, ACC accepted thousands of tons of aluminum
smelting wastes for disposal.
A few years after operations began, the landfill started to discharge elevated levels of
pollutants offsite to an unnamed tributary that flows into Sugar Creek, which, in turn, is
impounded to form Arrow Lake. Each of these water bodies is located on the plaintiff’s property.
The discharged pollutants include sodium and potassium chlorides, ammonia, dissolved solids,
metals, and sediments. These pollutants are discharged at concentrations that allegedly exceed
applicable water quality criteria by orders of magnitude. As a result, all aquatic life has been
allegedly extinguished in the unnamed tributary and downstream in Sugar Creek. Surrounding
trees and surface vegetation have also been destroyed as a result of the discharge. In addition, the
discharge contains a high volume of sediments that have filled Arrow Lake with deep deposits of
toxic “muck” that has reduced dissolved oxygen levels to a point at which no aquatic life survives
in the upper portion of the lake.
Although ACC received several notices of violation from the Tennessee Department of
Health and Environment (the predecessor agency to the Tennessee Department of Environment
and Conservation) (“the TDEC”), the discharge of pollutants continued unabated. In 1989, the
TDEC ordered ACC to close its landfill and comply with the department’s rules for proper
closure and post-closure care and monitoring. Despite this order, ACC nonetheless continued to
dispose of the aluminum smelting wastes at its landfill until September 1993. According to the
Complaint, ACC did not achieve complete closure of the landfill until July 1995.
Although ACC’s landfill closed in 1995, the Complaint alleges that the discharge of
contaminants from the landfill continues to enter the water bodies located on the plaintiff’s

2

property. This discharge results from the contact between surface and groundwaters entering the
landfill and buried wastes. During this contact, the entering waters pick up contaminants from
the buried wastes and then discharge from the landfill as surface and subsurface leachate
containing the elevated levels of pollutants.
Surface leachate exits the landfill and enters the plaintiff’s property through an
approximately 36-inch diameter corrugated steel culvert pipe running underneath Arrow Lake
Road. Once it reaches the plaintiff’s property, the surface leachate discharges into the unnamed
tributary of Sugar Creek, which is between approximately 100 and 200 yards long. The tributary
then empties into Sugar Creek a few hundred yards before the creek is impounded to form Arrow
Lake. The Complaint alleges that, on information and belief, subsurface leachate exits the
landfill and enters the plaintiff’s property as perched groundwaters that seep and discharge to the
unnamed tributary to Sugar Creek and also migrate into surrounding soils.
According to the Complaint, large quantities of contaminated sediment also discharge
from the landfill during storm events and enter the plaintiff’s property through the
aforementioned culvert pipe running underneath Arrow Lake Road. This sediment then scours
the unnamed tributary and Sugar Creek and ultimately deposits at the bottom of Arrow Lake. It
is alleged that approximately 5-10 acres of the upper portion of Arrow Lake is filled with toxic
“muck.”
As a result of this continuous discharge of pollutants, the plaintiff alleges that it has
investigated the soil, surface water, and groundwater on its property to determine the extent of
contamination, identified individual pollutants that have entered its property, evaluated the
impacts the pollutants have had on aquatic life and surrounding vegetation, and studied

3

alternative removal and/or remedial actions. These removal and remedial actions are aimed at
stopping and/or treating the discharge, removing and/or remedying the contamination, restoring
the aquatic life, and removing and replacing the distressed vegetation.
As alluded to in the Complaint, the TDEC has engaged in past enforcement actions
against ACC in connection with the contaminated discharges exiting its landfill. In June 2011,
both ACC and the TDEC entered into an administrative Consent Order, which was filed by ACC
in the Chancery Court for Davidson County on June 9, 2011, pursuant to a petition brought under
Tennessee Code Annotated §§ 68-212-114(e), 68-212-215(f), and 69-3-115(e), requesting that
the court enter a judgment by consent. (Docket No. 16, Ex. 3.) The petition asserts that the
TDEC neither opposed the petition’s filing nor the relief requested therein. (Id.) In November
2011, a joint agreed order was filed in the Chancery Court, in which both the plaintiff and the
TDEC were added as parties to the proceeding initiated by ACC. (Docket No. 16, Exs. 4-5.) The
plaintiff contends that it has intervened in that proceeding because, among other things, the
administrative Consent Order does not address all of ACC’s violations resulting from the
continuing discharge of pollutants from its landfill. (Docket No. 26, at 6.)
The plaintiff later commenced this action against ACC on January 19, 2012, asserting
claims under the Federal Water Pollution Control Act (the “Clean Water Act”), 33 U.S.C. § 1251
et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the
Comprehensive Environmental Response, Compensation, and Liability Act, 94 Stat. 2767, as
amended, 42 U.S.C. § 9601 et seq., and state law. (Docket No. 1, at 9-17.) The plaintiff’s state
law claims assert causes of action for private nuisance, negligence, and trespass. (Docket No. 1,
at 15-17.) On February 15, 2012, ACC filed the pending Motion to Dismiss. (Docket No. 15.)

4

ANALYSIS
ACC has moved to dismiss the plaintiff’s Complaint on two grounds. First, it contends
that the court lacks subject-matter jurisdiction over the plaintiff’s claims on account of the
TDEC’s enforcement actions, which produced the administrative Consent Order filed by ACC in
the Chancery Court on June 9, 2011. It thus contends that the Complaint must be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(1). Alternatively, it contends that the
plaintiff’s Complaint fails to state claims upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). Before turning to the merits of ACC’s motion, the court will
briefly describe the three environmental statutes under which the plaintiff has asserted its federal
claims.

I.

Federal Statutory Framework
A.

The Clean Water Act

The purpose of the Clean Water Act (“CWA”) “is to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Under the
CWA, it is “illegal to discharge a pollutant into the navigable waters of the United States except
as authorized by the EPA or the Army Corps of Engineers.” United States v. Holden, 557 F.3d
698, 701 (6th Cir. 2009) (citing 33 U.S.C. §§ 1311(a), 1362(6), 1362(7), 1362(12)(A)). Through
its National Pollutant Discharge Elimination System, 33 U.S.C. § 1342, the United States
Environmental Protection Agency (“EPA”) has authorized the TDEC to issue discharge permits
under the CWA. See id.
In its Complaint, the plaintiff alleges that ACC is in violation of two permitting
requirements of the CWA. First, it alleges that ACC, without ever obtaining the required

5

discharge permit, has continued to discharge surface leachate, subsurface leachate, and sedimentladen stormwater from its landfill into the water bodies on the plaintiff’s property in violation of
33 U.S.C. § 1311. (Docket No. 1, at 9-10.) The plaintiff similarly alleges that ACC, without
first obtaining a dredging or filling permit from the Army Corps of Engineers, 33 U.S.C. § 1344,
has continued to discharge “fill material” that ultimately settles at the bottom of Arrow Lake in
violation of 33 U.S.C. § 1311. (Id. at 10-11.) The plaintiff has asserted these claims pursuant to
the CWA’s citizen suit provision, 33 U.S.C. § 1365, which allows any individual having an
interest that is or may be adversely affected to bring suit against any person who is alleged to be
in violation of an effluent standard or limitation.3 33 U.S.C. § 1365(a) and (g); See also Ailor v.
City of Maynardville, Tenn., 368 F.3d 587, 590 (6th Cir. 2004).
B.

The Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (“RCRA”) “is a comprehensive
environmental statute governing the treatment, storage, and disposal of solid and hazardous
waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996). Its primary purpose is to
reduce the generation of hazardous waste and to ensure that the waste that is generated is

3

The CWA defines an effluent limitation as “any restriction established by a State or the
Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other
constituents which are discharged from point sources into navigable waters, the waters of the
contiguous zone, or the ocean, including schedules of compliance.” 33 U.S.C. § 1362(11).
The term “point source” is defined by the Act as “any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The
definition does not encompass “agricultural stormwater discharges and return flows from
irrigated agriculture.” Id.
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properly “treated, stored, or disposed of so as to minimize the present and future threat to human
health and the environment.” 42 U.S.C. § 6902(b); see also Meghrig, 516 U.S. at 483.
The plaintiff has asserted three RCRA claims against ACC. The first alleges that ACC is
engaging in open dumping in violation of 42 U.S.C. § 6945, because it has, and continues to
discharge pollutants: (1) without obtaining the necessary permits under the CWA; (2) in
violation of the TDEC’s EPA-approved solid waste management plan and its specific rules
concerning post-closure care of landfills; and (3) that contaminate underground drinking water
sources. (Docket No. 1, at 11-13.) The second RCRA claim alleges that ACC is violating the
TDEC’s EPA-approved solid waste management plan and its specific post-closure landfill rules,
because solid waste, its constituents, leachate, contaminated rainfall, and waste decomposition
products have and continue to escape into ground and surface water offsite in quantities and
concentrations that are toxic to all aquatic life and surrounding surface vegetation. (Id. at 1314.) The final RCRA claim alleges that ACC, by virtue of the continuing contaminated
discharge escaping its landfill, has contributed, or is contributing “to the past or present disposal
of solid waste which may present an imminent and substantial endangerment to health or the
environment.” (Id. at 14.)
Like the CWA, the RCRA contains its own citizen suit provision. The first provides that
any citizen may commence a civil action against any person “who is alleged to be in violation of
any permit, standard, regulation, condition, requirement, prohibition, or order which has become
effective pursuant to” the Act. 42 U.S.C. § 6972(a)(1)(A). The plaintiff’s open dumping and
solid waste management plan violation claims proceed under Section 6972(a)(1)(A). The RCRA
also authorizes a citizen to bring suit against any person “who has contributed or who is

7

contributing to the past or present handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste which may present an imminent and substantial endangerment to health
or the environment.” 42 U.S.C. § 6972(a)(1)(B). As is made evident by the discussion in the
preceding paragraph, the plaintiff’s final RCRA claim proceeds under Section 6972(a)(1)(B).
C.

The Comprehensive Environmental Response, Compensation, and Liability
Act

The Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”) was enacted by Congress in 1980 “in response to the serious environmental and
health risks posed by industrial pollution.” Burlington N. and Sante Fe Ry. Co. v. United States,
556 U.S. 599, 602 (2009). Its purpose is to “promote the timely cleanup of hazardous waste sites
and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the
contamination.” Id. (internal quotation marks omitted). CERCLA grants private citizens the
opportunity to recover the “necessary costs of response” they have incurred from a potentially
responsible party that is subject to liability under the statute. 42 U.S.C. § 9607(a)(4)(B). In its
Complaint, the plaintiff has asserted a claim against ACC to recover its “necessary costs of
response” caused by the discharge of hazardous substances from ACC’s landfill. (Docket No. 1,
at 15.)

II.

Motion to Dismiss for Lack of Subject-Matter Jurisdiction
A.

Standard of Review

Federal Rule of Civil Procedure 12(b)(1) governs dismissal of lawsuits for lack of
subject-matter jurisdiction. “Rule 12(b)(1) motions to dismiss . . . generally come in two
varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co.,
491 F.3d 320, 330 (6th Cir. 2007). Both parties agree that ACC’s Rule 12(b)(1) motion
8

represents a factual attack against the subject-matter jurisdiction alleged in the Complaint. When
a party makes a factual attack, “no presumptive truthfulness applies to the allegations” made in
the Complaint. Gentek Bldg. Prods., Inc., 491 F.3d at 330. If such an attack “raises a factual
controversy, the district court must weigh the conflicting evidence to arrive at the factual
predicate that subject-matter [jurisdiction] does or does not exist.” Id. “In its review, the district
court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing
to resolve jurisdictional facts.” Id.
B.

Section 113(h) of CERCLA

ACC first contends that Section 113(h) of CERCLA prevents the court from exercising
subject-matter jurisdiction over the plaintiff’s CWA and RCRA claims for injunctive relief.
(Docket No. 16, at 8.) That section specifically states that, subject to certain statutory exceptions,
a federal court shall not “have jurisdiction under Federal law other than under section 1332 of

Title 28 (relating to diversity of citizenship jurisdiction) . . . to review any challenges to removal
or remedial action selected under section 9604 of this title [Section 104], or to review any order
issued under section 9606(a) of this title [Section 106(a)].” 42 U.S.C. § 9613(h). ACC
specifically argues that the plaintiff’s CWA and RCRA claims must be dismissed under this
statute because they represent a “challenge” to remedial action ordered by the TDEC pursuant to
the administrative Consent Order. (Docket No. 16, at 8-9.)
ACC’s contention is without merit. Section 113(h) plainly bars a federal court from
exercising jurisdiction to review any challenges to removal or remedial action selected under
Section 104 or any order issued under Section 106(a) of CERCLA. 42 U.S.C. § 9613(h).
However, the administrative Consent Order outlining the required remedial action to be

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undertaken by ACC was issued pursuant to the Tennessee Hazardous Waste Management Act of
1983 (“THWMA”), Tenn. Code Ann. § 68-212-201 et seq. (2011), the Tennessee Water Quality
Control Act of 1977 (“TWQCA”), Tenn. Code Ann. § 69-3-101 et seq. (2004), and the
Tennessee Solid Waste Disposal Act (“TSWDA”), Tenn. Code Ann. § 68-211-101, et seq.
(2011), not CERCLA. Indeed, as the plaintiff points out in its opposition brief, the
administrative Consent Order fails to cite any CERCLA section. (Docket No. 26, at 8.)
Moreover, to the extent that ACC argues that the TDEC Commissioner was granted
remedial authority to carry out actions pursuant to Section 104 of CERCLA, that contention is
equally unavailing. (See Docket No. 16, at 9.) CERCLA specifically provides that a state may
apply to carry out actions authorized in Section 104 and, if approved, it may enter into a contract
or cooperative agreement with the EPA to carry out such actions. See 42 U.S.C. §
9604(d)(1)(A). Here, ACC has failed to provide any evidence of a contract or cooperative
agreement between the State of Tennessee and the EPA allowing the state to carry out actions
pursuant to Section 104. Instead, it cites a September 28, 2005 letter from the EPA to the TDEC,
stating that certain state response programs related to the THWMA and the Tennessee Inactive
Hazardous Substance Site Remedial Action Program are eligible to receive federal funding
pursuant to Section 128(a) of CERCLA. (Docket No. 16, at 9 n. 5; Docket No. 16, Ex. 6.) This
letter neither references Section 104(d)(1)(A), which again authorizes a state to apply to the EPA
to carry out actions authorized in Section 104, nor otherwise indicates that it constitutes an
agreement to allow the State of Tennessee to order remedial action under that section. (Docket
No. 16, Ex. 6.)

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While ACC cites two cases, Razore v. Tulalip Tribes of Wash., 66 F.3d 236 (9th Cir.
1995) and Long v. Tenn. Valley Auth., No. 3:09-cv-114, 2010 WL 1223917 (E.D. Tenn. Mar. 24,
2010), for the proposition that courts have applied Section 113(h) broadly to bar lawsuits
attacking remedial actions that were already underway, those cases are inapposite. (Docket No.
16, at 9.) In contrast to this case, the consent orders at issue in both Razore and Long were
issued by the EPA pursuant to authority granted by CERCLA. Razore, 66 F.3d at 239; Long,
2010 WL 1223917, at *8. Moreover, neither of these cases stands for the proposition that
Section 113(h) precludes a federal court from exercising jurisdiction over any challenges,
including those brought under the CWA and the RCRA, to remedial actions ordered, as here, by
a state agency pursuant to state statutory authority.4
C.

CWA Citizen Suit Bar

ACC next argues that two provisions of the CWA, 33 U.S.C. § 1365(b)(1)(B) and 33
U.S.C. § 1319(g)(6)(A), preclude the court from exercising subject-matter jurisdiction over the
plaintiff’s claims under the Act. (Docket No. 16, at 10.) Both of these provisions are exceptions
to the citizen suit provision found in Section 1365(a) of the CWA. In analyzing ACC’s
argument, the court will address each statutory provision in turn.
Section 1365(b)(1)(B), provides, in pertinent part, that:
No action may be commenced . . . if the Administrator or State has
commenced and is diligently prosecuting a civil or criminal action in
a court of the United States, or a State to require compliance with the
standard, limitation, or order . . . .

4

Having concluded that, by virtue of its plain language, the jurisdictional bar contained
in Section 113(h) is not applicable, the court need not address the plaintiff’s remaining
contentions concerning the statute.
11

33 U.S.C. § 1365(b)(1)(B) (emphasis added). ACC contends that this section bars the plaintiff’s
CWA claims because it voluntarily filed a petition in the Chancery Court seeking entry of a
consent judgment pursuant to the terms contained in the administrative Consent Order it entered
into with the TDEC. (Docket No. 16, at 14.) Yet, as the plaintiff notes, ACC’s voluntary filing
of the aforementioned petition does not constitute a civil or criminal enforcement action
commenced by the TDEC in a state court. Indeed, as the petition itself makes clear, the
agreement reached between ACC and the TDEC constitutes an administrative Consent Order, as
opposed to a consent agreement reached between the parties as a result of a judicial enforcement
action that had been previously commenced by the State. (Docket No. 16, Ex. 3.) ACC has not
otherwise pointed to any proof in the record demonstrating that the TDEC commenced any civil
or criminal enforcement action against it in state court. For these reasons, ACC’s contention
must fail.5
The second statutory provision cited by ACC, Section 1319(g)(6)(A), provides, in
pertinent part, that:
[A]ny violation - ....
(ii) with respect to which a State has commenced and is diligently
prosecuting an action under a State law comparable to this
subsection . . . .
....
shall not be the subject of a civil penalty action under . . . section
1365 of this title.
5

Having concluded that the TDEC did not commence a civil or criminal enforcement
action against ACC in state court, the court need not reach the separate issue of whether the
TDEC is diligently prosecuting such an enforcement action.
12

33 U.S.C. § 1319(g)(6)(A). In support of its argument that Section 1319(g)(6)(A) bars the
plaintiff’s CWA claims, ACC asserts that the CWA and the TWQCA are comparable laws.
(Docket No. 16, at 11.) In particular, it contends that both statutes share comparable goals,
penalty provisions, enforcement schemes, and mechanisms to provide citizens with a meaningful
opportunity to participate at significant stages of the decision-making process. (Id. at 11-12.)
However, despite its best efforts to demonstrate comparability, ACC’s contention must be
rejected, because the Sixth Circuit squarely held, in Jones v. City of Lakeland, Tenn., 224 F.3d
518, 524 (6th Cir. 2000), that the CWA and the TWQCA are not comparable statutes.
In reaching this determination, the Court of Appeals found that the TWQCA and the
Tennessee Open Meetings Act, Tenn. Code Ann. § 8-44-101 et seq. (2011), failed to provide
citizens with a meaningful opportunity to participate in administrative enforcement proceedings
or to initiate an original action. Lakeland, 224 F.3d at 523-24. It also noted that citizens’ ability
to access the judicial process is not unconditional, but is instead subject to the discretion of the
TDEC. (Id. at 524.) Despite its holding, ACC unsuccessfully attempts to distinguish Lakeland,
arguing that, unlike the plaintiffs in that case, the plaintiff here has actively participated in
judicial proceedings in the Chancery Court. (Docket No. 16, at 15.) In making this argument,
ACC relies on the following language in the Lakeland decision:
The only window for redress available to the plaintiffs in the instant
case, and others similarly situated, occurs in an ongoing
administrative action by the TDEC before the Water Quality Control
Board when Tennessee law requires that, if a consent judgment is
entered between the TDEC and an offending party and filed with the
chancery court, the court shall withhold final judgment for forty-five
days during which adversely affected parties shall be permitted to
intervene. Tenn. Code Ann. § 69-3-115(e)(2). See Jones, 175 F.3d
at 416 . . . Needless to say, the language of Tennessee Code § 69-313

115(e)(2) presupposes that a final order of the TDEC has been filed
with the chancery court as a condition precedent to invoking its
jurisdiction. It is apparent from Tennessee public records attached to
the complaint and the Affidavit of David A. McLaughlin, an attorney
for the plaintiffs, [that] not one of the four orders issued by the TDEC
and/or Water Quality Control Board, relied upon by the district court
in arriving at its decision, were filed with the chancery court by the
State or any of its agencies during the ten or more years of this
ongoing enforcement proceeding. Consequently, 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. Accordingly, the TWQCA and
related Tennessee statutes are not comparable to 33 U.S.C. §
1365(a)(1)(b) and/or 33 U.S.C. § 1319(g)(6).
224 F.3d at 524. ACC thus argues that Lakeland is inapplicable here because the administrative
Consent Order entered into between itself and the TDEC was filed in the Chancery Court, and
the plaintiff has timely intervened in the proceedings there. (Docket No. 16, at 15.)
The flaw in ACC’s argument is that it assumes that the Court of Appeals’ decision in
Lakeland concerning comparability solely turned on the issue of whether the plaintiffs had the
opportunity to participate in proceedings before the Chancery Court. However, as the
penultimate sentence of the quoted language above demonstrates, the Court of Appeals held that
the TWQCA was not comparable to the Clean Water Act because the TWQCA and related state
statutes “denied access to both the courts and to a meaningful opportunity to participate at
significant stages of the administrative decision-making process.” Lakeland, 224 F.3d at 524
(emphasis added). Moreover, it is immaterial that the plaintiff in this case has actively
participated in proceedings before the Chancery Court. As the quoted language makes clear, the
reason the TWQCA was found to deny citizens access to a judicial forum was because such
access was not unconditional, but was instead subject to the discretion of the TDEC. See id. at
14

524. Indeed, ACC’s argument only serves to highlight the discretionary nature of judicial access
under the TWQCA, as the plaintiff was only able to participate in the Chancery Court
proceedings because ACC happened to file a petition (with the consent of the TDEC) attaching
the administrative Consent Order. Thus, ACC’s contention is without merit.6
D.

RCRA Citizen Suit Bar

ACC lastly contends that all three of the plaintiff’s RCRA claims are barred by Section
6972(b)(2)(B)(iv) of the Act because the Commissioner of the TDEC has issued an
administrative Consent Order concerning the landfill. (Docket No. 16, at 12-13.) Section
6972(b)(2)(B)(iv) of RCRA provides that:
(B) No action may be commenced under subsection (a)(1)(B) of this
section if the Administrator, in order to restrain or abate acts or
conditions which may have contributed or are contributing to the
activities which may present the alleged endangerment - ....
(iv) has obtained a court order (including a consent decree) or issued
an administrative order under section 106 of . . . [CERCLA] or
section 6973 of this title pursuant to which a responsible party is
diligently conducting a removal action, Remedial Investigation and
Feasibility Study (RIFS), or proceeding with a remedial action.
42 U.S.C. § 6972(b)(2)(B)(iv). While ACC contends that this provision bars all of the plaintiff’s
RCRA claims, the statutory text plainly demonstrates that its scope is limited to only those
claims brought under Section 6972(a)(1)(B) of the RCRA. Thus, ACC cannot rely on this
particular bar, to the extent it seeks to dismiss the plaintiff’s open dumping and solid waste
management plan violation claims, since those claims are brought under Section 6972(a)(1)(A).
6

Having concluded that the TWQCA is not comparable to the Clean Water Act so as to
trigger the Section 1319(g)(6) bar, the court need not consider the separate issue of whether the
TDEC is diligently prosecuting its enforcement action against ACC.
15

As for the plaintiff’s imminent and substantial endangerment claim, which is brought
under Section 6972(a)(1)(B), ACC’s reliance on Section 6972(b)(2)(B)(iv) to argue for dismissal
is unavailing. In its opposition brief, the plaintiff asserts that this bar is inapplicable, because the
administrative Consent Order was not issued by the Administrator of the EPA. (Docket No. 26,
at 17-18.) The court agrees.
Again, Section 6972(b)(2)(B)(iv) expressly states that a citizen’s imminent and
substantial endangerment claim is barred if “the Administrator . . . has . . . issued an
administrative order under section 106 of . . . CERCLA or section 6973" of RCRA. 42 U.S.C. §
6972(b)(2)(B)(iv) (emphasis added). The term “Administrator” is defined under the RCRA to
mean “the Administrator of the Environmental Protection Agency.” 42 U.S.C. § 6903(1). The
administrative Consent Order here was issued by the Commissioner of the TDEC. Therefore,
Section 6972(b)(2)(b)(iv) is inapplicable.7 Accordingly, the plaintiff is not barred from
proceeding on its imminent and substantial endangerment claim.8 See Natural Res. Def. Council
7

ACC also asserts in passing that the Commissioner of the TDEC operated as the
Administrator’s designee (Docket No. 16, at 13), yet it has offered no evidentiary support for this
assertion. Moreover, one court in this district has explained that, “[a]lthough Congress has
delegated certain RCRA hazardous and solid waste authority to the States, Congress did not
delegate RCRA’s endangerment provisions to the States.” Orsted v. City of Dickson, Nos. 3:070727, 3:07-732 (Memorandum, at 59) (Docket No. 314) (M.D. Tenn. Mar. 25, 2009) (Haynes,
J.)
In any event, even if the court assumed that the Commissioner of the TDEC acted as the
Administrator’s designee, Section 6972(b)(2)(b)(iv) would still be inapplicable because the
administrative Consent Order was issued under state law, not Section 106 of CERCLA or
Section 6973 of the RCRA. Indeed, the administrative Consent Order fails to cite to any
provisions of either of these federal statutes.
8

In its reply brief, ACC, for the first time, contends that the plaintiff’s imminent and
substantial endangerment claim should be dismissed for lack of subject-matter jurisdiction
because it did not comply with the statute’s notice provisions. (Docket No. 31, at 9.)
Specifically, ACC contends that the plaintiff did not allege in the Complaint that it provided the
16

v. Cnty. of Dickson, Tenn., No. 3:08-0229, 2010 WL 1408797, at *3 (M.D. Tenn. Apr. 1, 2010)
(concluding that Section 6972(b)(2)(b)(iv) did not bar a citizen suit because “the TDEC
Commissioner’s Order is not an administrative order issued by the EPA Administrator regarding
an imminent hazard.”)
Thus, for all of the foregoing reasons, ACC’s Rule 12(b)(1) Motion to Dismiss will be
denied.
III.

Motion to Dismiss for Failure to State a Claim
A.

Standard of Review

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The

statutorily required 90-day notice of the alleged endangerment to ACC, the Administrator of the
EPA, and the State of Tennessee prior to commencing this action. See 42 U.S.C. §
6972(b)(2)(A).
Contrary to ACC’s contention otherwise, the Complaint does allege that written notice of
the plaintiff’s “intention to commence this action was given to ACC as required by . . . 42 U.S.C.
§ 6972(b).” (Docket No. 1, at 2.) Nonetheless, it is also true that the Complaint only alleges that
60, not 90 days notice was given to ACC, and it does not otherwise allege that notice was given
to the Administrator of the EPA and the State of Tennessee. (See id.) However, as mentioned
above, ACC raised this argument for the first time in its reply brief. Such arguments “are
generally not considered because such a practice deprives the non-moving party of its
opportunity to address the new arguments.” G.C. ex rel. Johnson v. Wyndham Hotels and
Resorts, LLC, 829 F.Supp.2d 609, 614 (M.D. Tenn. 2011) (internal quotation marks omitted).
Given that ACC raises this argument in the context of a Rule 12(b)(1) motion to dismiss for lack
of subject-matter jurisdiction that attacks the factual allegations contained in the Complaint, the
court believes that the plaintiff should be given an opportunity to present evidence regarding the
issue of notice that may rebut ACC’s lately-asserted charge. Accordingly, the court will not
consider this argument in resolving the pending motion. ACC may again raise this issue in a
properly supported motion at a later time.
17

Federal Rules of Civil Procedure require that a plaintiff provide “‘a short and plain statement of
the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)
(quoting Fed. R. Civ. P. 8(a)(2)). The court must determine whether “the claimant is entitled to
offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts
alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). To establish the “facial plausibility” required to “unlock the doors of
discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the
elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).
B

CERCLA Section 107(a) Cost Recovery Claim

Again, CERCLA’s purpose is to “promote the timely cleanup of hazardous waste sites
and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the
contamination.” Burlington N. and Sante Fe Ry. Co., 556 U.S. at 602 (internal quotation marks
omitted). Section 107(a) of CERCLA identifies four categories of potentially responsible parties

(“PRPs”) subject to liability:
(1) the current owner or operator of a waste facility; (2) any previous
owner or operator during any time in which hazardous substances
were disposed at a waste facility; (3) any person who arranged for
disposal or treatment of hazardous substances at the waste facility;
18

and (4) any person who transported hazardous substances to a waste
facility.
Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 347 n.8 (6th Cir. 1998)
(citing 42 U.S.C. § 9607(a)(1)-(4)). Under Section 107(a)(4), PRPs are specifically liable for
“all costs of removal or remedial action incurred by the United States Government or a State or
an Indian tribe” and for “any other necessary costs of response incurred by any other person.”
42 U.S.C. § 9607(a)(4)(A)-(B). Thus, while CERCLA allows the government to recover its
costs from a PRP, the statute also grants private parties the opportunity to recover their
“necessary costs of response.” Id.; see also United States v. Atl. Research Corp., 551 U.S. 128,
131 (2007).
As a result of the Superfund Amendments and Reauthorization Act of 1986 (“SARA”),
Pub.L. No. 99-499, 100 Stat. 1613, CERCLA also grants an express right of contribution in
certain circumstances. 42 U.S.C. § 9613(f). Specifically, Section 113(f)(1) allows any person to
seek contribution from a PRP during or following any civil action brought under Section 106 or
Section 107(a). 42 U.S.C. § 9613(f)(1). Section 113(f)(3)(B) allows a person to seek
contribution after resolving its liability with the federal or state government in an administrative
or judicially approved settlement. 42 U.S.C. § 9613(f)(3)(B).
In United States v. Atlantic Research Corp., the Supreme Court held that PRPs could
maintain a private right of action under Section 107(a) to recover necessary response costs from
other PRPs. 551 U.S. at 131. After reaching this holding, the court nonetheless interpreted
Section 107(a) to allow a PRP to recover only those response costs that it voluntarily incurred.
Id. at 139 n.6. By contrast, the court observed that Section 107(a) would not permit a liable PRP
to recover the sums it paid to reimburse other parties for the response costs they incurred. Id. at
19

139. In such situations, the PRP would only be eligible to seek contribution under Section
113(f). Id. The court left open the issue of what statutory avenue of recovery was available to a
PRP who sustained expenses pursuant to a consent decree following a suit brought under Section
106 or 107(a). Id. at 139 n.6 It noted that, “[i]n such a case, the PRP does not incur costs
voluntarily but does not reimburse the costs of another party.” Id. Nevertheless, the court stated
that it would “not decide whether these compelled costs of response are recoverable under §
113(f), § 107(a), or both.” Id.
In the instant case, the plaintiff seeks to recover its costs of response caused by the
release of hazardous substances from ACC’s landfill under Section 107(a) of CERCLA. (Docket
No. 1, at 15.) ACC moves to dismiss this claim on the sole ground that all of the alleged
response costs were incurred by the plaintiff pursuant to an administrative Consent Order that it
entered into with the TDEC. (Docket No. 16, at 16.) ACC adds that such compelled response
costs are not available under Section 107(a), in light of opinions issued by various courts of
appeals in the wake of the Atlantic Research decision. (Id. at 17.); See Solutia, Inc. v. McWane,
Inc., 672 F.3d 1230, 1237 (11th Cir. 2012) (concluding that a party incurring direct cleanup costs
pursuant to a consent decree following a lawsuit brought under Section 106 or 107 may not seek
those costs under Section 107(a)); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603
(8th Cir. 2011) (holding that “section 113(f) provides the exclusive remedy for a liable party
compelled to incur response costs pursuant to an administrative or judicially approved settlement
under” Sections 106 or 107); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229
(3d Cir. 2010) (holding that plaintiffs cannot maintain Section 107(a) claims for recovery of
costs “incurred pursuant to consent decrees in a CERCLA suit”); Niagara Mohawk Power Corp.

20

v. Chevron U.S.A., Inc., 596 F.3d 112, 127-28 (2d Cir 2010) (concluding that a PRP that settles
its CERCLA liability with a governmental agency can only seek contribution under Section
113(f)).
As explained above, ACC relies on an administrative Consent Order (“the SLLI Consent
Order”) that the plaintiff entered into with the TDEC to support its argument. ACC attached this
document as an exhibit to the memorandum of law in support of its motion to dismiss. (See
Docket No. 16, Ex. 1.) In opposing ACC’s motion, the plaintiff objects to ACC’s use of this
exhibit because ACC: (1) makes arguments in support of its Rule 12(b)(6) motion based on its
own interpretation of the factual statements contained in the exhibit; (2) has not authenticated the
exhibit; and (3) has not otherwise presented a valid basis for the court to take judicial notice of
the SLLI Consent Order. (Docket No. 26, at 5, 23.) ACC failed to respond to any of these
arguments in its reply brief.
The court finds that the plaintiff’s argument is well-taken and will disregard the SLLI
Consent Order in analyzing the pending motion. The court also notes that, even if it were to
assume that the SLLI Consent Order was an authenticated public record that it could consider in
analyzing the present motion, it could nonetheless only take judicial notice of the document’s
existence, and not the truth of the facts recited therein. See Winget v. JP Morgan Chase Bank,
N.A., 537 F.3d 565, 576 (6th Cir. 2008); Passa v. City of Columbus, 123 Fed.Appx. 694, 697
(6th Cir. 2005). Indeed, as a general matter, “a court may only take judicial notice of a public
record whose existence or contents prove facts whose accuracy cannot reasonably be
questioned.” Passa, 123 Fed.Appx. at 697. Here, ACC argues that the SLLI Consent Order
governs all remedial action undertaken by the plaintiff on its own brownfield site, including its

21

efforts to remediate contamination originating from ACC’s adjoining landfill. (Docket No. 16,
at 15.) However, the plaintiff disputes this interpretation and cites to a specific provision in the
SLLI Consent Order that arguably supports its contention that the order does not cover the
plaintiff’s activities in response to ACC’s alleged discharge of hazardous substances. (Docket
No. 26, at 19.) This dispute plainly demonstrates that the scope of remedial activities covered by
the SLLI Consent Order is a fact the accuracy of which can reasonably be questioned and thus is
not a proper subject for judicial notice. See Passa, 123 Fed.Appx. at 697.
Accordingly, limiting its review to the factual allegations contained in the plaintiff’s
Complaint, the court finds that the plaintiff has stated a claim for cost recovery under Section
107(a) of CERCLA. The Complaint alleges that the plaintiff has incurred, and continues to incur
response costs caused by the discharge of hazardous substances from ACC’s adjoining landfill
into the water bodies located on its property. (Docket No. 1, at 15.) These hazardous substances
allegedly include ammonia and metals. (Id.) Moreover, the Complaint does not allege that the
plaintiff incurred these costs pursuant to an administrative Consent Order it entered into with the
TDEC. (See id.)
In its opposition brief, the plaintiff contends that the cases cited by ACC that have held
that a PRP is precluded from recovering compelled response costs under Section 107(a) are
inapposite. The court agrees. The cited cases involved PRPs who, unlike the plaintiff here,
sought to recover compelled response costs incurred pursuant to administrative or judiciallyapproved settlements. Indeed, none of the cases cited by ACC precludes a PRP from recovering
response costs that it voluntarily incurred as a result of an adjoining property owner’s alleged

22

discharges of hazardous substances. Accordingly, the court will deny ACC’s motion to dismiss
the plaintiff’s Section 107(a) cost recovery claim.
C.

CWA and RCRA Claims

ACC next moves to dismiss all of the plaintiff’s CWA and RCRA claims on the sole
ground that they allege violations that are wholly past and are thus barred under applicable
precedent. (Docket No. 16, at 18.) In its view, the plaintiff’s claims fail because they do not
allege that ACC is currently adding any material into its landfill, but instead are merely based on
the residual effects of ACC’s prior landfill operations, namely, the continuing discharges of
pollutants into water bodies located on the plaintiff’s property. (Id. at 18, 21.) ACC thus
contends that these allegations fail to state a claim for relief under both the CWA and the RCRA.
In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found, Inc., 484 U.S. 49 (1987), the
Supreme Court held that the “to be in violation” language that appears in the text of the CWA’s
citizen suit provision requires “that citizen plaintiffs allege a state of either continuous or
intermittent violation - that is, a reasonable likelihood that a past polluter will continue to pollute
in the future.” 484 U.S. at 57. This holding applies with equal force to the RCRA citizen suit
provision using the same “to be in violation” language. See id. (noting that Congress used the
“identical [“to be in violation”] language in the citizen suit provisions of several other
environmental statutes that authorize only prospective relief,” including the RCRA citizen suit
provision found in 42 U.S.C. § 6972(a)(1)(A)). The Sixth Circuit, in an unpublished decision,
subsequently adopted the standard applied by the Fourth Circuit in the Gwaltney case for
determining a continuous or intermittent violation after that case was remanded to it following
the Supreme Court’s decision. Allen Cnty. Citizens for the Env’t, Inc. v. BP Oil Co., No. 91-

23

3698, 1992 WL 138410, at *2 (6th Cir. June 18, 1992). To state a claim for a continuous or
intermittent violation under this standard, a citizen plaintiff must allege “violations that continue
on or after the date the complaint is filed” or facts “from which a reasonable trier of fact could
find a continuing likelihood of a recurrence in intermittent or sporadic violations.” See id.
(quoting Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th
Cir. 1988)); see also Tamaska v. City of Bluff City, Tenn., 26 Fed.Appx. 482, 485 (6th Cir.
2002).

Having examined the factual allegations underlying each of the plaintiff’s claims

brought under the citizen suit provisions of the CWA and the RCRA, the court finds that it has
sufficiently alleged a state of continuous violation. Each of the plaintiff’s five claims brought
under these statutes is premised on ACC’s alleged unlawful and continuous discharge of
contaminants from its landfill into an unnamed tributary that flows into Sugar Creek, which, in
turn, is impounded to form Arrow Lake. All three of these water bodies are located on the
plaintiff’s property. The Complaint plainly alleges that this ongoing and unauthorized discharge
has and continues to violate the CWA and the RCRA. Thus, the Complaint alleges a state of
continuing violation as of the date this action was commenced. See Gwaltney, 484 U.S. at 57;
Allen Cnty, 1992 WL 138410, at *2. These allegations are sufficient to defeat a motion to
dismiss brought under Rule 12(b)(6).
To support its argument for dismissal, ACC cites this court’s previous decision in Crigler
v. Richardson, No. 3:08-cv-0681, 2010 WL 2265675, at *7 (M.D. Tenn. June 3, 2010), where it
dismissed the plaintiff’s CWA claim against two defendants as alleging a wholly past violation.
These two defendants, from a roster of seventeen, were alleged to have arranged on one occasion
in 2006 for another defendant to transport and dispose of previously generated waste. 2010 WL

24

2265675, at *1. That waste was then disposed of over a period of months down a hillside at a
dump site owned and operated by other defendants, where it, among other things, flowed into a
stream that ran through the plaintiffs’ property. Id.; see also Crigler v. Richardson, No. 3:08-cv0681, (Docket No. 166, at 5-8) (M.D. Tenn. Mar. 24, 2010). Because the complaint only alleged
a single violation by these two defendants that occurred approximately four years prior to the
commencement of the action and did not otherwise allege that the defendants were engaging in
continuous or intermittent violations of the CWA at the time they were sued, the court dismissed
the CWA claim brought against them. Id. at 7. This case, however, is factually distinguishable
from Crigler. Indeed, unlike the complaint in Crigler, the Complaint here alleges that ACC, the
owner and operator of the site in question, has failed to abate the ongoing discharge of pollutants
from its landfill and thus continues to violate various provisions of the CWA and the RCRA.
In support of its contention that the residual effects of historic acts do not constitute
ongoing violations, ACC also cites language in the court’s subsequent decision in Crigler
denying the plaintiff’s motion to reconsider the dismissal of its CWA claim. Crigler v.
Richardson, No. 3:08-cv-0681, 2010 WL 2696506, at *5 (M.D. Tenn. July 7, 2010) (“Crigler
II”). In particular, it cites the following statement from Crigler II, which the court made after it
remarked that all indications from the Sixth Circuit cases it cited in its previous memorandum
dismissing the plaintiff’s CWA claim led it to believe that the Court of Appeals would find that
the plaintiff alleged a wholly past violation:
That is, again, in both Allen County and Ailor v. City of Maynardville,
368 F.3d 587, 598 (6th Cir. 2004), the Sixth Circuit focused on the
defendants’ conduct and whether the defendants were actively
polluting at the time that the Complaint was filed, and the court did
not focus on any possibility that the defendant[s] would be liable

25

under the CWA for the consequences of active pollution that had
ceased by the time that the Complaint had been filed.
Id. ACC submits that, because the Complaint here merely seeks recovery for the residual effects
of ACC’s historic conduct, the plaintiff’s CWA and RCRA claims should be dismissed.
However, the court believes that the aforementioned statement appearing in Crigler II
must be read in the context of the factual allegations presented by the plaintiffs in that case.
Moreover, the CWA claim against the two defendants in Crigler was based on a different theory
of liability than the claims advanced by the plaintiff here. Indeed, the Crigler plaintiffs argued
that the two defendants were liable because they contributed to a previously completed discharge
of pollutants into navigable waters where those pollutants then remained and continued to
release harmful substances. Crigler II, 2010 WL 2696506, at *2, 4. In contrast, the plaintiff
here alleges that ACC is liable because it has, as of the filing of this Complaint, failed to abate
the ongoing discharge of pollutants exiting its landfill into the water bodies located on the
plaintiff’s property.
In addition, the two Sixth Circuit decisions cited in the quoted statement from Crigler II
do not compel dismissal of the plaintiff’s claims. As the court has already found, the allegations
contained in the plaintiff’s Complaint satisfy the test adopted by the Sixth Circuit in Allen
County. Moreover, Ailor is factually and procedurally distinguishable, as it involved an appeal
from a grant of summary judgment, where it was shown that the defendant’s last recorded CWA
violation occurred several weeks prior to the date the plaintiffs filed their complaint and that the
defendant had already completed remedial measures to bring it into compliance with the CWA’s
permitting requirements before the commencement of the plaintiff’s suit. Ailor, 368 F.3d at 590,
598 Moreover, in that case, the Sixth Circuit simply restated the Supreme Court’s holding in
26

Gwaltney that, to bring a violations claim under the CWA and RCRA citizen suit provisions, a
plaintiff must “allege a state of either continuous or intermittent violation.” Id. at 597 (quoting
Gwaltney, 484 U.S. at 57). Again, the plaintiff has sufficiently made that showing here. That is,
it has alleged that ACC, by virtue of its failure to abate the ongoing discharge of contaminants
from its landfill, is in a state of noncompliance with various provisions of the CWA and the
RCRA. See Gwaltney, 484 U.S. at 69 (“The phrase in § 505(a) [1365(a)], ‘to be in violation,’ . . .
suggests a state rather than an act - the opposite of a state of compliance.”) (Scalia, J.,
concurring in part) (emphasis added).9
Finally, the court notes that ACC’s argument concerning wholly past actions has no
applicability to the plaintiff’s imminent and substantial endangerment claim brought under
Section 6972(a)(1)(B) of the RCRA Again, Section 6972(a)(1)(B), which lacks the “to be in
violation” language contained in Section 6972(a)(1)(A), RCRA’s other citizen suit provision,
allows a citizen to commence a civil action against any person “who has contributed or who is
9

ACC also submits that two decisions from courts in the Second Circuit, Conn. Coastal
Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305 (2d Cir. 1993) and Aiello v. Town of
Brookhaven, 136 F.Supp.2d 81 (E.D.N.Y. 2001) also support its contention that the CWA and
the RCRA do not authorize a citizen to commence an action for the residual effects of historic
conduct. As an initial matter, both of these cases are not controlling authority. Indeed, in its
decision in Crigler II, this court noted the defendants’ citation to both of these cases, yet
nonetheless relied on the Sixth Circuit’s decisions in Allen County and Ailor in concluding that
the plaintiff had alleged a wholly past violation under the CWA. See Crigler II, 2010 WL
2696506, at *4-5. Second, both Remington Arms and Aiello presented different procedural
postures than the one facing the court in the case at bar. See Remington Arms, 989 F.2d at 1310
(on appeal from the district court’s decision concerning cross-motions for summary judgment);
Aiello, 136 F.Supp.2d at 84-85 (involving a memorandum decision following the conclusion of a
bench-trial). Unlike those cases, the court here is presented with a motion to dismiss the
plaintiff’s CWA and RCRA claims pursuant to Federal Rule of Civil Procedure 12(b)(6), and it
must accordingly limit its review to the factual allegations pled in the Complaint. Indeed, at this
stage of the proceedings, the plaintiff only needs to allege “a state of either continuous or
intermittent violation.” Gwaltney, 484 U.S. at 57; Allen County, 1992 WL 138410, at *2. As the
court has already concluded, the plaintiff has sufficiently made this showing.
27

contributing to the past or present handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste which may present an imminent and substantial endangerment to health
or the environment.” 42 U.S.C. § 6972(a)(1)(B). As the plaintiff correctly notes, even if its
imminent and substantial endangerment claim was based on ACC’s wholly past actions, it would
still be able to bring suit under Section 6972(a)(1)(B), because the statute’s plain terms allow
suits for wholly past actions which may now imminently and substantially endanger health or the
environment.
Accordingly, ACC’s motion to dismiss the plaintiff’s CWA and RCRA claims for failure
to state a claim upon which relief can be granted will be denied.
D.

State Law Claims

Lastly, ACC moves to dismiss all of the plaintiff’s state law claims on the ground that
they are barred under the four-year statute of repose attaching to actions for damages arising
from deficiencies in the design or construction of an improvement to real property. (Docket No.
16, at 21-22.) This statute of repose specifically provides that:
All actions to recover damages for any deficiency in the design,
planning, supervision, observation of construction, or construction of
an improvement to real property, for injury to property, real or
personal, arising out of any such deficiency . . . shall be brought . . .
within four (4) years after substantial completion of such an
improvement.
Tenn. Code Ann. § 28-3-202 (2000). In its Complaint, the plaintiff has asserted state law claims
for private nuisance, negligence, and trespass arising out of ACC’s alleged acts and omissions in
connection with its closed landfill. (Docket No. 1, at 15-17.) ACC specifically contends that,
because the plaintiff’s state law claims are, in essence, claims that its landfill was improperly

28

designed, built and closed, they are barred under the statute of repose, since the landfill was
closed in 1995. (Docket No. 16, at 22.)
In its opposition brief, the plaintiff contends that ACC’s argument must be rejected,
because it overlooks an important exception to the four-year statute of repose that is applicable
to those persons who are in actual possession or control of an improvement. (Docket No. 26, at
22.) Section 28-3-205(a) of the Tennessee Code Annotated sets forth this exception:
The limitation provided by [Tenn. Code Ann. § 28-3-202] shall not
be asserted as a defense by any person in actual possession or the
control, as owner, tenant, or otherwise, of such an improvement at the
time any deficiency in such an improvement constitutes the
proximate cause of the injury or death for which it is proposed to
bring an action.
Tenn. Code Ann. § 28-3-205(a) (2000). The plaintiff contends that, because ACC did not design
its landfill, but has and continues to own it, its reliance on the four-year statute of repose is
without merit. The court agrees.
By its express terms, Section 28-3-205(a) states that any person in actual possession or
control of an improvement containing a deficiency that is alleged to proximately cause an injury
cannot assert the four-year statute of repose as a defense. In its Complaint, the plaintiff has
alleged ACC to be the owner of the landfill at issue in this case. (Docket No. 1, at 3.) It has also
alleged an injury proximately caused by ACC’s acts and omissions in connection with the
landfill, namely, that such acts and omissions have led to the ongoing destruction of the water
bodies and surface vegetation located on the plaintiff’s property and have also reduced the
property’s value. (Docket No. 1, at 15-17.) Accordingly, the statute of repose is inapplicable
and the court will deny ACC’s motion to dismiss the plaintiff’s state law claims. See Belcher v.
State, No. E2003-00642-COA-R3-CV, 2003 WL 22794479, at *5 (Tenn. Ct. App., Nov. 25,
29

2003) (noting that it is clear that the four-year statute of repose located in Tenn. Code Ann. § 283-202 was intended to be applicable to the designer, not owner of the improvement to real
property).
CONCLUSION
For all of the reasons discussed herein, the defendant’s Motion to Dismiss (Docket No.
15) will be DENIED.
An appropriate order will enter.
_______________________________
ALETA A. TRAUGER
United States District Judge

30