HARRY TRUMAN AILOR and BETTY DARLENE LYNCH v. City of Mayna Rdville, Tennessee

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0141P (6th Cir.)
File Name: 04a0141p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
HARRY TRUMAN AILOR and
BETTY DARLENE LYNCH,
Plaintiffs-Appellants,
v.
CITY OF MAYNA RDVILLE,
TENNESSEE,
Defendant-Appellee.
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No. 01-6562
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 01-00241—James H. Jarvis, District Judge.
Argued: September 16, 2003
Decided and Filed: May 17, 2004
Before: SUHRHEINRICH, COLE and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Kelly O. Herston, HERSTON LAW OFFICE,
Knoxville, Tennessee, for Appellant. Jon G. Roach,
WATSON & HOLLOW, Knoxville, Tennessee, for Appellee.
ON BRIEF: Kelly O. Herston, HERSTON LAW OFFICE,
2 Ailor, et al. v. City of Maynardville, TN No. 01-6562
133 U.S.C. §§ 1251-13 87 (200 1).
242 U.S.C. §§ 6901 et. seq.
Knoxville, Tennessee, Robert R. Kurtz, ELDRIDGE, IRVINE
& GAINES, Knoxville, Tennessee, for Appellant. Jon G.
Roach, Nathan D. Rowell, WATSON & HOLLOW,
Knoxville, Tennessee, for Appellee.
SUHRHEINRICH, J. delivered the opinion of the court, in
which ROGERS, J. joined. COLE, J. (pp. 24-26), delivered
a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
SUHRHEINRICH, J. Plaintiffs-Appellants Betty Lynch
(“Lynch”) and Harry Ailor (“Ailor”) (collectively
“Plaintiffs”) appeal from the order of the district court
granting summary judgment in favor of Defendant-Appellee
City of Maynardville, Tennessee (“City”), in this action
brought pursuant to the Clean Water Act1 (“CWA”), and the
Resource Conservation and Recovery Act2 (“RCRA”). For
the reasons that follow, we AFFIRM the judgment of the
lower court.
I. Background
A. Clean Water Act
The Federal Water Pollution Control Act, or Clean Water
Act, 33 U.S.C. §§ 1251-1387 (2001), mandates that toxic
discharges into the nation’s waterways be monitored and
regulated. To accomplish this, the CWA authorizes the
Administrator of the Environmental Protection Agency
(“EPA”) or authorized state agencies, to issue National

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 3
Pollution Discharge Elimination System (“NPDES”) permits.
33 U.S.C. § 1342. Permit holders are subject to state and
federal enforcement actions, as well as suits by private
citizens. See 33 U.S.C. §§ 1319 (“State enforcement,
compliance orders”) and 1365 (“Citizen suits”).
The CWA’s citizen’s suit provision permits any individual
who has an interest which is or may be adversely affected to
sue to enforce any limitation established by a NPDES permit.
§ 1365(a) and (g). The CWA limits the remedies available to
citizen plaintiffs to injunctive relief, the assessment of civil
penalties, and attorney’s fees. See 33 U.S.C. § 1365(a), (d);
see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 175 (2000). No compensatory damages
are authorized under the CWA. See Middlesex County
Sewage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 18
(1981). Furthermore, civil penalties are payable to the United
States Treasury. Laidlaw, 528 U.S. at 175. The CWA also
“does not permit citizen suits for wholly past violations.”
Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484
U.S. 49, 64 (1987); see also Steel Co. v. Citizens for a Better
Env’t., 523 U.S. 83, 106-07 (1998) (holding that citizen
plaintiffs lack standing to seek civil penalties for wholly past
violations).
Citizen suits are merely intended to supplement, not
supplant, enforcement by state and federal government
agencies. Gwaltney, 484 U.S. at 60. Such agency suits trump
the CWA’s citizen suit provision, provided that: (1) they are
initiated prior to the commencement of a citizen’s suit,
§ 1319(g)(A)(i); (2) are diligently prosecuted, id.; and (3) are
brought in a court of the United States or any State court.
§ 1365(b)(1)(B). See generally Jones v. City of Lakeland, 224
F.3d 518 (6th Cir. 2000) (en banc). Likewise, where a “State
has commenced and is diligently prosecuting an action under
a State law comparable to” the CWA, citizen suits are
precluded. § 1319(g)(6)(A)(ii). However, in Lakeland, this
Court held that an action under the Tennessee Water Quality
Control Act is not comparable to 33 U.S.C. § 1365(a)(1)(B)
4 Ailor, et al. v. City of Maynardville, TN No. 01-6562
and/or 33 U.S.C. § 1319(g)(6). Lakeland, 224 F.3d at 524.
Lakeland also held that a proceeding before the Tennessee
Department of Environment and Conservation (“TDEC”) is
not “court enforcement” for purposes of §§ 1319(a) and
1365(b). Id. at 521-22.
B. Facts
The City owns and operates a sewage treatment plant along
Bull Run Creek. In the past, the treatment plant has
overflowed, discharging raw sewage and other pollutants into
the creek. Plaintiff Lynch owns approximately 100 acres of
land in Union County, along Bull Run Creek, downstream
from the plant. Plaintiff Ailor owned approximately 36 acres
of land along Bull Run Creek, downstream from the plant
until approximately October of 2000. Both parties have
obtained drinking water from private wells located on their
property.
1. The City
The City operates its sewage treatment plant under an
NPDES permit. Because of repeated violations of its NPDES
permit in the early 1990s, the Tennessee Department of
Environment and Conservation (“TDEC”) commenced
enforcement proceedings against the City in 1993. On
November 16, 1993, J.W. Luna, the Commissioner of the
TDEC, issued an Order and Assessment against the City, in
which he found that “[f]rom January 1991, thru December
1992, the [City’s] self monitoring information revealed the
following NPDES permit violations”:
Biochemical Oxygen Demand . . . . 99 violations
Total Suspended Solids . . . . . . . . . . 4 violations
Ammonia . . . . . . . . . . . . . . . . . . . . 27 violations
Fecal Coliform . . . . . . . . . . . . . . . . 9 violations
Chlorine . . . . . . . . . . . . . . . . . . . . . . 9 violations

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 5
The Commissioner also found that the City failed to submit
an Industrial User Survey to the Tennessee Division of Water
Pollution Control within one hundred twenty (120) days after
the NPDES permit was issued.
The Commissioner found that “[b]y discharging wastewater
effluent from the plant in violation of the terms and
conditions of the NPDES permit,” the City had violated
TENN. CODE ANN. § 69-3-108(b)(3) and (6), which makes it
unlawful to discharge any wastes in excess of the amount
allowed by the permit. The Order further found that, by
failing to submit an Industrial User Survey, the City had
violated TENN. CODE ANN. § 69-3-114(b) (2003). The Order
and Assessment therefore required the City to do the
following:
1. The Respondent [the City] shall initiate a
continuous collection system rehabilitation
program within sixty (60) days of entry of this
Order.
2. The Respondent shall submit a complete
Industrial User Survey to the Tennessee
Division of Water Pollution Control within
ninety (90) days of entry of this Order.
3. The Respondent shall bring the plant into
compliance with the Act and NPDES permit
#TN0022870 within ninety (90) days of entry
of this Order.
4. The Respondent shall pay a Civil Penalty to the
Department, hereby assessed in the amount of
TWENTY FIVE THOUSAND DOLLARS
($25,000.00), to be paid [in various
increments].
The Order and Assessment indicated that, pursuant to
TENN. CODE ANN. § 69-3-109 (a)(3), an Order for Corrective
6 Ailor, et al. v. City of Maynardville, TN No. 01-6562
3The Agreed Order stated that the “cause came to be heard before a
quorum of the Water Quality Control Board upon the Commissioner’s
Order and Assessment dated Novemb er 16, 1993, directed to the
Resp ondent, Town of Maynardville, the Respondent’s appeal and the joint
motion of the parties,” and that “the Board approved their settlement of
this matter as embodied herein.”
Action “shall become final and not subject to review” unless
a timely written petition for a hearing were filed with the
Tennessee Water Quality Control Board.
Thereafter, through hearings and meetings between the
Board and the City, an Agreed Order (“Order”) was entered
on July 18, 1995, assessing a civil penalty against the City
and requiring it to develop and implement a corrective action
plan to bring its plant into compliance with the NPDES
permit.3 The Board adopted the facts and conclusions of law
set forth in the Commissioner’s Order and Assessment.
The Order required the City to do the following:
1. [S]ubmit to the Division (Knoxville Field Office) for
approval, on or before the 1st day of May, 1996, a
corrective action plan that addresses at a minimum the
following:
(a) A review of “Mini-Systems”;
(b) Smoke Testing for a representative portion of the
collection systems;
(c) Dry weather flow measurements;
(d) A physical survey of the systems; and
(e) Wet weather flow monitoring;
2. [S]ubmit to the Division (Knoxville Field Office) for
approval, within sixty (60) days of approval of the
corrective action plan, an engineering report that
evaluates the current hydraulic and organic loading at the
wastewater treatment plant and recommends alternatives
for additional treatment capacity including a time
schedule for completion of treatment plant expansion.

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 7
3. [W]ithin one hundred eighty (180) days of approval
of the engineering report, submit to the Division
(Knoxville Field Office) for approval plans and
specifications for the expansion of the wastewater
treatment plant and correction of inflow and infiltration.
4. [I]mplement and complete all remedial activities set
forth in the above approved plans and specifications in
accordance with those time schedules (included and as
approved by the Division) but in no event any later than
thirty-six (36) months from the approval of such plans
and specifications.
The order further assessed a civil penalty against the City in
the amount of $18,750, of which $16,875 was to be paid only
if the City failed to comply with the Order. The City paid
$1,875 to the TDEC on July 18, 1995.
The Order also stated that the Division reserved the right to
request modifications to the “corrective action report,
engineering report, plans and specifications and/or any time
schedules encompassed therein as deemed necessary by the
Director to achieve compliance with the Act.”
The City completed all of the required actions under the
Order and placed the new wastewater treatment plant on line
in November, 2000, and received the final inspection report
on February 26, 20015. The City spent approximately 1.7
million dollars in upgrading the plant.
2. Plaintiffs
On January 30, 1998, Lynch and Ailor filed suit against the
City in state court, seeking compensatory damages under
several theories of state law. On February 7, 2001, two and
one-half months after the City’s wastewater treatment plant
was in full operation, Plaintiffs gave the City notice of a
pending lawsuit, as required under the CWA and RCRA. See
33 U.S.C. § 1365(b); 42 U.S.C. § 6972(b). On May 16, 2001,
8 Ailor, et al. v. City of Maynardville, TN No. 01-6562
4Specifically, in their prayer for relief, Plaintiffs requested the
following:
WHEREFORE, Plaintiffs sue Defendants for an Order
compelling Defendants to provide remedial relief for all harm
done to Plaintiffs’ property as a result of the acts alleged herein,
compensatory damages in an amount not to exceed $750,000,
punitive damages in an amount not to exceed $50 0,00 0, the costs
of this litigation pursuant to 33 U.S.C. § 1365 (d) and 42 U.S.C.
§ 6972(e), including reasonable attorney’s fees and all further
and general relief to which Plaintiffs are entitled . Plaintiffs
dem and a trial by jury.
Lynch and Ailor again filed suit against the City, this time in
federal court, under the CWA, the RCRA, and state law. The
complaint alleged that the City’s sewage treatment plant
“frequently overflows, thereby discharging untreated sewage
and other pollutants into Bull Run Creek,” and that “[t]his
frequent discharge of raw sewage, and other pollutants, past
and present, has caused Plaintiffs serious bodily injury and
loss of value in Plaintiffs’ property.” Plaintiffs sought
remedial relief, compensatory damages, punitive damages,
and litigation costs, including reasonable attorney’s fees.4
3. District Court Proceedings
On September 10, 2001, the City moved for summary
judgment. The City argued that summary judgment was
appropriate because the City was the subject of an
enforcement action commenced by the State which was being
diligently prosecuted under 33 U.S.C. § 1319(g)(6)(A)(ii).
Furthermore, the City asserted that it had complied with the
terms of the corrective action. In support, the City attached
several affidavits. The City Recorder, Hazel Gillenwater,
attested that, as of September 6, 2001, the City was operating
within the NPDES permit. John West, an environmental

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 9
specialist for TDEC, stated in his affidavit that he had the
responsibility for monitoring, compliance, and enforcement
of the City’s wastewater treatment facilities and NPDES
permit. West stated that “[t]he City substantially complied
with all aspects of the Order such that no further penalty
payments were necessary. Finally, he stated that as of
September 7, 2001, “[r]ecent inspections revealed that the
City is operating its Wastewater Treatment Plan and
Collection System in substantial compliance with the laws
relative to its operation of the Wastewater Treatment Plant
and is meeting the effluent standards specified by the NPDES
permit.” In his affidavit, Arthur S. Baker, a professional
engineer employed by Lamar Dunn & Associates, Inc., the
City’s consulting engineers, stated that as of September 6,
2001, the City had “completed the necessary improvements
to its Wastewater Treatment Plant and the replacement and
rehabilitation of Phase I and Phase II of its Wastewater
Collection System.”
The City also asserted that Plaintiffs’ complaint should be
dismissed because they sought recovery of compensatory or
punitive damages, which are not available under the CWA.
In their response to the City’s motion for summary
judgment, Plaintiffs did not provide any evidence to
controvert the City’s assertion that it had completed its
obligations under the Order. Rather, Plaintiffs alleged in
relevant part as follows:
The plaintiffs claim that they have suffered property
damages and personal injuries as a result of the
defendant’s actions. Compl. ¶ 11. In addition, if the
plaintiffs prevail in this action, they are entitled to
recover their reasonable attorneys’ fees and litigation
costs, including environmental testing and expert witness
fees, all of which are typically substantial in
environmental cases. 33 U.S.C. § 1365(d).
10 Ailor, et al. v. City of Maynardville, TN No. 01-6562
Plaintiffs also did not assert, let alone offer proof, that the
City was in violation of the NPDES permit as of May 2001 or
September 2001.
In its reply to Plaintiffs’ response to the motion for
summary judgment, filed on October 3, 2001, the City
asserted that from the time of the enforcement action taken by
the TDEC, the City had “moved expeditiously to remedy the
deficiencies in its plant.” The City reiterated that its
new waste water treatment plant was completed and
waste water treatment plant operations began on
November 20, 2000. Phase I of the City’s Waste Water
Collection Rehabilitation was completed on January 25,
2001 and the City’s Phase 2 Waste Water Collection
System Rehabilitation was completed on May 31, 2001.
. . . The new plant has been operating for more than ten
(10) months with no discharges in violation of its
NPDES permit.
The reply brief also stated that
[t]hroughout the process of the state of Tennessee’s
Enforcement Action, it has been abundantly clear that the
problem which the City faced in its operation of its
wastewater treatment was due primarily to an old plant
which was no longer able to satisfactorily treat the
wastewater being generated by a growing population.
Once the City’s new wastewater treatment plant
commenced operation, its discharges have met its
NPDES permit.”
The City therefore asserted that, as demonstrated by the
affidavit of the TDEC representative, the case was moot
based upon events subsequent to November 20, 2000.
Significantly, the City also stated that its discharge from its
wastewater treatment plant had substantially met its NPDES
permit with no violations for the past four months, and only

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 11
minor violations occurring in February (chlorine limit),
March (chlorine limit and ammonia/nitrogen), and May
(ammonia/nitrogen).
The district court granted summary judgment to the City on
November 5, 2001. The district court noted that the TDEC
enforcement action did not preclude Lynch’s and Ailor’s
citizen suit under the CWA in light of Jones v. City of
Lakeland, 224 F.3d 518 (6th Cir. 2000) (en banc).
Nevertheless, the district court granted the motion, stating that
the relief available to Lynch and Ailor under both the CWA
and RCRA had already been granted. The court concluded
that, “under the unique facts of this case, a claim under the
CWA is moot at this time and was moot at the time it was
filed.”
[T]he State of Tennessee initiated an enforcement action
against the City of Maynardville in 1993. As a result of
that state action, the City was fined and forced to come
up with a plan for remedying its effluent problem. The
City of Maynardville did what was requested by the State
of Tennessee and ultimately, at an expense of more than
$1 million, expanded its treatment plant which went on-
line in November 2000. It is undisputed that the
expansion of the treatment plant has remedied the
overflow problem, since there is no evidence that any
overflow has occurred since November of 2000.
Plaintiffs then filed this lawsuit in this court in May
2001. At the time plaintiffs filed the lawsuit here under
the CWA, the State had already obtained, through its
administrative procedures, any remedy which plaintiffs
might have obtained with a citizens suit under the CWA.
(Emphasis Added.)
The court further observed that the RCRA would not “give
the plaintiffs any right or remedy not available under the
CWA.” The district court declined to exercise jurisdiction
over supplemental state law claims which were “appended
12 Ailor, et al. v. City of Maynardville, TN No. 01-6562
only to a moot federal claim.” Lastly, the court noted that
because Plaintiffs’ complaint under the CWA was already
moot by the time the federal complaint was filed, “[i]t would
be illogical to allow the plaintiffs to recover attorney’s fees
for a claim filed under the CWA.”
On November 12, 2001, Plaintiffs filed a motion to alter or
amend judgment. Plaintiffs’ motion was based principally on
the City’s admission in its reply brief that it violated its
NPDES permit several times after the upgraded treatment
plant went on-line in November of 2000. In support,
Plaintiffs attached a letter from TDEC, Division of Water
Pollution Control, stating that, based on the City’s Discharge
Monitoring Reports (“DMRs”), the City had violated the
NPDES permit in February, March and May of 2001. Also
attached were two letters from Michael Payne, Chief
wastewater plant operator, to John West, stating that the City
incurred an overflowing manhole on February 25, 2001, and
April 3, 2001. West also indicated that, in both instances the
overflow subsided the same day.
In its response, the City stated that the manhole overflows
were unrelated to the operations of the wastewater treatment
plant itself. Further, the City stated that the incidents
occurred prior to the completion of Phase II of the City’s
collection system rehabilitation project. Finally, the City
reasserted that because it had corrected the deficiencies in its
collection and treatment systems, Plaintiffs’ CWA suit was
moot.
The district court summarily denied the motion, “[g]ood
cause not being shown.”
Plaintiffs filed this timely appeal, claiming that the City did
not carry its “heavy burden” required to establish mootness,
and that their RCRA claim was improperly dismissed.

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 13
II. Analysis
We review the district court’s grant of summary judgment
de novo. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888,
892 (6th Cir. 2003) (citations omitted). Summary judgment
is proper when there is no dispute as to a material issue of fact
and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c).
A. CWA Claim
Plaintiffs argue that the district court erred in granting the
City’s motion for summary judgment on the grounds that
Plaintiffs’ CWA claims were moot. Plaintiffs submit that the
City did not carry its “heavy burden” of persuading the court
that further violations of the NPDES are not likely to recur, as
required by Laidlaw. Laidlaw holds that a defendant’s
voluntary cessation of a challenged practice does not
ordinarily moot a case. Laidlaw, 528 U.S. at 189 (citation
omitted). In other words, voluntary cessation of the
challenged conduct does not ordinarily moot a case unless
“subsequent events ma[ke] it absolutely clear that the
allegedly wrongful behavior could not be reasonably expected
to recur.” Id. (internal quotation marks omitted). The
“heavy burden” of establishing that the challenged conduct
cannot reasonably be expected to start up again lies with the
party asserting mootness. Id.
As noted above, the district court held that Plaintiffs’ CWA
claim was “moot [at the time of summary judgment] and
moot at the time it was filed.” Although the district court
characterized it as mootness, the latter half of the district
court’s statement implicates standing. See id. at 191
(discussing distinctions between standing and mootness). We
therefore begin our analysis with standing.
14 Ailor, et al. v. City of Maynardville, TN No. 01-6562
1. Standing
“[S]tanding concerns only whether a plaintiff has a viable
claim that a defendant’s unlawful conduct ‘was occurring at
the time the complaint was filed.’” Cleveland Branch,
NAACP v. City of Parma, Ohio, 263 F.3d 513, 525 (6th Cir.
2001), cert. denied, 535 U.S. 971 (2002) (quoting Laidlaw,
528 U.S. at 184). “The Supreme Court has consistently held
that jurisdiction is tested by the facts as they existed when the
action [was] brought and that after vesting, it cannot be ousted
by subsequent events.” Id. at 524. To establish initial
standing to bring suit, a plaintiff must demonstrate (1) he or
she has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, as opposed to
conjectural or hypothetical; (2) the injury is fairly traceable to
the defendant’s challenged action; and (3) it is likely, not
speculative, that the injury will be redressed by a favorable
decision. Id. at 523-24 (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)).
Mootness addresses whether the plaintiff continues to have
an interest in the outcome of the litigation. City of Parma,
263 F.3d at 525. “[A] case is moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Powell v. McCormack, 395 U.S.
486, 496 (1969). In other words, “[i]f events that occur
subsequent to the filing of a lawsuit or an appeal deprive the
court of the ability to give meaningful relief, then the case is
moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F.3d
1330, 1336 (11th Cir. 2001).
As the district court implicitly recognized, this case raises
both standing and mootness concerns. See generally Laidlaw,
528 U.S. at 180-92 (discussing distinctions between the two
doctrines). By the time Plaintiffs gave notice of intent to sue
in February 2001 and filed suit sixty days later on May 16,
2001, the State of Tennessee had already procured the relief
Plaintiffs sought in their complaint, namely remedial efforts
to stop violations of the NPDES permit. In fact, by the time

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 15
5Ailor, in any event, clearly lacked standing. The com plaint reflects
that he did not own the property at the time the federal complaint was
filed. He no longer had an “injury in fact” that is fairly red ressab le by a
favorable decision since the CWA “does not permit citizen suits for
wholly past violations.” Gwaltney, 484 U.S. at 64.
of Plaintiffs’ suit, the State of Tennessee had already been at
the task for approximately seven years, beginning with the
Commissioner’s Order and Assessment on November 16,
1993. By the time of Plaintiffs’ federal action, per orders of
the State of Tennessee, the City had installed and made
operational a new wastewater treatment plant, at a cost of
over $1 million, to bring it into compliance with its NPDES
permit. Thus, by the time Plaintiffs’ suit was initiated,
Plaintiffs essentially no longer had an “injury in fact” that
was “actual or imminent.” But for the fortuity of four minor
discharges in February, March, and May of 2001, Lynch
clearly lacked standing,5 because the relief requested in the
complaint was by that time for wholly past violations.
The district court’s sense that Plaintiffs’ standing was
problematic is bolstered by comparison with the Supreme
Court’s decision in Gwaltney. In that case, the Virginia State
Water Control Board issued a NPDES permit to the petitioner
Gwaltney of Smithfield, Ltd., in 1974 authorizing Gwaltney
to discharge seven pollutants, including fecal coliform,
chlorine, and total Kjeldahl nitrogen (TKN), from the
company’s meat-packing plant on the Pagan River in
Smithfield, Virginia. Id. at 53. Between 1981and 1984, the
company repeatedly violated the conditions of the permit by
exceeding effluent limitations on five of the seven covered
pollutants. Id. In March 1982, the company installed new
equipment to improve its chlorination system, and the last
reported chlorine violation occurred in October 1982. Id.
The new chlorination system also helped control the
discharge of fecal coliform, the last of which occurred in
February 1984. Id. at 54. In October 1983, the company
16 Ailor, et al. v. City of Maynardville, TN No. 01-6562
upgraded its wastewater treatment system, and the last
reported TKN violation occurred on May 15, 1984. Id.
The respondents, two environmental groups, sent notice in
February 1984 to the company, the EPA, and the Virginia
Board of their intent to file a citizen suit under the CWA
based on the company’s violations of its permit conditions.
Id. The respondents filed suit in June 1984. Id. The
company moved to dismiss for lack of subject matter
jurisdiction under the Act, arguing that the language of
§ 505(a) [33 U.S.C. § 1365(a)], which allows private citizens
to bring suit against any person “alleged to be in violation” of
the Act, required the defendant to be violating the Act as of
the time of suit. Id. at 54-55. The company contended that,
because its last recorded violation occurred several weeks
before the respondents filed their complaint, the district court
lacked jurisdiction over the action. Id. at 55.
The Supreme Court agreed, holding that “[t]he most natural
reading of ‘to be in violation’ is a 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. The Court
observed that “the pervasive use of the present tense
throughout § 505,” especially in the definition of “citizen” as
“‘a person . . . having an interest which is or may be adversely
affected’ by the defendant’s violations of the Act,” id. at 59
(quoting § 1365(g)), made plain that “the harm sought to be
addressed by the citizen suit lies in the present or future, not
in the past.” Id. The Court reasoned in relevant part:
Any other conclusion would render incomprehensible
§ 505's notice provision, which requires citizens to give
60 days’ notice of their intent to sue to the alleged
violator as well as to the Administrator and the State.
§ 1365(b)(1)(A). If the Administrator or the State
commences enforcement action within that 60-day
period, the citizen suit is barred, presumably because
governmental action has rendered it unnecessary.

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 17
§ 1365(b)(1)(B). It follows logically that the purpose of
notice to the alleged violator is to give it an opportunity
to bring itself into complete compliance with the Act and
thus likewise render unnecessary a citizen suit. If we
assume, as respondents urge, that citizen suits may target
wholly past violations, the requirement of notice to the
alleged violator becomes gratuitous.
Id. at 59-60. The Court further observed that
Adopting respondents’ interpretation of § 505's
jurisdictional grant would create a second and even more
disturbing anomaly. The bar on citizen suits when
government enforcement action is under way suggests
that the citizen suit is meant to supplement rather than to
supplant governmental action. The legislative history of
the Act reinforces this view of the role of the citizen suit.
The Senate Report noted that “[t]he Committee intends
the great volume of enforcement actions [to] be brought
by the State,” and that citizen suits are proper only “if the
Federal, State, and local agencies fail to exercise their
enforcement responsibility.” S.Rep. No. 92-414, p. 64
(1971), reprinted in 2 A Legislative History of the Water
Pollution Control Act Amendments of 1972, p. 1482
(1973) (hereinafter Leg. Hist.). Permitting citizen suits
for wholly past violations of the Act could undermine the
supplementary role envisioned for the citizen suit. This
danger is best illustrated by an example. Suppose that
the Administrator identified a violator of the Act and
issued a compliance order under § 309(a). Suppose
further that the Administrator agreed not to assess or
otherwise seek civil penalties on the condition that the
violator take some extreme corrective action, such as to
install particularly effective but expensive machinery,
that it otherwise would not be obliged to take. If citizens
could file suit, months or years later, in order to seek the
civil penalties that the Administrator chose to forgo, then
the Administrator’s discretion to enforce the Act in the
public interest would be curtailed considerably. The
18 Ailor, et al. v. City of Maynardville, TN No. 01-6562
same might be said of the discretion of state enforcement
authorities. Respondents’ interpretation of the scope of
the citizen suit would change the nature of the citizens’
role from interstitial to potentially intrusive. We cannot
agree that Congress intended such a result.
Id. at 60-61.
Notwithstanding its conclusion that § 505 does not permit
citizen suits for wholly past violations, the Supreme Court
remanded for further proceedings, because the respondents
had also alleged in their complaint that the company was
continuing to violate its NPDES permit when they filed suit.
Id. at 64. The Supreme Court concluded that § 505 confers
jurisdiction over citizen suits when the citizen-plaintiffs make
a good-faith allegation of continuous or intermittent violation.
Id. The Court rejected the company’s argument that this
construction of § 505 would permit citizen-plaintiffs to pursue
their suits to conclusion even if their allegations of ongoing
noncompliance became false at some later point in the
litigation because the defendant begins to comply with the
Act, reasoning that “[l]ongstanding principles of mootness”
would prevent maintenance of suit when there was no
reasonable expectation of recurrence. Id. at 66-67.
Like the citizen-plaintiffs in Gwaltney, Plaintiffs did not
file their federal complaint until several weeks after the last
recorded violation, and after the defendant polluter had
installed new treatment systems to bring itself into
compliance with its NPDES permit. Like Gwaltney, the
remedial efforts were not prompted by the citizen-suit; indeed
the remedial actions preceded the citizen suits. In neither case
was the citizen suit prompted by state or federal agency
inaction.
Furthermore, the Supreme Court’s concern in Gwaltney that
citizen suits for wholly past violations would undermine the
supplementary role envisioned by Congress is equally
applicable here. By the time Plaintiffs filed their federal

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 19
action, the Board and the City had not only entered into, but
enforced, an Order requiring the City to implement a
corrective action plan to bring it into compliance with the
CWA, and the City had expended over a $1 million to that
end. By the terms of the Order, the Board had agreed to
forgo “civil penalties on the condition that the violator [the
City] take some extreme corrective action, such as to install
particularly effective but expensive machinery, that it
otherwise would not be obliged to take.” Gwaltney, 484 U.S.
at 61. Thus, the true nature of Plaintiffs’ suit in this case was
not “interstitial” but “potentially intrusive” because the State
had not “failed to exercise [its] enforcement responsibility.”
Id. at 60. In short, all of the concerns expressed in Gwaltney
are present in this case, and point to the conclusion that, given
the unique facts of this case, Plaintiffs in essence lacked
standing to file suit.
At the same time, Gwaltney also recognized that standing
is conferred by good faith allegations of continuous or
intermittent violations. Id. at 64. We must therefore examine
the complaint. As noted above, the complaint alleged that the
City’s frequent discharges of pollutants “past and present . . .
caused Plaintiffs serious bodily injury and loss of value in
Plaintiffs’ property.” As relief, the complaint sought merely
“an Order compelling Defendants to provide remedial relief
for all harm done as a result of the acts alleged herein,
compensatory damages . . . , punitive damages . . ., the costs
of this litigation . . . , and all further and general relief to
which Plaintiffs are entitled.” It is arguable whether Plaintiffs
properly alleged continuing violations. Cf. Gwaltney, 484
U.S. at 64 (holding that the plaintiffs’ complaint satisfied the
jurisdictional requirements of § 505 and conferred standing
because their complaint alleged in good faith that “Gwaltney
was continuing to violate its NPDES permit when plaintiffs
filed suit”). Although “slim,” we nonetheless can give Lynch
the benefit of the doubt and assume standing. See Arizonans
for Official English v. Arizona, 520 U.S. 43, 66-67 (1997)
(holding that a court assumes without deciding that standing
exists in order to analyze mootness). As the Gwaltney Court
20 Ailor, et al. v. City of Maynardville, TN No. 01-6562
further noted, the mootness doctrine evens out the playing
field. See id. at 66.
2. Mootness
As the district court observed in its order granting summary
judgment, “[i]t is undisputed that the expansion of the
treatment plant has remedied the overflow problem, since
there is no evidence that any overflow has occurred since
November 2000.” The only overflows, which came to light
because of the City’s self-reporting, involved two manholes
on Main Street, not into Bull Run Creek. Plaintiffs’
complaint alleges violations pertaining to only Bull Run
Creek.
Furthermore, although the City’s discharge from its
wastewater treatment plant exceeded its NPDES permit limits
in February, March, and May 2001, shortly after the new
wastewater system began operating, Defendants established
that as of the time of summary judgment in November 2001,
the City was in compliance with the NPDES permit. The
City presented undisputed evidence from both the City
Recorder, Hazel Gillenwater, and an environmental specialist
for TDEC, John West, that the City had remedied the
deficiencies in the operation of its wastewater treatment plant.
In short, the City met its “heavy burden” of demonstrating
that the alleged violations were not likely to recur, since they
were largely caused by an outdated wastewater treatment
plant, which had been replaced by the time Plaintiffs filed
their federal action. At the same time, Plaintiffs have not met
their burden as the nonmoving party on summary judgment
of establishing a realistic prospect that the violations alleged
in the complaint would continue, having presented no
evidence to demonstrate recurrence. Cf. Comfort Lake Ass’n.
v. Dresel Contracting, Inc., 138 F.3d 351, 355 (8th Cir.1998)
(holding that citizen plaintiffs offered no evidence to
contradict stipulation agreement to the effect that defendant
store construction was complete and NPDES permit had been
terminated; stating that the plaintiff had therefore not met “its

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 21
burden to rebut the factual underpinnings of a well-supported
motion for summary judgment”). In short, as the district
court held, even if Lynch could survive the standing
challenge, the case is moot, because the injuries suffered in
the complaint had been remedied by events subsequent to the
filing of the lawsuit, with no showing of a reasonable
likelihood of recurrence.
Laidlaw is distinguishable. In Laidlaw, environmental
groups brought suit against the holder of a NPDES permit,
alleging violation of mercury discharge limits and seeking
declaratory and injunctive relief. Laidlaw, 528 U.S. at 175-
76. The Supreme Court held that the action would not be
rendered moot by the company’s compliance with its permit
limits, or its closure of the challenged facility, absent a
showing that either event made it absolutely clear that the
permit violations could not reasonably be expected to recur,
and remanded the case to the district court for further
proceedings. Id. at 193.
However, in Laidlaw, in contrast with this case, the citizen
suit was instituted prior to any action by a state agency, and
thus was truly supplementary. Id. at 175-77. Further, in
Laidlaw, the defendant company’s lawyer reached a
settlement with the state environmental agency on the last day
before the 60-day notice period expired, so as to prevent the
citizen suit, and the agreement required merely that the
company pay $100,000 in civil penalties and make “every
effort” to comply with its permit obligations. Id. at 177.
Thus, in Laidlaw, there was a genuine concern that the
defendant might be “free to return to its old ways” if the court
were to find the claim moot based on the defendant’s
voluntary cessation of the challenged practice. Id. at 189.
Here, although the City was not subject to a court order, its
conduct was certainly not “voluntary” in the same sense as
the defendant polluter in Laidlaw.
In this case, the record establishes that Plaintiffs were not
compelled to file suit because of federal and state inaction.
22 Ailor, et al. v. City of Maynardville, TN No. 01-6562
6In Buckhann on B d. & Care H ome v. West Virginia D ep’t of Hea lth
& Hum an Servs., 532 U.S. 598 (2001), the Sup reme Court held th at the
fee-shifting provisions o f the Fair Housing Amend ments Act and the
Americans W ith Disabilities Act require a party to secure either a
judgment on the merits or a court-ordered consent decree in order to
qualify as a “prevailing party” for purposes of attorney fees, rejecting the
catalyst theory. It is an open question whether the catalyst theory remains
viable in the context of environmental statutes like the CW A that limit
attorneys’ fees to a prevailing party or substantia lly prevailing party. See
Marisa L. Ugalde, The Future of Environmental Citizen Suits After
Buckhannon Board & Care Home, Inc. v. West Virginia Department of
Health & Human Resources, 8 ENVTL.LAW . 589, 614 (2002).
The record reflects that, at the State’s prompting, the City
had, by the time of summary judgment, actually met its
permit obligations by remedying the underlying problem,
replacing an old wastewater treatment plant at substantial
cost. Here, Plaintiffs had the opportunity before the district
court at summary judgment to offer proof that the challenged
practices were likely to continue, but failed to meet their
burden under Rule 56.
Finally, the record also reflects that, in this case, it is the
machinations of the citizen-plaintiffs, and not the defendant
polluter, that appear to undermine the purposes and goals of
the Act. Had Plaintiffs been truly compelled to commence
litigation because of federal or state reluctance to solve a
serious environmental problem, they would certainly have
done so at least by 1998, when they filed suit in state court.
Instead, they waited until the final chapter of the state agency
proceedings to bring a CWA claim. The only plausible
explanation for the timing of their federal suit is the
possibility of reasonable costs and attorney fees. Indeed, at
oral argument, counsel for Plaintiffs openly admitted that they
were primarily interested in expert costs and attorney fees.
However, because Plaintiffs never had a valid claim for civil
penalties or injunctive relief, they cannot in any way be
considered the “prevailing or substantially prevailing party,”
see 33 U.S.C. § 1365(d), attorney fees are not warranted in
this case.6

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 23
B. RCRA Claim
Plaintiffs also argue that the district court erred in
dismissing their RCRA claim. The district court concluded
that dismissal was warranted because the relief available
under the RCRA is no different than that available under the
CWA.
Under 42 U.S.C. § 6972 of the RCRA, citizens are
authorized to bring suit in substantially the same capacity as
provided for in the CWA. 42 U.S.C. § 6972 (2001).
Likewise, the relief available under § 6972 of the RCRA is
virtually identical to that available under the CWA, i.e.,
injunctive relief, civil penalties, and attorney fees. See 42
U.S.C. § 6928(a). The RCRA, like the CWA, does not
provide for compensatory damages. See Mehrig v. KFC
Western, Inc., 516 U.S. 479 (1996) (holding that RCRA does
not authorize private cause of action to recover prior cost of
cleaning up toxic waste); Walls v. Waste Res. Corp., 761 F.2d
311, 316 (6th Cir. 1985). Thus, the district court did not err
in dismissing the RCRA claim.
III. Conclusion
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
24 Ailor, et al. v. City of Maynardville, TN No. 01-6562
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
R. GUY COLE, JR., Circuit Judge, concurring in part and
dissenting in part.
In holding that Lynch’s suit is moot, the majority overlooks
evidence in the record that establishes the existence of a
genuine issue of material fact on whether the City has
demonstrated that its alleged violations will not recur. The
City must satisfy “the formidable burden of showing that it is
absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (emphasis
added). No doubt the City has demonstrated significant
improvement in its wastewater treatment, but mere significant
improvement falls short of the “absolutely clear” showing that
the Supreme Court requires.
Indeed, in November 2001—nearly six months after suit
was filed and after the City had completed both Phases I and
II of the state’s order—the state warned of the new plant’s
“very limited digester capacity.” Although the state
“underst[ood] that there are plans to convert the old final
clarifies to digesters,” this sheds no light on whether and
when the plans would be implemented and exactly what those
plans would entail—let alone that they would be successful.
An undefined probability that current plant deficiencies may
be cured in the future falls short of the City’s burden under
Friends of the Earth. And the state similarly expressed its
“concern . . . about the status of the [City’s] collection system
rehabilitation program.”
The majority relies heavily on the fact that the last violation
took place in May 2001. But summary judgment was granted
to the City only six months later. Given the City’s years of
chronic violations, this period of compliance is fairly brief,

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No. 01-6562 Ailor, et al. v. City of Maynardville, TN 25
and its significance is further undermined by the state’s
November report, which noted that “during the winter and
spring . . . the flows may be much higher.” The continued
deficiencies in the City’s facility, combined with the
possibility of increased flows in the winter and spring, made
premature a finding—based on only six months of
compliance during the summer and fall—that the City had
made it “absolutely clear” that all the problems had passed.
Nor does the state’s determination that the City is in
“substantial compliance” with its obligations necessarily
shield the City from this suit. Our decision in Jones v. City of
Lakeland, 224 F.3d 518, 524 (6th Cir. 2000) (en banc), made
it clear that a seal of approval from the state of Tennessee
does not automatically close the courthouse door for private
individuals seeking to enforce federal clean-water statutes.
We noted that in the Tennessee proceedings, “the plaintiffs
and other similarly affected citizens are, at the discretion of
the TDEC, denied access to both the courts and to a
meaningful opportunity to participate at significant stages of
the administrative decision-making process, to adequately
safeguard their legitimate interests as mandated by the Clean
Water Act.” Id. at 522. We would not be faithful to City of
Lakeland if the state’s determination of “substantial
compliance” required us to overlook the abovementioned
evidence that the City’s plant might still produce NPDES
violations.
Finally, I disagree with the majority’s emphasis on the
plaintiffs’ pursuit of attorneys’ fees. It is unsurprising that
Lynch’s lawyer is interested in these fees—the whole purpose
of fee-shifting statutes is to encourage attorneys to take cases
that would otherwise be financially undesirable. That counsel
is interested in compensation for his services does little to
disparage the motivations of his client, Lynch, who seems
reasonably to believe that the continued threat of prohibited
toxic waste in his drinking water—even after the new plant
was up and running—merits the intervention of the courts.
26 Ailor, et al. v. City of Maynardville, TN No. 01-6562
Although I believe that Lynch should be allowed to proceed
to trial, I concur with the majority’s dismissal of the suit by
Ailor on grounds of standing. As for the balance of the
majority’s decision, I respectfully dissent.

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