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

                            1
No. 01-6562 Ailor, et al. v. City of Maynardville, TN         3    4       Ailor, et al. v. City of Maynardville, TN No. 01-6562

Pollution Discharge Elimination System (“NPDES”) permits.          and/or 33 U.S.C. § 1319(g)(6). Lakeland, 224 F.3d at 524.
33 U.S.C. § 1342. Permit holders are subject to state and          Lakeland also held that a proceeding before the Tennessee
federal enforcement actions, as well as suits by private           Department of Environment and Conservation (“TDEC”) is
citizens. See 33 U.S.C. §§ 1319 (“State enforcement,               not “court enforcement” for purposes of §§ 1319(a) and
compliance orders”) and 1365 (“Citizen suits”).                    1365(b). Id. at 521-22.
   The CWA’s citizen’s suit provision permits any individual                                          B. Facts
who has an interest which is or may be adversely affected to
sue to enforce any limitation established by a NPDES permit.         The City owns and operates a sewage treatment plant along
§ 1365(a) and (g). The CWA limits the remedies available to        Bull Run Creek. In the past, the treatment plant has
citizen plaintiffs to injunctive relief, the assessment of civil   overflowed, discharging raw sewage and other pollutants into
penalties, and attorney’s fees. See 33 U.S.C. § 1365(a), (d);      the creek. Plaintiff Lynch owns approximately 100 acres of
see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,      land in Union County, along Bull Run Creek, downstream
Inc., 528 U.S. 167, 175 (2000). No compensatory damages            from the plant. Plaintiff Ailor owned approximately 36 acres
are authorized under the CWA. See Middlesex County                 of land along Bull Run Creek, downstream from the plant
Sewage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 18           until approximately October of 2000. Both parties have
(1981). Furthermore, civil penalties are payable to the United     obtained drinking water from private wells located on their
States Treasury. Laidlaw, 528 U.S. at 175. The CWA also            property.
“does not permit citizen suits for wholly past violations.”
Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484                                          1. The City
U.S. 49, 64 (1987); see also Steel Co. v. Citizens for a Better
Env’t., 523 U.S. 83, 106-07 (1998) (holding that citizen             The City operates its sewage treatment plant under an
plaintiffs lack standing to seek civil penalties for wholly past   NPDES permit. Because of repeated violations of its NPDES
violations).                                                       permit in the early 1990s, the Tennessee Department of
                                                                   Environment and Conservation (“TDEC”) commenced
  Citizen suits are merely intended to supplement, not             enforcement proceedings against the City in 1993. On
supplant, enforcement by state and federal government              November 16, 1993, J.W. Luna, the Commissioner of the
agencies. Gwaltney, 484 U.S. at 60. Such agency suits trump        TDEC, issued an Order and Assessment against the City, in
the CWA’s citizen suit provision, provided that: (1) they are      which he found that “[f]rom January 1991, thru December
initiated prior to the commencement of a citizen’s suit,           1992, the [City’s] self monitoring information revealed the
§ 1319(g)(A)(i); (2) are diligently prosecuted, id.; and (3) are   following NPDES permit violations”:
brought in a court of the United States or any State court.
§ 1365(b)(1)(B). See generally Jones v. City of Lakeland, 224          Biochemical Oxygen Demand . . . . 99 violations
F.3d 518 (6th Cir. 2000) (en banc). Likewise, where a “State           Total Suspended Solids . . . . . . . . . . 4 violations
has commenced and is diligently prosecuting an action under            Ammonia . . . . . . . . . . . . . . . . . . . . 27 violations
a State law comparable to” the CWA, citizen suits are                  Fecal Coliform . . . . . . . . . . . . . . . . 9 violations
precluded. § 1319(g)(6)(A)(ii). However, in Lakeland, this             Chlorine . . . . . . . . . . . . . . . . . . . . . . 9 violations
Court held that an action under the Tennessee Water Quality
Control Act is not comparable to 33 U.S.C. § 1365(a)(1)(B)
No. 01-6562 Ailor, et al. v. City of Maynardville, TN     5    6        Ailor, et al. v. City of Maynardville, TN No. 01-6562

The Commissioner also found that the City failed to submit     Action “shall become final and not subject to review” unless
an Industrial User Survey to the Tennessee Division of Water   a timely written petition for a hearing were filed with the
Pollution Control within one hundred twenty (120) days after   Tennessee Water Quality Control Board.
the NPDES permit was issued.
                                                                 Thereafter, through hearings and meetings between the
   The Commissioner found that “[b]y discharging wastewater    Board and the City, an Agreed Order (“Order”) was entered
effluent from the plant in violation of the terms and          on July 18, 1995, assessing a civil penalty against the City
conditions of the NPDES permit,” the City had violated         and requiring it to develop and implement a corrective action
TENN. CODE ANN . § 69-3-108(b)(3) and (6), which makes it      plan to bring its plant into compliance with the NPDES
unlawful to discharge any wastes in excess of the amount       permit.3 The Board adopted the facts and conclusions of law
allowed by the permit. The Order further found that, by        set forth in the Commissioner’s Order and Assessment.
failing to submit an Industrial User Survey, the City had
violated TENN. CODE ANN . § 69-3-114(b) (2003). The Order          The Order required the City to do the following:
and Assessment therefore required the City to do the
following:                                                         1. [S]ubmit to the Division (Knoxville Field Office) for
                                                                   approval, on or before the 1st day of May, 1996, a
  1.   The Respondent [the City] shall initiate a                  corrective action plan that addresses at a minimum the
       continuous collection system rehabilitation                 following:
       program within sixty (60) days of entry of this               (a) A review of “Mini-Systems”;
       Order.                                                        (b) Smoke Testing for a representative portion of the
                                                                     collection systems;
  2.   The Respondent shall submit a complete                        (c) Dry weather flow measurements;
       Industrial User Survey to the Tennessee                       (d) A physical survey of the systems; and
       Division of Water Pollution Control within                    (e) Wet weather flow monitoring;
       ninety (90) days of entry of this Order.
                                                                   2. [S]ubmit to the Division (Knoxville Field Office) for
  3.   The Respondent shall bring the plant into                   approval, within sixty (60) days of approval of the
       compliance with the Act and NPDES permit                    corrective action plan, an engineering report that
       #TN0022870 within ninety (90) days of entry                 evaluates the current hydraulic and organic loading at the
       of this Order.                                              wastewater treatment plant and recommends alternatives
                                                                   for additional treatment capacity including a time
  4.   The Respondent shall pay a Civil Penalty to the             schedule for completion of treatment plant expansion.
       Department, hereby assessed in the amount of
       TWENTY FIVE THOUSAND DOLLARS
       ($25,000.00), to be paid [in various                         3
                                                                     The Agreed Order stated that the “cause came to be heard before a
       increments].                                            quorum of the Water Quality Control Board upon the Commissioner’s
                                                               Order and Assessment dated Novemb er 16, 1993, directed to the
  The Order and Assessment indicated that, pursuant to         Resp ondent, Town of Maynardville, the Respondent’s appeal and the joint
TENN. CODE ANN . § 69-3-109 (a)(3), an Order for Corrective    motion of the parties,” and that “the Board approved their settlement of
                                                               this matter as embodied herein.”
No. 01-6562 Ailor, et al. v. City of Maynardville, TN          7   8       Ailor, et al. v. City of Maynardville, TN No. 01-6562

  3. [W]ithin one hundred eighty (180) days of approval            Lynch and Ailor again filed suit against the City, this time in
  of the engineering report, submit to the Division                federal court, under the CWA, the RCRA, and state law. The
  (Knoxville Field Office) for approval plans and                  complaint alleged that the City’s sewage treatment plant
  specifications for the expansion of the wastewater               “frequently overflows, thereby discharging untreated sewage
  treatment plant and correction of inflow and infiltration.       and other pollutants into Bull Run Creek,” and that “[t]his
                                                                   frequent discharge of raw sewage, and other pollutants, past
  4. [I]mplement and complete all remedial activities set          and present, has caused Plaintiffs serious bodily injury and
  forth in the above approved plans and specifications in          loss of value in Plaintiffs’ property.” Plaintiffs sought
  accordance with those time schedules (included and as            remedial relief, compensatory damages, punitive damages,
  approved by the Division) but in no event any later than         and litigation costs, including reasonable attorney’s fees.4
  thirty-six (36) months from the approval of such plans
  and specifications.                                                               3. District Court Proceedings
The order further assessed a civil penalty against the City in        On September 10, 2001, the City moved for summary
the amount of $18,750, of which $16,875 was to be paid only        judgment. The City argued that summary judgment was
if the City failed to comply with the Order. The City paid         appropriate because the City was the subject of an
$1,875 to the TDEC on July 18, 1995.                               enforcement action commenced by the State which was being
                                                                   diligently prosecuted under 33 U.S.C. § 1319(g)(6)(A)(ii).
  The Order also stated that the Division reserved the right to    Furthermore, the City asserted that it had complied with the
request modifications to the “corrective action report,            terms of the corrective action. In support, the City attached
engineering report, plans and specifications and/or any time       several affidavits. The City Recorder, Hazel Gillenwater,
schedules encompassed therein as deemed necessary by the           attested that, as of September 6, 2001, the City was operating
Director to achieve compliance with the Act.”                      within the NPDES permit. John West, an environmental
  The City completed all of the required actions under the
Order and placed the new wastewater treatment plant on line            4
in November, 2000, and received the final inspection report              Spe cifically, in their prayer for relief, Plaintiffs requested the
on February 26, 20015. The City spent approximately 1.7            following:
million dollars in upgrading the plant.                                     WHEREFORE, Plaintiffs sue Defendants for an Order
                                                                       compelling Defendants to provide remedial relief for all harm
                         2. Plaintiffs                                 done to Plaintiffs’ prop erty as a resu lt of the acts alleged herein,
                                                                       compensatory damages in an amount not to exceed $750,000,
  On January 30, 1998, Lynch and Ailor filed suit against the          punitive damages in an amount not to exceed $50 0,00 0, the costs
City in state court, seeking compensatory damages under                of this litigation pursuant to 33 U.S.C. § 1365 (d) and 42 U.S.C.
                                                                       § 6972(e), including reasonable attorney’s fees and all further
several theories of state law. On February 7, 2001, two and            and general relief to which Plaintiffs are entitled . Plaintiffs
one-half months after the City’s wastewater treatment plant            dem and a trial by jury.
was in full operation, Plaintiffs gave the City notice of a
pending lawsuit, as required under the CWA and RCRA. See
33 U.S.C. § 1365(b); 42 U.S.C. § 6972(b). On May 16, 2001,
No. 01-6562 Ailor, et al. v. City of Maynardville, TN         9   10    Ailor, et al. v. City of Maynardville, TN No. 01-6562

specialist for TDEC, stated in his affidavit that he had the      Plaintiffs also did not assert, let alone offer proof, that the
responsibility for monitoring, compliance, and enforcement        City was in violation of the NPDES permit as of May 2001 or
of the City’s wastewater treatment facilities and NPDES           September 2001.
permit. West stated that “[t]he City substantially complied
with all aspects of the Order such that no further penalty          In its reply to Plaintiffs’ response to the motion for
payments were necessary. Finally, he stated that as of            summary judgment, filed on October 3, 2001, the City
September 7, 2001, “[r]ecent inspections revealed that the        asserted that from the time of the enforcement action taken by
City is operating its Wastewater Treatment Plan and               the TDEC, the City had “moved expeditiously to remedy the
Collection System in substantial compliance with the laws         deficiencies in its plant.” The City reiterated that its
relative to its operation of the Wastewater Treatment Plant
and is meeting the effluent standards specified by the NPDES        new waste water treatment plant was completed and
permit.” In his affidavit, Arthur S. Baker, a professional          waste water treatment plant operations began on
engineer employed by Lamar Dunn & Associates, Inc., the             November 20, 2000. Phase I of the City’s Waste Water
City’s consulting engineers, stated that as of September 6,         Collection Rehabilitation was completed on January 25,
2001, the City had “completed the necessary improvements            2001 and the City’s Phase 2 Waste Water Collection
to its Wastewater Treatment Plant and the replacement and           System Rehabilitation was completed on May 31, 2001.
rehabilitation of Phase I and Phase II of its Wastewater            . . . The new plant has been operating for more than ten
Collection System.”                                                 (10) months with no discharges in violation of its
                                                                    NPDES permit.
  The City also asserted that Plaintiffs’ complaint should be
dismissed because they sought recovery of compensatory or         The reply brief also stated that
punitive damages, which are not available under the CWA.
                                                                    [t]hroughout the process of the state of Tennessee’s
  In their response to the City’s motion for summary                Enforcement Action, it has been abundantly clear that the
judgment, Plaintiffs did not provide any evidence to                problem which the City faced in its operation of its
controvert the City’s assertion that it had completed its           wastewater treatment was due primarily to an old plant
obligations under the Order. Rather, Plaintiffs alleged in          which was no longer able to satisfactorily treat the
relevant part as follows:                                           wastewater being generated by a growing population.
                                                                    Once the City’s new wastewater treatment plant
  The plaintiffs claim that they have suffered property             commenced operation, its discharges have met its
  damages and personal injuries as a result of the                  NPDES permit.”
  defendant’s actions. Compl. ¶ 11. In addition, if the
  plaintiffs prevail in this action, they are entitled to         The City therefore asserted that, as demonstrated by the
  recover their reasonable attorneys’ fees and litigation         affidavit of the TDEC representative, the case was moot
  costs, including environmental testing and expert witness       based upon events subsequent to November 20, 2000.
  fees, all of which are typically substantial in
  environmental cases. 33 U.S.C. § 1365(d).                         Significantly, the City also stated that its discharge from its
                                                                  wastewater treatment plant had substantially met its NPDES
                                                                  permit with no violations for the past four months, and only
No. 01-6562 Ailor, et al. v. City of Maynardville, TN         11    12    Ailor, et al. v. City of Maynardville, TN No. 01-6562

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

(Emphasis Added.)                                                     Plaintiffs filed this timely appeal, claiming that the City did
                                                                    not carry its “heavy burden” required to establish mootness,
  The court further observed that the RCRA would not “give          and that their RCRA claim was improperly dismissed.
the plaintiffs any right or remedy not available under the
CWA.” The district court declined to exercise jurisdiction
over supplemental state law claims which were “appended
No. 01-6562 Ailor, et al. v. City of Maynardville, TN         13    14    Ailor, et al. v. City of Maynardville, TN No. 01-6562

                         II. Analysis                                                         1. Standing
   We review the district court’s grant of summary judgment            “[S]tanding concerns only whether a plaintiff has a viable
de novo. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888,          claim that a defendant’s unlawful conduct ‘was occurring at
892 (6th Cir. 2003) (citations omitted). Summary judgment           the time the complaint was filed.’” Cleveland Branch,
is proper when there is no dispute as to a material issue of fact   NAACP v. City of Parma, Ohio, 263 F.3d 513, 525 (6th Cir.
and the moving party is entitled to judgment as a matter of         2001), cert. denied, 535 U.S. 971 (2002) (quoting Laidlaw,
law. Fed. R. Civ. P. 56(c).                                         528 U.S. at 184). “The Supreme Court has consistently held
                                                                    that jurisdiction is tested by the facts as they existed when the
                       A. CWA Claim                                 action [was] brought and that after vesting, it cannot be ousted
                                                                    by subsequent events.” Id. at 524. To establish initial
   Plaintiffs argue that the district court erred in granting the   standing to bring suit, a plaintiff must demonstrate (1) he or
City’s motion for summary judgment on the grounds that              she has suffered an “injury in fact” that is (a) concrete and
Plaintiffs’ CWA claims were moot. Plaintiffs submit that the        particularized and (b) actual or imminent, as opposed to
City did not carry its “heavy burden” of persuading the court       conjectural or hypothetical; (2) the injury is fairly traceable to
that further violations of the NPDES are not likely to recur, as    the defendant’s challenged action; and (3) it is likely, not
required by Laidlaw. Laidlaw holds that a defendant’s               speculative, that the injury will be redressed by a favorable
voluntary cessation of a challenged practice does not               decision. Id. at 523-24 (citing Lujan v. Defenders of Wildlife,
ordinarily moot a case. Laidlaw, 528 U.S. at 189 (citation          504 U.S. 555, 560-61 (1992)).
omitted). In other words, voluntary cessation of the
challenged conduct does not ordinarily moot a case unless             Mootness addresses whether the plaintiff continues to have
“subsequent events ma[ke] it absolutely clear that the              an interest in the outcome of the litigation. City of Parma,
allegedly wrongful behavior could not be reasonably expected        263 F.3d at 525. “[A] case is moot when the issues presented
to recur.” Id. (internal quotation marks omitted). The              are no longer ‘live’ or the parties lack a legally cognizable
“heavy burden” of establishing that the challenged conduct          interest in the outcome.” Powell v. McCormack, 395 U.S.
cannot reasonably be expected to start up again lies with the       486, 496 (1969). In other words, “[i]f events that occur
party asserting mootness. Id.                                       subsequent to the filing of a lawsuit or an appeal deprive the
                                                                    court of the ability to give meaningful relief, then the case is
  As noted above, the district court held that Plaintiffs’ CWA      moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F.3d
claim was “moot [at the time of summary judgment] and               1330, 1336 (11th Cir. 2001).
moot at the time it was filed.” Although the district court
characterized it as mootness, the latter half of the district         As the district court implicitly recognized, this case raises
court’s statement implicates standing. See id. at 191               both standing and mootness concerns. See generally Laidlaw,
(discussing distinctions between standing and mootness). We         528 U.S. at 180-92 (discussing distinctions between the two
therefore begin our analysis with standing.                         doctrines). By the time Plaintiffs gave notice of intent to sue
                                                                    in February 2001 and filed suit sixty days later on May 16,
                                                                    2001, the State of Tennessee had already procured the relief
                                                                    Plaintiffs sought in their complaint, namely remedial efforts
                                                                    to stop violations of the NPDES permit. In fact, by the time
No. 01-6562 Ailor, et al. v. City of Maynardville, TN                    15     16   Ailor, et al. v. City of Maynardville, TN No. 01-6562

of Plaintiffs’ suit, the State of Tennessee had already been at                 upgraded its wastewater treatment system, and the last
the task for approximately seven years, beginning with the                      reported TKN violation occurred on May 15, 1984. Id.
Commissioner’s Order and Assessment on November 16,
1993. By the time of Plaintiffs’ federal action, per orders of                     The respondents, two environmental groups, sent notice in
the State of Tennessee, the City had installed and made                         February 1984 to the company, the EPA, and the Virginia
operational a new wastewater treatment plant, at a cost of                      Board of their intent to file a citizen suit under the CWA
over $1 million, to bring it into compliance with its NPDES                     based on the company’s violations of its permit conditions.
permit. Thus, by the time Plaintiffs’ suit was initiated,                       Id. The respondents filed suit in June 1984. Id. The
Plaintiffs essentially no longer had an “injury in fact” that                   company moved to dismiss for lack of subject matter
was “actual or imminent.” But for the fortuity of four minor                    jurisdiction under the Act, arguing that the language of
discharges in February, March, and May of 2001, Lynch                           § 505(a) [33 U.S.C. § 1365(a)], which allows private citizens
clearly lacked standing,5 because the relief requested in the                   to bring suit against any person “alleged to be in violation” of
complaint was by that time for wholly past violations.                          the Act, required the defendant to be violating the Act as of
                                                                                the time of suit. Id. at 54-55. The company contended that,
  The district court’s sense that Plaintiffs’ standing was                      because its last recorded violation occurred several weeks
problematic is bolstered by comparison with the Supreme                         before the respondents filed their complaint, the district court
Court’s decision in Gwaltney. In that case, the Virginia State                  lacked jurisdiction over the action. Id. at 55.
Water Control Board issued a NPDES permit to the petitioner
Gwaltney of Smithfield, Ltd., in 1974 authorizing Gwaltney                        The Supreme Court agreed, holding that “[t]he most natural
to discharge seven pollutants, including fecal coliform,                        reading of ‘to be in violation’ is a requirement that citizen-
chlorine, and total Kjeldahl nitrogen (TKN), from the                           plaintiffs allege a state of either continuous or intermittent
company’s meat-packing plant on the Pagan River in                              violation–that is, a reasonable likelihood that a past polluter
Smithfield, Virginia. Id. at 53. Between 1981and 1984, the                      will continue to pollute in the future.” Id. at 57. The Court
company repeatedly violated the conditions of the permit by                     observed that “the pervasive use of the present tense
exceeding effluent limitations on five of the seven covered                     throughout § 505,” especially in the definition of “citizen” as
pollutants. Id. In March 1982, the company installed new                        “‘a person . . . having an interest which is or may be adversely
equipment to improve its chlorination system, and the last                      affected’ by the defendant’s violations of the Act,” id. at 59
reported chlorine violation occurred in October 1982. Id.                       (quoting § 1365(g)), made plain that “the harm sought to be
The new chlorination system also helped control the                             addressed by the citizen suit lies in the present or future, not
discharge of fecal coliform, the last of which occurred in                      in the past.” Id. The Court reasoned in relevant part:
February 1984. Id. at 54. In October 1983, the company
                                                                                    Any other conclusion would render incomprehensible
                                                                                  § 505's notice provision, which requires citizens to give
                                                                                  60 days’ notice of their intent to sue to the alleged
                                                                                  violator as well as to the Administrator and the State.
    5                                                                             § 1365(b)(1)(A). If the Administrator or the State
      Ailor, in any event, clearly lack ed stan ding. The com plaint reflects
that he did not own the property at the time the federal complaint was            commences enforcement action within that 60-day
filed. He no longer had an “injury in fact” that is fairly red ressab le by a     period, the citizen suit is barred, presumably because
favorable decision since the CWA “does not permit citizen suits for               governmental action has rendered it unnecessary.
wholly past violations.” Gwaltney, 484 U.S. at 64.
No. 01-6562 Ailor, et al. v. City of Maynardville, TN         17   18   Ailor, et al. v. City of Maynardville, TN No. 01-6562

  § 1365(b)(1)(B). It follows logically that the purpose of          same might be said of the discretion of state enforcement
  notice to the alleged violator is to give it an opportunity        authorities. Respondents’ interpretation of the scope of
  to bring itself into complete compliance with the Act and          the citizen suit would change the nature of the citizens’
  thus likewise render unnecessary a citizen suit. If we             role from interstitial to potentially intrusive. We cannot
  assume, as respondents urge, that citizen suits may target         agree that Congress intended such a result.
  wholly past violations, the requirement of notice to the
  alleged violator becomes gratuitous.                             Id. at 60-61.

Id. at 59-60. The Court further observed that                         Notwithstanding its conclusion that § 505 does not permit
                                                                   citizen suits for wholly past violations, the Supreme Court
     Adopting respondents’ interpretation of § 505's               remanded for further proceedings, because the respondents
  jurisdictional grant would create a second and even more         had also alleged in their complaint that the company was
  disturbing anomaly. The bar on citizen suits when                continuing to violate its NPDES permit when they filed suit.
  government enforcement action is under way suggests              Id. at 64. The Supreme Court concluded that § 505 confers
  that the citizen suit is meant to supplement rather than to      jurisdiction over citizen suits when the citizen-plaintiffs make
  supplant governmental action. The legislative history of         a good-faith allegation of continuous or intermittent violation.
  the Act reinforces this view of the role of the citizen suit.    Id. The Court rejected the company’s argument that this
  The Senate Report noted that “[t]he Committee intends            construction of § 505 would permit citizen-plaintiffs to pursue
  the great volume of enforcement actions [to] be brought          their suits to conclusion even if their allegations of ongoing
  by the State,” and that citizen suits are proper only “if the    noncompliance became false at some later point in the
  Federal, State, and local agencies fail to exercise their        litigation because the defendant begins to comply with the
  enforcement responsibility.” S.Rep. No. 92-414, p. 64            Act, reasoning that “[l]ongstanding principles of mootness”
  (1971), reprinted in 2 A Legislative History of the Water        would prevent maintenance of suit when there was no
  Pollution Control Act Amendments of 1972, p. 1482                reasonable expectation of recurrence. Id. at 66-67.
  (1973) (hereinafter Leg. Hist.). Permitting citizen suits
  for wholly past violations of the Act could undermine the           Like the citizen-plaintiffs in Gwaltney, Plaintiffs did not
  supplementary role envisioned for the citizen suit. This         file their federal complaint until several weeks after the last
  danger is best illustrated by an example. Suppose that           recorded violation, and after the defendant polluter had
  the Administrator identified a violator of the Act and           installed new treatment systems to bring itself into
  issued a compliance order under § 309(a). Suppose                compliance with its NPDES permit. Like Gwaltney, the
  further that the Administrator agreed not to assess or           remedial efforts were not prompted by the citizen-suit; indeed
  otherwise seek civil penalties on the condition that the         the remedial actions preceded the citizen suits. In neither case
  violator take some extreme corrective action, such as to         was the citizen suit prompted by state or federal agency
  install particularly effective but expensive machinery,          inaction.
  that it otherwise would not be obliged to take. If citizens
  could file suit, months or years later, in order to seek the        Furthermore, the Supreme Court’s concern in Gwaltney that
  civil penalties that the Administrator chose to forgo, then      citizen suits for wholly past violations would undermine the
  the Administrator’s discretion to enforce the Act in the         supplementary role envisioned by Congress is equally
  public interest would be curtailed considerably. The             applicable here. By the time Plaintiffs filed their federal
No. 01-6562 Ailor, et al. v. City of Maynardville, TN         19    20    Ailor, et al. v. City of Maynardville, TN No. 01-6562

action, the Board and the City had not only entered into, but       further noted, the mootness doctrine evens out the playing
enforced, an Order requiring the City to implement a                field. See id. at 66.
corrective action plan to bring it into compliance with the
CWA, and the City had expended over a $1 million to that                                     2. Mootness
end. By the terms of the Order, the Board had agreed to
forgo “civil penalties on the condition that the violator [the         As the district court observed in its order granting summary
City] take some extreme corrective action, such as to install       judgment, “[i]t is undisputed that the expansion of the
particularly effective but expensive machinery, that it             treatment plant has remedied the overflow problem, since
otherwise would not be obliged to take.” Gwaltney, 484 U.S.         there is no evidence that any overflow has occurred since
at 61. Thus, the true nature of Plaintiffs’ suit in this case was   November 2000.” The only overflows, which came to light
not “interstitial” but “potentially intrusive” because the State    because of the City’s self-reporting, involved two manholes
had not “failed to exercise [its] enforcement responsibility.”      on Main Street, not into Bull Run Creek. Plaintiffs’
Id. at 60. In short, all of the concerns expressed in Gwaltney      complaint alleges violations pertaining to only Bull Run
are present in this case, and point to the conclusion that, given   Creek.
the unique facts of this case, Plaintiffs in essence lacked
standing to file suit.                                                 Furthermore, although the City’s discharge from its
                                                                    wastewater treatment plant exceeded its NPDES permit limits
   At the same time, Gwaltney also recognized that standing         in February, March, and May 2001, shortly after the new
is conferred by good faith allegations of continuous or             wastewater system began operating, Defendants established
intermittent violations. Id. at 64. We must therefore examine       that as of the time of summary judgment in November 2001,
the complaint. As noted above, the complaint alleged that the       the City was in compliance with the NPDES permit. The
City’s frequent discharges of pollutants “past and present . . .    City presented undisputed evidence from both the City
caused Plaintiffs serious bodily injury and loss of value in        Recorder, Hazel Gillenwater, and an environmental specialist
Plaintiffs’ property.” As relief, the complaint sought merely       for TDEC, John West, that the City had remedied the
“an Order compelling Defendants to provide remedial relief          deficiencies in the operation of its wastewater treatment plant.
for all harm done as a result of the acts alleged herein,           In short, the City met its “heavy burden” of demonstrating
compensatory damages . . . , punitive damages . . ., the costs      that the alleged violations were not likely to recur, since they
of this litigation . . . , and all further and general relief to    were largely caused by an outdated wastewater treatment
which Plaintiffs are entitled.” It is arguable whether Plaintiffs   plant, which had been replaced by the time Plaintiffs filed
properly alleged continuing violations. Cf. Gwaltney, 484           their federal action. At the same time, Plaintiffs have not met
U.S. at 64 (holding that the plaintiffs’ complaint satisfied the    their burden as the nonmoving party on summary judgment
jurisdictional requirements of § 505 and conferred standing         of establishing a realistic prospect that the violations alleged
because their complaint alleged in good faith that “Gwaltney        in the complaint would continue, having presented no
was continuing to violate its NPDES permit when plaintiffs          evidence to demonstrate recurrence. Cf. Comfort Lake Ass’n.
filed suit”). Although “slim,” we nonetheless can give Lynch        v. Dresel Contracting, Inc., 138 F.3d 351, 355 (8th Cir.1998)
the benefit of the doubt and assume standing. See Arizonans         (holding that citizen plaintiffs offered no evidence to
for Official English v. Arizona, 520 U.S. 43, 66-67 (1997)          contradict stipulation agreement to the effect that defendant
(holding that a court assumes without deciding that standing        store construction was complete and NPDES permit had been
exists in order to analyze mootness). As the Gwaltney Court         terminated; stating that the plaintiff had therefore not met “its
No. 01-6562 Ailor, et al. v. City of Maynardville, TN        21    22       Ailor, et al. v. City of Maynardville, TN No. 01-6562

burden to rebut the factual underpinnings of a well-supported      The record reflects that, at the State’s prompting, the City
motion for summary judgment”). In short, as the district           had, by the time of summary judgment, actually met its
court held, even if Lynch could survive the standing               permit obligations by remedying the underlying problem,
challenge, the case is moot, because the injuries suffered in      replacing an old wastewater treatment plant at substantial
the complaint had been remedied by events subsequent to the        cost. Here, Plaintiffs had the opportunity before the district
filing of the lawsuit, with no showing of a reasonable             court at summary judgment to offer proof that the challenged
likelihood of recurrence.                                          practices were likely to continue, but failed to meet their
                                                                   burden under Rule 56.
   Laidlaw is distinguishable. In Laidlaw, environmental
groups brought suit against the holder of a NPDES permit,             Finally, the record also reflects that, in this case, it is the
alleging violation of mercury discharge limits and seeking         machinations of the citizen-plaintiffs, and not the defendant
declaratory and injunctive relief. Laidlaw, 528 U.S. at 175-       polluter, that appear to undermine the purposes and goals of
76. The Supreme Court held that the action would not be            the Act. Had Plaintiffs been truly compelled to commence
rendered moot by the company’s compliance with its permit          litigation because of federal or state reluctance to solve a
limits, or its closure of the challenged facility, absent a        serious environmental problem, they would certainly have
showing that either event made it absolutely clear that the        done so at least by 1998, when they filed suit in state court.
permit violations could not reasonably be expected to recur,       Instead, they waited until the final chapter of the state agency
and remanded the case to the district court for further            proceedings to bring a CWA claim. The only plausible
proceedings. Id. at 193.                                           explanation for the timing of their federal suit is the
                                                                   possibility of reasonable costs and attorney fees. Indeed, at
   However, in Laidlaw, in contrast with this case, the citizen    oral argument, counsel for Plaintiffs openly admitted that they
suit was instituted prior to any action by a state agency, and     were primarily interested in expert costs and attorney fees.
thus was truly supplementary. Id. at 175-77. Further, in           However, because Plaintiffs never had a valid claim for civil
Laidlaw, the defendant company’s lawyer reached a                  penalties or injunctive relief, they cannot in any way be
settlement with the state environmental agency on the last day     considered the “prevailing or substantially prevailing party,”
before the 60-day notice period expired, so as to prevent the      see 33 U.S.C. § 1365(d), attorney fees are not warranted in
citizen suit, and the agreement required merely that the           this case.6
company pay $100,000 in civil penalties and make “every
effort” to comply with its permit obligations. Id. at 177.
Thus, in Laidlaw, there was a genuine concern that the                  6
                                                                         In Buckhann on B d. & Care H ome v. West Virginia D ep’t o f Hea lth
defendant might be “free to return to its old ways” if the court   & Hum an Servs., 532 U.S. 598 (2001), the Sup reme Court held th at the
were to find the claim moot based on the defendant’s               fee-shifting provisions o f the Fair Housing Amend ments Act and the
voluntary cessation of the challenged practice. Id. at 189.        Americans W ith Disabilities Ac t require a pa rty to secure either a
                                                                   judgment on the merits or a court-ordered consent decree in order to
Here, although the City was not subject to a court order, its      qualify as a “prevailing party” for purposes of attorney fees, rejecting the
conduct was certainly not “voluntary” in the same sense as         catalyst theory. It is an open question whether the catalyst theory remains
the defendant polluter in Laidlaw.                                 viable in the context of environmental statutes like the C W A that limit
                                                                   attorneys’ fees to a prevailing party or substantia lly prevailing party. See
  In this case, the record establishes that Plaintiffs were not    Marisa L. Ugalde, The Future of Environmental Citizen Suits After
compelled to file suit because of federal and state inaction.      Buckhannon Board & Care Home, Inc. v. West Virginia Department of
                                                                   Health & Human Resources, 8 E NVTL .L AW . 589, 614 (2002).
No. 01-6562 Ailor, et al. v. City of Maynardville, TN        23    24    Ailor, et al. v. City of Maynardville, TN No. 01-6562

                      B. RCRA Claim                                 ______________________________________________
  Plaintiffs also argue that the district court erred in             CONCURRING IN PART, DISSENTING IN PART
dismissing their RCRA claim. The district court concluded           ______________________________________________
that dismissal was warranted because the relief available
under the RCRA is no different than that available under the         R. GUY COLE, JR., Circuit Judge, concurring in part and
CWA.                                                               dissenting in part.

  Under 42 U.S.C. § 6972 of the RCRA, citizens are                    In holding that Lynch’s suit is moot, the majority overlooks
authorized to bring suit in substantially the same capacity as     evidence in the record that establishes the existence of a
provided for in the CWA. 42 U.S.C. § 6972 (2001).                  genuine issue of material fact on whether the City has
Likewise, the relief available under § 6972 of the RCRA is         demonstrated that its alleged violations will not recur. The
virtually identical to that available under the CWA, i.e.,         City must satisfy “the formidable burden of showing that it is
injunctive relief, civil penalties, and attorney fees. See 42      absolutely clear the allegedly wrongful behavior could not
U.S.C. § 6928(a). The RCRA, like the CWA, does not                 reasonably be expected to recur.” Friends of the Earth, Inc.
provide for compensatory damages. See Mehrig v. KFC                v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (emphasis
Western, Inc., 516 U.S. 479 (1996) (holding that RCRA does         added). No doubt the City has demonstrated significant
not authorize private cause of action to recover prior cost of     improvement in its wastewater treatment, but mere significant
cleaning up toxic waste); Walls v. Waste Res. Corp., 761 F.2d      improvement falls short of the “absolutely clear” showing that
311, 316 (6th Cir. 1985). Thus, the district court did not err     the Supreme Court requires.
in dismissing the RCRA claim.
                                                                      Indeed, in November 2001—nearly six months after suit
                       III. Conclusion                             was filed and after the City had completed both Phases I and
                                                                   II of the state’s order—the state warned of the new plant’s
   For the foregoing reasons, the judgment of the district court   “very limited digester capacity.” Although the state
is AFFIRMED.                                                       “underst[ood] that there are plans to convert the old final
                                                                   clarifies to digesters,” this sheds no light on whether and
                                                                   when the plans would be implemented and exactly what those
                                                                   plans would entail—let alone that they would be successful.
                                                                   An undefined probability that current plant deficiencies may
                                                                   be cured in the future falls short of the City’s burden under
                                                                   Friends of the Earth. And the state similarly expressed its
                                                                   “concern . . . about the status of the [City’s] collection system
                                                                   rehabilitation program.”
                                                                     The majority relies heavily on the fact that the last violation
                                                                   took place in May 2001. But summary judgment was granted
                                                                   to the City only six months later. Given the City’s years of
                                                                   chronic violations, this period of compliance is fairly brief,
No. 01-6562 Ailor, et al. v. City of Maynardville, TN        25    26   Ailor, et al. v. City of Maynardville, TN No. 01-6562

and its significance is further undermined by the state’s            Although I believe that Lynch should be allowed to proceed
November report, which noted that “during the winter and           to trial, I concur with the majority’s dismissal of the suit by
spring . . . the flows may be much higher.” The continued          Ailor on grounds of standing. As for the balance of the
deficiencies in the City’s facility, combined with the             majority’s decision, I respectfully dissent.
possibility of increased flows in the winter and spring, made
premature a finding—based on only six months of
compliance during the summer and fall—that the City had
made it “absolutely clear” that all the problems had passed.
   Nor does the state’s determination that the City is in
“substantial compliance” with its obligations necessarily
shield the City from this suit. Our decision in Jones v. City of
Lakeland, 224 F.3d 518, 524 (6th Cir. 2000) (en banc), made
it clear that a seal of approval from the state of Tennessee
does not automatically close the courthouse door for private
individuals seeking to enforce federal clean-water statutes.
We noted that in the Tennessee proceedings, “the plaintiffs
and other similarly affected citizens are, at the discretion of
the TDEC, denied access to both the courts and to a
meaningful opportunity to participate at significant stages of
the administrative decision-making process, to adequately
safeguard their legitimate interests as mandated by the Clean
Water Act.” Id. at 522. We would not be faithful to City of
Lakeland if the state’s determination of “substantial
compliance” required us to overlook the abovementioned
evidence that the City’s plant might still produce NPDES
violations.
   Finally, I disagree with the majority’s emphasis on the
plaintiffs’ pursuit of attorneys’ fees. It is unsurprising that
Lynch’s lawyer is interested in these fees—the whole purpose
of fee-shifting statutes is to encourage attorneys to take cases
that would otherwise be financially undesirable. That counsel
is interested in compensation for his services does little to
disparage the motivations of his client, Lynch, who seems
reasonably to believe that the continued threat of prohibited
toxic waste in his drinking water—even after the new plant
was up and running—merits the intervention of the courts.
