Cox v. Franklin County Board of Commissioners

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jeffery Cox,

Case No. 2:18-cv-1631

Plaintiff,

v. Judge Graham

Board of County Commissioners Magistrate Judge Jolson

of Franklin County, Ohio,

Defendants.

Opinion and Order

Plaintiff Jeffery Cox brings this citizen suit under the Clean Water Act, 33 U.S.C. § 1365,

against Defendant Board of County Commissioners of Franklin County, Ohio. Cox alleges that there

are ongoing illegal discharges into the municipal separate storm sewer system and this has created

water quality problems in numerous waterways in Franklin County. Cox alleges that due to these

discharges and the County’s failure to remedy them, the County is in violation of the CWA, Ohio law

and the National Pollutant Discharge Elimination System Permit (“NPDES Permit”) issued to the

County.

This matter is before the Court on the County’s motion to dismiss. The motion is threefold,

raising challenges relating to subject matter jurisdiction, standing and the statute of limitations. For

the reasons set forth below, the motion is largely denied.

I. Background

Congress enacted the Clean Water Act for the purpose of “restor[ing] and maintain[ing] the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Act

prohibits “‘the discharge of any pollutant by any person’ unless done in compliance with some

provision of the Act.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102 (2004) (quoting

33 U.S.C. § 1311(a)). The Act authorizes the issuance of NPDES permits which “place limits on the

type and quantity of pollutants that can be released into the Nation’s waters.” Id. “Additionally,

permit-holders are generally required both to monitor their effluent discharges and to report these

results.” Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 539 (6th

Cir. 2004) (citing 33 U.S.C. § 1318).

Franklin County holds a NPDES Permit for its storm sewer system. The municipal separate

storm sewer system, or “MS4,” is a system of conveyances which gather and control the flow of storm

water. See NPDES Permit, at 23; 40 C.F.R. 1222.26(b)(13) (defining storm water as runoff, snow

melt runoff, and surface runoff and drainage). The MS4 gathers storm water from “road drainage

systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains.”

NPDES Permit, at 23. The MS4 discharges the gathered storm waters into surface waters through

point sources called outfalls. See NPDES Permit, at 23. The County is responsible for hundreds of

outfalls, including ones which discharge into the Alum Creek, Big Darby Creek, Big Walnut Creek,

Blacklick Creek, Hellbranch Run, Little Darby Creek, Olentangy River, Rocky Fork Creek, Scioto

River and Walnut Creek.

According to the Complaint, Jeffrey Cox moved into his home on West Kanawha Avenue in

Sharon Township, Ohio in 2016. He alleges that he almost immediately began to observe (and

continues to observe) “noxious sewage odors and gases” being emitted from the storm sewer and

curb inlets on his street. Complaint, at ¶ 20. He contends that this storm sewer is part of the County’s

MS4 which discharges into the nearby Olentangy River. Cox further alleges that discharges, including

sewage, from non-storm water sources into the MS4 are responsible for the noxious emissions. Cox

avers that, due to the “ongoing unlawful discharges of non-storm water and other pollutants from

numerous outfalls of the MS4, including from the outfall at the end of West Kanawha Avenue to the

Olentangy River, Mr. Cox has sharply curtailed his use and enjoyment of nearby rivers and creeks.”

Complaint, at ¶ 24.

Cox alleges that the problems he has observed on his street are not isolated. He alleges that

the NPDES Permit requires the County to conduct water quality tests, known as “dry weather

screenings.” Results from past screenings, he asserts, show unacceptably high pathogen levels and

indicate illicit discharges, including sewage, at hundreds of outfalls throughout the County’s MS4. He

alleges that a primary source of the illicit discharges are home sewage treatment systems (HSTSs)

which are improperly connected to the MS4.

On August 20, 2018, Cox sent a Notice of Intent to File Citizen Suit Under the CWA (“Notice

Letter”) to the Board of County Commissioners, the Director of the Ohio Environmental Protection

Agency and the United States EPA. Therein, Cox alleged, inter alia, that the County has violated and

continues to violate effluent standards and limitations under the CWA. See Notice Letter, at 4.

Cox alleged in his Notice Letter that there are “illicit connections” discharging pollutants into

the MS4. Notice Letter, at 5. He asserts that a majority of these illicit connections are pipes which

connect HSTSs to the MS4. He alleges that some HSTSs do not work properly and thus discharge

pollutants such as sewage into the MS4. Cox claims that during dry weather screenings, the County

has detected the presence of sewage. Cox concludes that because the County has not “eliminated

these illicit connections,” the County is in violation of the CWA. Notice Letter, at 6.

At the request of the Ohio EPA, the State of Ohio commenced a suit on October 17, 2018

against the County (hereinafter the “State Action”). The State of Ohio asserted five claims against the

County. On November 9, 2018, the Ohio EPA reached a Proposed Consent Decree with the County.

Cox alleges that the Proposed Consent Decree lacks meaningful enforcement mechanisms and

“allow[s] the County to continue to engage in wholesale violations of Ohio Revised Code Chapter

6111, the NPDES Permit, and provisions of the CWA.” Complaint, at ¶ 16. Cox adds that the

Proposed Consent Decree contains vague standards whereby the County can avoid eliminating illicit

discharges if doing so would not be “feasible.” Id. at ¶ 17. And he alleges that the Proposed Consent

Decree fails to address the majority of violations which were alleged in the Notice Letter. Id. at ¶ 19.

Dissatisfied with the Proposed Consent Decree and State Action, Cox filed the present suit

against the County. The Complaint contains ten causes of action. In Count One, Cox alleges that the

County violated the CWA by failing “to trace and locate sources of non-storm water discharged from

outfalls” and failing to “eliminate those sources.” Id. at ¶ 76.

In Counts Two and Three, Cox alleges violations of the CWA and NPDES Permit for the

County’s failure to eliminate known illicit discharges to the MS4 and for allowing discharges mixed

with sources of non-storm water.

Cox asserts in Count Four that the County failed to develop a comprehensive storm sewer

map of the entire MS4, as required by the NPDES Permit. In Count Five, Cox alleges that the County

failed to follow the Permit’s requirement that the County, through ordinance or other regulatory

mechanisms, prohibit illicit discharges into the MS4. Cox avers in Count Six that the County failed

to satisfy the Permit’s requirement that it “submit to the Ohio EPA a list of all on-site sewage disposal

systems connected to discharge to the MS4 system.” Id. at ¶ 99.

In Count Seven, Cox alleges that the County failed to “reduce the discharge of pollutants from

the MS4 to the maximum extent practicable,” as required by the CWA and Ohio law. Id. at ¶ 103.

In Counts Eight and Nine, he alleges “programmatic violations” related to: (1) the Stormwater

Management Program (“SWMP”) developed under the NPDES Permit, and (2) the Illicit Discharge

Detection and Elimination Program (“IDDE”) developed under the Permit. Cox asserts that the

County has failed to adequately develop the SWMP and IDDE programs required by the Permit.

Lastly, Cox alleges in Count Ten that the County has been negligent in operating and

maintaining the MS4.

The County has filed a motion to dismiss, arguing that the Court lacks subject matter

jurisdiction because Cox did not comply with the statutory notice requirements in 33 U.S.C. § 1365(b).

On this point, the County first argues that Cox did not identify the date or dates of the alleged

violations in the Notice Letter and thus did not provide sufficient notice under § 1365(b)(1)(A). The

County then argues that because the Ohio EPA is diligently prosecuting the alleged violations, Cox is

statutorily barred under § 1365(b)(1)(B) from bringing this suit.

The County also argues that Cox lacks standing to bring this suit. The County contends that

the alleged injuries he suffered in Sharon Township, where he resides, are not redressable and that he

has not suffered any tangible harm from the alleged violations occurring outside of Sharon Township.

In addition, the County argues that the vast majority of violations alleged by Cox are time-barred.

II. Standard of Review

The County brings its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1),

claiming that the Court lacks subject matter jurisdiction over this case. When a defendant raises the

issue of lack of subject matter jurisdiction, the plaintiff has the burden of proving jurisdiction in order

to survive the motion. See Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th

Cir. 1990).

Section 1365 of the CWA authorizes citizen suits against governmental instrumentalities which

are alleged to be in violation of a federal or state effluent standard or limitation. 33 U.S.C. § 1365(a).

The statute confers federal district courts with jurisdiction over such citizen suits. Id.

However, a citizen suit may not be commenced unless: (1) the plaintiff has given the alleged

violator sixty-days’ notice of the alleged violation and (2) the federal or state EPA is not “diligently

prosecuting” an action in federal or state court to require compliance with the standard or limitation.

Id. at § 1365(b).

The parties dispute whether the County’s challenge to subject matter jurisdiction is a facial or

factual one. A facial attack on jurisdiction challenges the sufficiency of the pleading, and the court

takes the allegations in the complaint as true and construes them in the light most favorable to the

plaintiff. See United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1995).

A factual attack challenges the factual existence of subject matter jurisdiction. In a factual

attack there is no presumption of truthfulness, but instead the district court may weigh evidence to

determine whether subject matter jurisdiction exists. Id. In resolving disputed facts, the trial court

has wide discretion to consider affidavits, documents, and even conduct a limited evidentiary hearing.

See Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Jurisdictional issues

are for the court to decide, regardless of whether they hinge on legal or factual determinations. See

Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

The County characterizes its challenge as a factual one because it has attached the following

documents to its motion: (1) the NPDES Permit, (2) the complaint filed in the State Action, and (3)

the August 20, 2018 Notice Letter sent by Cox to the County.

Cox argues that the County’s motion should be treated as a facial attack because the

documents cited above do not constitute extrinsic evidence, as they are integral to the Federal

Complaint. The Court agrees. The NPDES Permit and the Notice Letter are cited and quoted

extensively in the Complaint and their content is not in dispute. See Commercial Money Center, Inc.

v. Illinois Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007) (“[W]hen a document is referred to in the

pleadings and is integral to the claims, it may be considered without converting a motion to dismiss

into one for summary judgment.”). Further, the Court may take judicial notice of the complaint in

the State Action. See Brown v. Matauszak, 415 Fed. App’x 608, 614 n.7 (6th Cir. 2011) (citing cases).

The Court will therefore treat the County’s attack on subject matter jurisdiction as a facial one.

Morever, with respect to the County’s standing and statute of limitations arguments, the Court will

apply the normal standard of review under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (“When considering a motion under Rule 12(b)(6) to dismiss a pleading for failure to state a

claim, a court must determine whether the complaint contain[s] sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.”) (internal quotation marks omitted).

III. Subject Matter Jurisdiction

A. Notice

The CWA provides that no citizen suit may be commenced in federal district court “prior to

sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator [of the

United States EPA], (ii) to the State in which the alleged violation occurs, and (iii) to any alleged

violator of the standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(A).

Regulations promulgated under the CWA specify the contents which a notice letter must

contain:

Notice regarding an alleged violation of an effluent standard or limitation or of an

order with respect thereto, shall include sufficient information to permit the recipient

to identify the specific standard, limitation, or order alleged to have been violated, the

activity alleged to constitute a violation, the person or persons responsible for the

alleged violation, the location of the alleged violation, the date or dates of such

violation, and the full name, address, and telephone number of the person giving

notice.

40 C.F.R. § 135.3.

Compliance with the notice requirements of the statue and regulation is a “jurisdictional

prerequisite” to filing a citizen suit. Sierra Club Ohio Chapter v. City of Columbus, 282 F.Supp.2d

756, 763 (S.D. Ohio 2003) (citing Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989)). “[C]itizens

providing notice to alleged violators must strictly comply with the notice requirements.” Id. (citing

Atl. States Legal Found. v. United Musical Instruments, 61 F.3d 473, 478 (6th Cir. 1995); Frilling v.

Village of Anna, 924 F.Supp. 821, 833 (S.D. Ohio 1996)).

The County argues that the Notice Letter lacks sufficient information as to the dates of the

alleged violations. Claims One, Two, Three and Eight of the Notice Letter (which correspond

respectively to Counts One, Two, Three and Seven of the Federal Complaint) allege that violations

have occurred each day for the past five years, at least, and continue to occur to the present. The

thrust of these claims is that there have been illicit discharges from the MS4 and that the County has,

for at least the five years preceding the date of the Notice Letter, allowed the illicit discharges to

continue occurring, failed to trace and locate the sources of the discharges, and failed to reduce or

eliminate the discharges or their sources.

Claims Four, Five and Six of the Notice Letter (which correspond to Counts Four, Five and

Six of the Federal Complaint) assert that the NPDES Permit set a deadline of 2008 by which the

County was required to: develop a comprehensive storm sewer map, enact ordinances or regulations

prohibiting illicit discharges, and submit to the Ohio EPA a list of all sewage disposal systems

connected to the MS4. Cox contends that the County to date has yet to satisfy these requirements,

and thus the violations are ongoing.

Claim Seven of the Notice Letter (which corresponds to both Counts Eight and Nine of the

Federal Complaint) alleges that the NPDES Permit requires the development of the SWMP and

IDDE programs. Cox asserts that the County has failed, since December 19, 2016 for the SWMP

and since November 25, 2013 for the IDDE, to develop the programs as required by the Permit.

The County argues that the Notice Letter is insufficient because it did not cite to any particular

date for an alleged violation. The County further contends that the use of words such as “continuous”

and “daily” in the Notice Letter are inadequate because they do not “identify any specific date, or days,

or even the number of days involved.” Motion to Dismiss, at 7.

Cox responds that the violations alleged in the Notice Letter truly have occurred on a daily

basis and are ongoing. He argues that he is not required to “list tens of thousands of individual dates”

but rather only “state that violations occurred every day for a specified period of time.” Response in

Opposition, at 6.

The County relies on Frilling v. Honda of America Mfg. Inc., No. C-3-96-181, 1996 WL

1619348 (S.D. Ohio Oct. 21, 1996), in which the court found that terms such as “intermittent,”

“continuous” and “nearly daily” were “insufficient to satisfy the requirement that the plaintiffs provide

sufficient information to allow the Defendant to identify the date or dates of the alleged violations.”

1996 WL 1619348 at *6 (footnote omitted). The court examined the dictionary definitions of

“continuous” and “nearly daily” and found that plaintiff’s use of the terms “suggest that, on any given

day, it is more likely than not that an alleged violation will have occurred,” which creates “considerable

ambiguity” since the terms do not allow the defendant to “identify any specific date or dates, or even

the number of days involved.” Id. (emphasis omitted).

The Notice Letter submitted by Cox can be distinguished from the notice at issue in Frilling.

Here, the Notice Letter uses the terms “every day” and “each day” in describing the alleged violations.

These words do not create uncertainty over whether a violation occurred or not on a specific date.

These terms mean that a violation occurred every single day. And, unlike in Frilling, the Notice Letter

further identifies specific date ranges over which the various violations have been occurring,. The

Notice Letter clearly gives notice that the violations alleged in Claims One through Six and Claim

Eight have taken place each and every day for the last five years and will continue to occur each and

every day until they are remedied. With respect to Claim Seven, the Notice Letter plainly asserts that

the alleged SWMP violations have occurred daily since December 19, 2016 and that the alleged IDDE

violations have occurred daily since November 25, 2013, and that both types of violations will continue

unless remedied.

This case is similar to the facts presented in City of Ashtabula v. Norfolk Southern

Corporation, 633 F.Supp.2d 519 (N.D. Ohio 2009). There, plaintiff alleged that “violations have

occurred on each and every day” since June 1, 1999. Id. at 524. The court found that this language

sufficiently provided “specific dates for the alleged violations.” Id. at 525. The court reasoned that

this language indicated that the “[p]laintiff believes the violations occurred on June 1, 1999, on June

2, 1999, on June 3, 1999, and so on until the date the letter was issued.” Id.

So too here the Notice Letter provides specific start dates from which the alleged violations

have been taken place. Cox alleges that seven of the nine types of violations have been occurring daily

since five years before the Notice Letter was submitted on August 20, 2018. Thus, the alleged

violations occurred on August 20, 2013, August 21, 2013, on August 22, 2013 and each day until the

date the Notice Letter was issued. For the other two alleged types of violations (concerning the SWMP

and IDDE), the Notice Letter alleges that the violations have occurred “each day” since December

19, 2016 and November 25, 2013, respectively. The Notice Letter’s use of specific date ranges to

describe the alleged violations is sufficient to satisfy the notice provision of 33 U.S.C. § 1365(b)(1)(A).

See City of Ashtabula, 633 F.Supp.2d at 524-25.

B. Diligent Prosecution

In addition to imposing a notice requirement, the CWA provides that a citizen suit may not

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.

33 U.S.C. § 1365(b)(1)(B). “[A] diligent prosecution bar only applies to those issues sought to be

addressed in a citizen action that overlap with those issues sought to be addressed by the government’s

suit.” United States v. Bd. of Cnty. Commissioners of Hamilton Cnty., No. 1:02-cv-107, 2005 WL

2033708, at *11 (S.D. Ohio Aug. 23, 2005); see also Frilling v. Village of Anna, 924 F.Supp. 821, 836

(S.D. Ohio 1996) (“[C]itizen suits are barred only if they are based on the very same standards,

limitations, or orders for which the State has brought a civil enforcement action, and only if the State

seeks to require compliance with the same.”) (emphasis in original).

Here, the County argues that the filing of the State Action bars Cox’s citizen suit. In resolving

this issue, the Court conducts a two-part inquiry. See id.. The Court must first determine if the State

Action requires “compliance with the same standard, limitation or order” which is at issue in the

citizen suit. Id. If so, the Court must then examine whether the State Action is being “diligently

prosecuted” to require compliance with the standard, limitation or order. Id.

1. Same Standard, Limitation or Order

The State of Ohio brought five claims against the County in the State Action. Each claim

relates to an alleged failure by the County to comply with the NPDES Permit and Ohio law. In Count

One, the State alleges that the County has failed to comply with the its obligation to develop and

submit a comprehensive storm sewer map of the MS4. Count Two alleges that the County has failed

to identify and map HSTSs which are connected to the MS4. In Count Three, it is alleged that the

County has failed to evaluate HSTSs for non-storm water discharges into the MS4. In Count Four

the State alleges that the County has failed to determine if there are existing HSTSs connected to the

MS4 which can be feasibly connected to the central sewer system of the City of Columbus. And

Count Five alleges that the County has failed to map, list and evaluate HSTSs that were installed prior

to the issuance of the NPDES Permit.

a. Counts Four and Six of the Federal Complaint

In its motion to dismiss, the County does not address how the claims in the State Action

would require compliance with the same standards at issue in the Federal Complaint. Instead, the

County asserts in conclusory fashion that the mere filing of the State Action bars the federal suit in its

entirety.

In his response brief, Cox concedes that the State Action overlaps with the Federal Complaint

with respect to Counts Four and Six of the Federal Complaint. See Response in Opp’n, at 11 n.6.

Count Four asserts that the County violated the NPDES Permit by failing to develop a

“comprehensive storm sewer map showing the location of all outfalls, the names and location of all

surface waters of the State that receive discharges from those outfalls, and the entire MS4 system.”

Complaint, at ¶ 91. This claim directly coincides with Count One in the State Action, which likewise

alleges that the County violated the NPDES Permit by failing to develop the required comprehensive

storm sewer map. See State Action, at ¶ 40.

Count Six of the Federal Complaint alleges that the County has failed in its obligation under

the NPDES Permit to “submit to [the] Ohio EPA a list of all on-site sewage disposal systems

connected to discharge to the MS4.” Complaint, at ¶ 99. This claim directly coincides with Count

Two in the State Action, which alleges that the County failed to satisfy the Permit’s requirement of

submitting to the Ohio EPA a list of “all on-site sewage disposal systems connected to discharge to

[the County’s] MS4.” State Action, at ¶ 45.

The Court thus finds that Claims One and Two of the State Action require compliance with

the same standards at issue in Counts Four and Six of the Federal Complaint. Though Cox concedes

as much, he contends that Counts Four and Six are not precluded because the State has not diligently

prosecuted the State Action. The Court will consider this argument in Part III.B.2 below.

b. Counts One, Two, Three, Five and Seven of the Federal Complaint

In its reply brief, the County again makes a blanket assertion that the State Action covers all

of the claims raised in the Federal Complaint. But with respect to Counts One, Two, Three, Five and

Seven of the Federal Complaint, the County fails to identify any allegations or language from the State

Action which would match or correspond to those Counts.

Instead, the County argues that the substance of what Cox alleges in those Counts does not

amount to a violation of the NPDES Permit. The County contends that it is lawful under Ohio law

for HSTSs to be connected to the MS4 if the HSTS was in operation before 2010.

The Court will not address the County’s new argument at this time. Not only was it first raised

in a reply brief, it is well outside the scope of the County’s subject matter jurisdiction challenge. See

NetJets Large Aircraft, Inc. v. United States, 80 F.Supp.3d 743, 765 (S.D. Ohio 2015) (refusing to

consider argument raised for the first time in a reply brief).

c. Counts Eight and Nine of the Federal Complaint

The County, in its reply brief, contends that Count Eight of the Federal Complaint “is

addressed in the State Action” and that Count Nine “is addressed in each of the five causes of action

in the State Action.” Reply Brief, at 12. But the County does not offer any explanation as to how the

State Action overlaps with the allegations in Counts Eight and Nine of the Federal Complaint.

Upon examination of the complaint in the State Action, the Court finds no language which

would appear to require compliance with the standards at issue in Counts Eight and Nine of the

Federal Complaint. Counts Eight and Nine relate to what the Federal Complaint calls “programmatic

violations,” whereby the County allegedly failed to develop a Stormwater Management Program and

an Illicit Discharge Detection and Elimination Program, as required by the NPDES Permit. Neither

the SWMP nor the IDDE are mentioned in the State Action.

2. Diligent Prosecution

The Court thus discerns at this time that the State Action overlaps with the Federal Complaint

only with respect to Count Four (failure to develop a comprehensive storm sewer map) and Count

Six (failure to submit to the Ohio EPA a list of all on-site sewage disposal systems connected to the

MS4). The Court must next determine if the State is diligently prosecuting claims in the State Action

claims which would require compliance with the standards at issue in Counts Four and Six of the

Federal Complaint.

“[A] CWA enforcement action will be considered diligent where it is capable of requiring

compliance with the Act and is in good faith calculated to do so.” The Piney Run Pres. Ass’n v. The

Cnty. Comm’rs of Carroll Cnty., 523 F.3d 453, 459 (4th Cir. 2008) (internal quotation marks omitted).

Diligence “is presumed,” id., and the “burden for proving non-diligence is heavy,” Ohio Valley Envtl.

Coalition, Inc. v. Maple Coal Co., 808 F.Supp.2d 868, 883 (S.D. W. Va. 2008). This “deferential”

standard requires the citizen-plaintiff to “meet a high standard to demonstrate that [the government]

has failed to prosecute a violation diligently.” Karr v. Hefner, 475 F.3d 1192, 1198 (10th Cir. 2007).

In meeting his burden, the citizen-plaintiff must do more than show that the government’s

prosecutorial strategy fails to coincide with his strategy or is less aggressive than what he prefers. See

Tennessee Clean Water Network v. Tennessee Valley Auth., 206 F.Supp.3d 1280, 1293 (M.D. Tenn.

2016); Ohio Valley, 808 F.Supp.2d at 884. He must show that the government’s action is incapable

of requiring compliance with the applicable standards. See Piney Run, 523 F.3d at 459. “Section

1365(b)(1)(B) does not require government prosecution to be far-reaching or zealous. It requires only

diligence.” Karr, 475 F.3d at 1197.

Shortly after the filing of the State Action, the State and the County agreed to a Proposed

Consent Decree. According to the Federal Complaint, the Proposed Consent Decree is so deficient

that is shows the State Action is not being diligently prosecuted.1 The Complaint alleges that the

Proposed Consent Decree is illusory and inadequate because it fails to require the County to eliminate

all illicit discharges into the MS4 and contains vague language which allows the County to avoid

correcting such discharges if doing so would not be feasible in the County’s view.

Cox’s attack on the State’s lack of diligence has potential merit. In Jones v. City of Lakeland,

224 F.3d 518 (6th Cir. 2000) (en banc), the citizen-plaintiff alleged that the State of Tennessee had not

diligently prosecuted compliance with applicable federal and state standards. The complaint alleged

that certain consent orders between the State and City of Lakeland permitted the City to continue to

discharge sewage into waterways, waived compliance deadlines and imposed “nominal token

penalties.” Id. at 522-23. The Sixth Circuit held that the complaint’s allegations, which were accepted

as true on a motion to dismiss, supported an inference that the consent orders were “sweetheart”

deals reached under the pretext of enforcement, and thus did not constitute diligent prosecution. Id.

Despite the potential merit of Cox’s argument, the Court finds that allegations of the Federal

Complaint do not support an inference which could satisfy plaintiff’s heavy burden of proving non-

diligence. The alleged shortcomings of the Proposed Consent Decree all relate to its failure to require

the County to eliminate illicit discharges into the MS4. According to the Federal Complaint, the

Proposed Consent Decree fails to establish meaningful enforcement mechanisms and standards by

which the County would be forced to eliminate such discharges. Importantly, the Federal Complaint

1 A copy of the Proposed Consent Decree is not on the record before the Court. For purposes of

the pending motion to dismiss, the Court will accept as true the Federal Complaint’s allegations about

the deficiencies of the Proposed Consent Decree.

does not identify any deficiencies with the Proposed Consent Decree as it would relate to the

allegations in Counts Four and Six. That is, Cox does not allege that the Proposed Consent Decree

fails to enforce the County’s obligation to develop a comprehensive storm sewer map or excuses the

County from submitting a list of on-site sewage disposal systems connected to the MS4. The State

Action contains claims directly alleging that the County has committed violations regarding the map

and the list, and the Federal Complaint fails to allege how these State Action claims are not being

diligently prosecuted.

Accordingly, Counts Four and Six of the Federal Complaint are dismissed.

IV. Standing and Statute of Limitations

The County’s motion to dismiss next raises the issues of standing and statute of limitations.

Relevant to both issues are the Federal Complaint’s allegations about “dry weather screenings.” The

Complaint lists 163 screenings in which the County allegedly conducted water quality tests at various

outfalls in the MS4 system. The screenings detected the existence of illicit discharges of non-storm

water into the MS4.

Each dry weather screening is identified in the Complaint by a sequence of letters and

numbers, such as “PI-14-BL-0012.” The Complaint does not indicate what the letters and numbers

signify. According to the County, they in part correspond to a year (14 for 2014) and location (BL for

Blendon Township).

The County’s standing and statute of limitations arguments regarding the screenings are

intertwined. The County makes four arguments: (1) Cox lacks standing for alleged violations outside

of Sharon Township, where he resides; (2) all of the alleged violations within Sharon Township

occurred outside of the statute of limitations period; (3) Cox lacks standing even for violations within

Sharon Township because the violations are not redressable; and (4) even if Cox has standing for

alleged violations outside of Sharon Township, all but 13 of the screenings took place beyond the

limitations period and, in any event, the claims based on those 13 screenings fail based on evidence

presented by way of affidavits attached to the motion and to the reply brief.

The Court addresses each of these arguments, but in a different order, below.

A. Standing

To satisfy Article III’s standing requirements, a plaintiff must show that: (1) he has “suffered

an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged action of defendant; and (3) it is likely,

as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends

of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 180-81 (2000).

1. Sharon Township

The County does not dispute that Cox has sufficiently alleged an injury in fact in Sharon

Township. Cox alleges that he frequently can smell noxious odors at or near his residence emanating

from the part of the MS4 located at his street. He alleges that the odors interfere with his use and

enjoyment of his property, including impairing his ability to do yardwork, spend time on his patio,

cook outdoors, take walks and ride his bicycle. See, Ainsworth v. Owenby, 326 F.Supp.3d 1111, 1119

(D. Or. 2018) (finding an injury in fact where plaintiffs alleged that their ability to use and enjoy their

property was impaired by smoke and foul odors coming from neighboring property). Cox further

alleges that his injury is traceable to the County’s failure to comply with the CWA and NPDES Permit

by eliminating illicit discharges into the MS4 near his residence.

With respect to the third element of standing, however, the County contends that any alleged

violations within Sharon Township are not redressable. The County maintains that the dry weather

screenings in Sharon Township occurred in 2006, 2011, and 2012, and that Cox lacks standing because

citizen suits cannot be brought for past violations.

The County is right that “wholly past violations” are not redressable. Gwaltney of Smithfield,

Inc. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64 (1987). The CWA uses present-tense

language in authorizing citizen suits against persons alleged “to be in violation” of the effluent

standards established under the Act. 33 U.S.C. § 1365(a)(1). The Supreme Court held in Gwaltney

that a citizen-plaintiff must “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.” Gwaltney, 484 U.S.

at 57.

The Court must nonetheless reject the County’s redressability argument because it

mischaracterizes the Complaint, which plainly alleges that the County’s violations are ongoing.

According to the Complaint, the dry weather screenings, including those in Sharon Township,

represent violations which the County has not yet remedied. The screenings reflect snapshots in time

and serve as initial evidence that illicit discharges have occurred. The Complaint asserts that the

County has failed to eliminate the sources of the illicit discharges and that the County has, for instance,

improperly allowed HSTSs to be connected to the MS4. The Complaint further alleges that so long

as the County fails to remedy the illicit connections and discharges, the violations will continue to

occur each and every day and Cox will continue to suffer injury. See Center for Biological Diversity

v. Marina Point Dev. Assocs., 434 F.Supp.2d 789, 797 (C.D. Cal. 2006) (“Although no private action

lies for wholly past violations, evidence of past violations can help prove a continuing violation as well

as establish the likelihood of future violations.”); accord Louisiana Oystermen Ass’n, Inc. v. Hilcorp

Energy Co., No. CV 16-10171, 2017 WL 3263425, at *3 (E.D. La. Mar. 17, 2017).

The Court thus finds that the Complaint’s allegations are sufficient to establish the element of

redressability.

2. Other Townships

The County argues that Cox also lacks standing for violations occurring outside of Sharon

Township. The County contends that Cox has not alleged an injury in fact because he does not have

property in the other townships and has not suffered any tangible harm from the alleged violations.

The Court must reject this standing argument as well. In the context of environmental actions,

the Supreme Court has held that “[w]hile generalized harm to the forest or environment will not alone

support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the

plaintiff, that will suffice.” Summers v. Earth Island Institute, 555 U.S. 488, 494 (2009).

In Laidlaw, the Supreme Court held that the element of an injury in fact was satisfied where

concerns over pollutant discharges into a river caused the plaintiffs to curtail their recreational use of

the river and lessened their aesthetic enjoyment of it. See Laidlaw, 528 U.S. at 169. The plaintiffs’

recreational and aesthetic interests included canoeing, fishing, birdwatching and picnicking. “We have

held that environmental plaintiffs adequately allege injury in fact when they aver that they use the

affected area and are persons ‘for whom the aesthetic and recreational values of the area will be

lessened’ by the challenged activity.” Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735

(1972)).

Similarly, in American Canoe Association v. City of Louisa Water & Sewer Commission, 389

F.3d 536 (6th Cir. 2004), one of the plaintiffs alleged that toxic discharges into a river caused him to

avoid canoeing and fishing in the river. The Sixth Circuit held that plaintiff’s “averments adequately

alleged that he suffered an injury in fact to his aesthetic and recreational values.” Id. at 542.

Here the Complaint alleges that Cox has “spent thousands of hours volunteering” to preserve

the rivers, streams and creeks of Franklin County. Compl., at ¶ 72. He has “organiz[ed] and

participat[ed] in clean-up activities on the Olentangy River, Alum Creek, and Blacklick Creek.” Id.

His uses of the waterways have included conducting clean-up activities on a weekly basis for several

years at one of the waterways and also testing the quality of the waterways. Cox’s concerns about the

high pathogen levels which were found at the waterways, and which allegedly resulted from the

County’s failure to eliminate illicit discharges, have caused him to “sharply curtail[] his use and

enjoyment of the streams, rivers, and creeks of Franklin County.” Id.

Cox’s activities (river and creek clean-up) do not quite match those in Laidlaw and American

Canoe (canoeing, fishing, birdwatch and picnicking). But his interest in the waterways counts just the

same as an interest in their recreational and aesthetic value. His use of the waterways is in cleaning

them up and preserving them. Cox contends that he has devoted much personal time and effort in

clean-up activities, thereby protecting and improving the recreational and aesthetic value of the

waterways in Franklin County. He further alleges that the County’s conduct has substantially harmed

the recreational and aesthetic value of the waterways, enough so that he has sharply curtailed his use

of them.

Under Laidlaw and Sierra Club, Cox’s allegations are sufficient to establish an injury in fact

because he has averred that he uses the affected waterways and that he is a person for whom the

recreational and aesthetic value of the waterways has been lessened by the challenged activity. The

Court thus finds that Cox has standing to assert claims with respect to alleged violations outside of

Sharon Township.2

B. Statute of Limitations

The County argues that all but 13 of the dry weather screenings listed in the Complaint took

place outside of the five-year statute of limitations found in 28 U.S.C. § 2462.3 Cox responds that,

again, the dry weather screenings are referenced only to show the violations have occurred. But

because they have not been remedied, Cox argues that the violations are continuous and not barred

by the statute of limitations.

For purposes of the present motion to dismiss, the Court finds that Cox has the better of this

argument. “As the Clean Water Act makes clear, each day upon which an unpermitted discharge

occurs results in a separate and distinct violation of § 301(a).” Wisconsin Res. Prot. Council, Ctr. for

2 The County does not dispute that Cox has satisfied the elements of traceability and redressability.

3 The CWA does not include a statute of limitations provision, but courts have held that Section 2462

applies to citizen suits seeking enforcement of the civil penalties available under the CWA. See, e.g.,

Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77, 88 (2nd Cir.

2006); Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 74-75

(3rd Cir. 1990); Frilling v. Honda of America Mfg., Inc., No. C-3-96-181, 1996 WL 1619348, at *8

(S.D. Ohio 1996); Harpeth River Watershed Ass’n v. City of Franklin, No. 3:14-1743, 2016 WL

827584, at *6 (M.D. Tenn. Mar. 3, 2016).

Biological Diversity v. Flambeau Min. Co., 903 F.Supp.2d 690, 721 (W.D. Wis. 2012) (citing 33 U.S.C.

§§ 1311(a), 1362(12), 1319(d)). See also Catskill Mountains Chapter of Trout Unlimited, Inc. v. City

of New York, 273 F.3d 481, 487 (2d Cir. 2001) (“[E]ach discharge of a pollutant represents a distinct

violation of the Act . . . .”); United States v. Rutherford Oil Corp., 756 F.Supp.2d 782, 790-93 (S.D.

Tex. 2010) (discussing the “continuing violations exception”); United States v. Reaves, 923 F.Supp.

1530, 1534 (M.D. Fla. 1996). “A continuing violation applies where the conduct is ongoing, rather

than a single event.” Interamericas Investments, Ltd. v. Bd. of Governors of the Fed. Reserve Sys.,

111 F.3d 376, 382 (5th Cir. 1997). Thus, a citizen-plaintiff “may seek civil penalties for each violation

that accrued within the five years preceding the notice letter.” Wisconsin Res. Prot. Council, 903

F.Supp.2d at 721.

The Complaint here sufficiently alleges that the illicit discharges detected by the dry weather

screenings are the types of violations which occur every day and continue to the present. The upshot

of the County’s argument is that the dry weather screenings were one-time events which reflect wholly

past violations, but, as was discussed above with respect to redressability, the Complaint alleges

continuous violations. Though the dry weather screenings may have occurred over five years before

the Notice Letter, the illicit discharges have allegedly occurred every day within the limitations period.4

Finally, the County argues that with respect to the 13 screenings which took place within five

years before the filing of the Notice Letter, the results of the screenings did not actually indicate

unacceptably high pathogen levels. For this proposition, the County has submitted the affidavit of

Josh Garver, an assistant director for the County’s Soil and Water Conservation District. In its reply

brief, the County additionally submits the affidavit of Nathan Ralph, Franklin County Public Health

Supervisor, stating that certain of the alleged illicit discharges between 2013 and 2016 have been abated

or resolved.

The Court cannot consider extrinsic evidence such as the Garver and Ralph affidavits at the

Rule 12(b)(6) stage. See Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983)

(“[E]xtrinsic evidence cannot be considered in determining whether the complaint states a claim.”).

The affidavits contain factual content which contradict the allegations of the Complaint. The Court

4 The issue of whether the alleged violations are in fact continuous ones will be a matter for factual

development. The application of the statute of limitations to the circumstances of the case often must

be done at the summary judgment stage and may require expert testimony as to the cause or source

of the violation(s). See, e.g., Rutherford Oil Corp., 756 F.Supp.2d at 790-93; Day, LLC v. Plantation

Pipeline Co., 315 F.Supp.3d 1219, 1236 (N.D. Ala. 2018); Reaves, 923 F.Supp. at 1532-34.

must disregard the affidavits and accept the well-pleaded allegations as true. See Iqbal, 556 U.S. at

679. The Complaint plausibly alleges that the County conducted dry whether screenings at the outfalls

and detected unacceptably high levels of substances associated with human waste, which resulted from

illicit connections of HSTSs into the County’s MS4. The Complaint further plausibly alleges that the

County has not yet corrected the cause or source of these violations. The County will have a full

opportunity at a later stage to prove its factual contentions that no violations occurred and that the

alleged violations have been abated.

V. Conclusion

For the reasons stated above, the County’s motion to dismiss (doc. 3) is GRANTED IN

PART AND DENIED IN PART. The motion is granted as to Counts Four and Six of the Complaint,

but denied in all other respects.

Plaintiff’s motion for leave to file a sur-reply (doc. 7) to address new arguments made in the

defendant’s reply brief is DENIED, as the Court has not considered those arguments.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: January 31, 2020