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Jones v. Lakeland, City of

ELR Citation: 31 ELR 20081
Nos. No. 97-5917, 224 F.3d 518/51 ERC 1080/(6th Cir., 08/09/2000) en banc court reached different opinion

The court reverses a district court decision dismissing riparian landowners' citizen suit action against a Tennessee city for discharging contaminated sewage, sludge, and other toxic, noxious, and hazardous substances into a creek in violation of the Clean Water Act (CWA). The district court held that the landowners' suit was precluded by CWA §§505(b) and 309(g)(6)(A) because the state environmental agency was involved in an administrative enforcement action against the city. The court first holds, however, that the landowners' suit is not barred by the state administrative action. CWA §505 precludes a citizen suit only if the U.S. Environmental Protection Agency or a state is diligently prosecuting an enforcement action in a court of the Untied States. Because the state agency does not rise to the level of a federal or state court, the instant landowners' citizen suit is not precluded by CWA §505. The court next holds that the state agency's administrative enforcement action over a 10-year period was inadequate to address the landowners' concerns. The court further holds that CWA §309(g)(6)(A) does not preclude the landowners' action because the enforcement provisions of the Tennessee Water Control Act and related statutes are not comparable to those of the CWA. Under the Tennessee statutes and at the discretion of the state environmental agency, the landowners are denied access to both the courts and to a meaningful opportunity to participate at significant stages of the administrative decisionmaking process and to adequately safeguard their legitimate interests as mandated by the CWA.

Counsel for Appellants
David A. McLaughlin
Waring & Cox
Morgan Keegan Tower
50 N. Front St., Ste. 1300, Memphis TN 38103
(901) 543-8000

Counsel for Appellee
Richard L. Winchester Jr.
The Winchester Law Firm
6060 Poplar Ave., Ste. 295, Memphis TN 38119
(901) 685-9222

Before Martin, Merritt, Boggs, Daughtrey, Moore, Cole, Clay, and Gilman, JJ., with Norris, J., dissenting, joined by Ryan, Suhrheinrich, Siler, and Batchelder, JJ.