Harpeth River Watershed Association v. City of Franklin Tennessee

Filing 119

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 3/3/16. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
HARPETH RIVER WATERSHED
ASSOCIATION,
Plaintiff,
v.
THE CITY OF FRANKLIN,
TENNESSEE,
Defendant.

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No. 3:14-1743
Judge Sharp

MEMORANDUM
This is a citizen’s suit under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.,
brought by Plaintiff Harpeth River Watershed Association (“HWRA”), whose professed mission
is to restore and preserve the Harpeth River Watershed, against Defendant City of Franklin, which
owns the Franklin Sewage Treatment Plaint. The essence of Plaintiff’s complaint is that, since at
least 2009, Defendant has discharged pollutants, including untreated sewage, ammonia, and toxic
wastewater into the Harpeth River and its tributaries in violation of National Pollutant Discharge
Elimination System (“NPDES”) Permit No. TN0028827 issued to the sewage plant through
Tennessee’s EPA approved NPDES program. The allegedly unpermitted discharges and other permit
violations have, in Plaintiff’s view, significantly impacted water quality and aquatic life in the
Harpeth River.
The Amended Complaint spans 54 pages and is in six counts. Count 1 alleges that
Defendant’s spills of raw sewage from its system violate its NPDES permit; Count 2 alleges that
Defendant has failed to prepare a plan to optimize its operations and reduce its nutrient discharge;

1

Count 3 alleges that Defendant has failed to conduct in-stream monitoring in the Harpeth River;
Count 4 alleges that Defendant has violated the permit limits on the toxicity of its effluent discharge
into the river; Count 5 alleges that Defendant violated the permit limits for ammonia discharges into
the river; and Count 6 alleges that Defendant has operated without an accurate flow meter.
Defendant has filed a Motion to Dismiss Count 1 in part, and Counts 2 through 6 in full.1
That Motion has been fully briefed, not only by the parties, but also, with respect to Counts 1 to 3,
by the United States through an Amicus Curiae brief, to which the Defendant responded. The Court
also heard oral argument on the Motion on November 4, 2015.2
I. Governing Standards
Defendant’s Motion to Dismiss is based upon both Rule 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, although Defendant does not clearly differentiate between which Count
(or portion of a Count) is subject to dismiss under which standard. Generally speaking, in
considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must take
“all well-pleaded material allegations of the pleadings” as true. Fritz v. Charter Twp. of Comstock,
592 F.3d 718, 722 (6th Cir. 2010). The factual allegations in the complaint “need to be sufficient to
give notice to the defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient

1

The Motion to Dismiss was directed at the original Complaint which included seven counts. Count
7, alleging violations of water quality standards, was eliminated from the Amended Complaint. Thus, the
Court does not consider the “permit shield” defense of Section 402(k) of the CWA, 33 U.S.C. § 1342(k).
2

Following the hearing, the Court entered an Order that concluded by “reiterat[ing] its suggestion
to the parties that they engage in meaningful settlement discussions in an effort to resolve this case for the
benefit of the citizens of the City of Franklin.” (Docket No. 118 at 1). Accordingly, the Court intentionally
delayed consideration of the present Motion in order to give the parties that opportunity. No filings have been
made in this case since that Order, suggesting that the matter has not been resolved. Hopefully, this ruling
will provide the parties with some idea as to how this Court presently views this case and they will redouble
their efforts to settle before more taxpayer time and money is spent.

2

factual matter’ to render the legal claim plausible, i.e., more than merely possible.” Id. (quoting
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)). Thus, “[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the grounds of [its] entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal citations and quotations omitted).).
As for motions under Rule 12(b)(1), the Sixth Circuit has summarized the applicable
standard of review as follows:
A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the
sufficiency of the pleading itself (facial attack) or the factual existence of subject
matter jurisdiction (factual attack). United States v. Ritchie, 15 F.3d 592, 598 (6th
Cir. 1994). A facial attack goes to the question of whether the plaintiff has alleged
a basis for subject matter jurisdiction, and the court takes the allegations of the
complaint as true for purposes of Rule 12(b)(1) analysis. Id.
A factual attack challenges the factual existence of subject matter jurisdiction. In the
case of a factual attack, a court has broad discretion with respect to what evidence
to consider in deciding whether subject matter jurisdiction exists, including evidence
outside of the pleadings, and has the power to weigh the evidence and determine the
effect of that evidence on the court’s authority to hear the case. Id. Plaintiff bears
the burden of establishing that subject matter jurisdiction exists. DLX, Inc. v.
Commonwealth of Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).
Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014).
With these standards in mind, the Court addresses the arguments by the parties, roughly in
the order presented by Defendant in its initial Memorandum.
II. Permit Provisions Allegedly Beyond the Scope of the NPDES Program
The CWA “mandates that toxic discharges into the nation’s waterways be monitored and
regulated.” Ailor v. City of Maynardville, 368 F.3d 587, 590 (6th Cir. 2004). “The Act is enforced
through effluent limitations guidelines and NPDES permits that set technology-based discharge
3

limits for categories and subcategories of water pollution point sources.” Citizens Coal Council v.
U.S. E.P.A., 447 F.3d 879, 883 (6th Cir. 2006).
“States may request permission from the U.S. EPA to administer a state-NPDES program
after the U.S. EPA promulgates certain guidelines that govern monitoring, reporting, enforcement,
funding, personnel, and manpower.” Askins v. Ohio Dep’t of Agric., 809 F.3d 868, 872 (6th Cir.
2016).

Indeed, “[i]n administering these programs, states are free to treat the EPA’s pollution

limits as a floor and impose more stringent requirements.” W. Va. Highlands Conservancy, Inc. v.
Huffman, 625 F.3d 159, 162 (4th Cir. 2010). “In other words, [u]nder this ‘cooperative federalism’
scheme, EPA establishes the minimum requirements that must apply to all entities regulated under
the CWA, and states may adopt more stringent standards where they see fit.” Nw. Envtl. Advocates
v. U.S. E.P.A, 2006 WL 2669042, at *2 (N.D. Cal. Sept. 18, 2006).
The Environmental Protection Agency (“EPA”) has formulated regulations governing the
procedures it “will follow in approving, revising, and withdrawing State programs and the
requirements State programs must meet to be approved by the Administrator.” 40 C.F.R. § 123.1.
Those regulations include a provision that reads:
(I) Nothing in this part precludes a State from:
(1) Adopting or enforcing requirements which are more stringent or
more extensive than those required under this part;
(2) Operating a program with a greater scope of coverage than that
required under this part. If an approved State program has greater
scope of coverage than required by Federal law the additional
coverage is not part of the Federally approved program.
Id. § 123.1 (I). The State of Tennessee’s NPDES permit program was approved by the EPA on
December

28,

1977.

See,

NPDES

4

STATE

PROGRAM

INFORMATION,

http://www.epa.gov/npdes/npdes-state-program-information (all websites last visited on Feb. 27,
2016).
“Permit holders are subject to state and federal enforcement actions, as well as suits by
private citizens.” Ailor, 368 F.3d at 590. As a supplement to these actions, “[t]he CWA’s citizen's
suit provision permits any individual who has an interest which is or may be adversely affected to
sue to enforce any limitation established by a NPDES permit.” Id.
Noting that the regulations permit States to adopt more stringent requirements, but also
provide that requirements with a greater scope of coverage are not part of the federally approved
program, Defendant argues that the former requirements can be the subject of a citizen’ suit under
the CWA, but the latter cannot. That is, “[u]nder EPA’s own regulation, requirements that have a
greater scope of coverage than ‘required’ by federal law are BTS [beyond the scope], not part of the
approved program and, therefore, not enforceable in federal courts.” (Docket 50 at 16).
Defendant claims there are “three permit conditions subject to the BTS defense” id. in the
Amended Complaint: (1) “overflows” that are not discharges (Count 1); (2) nutrient management
plans (Count 2); and (3) in- stream monitoring and receiving stream investigations (Count 3). In this
regard, and utilizing Section 123.1(i)(2) as the guidepost, Defendant posits that “[w]hether the
NPDES regulations can somehow be stretched to authorize the permit condition is not the issue.”
(Id. at 4). Rather,
the issue is what is required by Federal law? For instance, does the federal law
require that non-discharging overflows be prohibited? Similarly, does the federal
program require nutrient management plans for POTWs [publicly-owned treatment
works] or ambient monitoring?
(Id., emphasis in original).
Defendant relies on the district and Second Circuit decisions in Atlantic States Legal
5

Foundation, Inc. v. Kodak, 809 F. Supp. 1040 (W.D. N.Y. 1992), aff’d, 12 F.3d 353 (2nd Cir. 1993),
and the district court’s decision in Long Island Soundkeeper Fund v. New York City Department
of Environmental Protection, 27 F. Supp. 2d 380 (E.D.NY 1998) for the proposition that a “BTS
permit condition . . . included in the State-issued permit . . . does not magically make that condition
subject to a CWA citizen suit.” (Docket No. 18 at 3).3 Save for the fact that the trial court in
Atlantic States specifically recognized that “liability in this case must be determined in light. . .of
the conditions of [defendant’s] Permit,” and that, unlike here, the citizen’s suit was based on
discharges not expressly limited by the permit, those cases support Defendant’s position.
Nevertheless, the Court finds the more recent Eleventh Circuit’s opinion in Parker v. Scrap Metal
Processors, Inc., 386 F.3d 993 (11th Cir. 2004) and the district court’s decision in Ohio Valley
Environmental Coalition, Inc. v. FOLA Coal Co., 2013 WL 6709957 (S.D. W. Va. Dec. 19, 2013)
more persuasive.
Atlantic States involved a New York SPDES Permit4 that prohibited the discharge of any
pollutant that was not subject to a numerical effluent limitation. Rejecting plaintiff’s position that,
under state law, the discharge of any pollutant not identified and authorized by the permit constituted
a violation of the permit, the district court held:
Accepting plaintiff’s view of the reach of the Act would effectively circumvent the

3

Defendant also places heavy reliance on United State v.Recticel Foam Corp., 858 F. Supp. 726
(E.D. Tenn. 1993), which it repeatedly points out is an opinion from a district court in this circuit. While that
case discussed virtually identical language to Section 123.1 found in the Resource Conversation and
Recovery Act (“RCRA”) on the way to finding that hazardous waste under the “Tennessee Mixture Rule”
was not hazardous waste under the RCRA, it did so in the context of a federal criminal prosecution. The
analogous citizens suit provision under the RCRA simply was not in issue, and, for that reason, is not
persuasive authority on the question presented here.
4

In New York, NPDES Permits are referred to as SPDES permits, an acronym for State Pollutant
Discharge Elimination System.

6

permit system and expand the scope of a citizen suit under the Act; it “would change
the nature of the citizens’ role from interstitial to potentially intrusive.” . . . I cannot
agree that Congress intended such a result.
809 F. Supp. at 1048. Affirming that conclusion, the Second Circuit wrote:
States may enact stricter standards for wastewater effluents than mandated by the
CWA and federal EPA regulations. 33 U.S.C. § 1342(b). These states’ standards
may be enforced under the CWA by the states or the EPA, 33 U.S.C. § 1342(h), but
private citizens have no standing to do so. New York chose to implement its own
environmental policies through its . . . issuance of SPDES permits[.]
However, state regulations, including the provisions of SPDES permits, which
mandate “a greater scope of coverage than that required” by the federal CWA and
its implementing regulations are not enforceable through a citizen suit under 33
U.S.C. § 1365. 40 C.F.R. § 123.1(i)(2).
12 F.3d 358-59.
Long Island Soundkeeper involved an argument that plaintiffs could not enforce the alleged
violation of the limits for settleable solids by a sewer plant because the permit restrictions were
imposed under state, not federal law. That case adds little to the mix because the court was bound
by the Second Circuit’s “holding in Atlantic States” that “precludes citizens from suing to enforce
permit provisions imposed under state law that are stricter than those required under federal law.”
27 F. Supp. 2d at 380.
On the other side of the coin are Parker and Ohio Valley. In Parker, the Eleventh Circuit
observed that “the Supreme Court apparently has incorporated state law standards under the CWA
into federal environmental law for jurisdictional purposes,” and held that “the plain language of the
CWA and the relevant case law dealing with the CWA convince us that there is federal jurisdiction
over citizen-suit claims that allege violations of a state-issued NPDES permit.” 386 F.3d at 1008.
In so doing, the court recognized that the Second Circuit “questioned this conclusion” in Atlantic
States, but found that it read the Supreme Court’s decision in United States Department of Energy
7

v. Ohio, 503 U.S. 607 (1992) “too broadly.” Id. at 1008 n. 15. The Eleventh Circuit then wrote:
. . . The Supreme Court’s discussion of the “arising under” language, at first glance,
appears to preclude federal subject-matter jurisdiction of CWA cases brought
pursuant to a state law that has received EPA approval. That conclusion, however,
is correct only if one presumes that federal courts have jurisdiction over CWA citizen
suits as a result of the grant of general federal question jurisdiction contained in 28
U.S.C. § 1331. Here, however, we rely on the CWA's specific grant of jurisdiction
rather than 28 U.S.C. § 1331.
[T]he citizen-suit provision of the CWA gives federal courts an independent basis
of jurisdiction. The relevant question is whether a state standard enacted pursuant
to the CWA is “an effluent standard or limitation under this chapter.” 33 U.S.C. §
1365. On this question, the Supreme Court, although in dicta, has appeared to say
yes, suggesting that citizens can sue under § 1365 regardless of whether the suit is
based on standards promulgated by the EPA, or more stringent state standards that
have received EPA approval.
Id.
Finally, Ohio Valley was a citizens suit under the CWA and the Surface Mining Control and
Reclamation Act (“SMCRA”), in which it was alleged that a coal mine discharged excessive amount
of selenium into the waters of West Virginia. Relying on the Second Circuit’s decision in Atlantic
States, defendant argued that the CWA citizen’s suit provision could not be used to enforce state
water quality standards. Noting that the Second Circuit’s “holding has not been adopted in the
Fourth Circuit,” the district court “reject[ed] its reasoning in light of the Eleventh Circuit’s
conclusion” in Parker that “state law standards are incorporated into the CWA and are enforceable
in citizens suits.” Ohio Valley, 2013 WL 6709957, at *18. The court went on to note that “[a]
permit condition is enforceable as an ‘effluent standard or limitation under § 1365(a),” and that
“[p]ursuant to the CWA, entities must follow ‘any more stringent limitation, including those
necessary to meet water quality standards ... established pursuant to any State law or regulations’
33 U.S.C. § 1311(b)(1).” The court also observed:
All NPDES permits must comply “with the applicable water quality requirements of
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all affected States.” 40 C.F.R. § 122.4(d). As explained by the Supreme Court,
“[t]his regulation effectively incorporates into federal law those state-law standards
the Agency reasonably determines to be ‘applicable.’ In such a situation, then, state
water quality standards promulgated by the States with substantial guidance from the
EPA and approved by the Agency are part of the federal law of water pollution
control.” Arkansas v. Oklahoma, 503 U.S. 91, 110, 112 S.Ct. 1046, 117 L.Ed.2d 239
(1992) (footnote omitted).
Id. at *9.
Defendant is correct that this Court must give due deference to EPA regulations. Indeed, in
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984), the
Supreme Court “held that a court must give effect to an agency’s regulation containing a reasonable
interpretation of an ambiguous statute.” Christensen v. Harris Cty., 529 U.S. 576, 586-87 (2000).
But the jurisdiction providing statute is not ambiguous. It says that “any citizen may commence a
civil action on his own behalf . . . against any person . . . who is alleged to be in violation . . . of an
effluent standard or limitation under this chapter,” 33 U.S.C. § 1365(a), with “effluent standard or
limitation” later being defined to include “(1) an unlawful act under subsection (a) of section1311
of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title;”
and “(6) a permit or condition thereof issued under section 1342 of this title, which is in effect under
this chapter,” id. § 1365(f).5 See, Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356 (5th Cir. 2012)
(Congress provided “citizen suits for § 1342 permit condition violations in the unmistakably clear
language of § 1365(f)(6)”); Citizens’ All. for Prop. Rights v. City of Duvall, 2014 WL 1379575, at
*2 (W.D. Wash. Apr. 8, 2014) (“There is more than one way to violate the CWA, and more than one
way for a citizen (or group of citizens) to sue for those violations. . . . The Act is explicit as to seven
categories of ‘effluent standard or limitation under this chapter’ whose violation will satisfy the

5

Section 1342 sets forth the NPDES permitting regime.

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citizen suit provision,” including violating “a permit or condition thereof issued under section
1342”); United States v. Metro. Water Reclamation Dist. of Greater Chicago, 2012 WL 3260427,
at *4 (N.D. Ill. Aug. 7, 2012) (although “the private right of action is a right to allege violations of
‘an effluent standard or limitation, . . . the statute goes on to define ‘effluent standard or limitation’
as including half a dozen things, among them ‘a permit or condition thereof issued under section
1342 of this title[.]”).
The question is not whether non-discharging overflows, nutrient management plans, or
ambient monitoring are required by federal law, as Defendant would have it. Rather, the “relevant
question,” as the Eleventh Circuit stated, “ is whether a state standard enacted pursuant to the CWA
is ‘an effluent standard or limitation” under the CWA. Since the CWA defines effluent standards
or limitations to include violations of NPDES permits issued under Section 1342 regarding
discharges of pollutants, and, more specifically, since subsection (a)(2) requires the Administrator
to prescribe conditions for the issuance of permits, the Court rejects Defendant’s “BTS” defense to
the overflow prohibitions and the permits provisions requiring monitoring and nutrient management.
The very fact that the EPA can prescribe conditions for the issuance of permits “to assure
compliance . . . including conditions on data and information collection [and] reporting” undercuts
the foundation on which Defendant’s Motion rests, to wit, Regulation 123.1(i)(2), which provides
that state programs having a greater scope of coverage than that allowed by federal law are not part
of the federally approved program.

III. “Discharge” Provision Under the 2004 NPDES Permit
In the Amended Complaint, Plaintiff alleges:

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Defendant’s NPDES permit provides that “any release of sewage from any portion
of the collection, transmission, or treatment system other than through permitted
outfalls” is an “overflow.” Overflows are prohibited. Permit, § 2.3.3(a), (b) (2010).
(Docket No. 22, Amended Complaint ¶ 112). As Defendant points out, however, the referenced
permit was not effective until November 1, 2010, and replaced a permit effective June 1, 2004. The
former permit defined an “overflow” as the “discharge of wastes from any portion of the collection,
transmission, or treatment system other than through permitted outfalls.” (Docket No. 18-1 at 57).
As a consequence, Defendant seeks dismissal of any alleged overflow violation prior to November
1, 2010, that is not a “discharge” (such as sanitary sewer overflows or “SSOs” on private property)
as well as any alleged reporting violation of such discharges.
In response, Plaintiff acknowledges that the 2004 permit regarding overflows referred to the
“discharge of waste” while the current permit defines overflow to mean “release of sewage.”
Nevertheless, Plaintiff argues that
If Defendant is correct that the former permit only prohibited discharges that reached
waters by using the word “discharge” rather than “release,” it follows that any
overflow Defendant reported under that permit was an overflow that reached waters.
Otherwise, the spill would not have been prohibited or reportable. Defendant’s
argument also fails based on normal principles of interpretation, because the 2004
permit did not define “discharge” and its ordinary and natural meaning is “flowing
or issuing out,” not reaching a particular destination. Under the terms of both
permits, each overflow constitutes an enforceable violation.
(Docket No. 32 at 18, footnote omitted).
Although Plaintiff’s argument has some facial appeal, it neglects to consider that the NPDES
permit was issued pursuant to state law. Under the regulations issued by the Tennessee Department
of Environment and Conservation, “‘discharge’ or ‘discharge of a pollutant’ refers to the addition

11

of pollutants to water from a source.” Tenn. Comp. R. & Reg., ch. 0400-40-05.02(29).6
Accordingly, alleged overflow violations prior to November 1, 2010 that are not discharges within
the meaning of the 2004 permit will be dismissed.
IV. Statute of Limitations
In the absence of a specific statute of limitations to the contrary, 28 U.S.C. § 2462 limits the
time in which an action may be brought to five years from the date on which the claim accrues.7
That section has been repeatedly found to govern claims under the CWA. See, Catskill Mountains
Chapter of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77, 88 (2nd Cir. 2006) (“the CWA
has a five-year statute of limitations, 28 U.S.C. § 2462”); U.S. E.P.A. v. City of Green Forest, Ark.,
921 F.2d 1394, 1408 (8th Cir. 1990) (“The statute of limitations for CWA violations is five years”);
United States v. Sharon Steel Corp., 1989 WL 190241, at *2 (N.D. Ohio July 12, 1989) (“It is well
established that actions for civil penalties under the CWA are governed by the five-year federal
statute of limitations, 28 U.S.C. § 2462”).
In this case, the Complaint was filed on August 25, 2014. As a consequence, Defendant
seeks dismissal of any claims alleging overflows, bypass or discharge violations that occurred prior
6

Under the regulations: “‘Waters’ means any and all water, public or private, on or beneath the
surface of the ground, which are contained within, flow through, or border upon Tennessee or any portion
thereof except those bodies of water confined to and retained within the limits of private property in single
ownership which do not combine or effect a junction with natural surface or underground waters.” Id. 40040-05.02(91).
7

The statute reads:

Except as otherwise provided by Act of Congress, an action, suit or proceeding for the
enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be
entertained unless commenced within five years from the date when the claim first accrued
if, within the same period, the offender or the property is found within the United States in
order that proper service may be made thereon.
28 U.S.C.§ 2462.

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to August 26, 2009.
In response, Plaintiff first cites a couple of district court cases for the proposition that no
statute of limitations applies to citizen suits under the Act. The Court rejects this argument as
against the weight of authority and contrary to the default limitation provision found in § 2462. This
is particularly so because the Sixth Circuit has held that the five year period set forth in Section 2462
applies to actions under the Clean Air Act (“CAA”), National Parks Conservation Association v.
TVA, 480 F.3d 410, 416 (6th Cir. 2007), and the citizen suit provision of the CWA was “specifically
modeled on” the CAA citizen suit provision, Texans United for a Safe Economic Educational Fund
v. Crown Central Petroleum Corporation, 207 F.3d 789, 795 (5th Cir. 2000).
Plaintiff next argues that “[e]ven if Defendant is correct that there is a statute of limitations,
it should be equitably tolled because the suit may not commence for at least sixty days after the
required notice and should not be held to run before the public could reasonably have know of the
violation. The Court disagrees in part.
Turning to the latter point first, the Supreme Court has recently rejected the notion that the
limitations period governed by the default provision contains a discovery rule. In Gabelli v. SEC,
the Supreme Court wrote:
Justice Marshall used particularly forceful language in emphasizing the importance
of time limits on penalty actions, stating that it “‘would be utterly repugnant to the
genius of our laws’ if actions for penalties could ‘be brought at any distance of
time.’” Adams v. Woods, 2 Cranch 336, 342, 2 L.Ed. 297 (1805). Yet grafting the
discovery rule onto § 2462 would raise similar concerns. It would leave defendants
exposed to Government enforcement action not only for five years after their
misdeeds, but for an additional uncertain period into the future. Repose would hinge
on speculation about what the Government knew, when it knew it, and when it
should have known it.
133 S.Ct. 1215, 1223-24 (2013). While Gabelli involved an action brought by the government, the

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Court agrees with those court which have held that its logic applies to citizen’s suit as well,
including Sierra Club v. DTE Energy Co., 2014 WL 29127 (E.D. Mich. Jan. 3, 2014) and New
Jersey v. RRI Energy Mid-Atlantic Power Holdings, LLC, 960 F. Supp. 2d 512, 514 (E.D. Pa. 2013).
See also, United States v. Rutherford Oil Corp., 756 F. Supp. 2d 782, 788-89 (S.D. Tex. 2010) (“The
fact that § 2462 includes a provision for tolling limitations if the defendant is absent from the United
States . . . , but does not include any provision for tolling based on the discovery rule, . . . weighs
against applying the discovery rule for CWA actions”)
As for tolling during the notice period, there are plenty of cases to support Plaintiff’s
position. See e.g., Catskill Mountains, 451 F.3d at 88 n.14 (“the CWA has a five-year statute of
limitations, 28 U.S.C. § 2462, that is tolled sixty days before the filing of a complaint”); San
Francisco Baykeeper v. W. Bay Sanitary Dist., 791 F. Supp. 2d 719, 729 (N.D. Cal. 2011) (“A five
year statute of limitations applies under the CWA, tolled 60 days for a ‘notice of intent to sue’
period”); Nw. Envt’l. Def. Ctr. v. Grabhorn, Inc., 2009 WL 3672895, at *12 (D. Or. Oct. 30, 2009)
(citation omitted) (“because citizens must give 60 days notice prior to bringing suit under the CWA
. . . the five-year statute of limitations period is tolled sixty days before the filing of the complaint”);
Cmty. Ass’n for Restoration of Env’t (CARE) v. Sid Koopman Dairy, 54 F. Supp. 2d 976, 983 (E.D.
Wash. 1999) (“the general federal five-year statute of limitations governing CWA claims “includes
an additional 60 days from the date of the Notice of Claim based upon the CWA's 60 day pre-suit
notice requirement”).
In reply, Defendant relies on the Sixth Circuit’s decision National Parks which it claims
“rejected” the “position that the filing of notice tolls the statute of limitations for sixty days.”
(Docket No. 42). Even though the Sixth Circuit there counted back five years from the date of filing

14

of the complaint, tolling was not an issue in the case, nor was it even mentioned. Rather, the
question was whether a continuing violation theory should be recognized.
Given the authority cited, and given that the lead case on which Defendant relies for the
proposition that a five year statute of applies also holds that “the statute of limitations” under the
CWA is “tolled sixty days,” Sierra Club v. Chevron, U.S.A. Ltd., 834 F.2d 1517, 1523 (9th Cir.
1987), the Court finds tolling for sixty days to be appropriate. Accordingly, those claims alleging
violations that occurred prior to June 26, 2009 will be dismissed on statute of limitations grounds.
V. Ammonia and Whole Effluent Toxicity Violations
As noted previously, the CWA authorizes citizen’s suits against any person “alleged to be
in violation of . . . an effluent standard or limitation” 40 U.S.C. 1365(a)(1). In Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 59 (1987) (“Gwaltney I”), the
Supreme Court held that “citizens, unlike the Administrator, may seek civil penalties only in a suit
brought to enjoin or otherwise abate an ongoing violation.” In other words, “the harm sought to be
addressed by the citizen suit lies in the present or the future, not in the past.” Id. at 58. .
In light of Gwaltney, Defendant seeks dismissal of Counts 4 and 5 which allege violations
of effluent limits in the NPDES permit for whole effluent toxicity (“WET”)8 and ammonia,
respectively. These relate to wholly past violations, Defendant insists, because the last alleged
violation dates back to many months before the filing of the Motion to Dismiss.
In deciding that the CWA “does not permit citizen suit for wholly past violations,” the
Supreme Court in Gwaltney I observed that the “most natural reading of ‘to be in violation’ is a
8

WET “refers to the aggregate toxic effect to aquatic organisms from all pollutants contained in a
facility’s wastewater (effluent),” measured by “wastewater’s effects on specific test organisms’ ability to
survive, grow and reproduce.” WHOLE EFFLUENT TOXICITY METHODS,
http://www.epa.gov/cwa-methods/whole-effluent-toxicity-methods.

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requirement 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.” Id. at 57 & 64.
The Court remanded the case to the Fourth Circuit to determine whether the “complaint contained
a good-faith allegation of ongoing violation[‘]” Id. at 67.
The Sixth Circuit does not appear to have established a particular test to determine whether
an ongoing violation has been sufficiently pled. However, the Fourth Circuit’s subsequent
treatment in Gwaltney is instructive.
On remand, the Fourth Circuit observed that, while the “Supreme Court held that
citizen-plaintiff suits under § 505 could not be based on wholly past violations, [it] carefully
distinguished an allegation of a wholly past violation from allegations of intermittent or sporadic
violations.” Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171 (4th
Cir. 1988) (“Gwaltney II”). The Fourth Circuit went on to conclude that the district court did not
err in “find[ing] a good faith allegation of ongoing violation sufficient to avoid threshold jurisdiction
to avoid threshold jurisdictional challenges,” but remanded the case to the district court
for further findings as to whether, on the merits, plaintiffs proved at trial an ongoing
violation. Citizen-plaintiffs may accomplish this either (1) by proving violations that
continue on or after the date the complaint is filed, or (2) by adducing evidence from
which a reasonable trier of fact could find a continuing likelihood of a recurrence
in intermittent or sporadic violations. Intermittent or sporadic violations do not cease
to be ongoing until the date when there is no real likelihood of repetition.
Id. at 171-72. Once those findings were made, the case returned to the Fourth Circuit which
concluded that “a ‘reasonable tier of fact could find a continuing violation of a recurrence in
intermittent or sporadic violations’” in light of the fact that expert testimony from both sides
suggested that violations were more likely to occur in the winter and the evidence showed “recurring
violations . . . were likely.” Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d
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690, 694-5 (4th Cir. 1989) (“Gwaltney III”).
This case, of course, is being decided in the context of a Motion to Dismiss and the cases
Defendant relies on that were decided under Rule 56 are not extremely helpful. See San Francisco
Herring Ass’n v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847, 861 (N.D. Cal. 2015) (“Both parties
spend much time debating whether the waste from the long-defunct MGP operations constitutes an
ongoing discharge. However, I consider this dispute to be factual in nature, and improper to
consider on a motion to dismiss”). Still, and as Defendant points out, when “considering a challenge
to a complaint based on lack of subject-matter jurisdiction, [the Court] must take the material
allegations of the [complaint] as true and construe[ ] [them] in the light most favorable to the
nonmoving party,’ [but] ‘it is the plaintiff’s burden . . . to prove that this court has jurisdiction over
[its] claim, . . . and that the complaint contains sufficient factual matter to state a claim for relief that
is plausible on its face.” Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014).
Defendant argues Plaintiff’s allegations regarding continuing ammonia and WET violations
are not plausible on their “face as the last alleged ammonia violation was back in June 2013 (i.e.,
now more than 19 months ago) and last alleged WET violation was May 2014 (now more than 7
months ago).” (Docket No. 42 at 18). This focus on the time between the last violation and the
present (or as of the time the Motion to Dismiss was filed) is misplaced because “the proper point
from which to assess the likelihood of continuing violations is not the present, with its advantage
of hindsight, but the time of the original suit” Gwaltney III, 890 F.2d at 693-94; see also Assateague
Coastkeeper v. Alan & Kristin Hudson Farm, 727 F. Supp. 2d 433, 443 (D. Md. 2010) (“A CWA
citizen suit may be brought only if there is an ongoing violation of the act at the time the complaint
is filed”); Greenfield Mills, Inc. v. Goss, 2005 WL 1563433, at *5 (N.D. Ind. June 28, 2005) (“This

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court concludes that a continuing violation exists in this case if, at the time of the filing of the
complaint, Plaintiffs can demonstrate that dredged materials remained in the river”).9 This is in
keeping with the principle that, “[o]rdinarily, the subject matter jurisdiction of a court is tested as
of the time the action is filed and subsequent changes will not operate to divest a court of its
jurisdiction once it has been properly invoked.” In re Lewis, 398 F.3d 735, 743 (6th Cir. 2005).
Turning to the specific allegations in the Amended Complaint, the Court finds that Plaintiff
states a plausible claim regarding the toxicity test failures (WET violations) in Count 4, but not with
respect to the ammonia violations as set forth in Count V.
With regard to WET violations, the Amended Complaint alleges that “toxicity is
demonstrated if the IC25 value is less than 100%, with IC25 referring “to the inhibition concentration
causing 25% reduction in survival, reproduction, and growth of test organisms (i.e. water fleas and
flathead minnow) when exposed to treated wastewater.” (Docket No. 22, Amended Complaint ¶
200). Defendant only conducts the test four times a year, once per quarter. Even so, the plant failed
the test in the first, third and fourth quarters of 2013, in the first quarter of 2014 (after the notice
letter), and again in April 2014, four months before the Complaint was filed. There may be reason
for the failures or the failures may be explained away, but these allegations are enough to suggest
an intermittent, if not continuing WET problem.
The same cannot be said with respect to the allegations underlying the alleged ammonia
violations. Unlike WET tests, the presence of ammonia is tested daily. According to the Amended
Complaint, violations of permit parameters occurred on a daily, weekly and monthly basis in June

9

Theoretically, a more proper date may be 60-days before the complaint is filed because of the
mandatory notice provision and the fact that the notice must set forth all of the alleged violations.

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2010 and June 2013, on a weekly basis in October 2012, and on a daily basis on January 8 and 9,
2012. Nevertheless, Plaintiff concedes that 13 months passed between the last alleged violation and
the filing of the Complaint, effectively nullifying its conclusory assertion that ammonia violations
are “perhaps tied to seasonal considerations.” (Docket No. 32 at 29). This is particularly so since
there was a three year gap between the June 2010 and June 2013 alleged violations, and hundreds
of samples have been taken since the last event with no reported violation of the ammonia limits.

VI. Article III Standing
The Court’s power to adjudicate is limited to “cases and controversies” under Article III.
U.S. Const., art. III, § 2, cl. 1. “[S]tanding is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). The Supreme Court has defined standing generally as “the question of . . . whether the
litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth
v. Seldin, 422 U.S. 490, 498 (1975).
“To demonstrate constitutional standing, a plaintiff must satisfy the following three elements:
(1) an allegation of an ‘injury in fact,’ which is a concrete harm suffered by the plaintiff that is actual
or imminent, rather than conjectural or hypothetical; (2) a demonstration of ‘causation,’ which is a
fairly traceable connection between the plaintiff's injury and the complained-of conduct of the
defendant; and (3) a demonstration of ‘redressability,’ which is a likelihood that the requested relief
will redress the alleged injury.” Friends of Tim Fords v. Tenn. Valley Auth., 585 F.3d 955, 966 (6th
Cir. 2009). “An association has standing to bring suit on behalf of its members when its members
would otherwise have standing to sue in their own right, the interests at stake are germane to the

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organization's purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
For CWA claims and alleged violations of NPDES permits, “[t]he relevant showing for
purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff.” Id.
Even so, “[w]hile generalized harm to . . . the environment will not alone support standing, if that
harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will
suffice.” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (citing Sierra Club v. Morton, 405
U.S. 727, 734-736 (1972).
Defendant acknowledges that, to the extent HRWA was harmed by the potential effects of
actual discharges from the sewage facility, HRWA has Article III standing. This would include
“those Counts alleging exceedance of the NPDES permit discharge limitations (i.e., Counts 4 and
5), . . . or that portion of Count 1 that addresses actual ‘discharges’ to waters of the U.S. – not
‘overflows.’” (Docket No. 18 at 25). Defendant argues, however, that the same cannot bee said with
regard to the allegations that “have absolutely no relations to the water quality of the Harpeth River
and, ergo, the harm alleged by HRWA.” (Id.).
When the Motion to Dismiss was filed, Defendant’s argument had more purchase. However,
the Complaint has been amended to suggest that the scope of HRWA’s concern is with more than
discharges of pollutants into the Harpeth River. Specifically, the Amended Complaint (with
supporting declarations from HRWA members, including its Executive Director) alleges:
The Watershed Association is a § 501(c)(3) non-profit public interest organization with its
headquarters in Brentwood, Tennessee. The Watershed Association’s mission is to restore
and preserve the Harpeth River Watershed through education, research, discussion, and
advocacy, and to encourage the public, including industry and government, to comply with
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existing laws and regulations relating to water quality. The Watershed Association and its
members are concerned about contamination of the Harpeth River and about threats to
wildlife and wildlife habitat posed by the pollutants in Defendant’s discharge. They live,
work, fish, swim, boat, view wildlife, engage in nature study and scientific study, and
participate in other forms of recreation in and around the Harpeth River. Defendant’s
discharges into the Harpeth River in the vicinity of these uses, impairs them. Plaintiff is
further harmed by the operational deficits at the facility, including overflows in the
collection system and inaccurate monitoring. Overflows of untreated sewage into the
community where Plaintiff’s [sic] live, work, and recreate cause harm within the watershed
and to Plaintiff’s interests. Because part of Plaintiff’s mission is dedicated to education,
research, and advocacy, Defendant’s monitoring and reporting violations – including the
inaccurate flow monitor, failure to institute a Nutrient Management Plan, and failure to
conduct continuous instream monitoring – also affected Plaintiff’s efforts to study the river
and take other steps to improve water quality; to research Defendant’s compliance status and
to report the results of that research to its members, the community, and the regulatory
agency; to propose legislation; and to bring litigation to prevent violation of the discharge
limitations in the permit and thereby protect the waters affected by the facility’s discharge.
(Docket No. 22, Amended Complaint 15).
To be sure, “[i]t is black-letter law that standing is a claim-by-claim issue,” Rosen v.
Tennessee Commissioner of Finance & Administration., 288 F.3d 918, 928 (6th Cir. 2002), and
Plaintiff’s claims about injury or harm from overflows that do not reach the Harpeth River, such as
influent (as opposed to effluent) monitoring, ambient water quality monitoring, and the absence of
a nutrient management plan seem a bit conclusory. However, “[a]t the pleading stage, general
factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those specific facts that are necessary to
support the claim.” Lujan, 504 U.S. at 561. Thus, the Court will not dismiss any of the claims at
this time for the alleged lack of Article III standing.
VII. Jurisdictional Notice Requirements
Under the implementing regulations, would-be plaintiff’s must provide alleged CWA
violators with notice that

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shall include sufficient information to permit the recipient to identify the specific
standard, limitation, or order alleged to have been violated, the activity alleged to
constitute a violation, the person or persons responsible for the alleged violation, the
location of the alleged violation, the date or dates of such violation, and the full
name, address, and telephone number of the person giving notice.
40 C.F.R. § 135.3(a). With regard to the sufficiency of notice, it has recently been observed:
To provide proper notice of an alleged violation, a would-be plaintiff must “[a]t a
minimum . . . provide sufficient information . . . so that the [notified parties] could
identify and attempt to abate the violation.” . . . A citizen “ ‘is not required to list
every specific aspect or detail of every alleged violation. Nor is the citizen required
to describe every ramification of a violation.’” . . . Rather, the analysis turns on the
“overall sufficiency” of the notice. . . . A reviewing court may examine both the
notice itself and the behavior of its recipients to determine whether they understood
or reasonably should have understood the alleged violations.
Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650 (9th Cir. 2015) (internal
citations omitted).
Unfortunately for Plaintiff, MacWhorter, being a Ninth Circuit case, is not controlling and
the Sixth Circuit appears to have taken a more restrictive view of the notice requirement. In Atlantic
States Legal Foundation v. United Musical Instruments, U.S.A., Inc., 61 F.3d 473 (6th Cir.1995),
the Sixth Circuit addressed the analogous 60-day notice provision of the Emergency Planning and
Community Right to Know Act. The notice provided defendant mentioned violations occurring in
1987-1990, as well as other violations “not yet known,” yet the complaint also include a violation
occurring in 1991. In holding that jurisdiction did not exist over the alleged 1991 violation, the
Sixth Circuit wrote:
In the RCRA context, the Supreme Court held that “the notice and 60-day delay
requirements are mandatory conditions precedent to commencing suit under the ...
citizen suit provision; a district court may not disregard these requirements at its
discretion.” Hallstrom v. Tillamook County, 493 U.S. [20,] 31 [1989]. Accordingly,
when a citizen plaintiff fails to provide the required notice, “the district court must
dismiss the action as barred by the terms of the statute.” Id. at 33[.]

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As the structure of EPCRA’s notice provision is substantively identical to the
analogous provision of RCRA, it follows that sufficient notice is also a mandatory
prerequisite to filing an enforcement action under EPCRA. [Plaintiff] does not
dispute this obvious implication of Hallstrom but contends the notice of its intention
to hold [defendant] liable for “violations not yet known” was sufficient to create
jurisdiction over the alleged 1991 violation. We disagree. One of the important
purposes of the notice requirement under environmental statutes is to facilitate
“dispute resolution by EPA negotiation [and thereby] reduce the volume of costly
litigation.” Walls v. Waste Resource Corp., 761 F.2d 311, 317 (6th Cir.1985). Here,
[plaintiff’s] failure to include the 1991 violation in its notice may have contributed
to the EPA’s decision not to act. Moreover, the vague warning of possible other
claims failed to inform UMI of the year of the additional alleged violation or even
the specific EPCRA reporting requirement involved. For these reasons, the notice of
the alleged 1991 violation was inadequate.
Id. at 478.
United Musical has been repeatedly read by district courts in this circuit as requiring more
than “overall sufficiency.” See e.g., Stephens v. Koch Foods, LLC, 667 F. Supp. 2d 768, 787 (E.D.
Tenn. 2009) (while plaintiffs argued that they were “entitled to prove additional violations of the
same type on summary judgment or at trial without having to include them in additional 60 day
notice letters as the violations recur or are discovered,” court noted that “[w]hile this is indeed the
rule in the Third Circuit, it is not the law of the Sixth Circuit”); City of Ashtabula v. Norfolk S.
Corp., 633 F. Supp. 2d 519, 524 (N.D. Ohio 2009) (in light of United Musical, failure to adhere to
each of the requirements of 40 C.F.R. § 135.3(a) necessitates dismissal); Am. Canoe Ass’n, Inc. v.
City of Louisa Water & Sewer Comm’n, 2009 WL 8520576, at *11-12 (E.D. Ky. Feb. 27, 2009)
(stating that “[b]ecause the citizen suit provision in the EPCRA is indistinguishable from the citizen
suit provision in the CWA, this Court is bound by United Musical Instruments” and holding that
“there must be strict and specific compliance with the notice requirement,” and that plaintiffs could
“only pursue claims that are based on violations that were specifically identified in their notice
letter”); Frilling v. Village of Anna, 924 F. Supp. 821, 833 (S.D. Ohio 1996) (holding that United
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Musical requires that “plaintiffs bringing suit under 33 U.S.C. § 1365 must provide notice of the
specific limitations, standards, or orders alleged to be violated”).
The rationale for strict and specific notice compliance not only facilitates dispute resolution
by the EPA as the Sixth Circuit in United Musical observed, it also “allow[s] the recipient an
opportunity to cure the violations before suit is brought, which may obviate the need for a costly
lawsuit.” Frilling, 924 F. Supp. at 834; see also, Ctr for Biological Diversity v. Marina Point Dev.
Co., 566 F.3d 794, 801 (9th Cir.2009) (“the notice is not just an annoying piece of paper intended
as a stumbling block for people who want to sue; it is purposive in nature and the purpose is to
accomplish corrections where needed without the necessity of a citizen action”). In light of United
Musical and the way it has been interpreted in this circuit, the Court will dismiss those allegations
that were not contained in the Section 135.3(a) Notice to Defendant.
VIII. Conclusion
On the basis of the foregoing, Defendant’s Motion to Dismiss will be granted in part and
denied in part. The Motion will be granted with respect to alleged violations arising from overflows
that were not discharges within the meaning of the 2004 permit; violations that occurred prior to
June 26, 2009; violations of ammonia limits; and any claims or allegations that were not specifically
mentioned in the Notice. In all other respects, the Motion to Dismiss will be denied.
An appropriate Order will enter.

____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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