Rudolph JONES, Jr.; Susan Jones; Tandy Jones Gilliland, Plaintiffs-Appellants, v. CITY OF LAKELAND, TENNESSEE, a Tennessee Municipal Corporation, Defendant-Appellee, 224 F.3d 518

KRUPANSKY, J., delivered the opinion of the court, in which MARTIN, C. J., MERRITT, BOGGS, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ., joined. NORRIS, J. (pp. 524-30), delivered a separate dissenting opinion, in which RYAN, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined. OPINION KRUPANSKY, Circuit Judge. Pursuant to Fed.R.CivJP. 35(a), a majority of the active judges of this court voted to rehear en banc Jones v.

City of Lakeland, 175 F.3d 410 (6th Cir.1999), an action which the United States District Court for the Western District of Tennessee had dismissed for lack of subject matter jurisdiction, and for failure of the plaintiffs’ complaint to state a claim upon which relief could be granted, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), respectively. Briefly summarized, this action was initiated by Rudolph Jones, Jr., Susan Jones, and Tandy Jones Gilliland (collectively “the plaintiffs”), as riparian land owners in fee simple along Oliver Creek.

Oliver Creek is a natural water course that traverses their real property within the City of Lakeland, Tennessee (“the City”), thereby according plaintiffs “standing” to commence a legal proceeding.

Plaintiffs seek redress against the City for its ongoing practice of discharging contaminated sewage, sludge, and other toxic, noxious, and hazardous substances into Oliver Creek, in amounts exceeding those permitted by the National Pollutant Discharge Elimination System Permit (NPDES permit) issued to it by the Division of Water Pollution Control of the State of Tennessee Division of Conservation, the predecessor agency to the Tennessee Department of Environment and Conservation (TDEC), in violation of the Water Pollution Control Act (“the Clean Water Act”), 33 U.S.C. §§ 1254-1376, and the Tennessee Water Control Act (“the Tennessee Water Act”), Tenn.Code Ann. §§ 69-3-101 to 131.

They charge that the City’s ongoing practice is seriously imperiling human health and wildlife in, about, and along the said waterway.

The plaintiffs petitioned for “injunctive relief, civil penalties, and to abate the ongoing discharge of human, toxic, and other hazardous wastes and pollutants into waters, soil and ground waters, in violation of the City of Lakeland’s National Pollution Discharge Elimination System (‘NPDES’) permit, and to compel the enforcement of the provisions of the Clean Water Act and the State Water Act.” The City responded by asserting that federal court jurisdiction over citizen enforcement actions is denied by the Clean Water Act if the Administrator of the Environmental Protection Agency, or a state, had already commenced and was diligently prosecuting an action to require compliance with a standard, limitation, or order of the Agency or the state.

The plaintiffs countered by stating that their complaint facially impugned the City’s action of issuing, but not effectively enforcing, a series of compliance orders while concurrently permitting the City to continue to discharge increasing amounts of impermissible toxic, noxious, hazardous, and health-threatening sewage and other raw waste into Oliver Creek during the ten years preceding their legal action; and that the City’s demonstrated lax enforcement did not constitute “diligent prosecution” mandated by the Clean Water Act that would preclude their suit.

Appellate review of a Fed.R.Civ.P. 12(b)(1) and/or 12(b)(6) motions is de novo. Coyne v. American Tobacco Co., 183 F.3d 488, 492 (6th Cir.1999). In the instant case, the trial court correctly observed that the City’s motion did not question the accuracy of the plaintiffs’ pleaded facts. Rather, the City argued that the alleged facts were facially insufficient to support subject matter jurisdiction because of the limiting preclusions of 33 U.S.C. §§ 1365(a,

b) and 1319(g)(6)(A). The trial court continued its reasoning by noting that' 33 U.S.C. § 1365(a), the enabling legislation which authorized citizens’ suits, directs that: Except as provided in subsection (

b) of this

section and

section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf— (1) against any person (including (

i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (

A) an effluent standard or limitation under this

chapter or (B)an order issued by the Administrator or a State with respect to such a standard or limitation. ... The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under

section 1319(

d) of this title. It appears from the record that the parties and the trial court thereafter proceeded to consider the sufficiency of the complaint within the limitation placed upon citizen enforcement actions by 33 U.S.C. § 1365(b), which provides, in part, that: No action may be commenced ... if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. and/or 33 U.S.C. § 1319(g)(6)(

A) which directs, in pertinent parts, that no action for the assessment of civil penalties can be commenced for a violation: (ii) with respect to which a State has commenced and is diligently ' prosecuting an action under a State law comparable to this subsection.... (Emphasis added). Having correctly postured the case, the district court’s analysis went astray in arriving at its disposition by misinterpreting applicable law and misconceiving legal precedent.

Initially, it elected to consider the plaintiffs’ complaint and the defendant’s motion to dismiss only within the context of 33 U.S.C. 1365(b), which required that the Administrator or State had commenced and was diligently prosecuting an action for compliance with a limitation, standard or order of the TDEC in a court of the United States, or a State.

In an effort to satisfy the dictates of the statute, the trial court committed reversible error by according the TDEC, a state administrative agency charged by the state legislature with supervising water quality, the status of a court of the United States or a State. In addressing this issue, the Second Circuit, in a well-reasoned decision in Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir.1985), ruled that: To interpret

section 505(b)(1)(B) [33 U.S.C. § 1365(b) ] to include administrative as well as judicial proceedings is in our view contrary to both the plain language of a statute and congressional intent. Congress has frequently demonstrated its ability to explicitly provide that either an administrative proceeding or a court action will preclude citizen suits. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2619(b)(1)(B) (1982); Endangered Species Act, 16 U.S.C. § 1540(g)(2) (1982); Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1415(g)(2) (1982); Hazardous and Solid Waste Amendments of 1984, Pub.

L No. 98-616, § 401(d), 98 Stat. 3221, 3269-70 (amending Solid Waste Disposal Act, 42 U.S.C. § 6972(b) (1982)). Had Congress wished to impose this broader prohibition on citizen suits under the Clean Water Act, it could easily have done so. It did not. Id. at 63. The court in Friends went on to explain and decide that: It is a “familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself.

Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Moreover, when a court finds the language of a statute to be clear and unambiguous, “judicial inquiry is complete, except in ‘rare and exceptional circumstances.’ ” Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 483, 83 L.Ed.2d 472 (1984) (quoting TVA v.

Hill, 437 U.S. 153, 187 n. 22, 98 S.Ct. 2279, 2298 n. 22, 57 L.Ed.2d 117 n. 22 (1978)); Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949); Gramaglia v. United States, 766 F.2d 88, 92 (2d Cir.1985); Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 395 (5th Cir.1985). “[Ojnly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language.” Garcia, 469 U.S. at 75, 105 S.Ct. at 482-83. Id. at 62-63.

Accordingly, this court adopts the reasoning of the Second Circuit, as expressed in Friends of the Earth v. Consolidated Rail Corp., and concludes that the plain and unambiguous language of 33 U.S.C. § 1365(

a) precludes a citizen’s suit only if the Administrator of the EPA or a State is diligently prosecuting an enforcement action in a court of the United States, or a State. Thus, since neither the State’s Water Quality Control Board, nor the TDEC, rise to the level of a Federal or State court, the instant plaintiffs’ citizen’s suit is not precluded by 33 U.S.C. § 1365(b).

Moreover, crediting as true the pleaded assertions in the complaint and construing them most favorably on behalf of the plaintiffs, as directed by the Supreme Court, this review concludes that TDEC’s administrative enforcement action over a ten-year period was inadequate to address plaintiffs’ concerns.

During this inordinately long period of administrative enforcement, TDEC: (1) permitted the City to discharge impermissible volumes of contaminated raw human sewage, sludge, and other toxic, noxious substances into Oliver Creek on an ongoing basis thereby creating significant risks to human health and wildlife in, about, and along the water course; (2) permitted the City, by an Order dated August 21, 1996, to increase the impermissible volume of contaminated raw waste water discharging into the stabilizing lagoon that feeds Oliver Creek by allowing the City to continue to make connections and/or line extensions to its wastewater collection system; (3) waived countless NPDES violation notices; (4) extended and waived the compliance deadlines of three, possibly four, of its sweetheart consent orders with the City; and (5)imposed nominal token penalties in lieu of punitive compliance incentive penalties of $10,000.00 per day authorized by the Clean Water Act, all of which conduct contradicted a level of “diligent prosecution” demanded by 33 U.S.C. § 1365(b), especially in light of the City’s ongoing impermissible pollution of Oliver Creek as late as September 30, 1996, the date this action was commenced.

The trial court’s resolution to the contrary is not convincing and clearly erroneous, and is REVERSED. As directed by 33 U.S.C. § 1365(a), this review next proceeds to determine if 33 U.S.C. § 1319(g)(A), which reads in pertinent parts as follows, precludes the plaintiffs’ action: [A]ny violation ... (ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a civil penalty action under subsection (

d) of this

section or

section 1321(

b) of this title or

section 1365 of this title. The defendant has asserted, and plaintiffs have denied, that the enforcement provisions of the TWQCA are comparable to those of the Federal Clean Water Act. Defendant posits that interested and/or adversely affected- citizens are afforded a meaningful opportunity to participate in enforcement actions for purported violations of the TWQCA, or enforcement activity pursued by the TDEC, by invoking administrative relief available pursuant to the Tennessee Open Meeting Act, Tenn. Code Ann. § 8^4-101 to 201 (1977); or before the Water Quality Board, Tenn. Code Ann. § 69-3-115(e)(2).

Recognizing that both the State and Federal acts are compatible in some respects, the court, in the instant case, must decide if the overall State regulatory scheme affords interested and/or adversely affected citizens the safeguard of a meaningful opportunity to participate in the administrative enforcement process.

An examination of the TWQCA reflects that it requires no public notice of hearings, nor does it require the State to extend third parties an opportunity to initiate or join mandatory controversial issues seeking justiciable resolution such as enforcement proceedings and consent orders similar to those unilaterally considered and approved by the TDEC. Nor does the Tennessee Open Meetings Act, TenmCode Ann. § 8-4-101 to 201 (1977), mandate procedures for public participation in an ongoing enforcement prosecution under the TWQCA by TDEC or before the Water Quality Control Board.

Thus, TDEC attempts to artfully invoke the protection of a “diligent prosecution” of an ongoing enforcement action while its unilateral discretionary authority permits it to declare citizen or public participation “duplicitous or frivolous,” Tenn.Code Ann. § 69-3-118-(a)(1), so that the plaintiffs and other similarly situated citizens can be frozen out of commencing an original action, or intervening in an ongoing State enforcement action.

The only window for redress available to the plaintiffs in the instant case, and others similarly situated, occurs in an ongoing administrative action by the TDEC before the Water Quality Control Board when Tennessee law requires that, if a consent judgment is entered between the TDEC and an offending party and filed with the chancery court, the court shall withhold final judgment for forty-five days during which adversely affected parties shall be permitted to intervene. Tenn.Code Ann. § 69-3-115(e)(2). See Jones, 175 F.3d at 416.

Needless to say, the language of Tennessee Code § 69-3-115(e)(2) presup-, poses that a final order of the TDEC has been filed with the chancery court as a condition precedent to invoking its jurisdiction. It is apparent from Tennessee public records attached to the complaint and the Affidavit of David A.

McLaughlin, an attorney for the plaintiffs, not one of the four orders issued by the TDEC and/or Water Quality Control Board, relied upon by the district court in arriving at its decision, were filed with the chancery court by the State or any of its agencies during the ten or more years of this ongoing enforcement proceeding.

Consequently, the plaintiffs and other similarly affected citizens are, at the discretion of the TDEC, denied access to both the courts and to a meaningful opportunity to participate at significant stages of the administrative decision-making process, to adequately safeguard their legitimate interests as mandated by the Clean Water Act. Accordingly, the TWQCA and related Tennessee statutes are not comparable to 33 U.S.C. § 1365(a)(1)(

b) and/or 33 U.S.C. § 1319(g)(6).

Upon the record available to the court, including the complaint and other pleadings, the joint appendix, the briefs of the parties, and the arguments of counsel, it is the decision of the en banc court that the plaintiffs’ complaint facially states a cognizable claim under which relief may be granted; that Fed.R.Civ.P. 12(b)(1) and 12(b)(6) do not bar the plaintiffs’ action; and, accordingly, the' defendant’s Rule 12(b)(1) and 12(b)(6) motions are DISMISSED, and this case is REMANDED to the trial court for further proceeding and disposition not inconsistent with this decision. .The administrative jurisdiction of TDEC over the impermissible pollution of Oliver Creek by the City, in violation of the Clean Water Act and the Tennessee Water Control Act, has the indicia of pretextual enforcement calculated to perpetuate TDEC’s ten-year oversight of the City's ongoing impermissible pollution of the watercourse, which has afforded the parties, the City, and TDEC, protection from third-party citizen-initiated litigation, evidenced by the listed substantively similar unenforced consent orders between the parties extending compliance deadlines under the guise of "diligent prosecution": 1.

Consent Order and Assessment dated May 3, 1991 with a compliance deadline of January 1, 1993, as replaced and modified by 2. Consent Order and Assessment dated July 8, 1993 with a compliance date of December 15, 1993, as replaced and modified by 3. Consent Order and Assessment dated November 18, 1994 with a compliance date of March 1, 1996, as replaced and modified by 4. Consent Order and Assessment dated August 26, 1996, with a compliance date of July 1, 1997. .

Exhibits attached to the complaint disclose that, during ten years of non-compliance, the TDEC had levied approximately $50,000.00 in various token increments of which only $18,000.00 had been collected. In contrast, approximately $1,940,000.00 in penalties could have been levied against the City for violations that occurred during the 104 days between March 29 and November 30, 1996. . The defense has referenced and relies heavily upon the fourth consent order between the City and TDEC dated August 26, 1996.

It argues that this Order reflects TDEC's good faith intention and commitment to “diligently prosecute" the City’s ongoing pollution violations. Examination of the Order discloses that it is a virtual substantive facsimile of three previous Consent Orders between the parties wherein the City has admitted its ongoing impermissible pollution of Oliver Creek, and TDEC has assessed penalties and imposed abatement compliance deadlines, which assessments have beeh wholly or partially waived, and compliance deadlines have been extended by each successive Order.

Like its three predecessors, the fourth Order has incorporated the previously included escape clause permitting the City to seek extensions of the compliance deadline mandated by the Consent Decree, and partial or total abatement of any monetary assessments that may have accrued as a result of the City's noncompliance. Defendant counsel’s representation that the August 26, 1996 Consent Order is a good faith indication of anticipated future “diligent prosecution” is less than persuasive in light of a demonstrated ten-year history of permitted ongoing violations.

Although the complaint asserts that the impermissible pollution of Oliver Creek was ongoing on September 30, 1996, the date this suit was filed, neither the pleadings, the briefs, the joint appendix, nor the arguments of counsel disclose what has occurred since that time. . "[W]hen an action is being overseen by the [Water Quality Control] Board rather than the TDEC, Tennessee’s Open Meetings Act requires that the public be allowed to attend proceedings, including meetings over final actions.” Tenn.Code Ann. § 8-44-101-201 (1997) (emphasis added).

Compliance with said sections is also vested in the chancery courts. Public attendance is, however, limited to commentary, without an opportunity to present issues in an adversary fashion for mandatory resolution. These sections provide no justiciable relief for these plaintiffs. . The record of these proceedings as presently constituted does not disclose any evidence that the City of Lakeland has discontinued its discharge of impermissible volumes of contaminated raw human sewage and other toxic and hazardous substances into Oliver Creek.

The dissent is correct in observing that during oral argument, legal counsel for the adversary parties alluded, in vague general terms, to the construction and operation of a waste water treatment facility located on a different wafer course and which became operational sometime during 1997. Counsel for the Plaintiffs questioned the capability of the facility to accommodate the volume of hazardous effluent discharged into Oliver Creek over a long term. Accordingly, the district court is ordered upon remand to explore with greater specificity the issue of mootness.