436 F.Supp.3d 1070
S.D. Ohio2020Background
- Plaintiff Jeffery Cox sued Franklin County under the Clean Water Act, alleging ongoing illicit non‑stormwater discharges (including sewage) into the County's municipal separate storm sewer system (MS4) that harm waterways and his use of them.
- The County holds an NPDES permit for the MS4; Cox relies on 163 "dry weather screenings" allegedly showing pathogen levels and illicit discharges and alleges many home sewage treatment systems (HSTSs) are improperly connected to the MS4.
- Cox sent a 60‑day Notice Letter on August 20, 2018; the Ohio EPA then filed a State Action and negotiated a Proposed Consent Decree that Cox contends is inadequate.
- The County moved to dismiss, arguing (1) the Notice Letter failed to specify dates and the State Action bars the suit under the CWA's "diligent prosecution" bar, (2) Cox lacks Article III standing for harms outside his township, and (3) most claimed violations are time‑barred.
- The court treated the jurisdictional challenge as a facial attack, applied Rule 12(b)(6) to other issues, found the Notice Letter adequate, concluded the State Action overlaps only with Counts 4 and 6, dismissed those counts (finding Cox failed to show non‑diligent prosecution as to them), and denied dismissal of the remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice specificity under 33 U.S.C. §1365(b)(1)(A) | Cox alleged violations occurred “every day” and gave start dates (e.g., five years prior; specific dates for SWMP/IDDE) so listing individual dates is unnecessary | Notice insufficient because it failed to identify specific date(s) and used terms like "continuous/daily" which are vague | Notice letter sufficient: “every day” plus start date ranges meets regulatory requirement to identify date or dates of violation |
| Diligent‑prosecution bar (State Action) | State’s Proposed Consent Decree is illusory and permits continued violations; citizen suit should not be barred | Filing of State Action bars overlapping claims; county argues it covers all federal claims | State Action overlaps only with Counts 4 (storm‑sewer map) and 6 (list of on‑site systems). Cox failed to plead facts showing State is not diligently prosecuting those claims; Counts 4 and 6 dismissed; other counts not barred |
| Article III standing (injury, traceability, redressability; out‑of‑township harms) | Cox alleges foul odors at his Sharon Township home (interfering with use/enjoyment) and countywide recreational/aesthetic injury from contaminated waterways due to County’s failures | County says Cox lacks injury outside Sharon Township and any past screenings in Sharon are wholly past and not redressable | Standing satisfied: injury in Sharon is pleaded; recreational/aesthetic curtailment and volunteer cleanup activity give standing for other waterways; redressability plausible because alleged violations are ongoing |
| Statute of limitations (continuing violations / 5‑year limit) | Dry weather screenings show ongoing illicit discharges; violations are continuous, so each day is a separate violation within limitations | Most screenings predate the 5‑year limitations period; only 13 fall inside it; affidavits dispute some detections | At pleading stage, continuous‑violation theory suffices: complaint plausibly alleges continuing daily violations; court will not consider extrinsic affidavits on motion to dismiss |
Key Cases Cited
- S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) (NPDES permits and prohibition on pollutant discharges under CWA)
- Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536 (6th Cir. 2004) (permit‑holder monitoring/reporting obligations and standing in water cases)
- United States v. Ritchie, 15 F.3d 592 (6th Cir. 1995) (distinguishing facial and factual jurisdictional attacks)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Rule 12(b)(6) plausibility standard)
- City of Ashtabula v. Norfolk Southern Corp., 633 F. Supp. 2d 519 (N.D. Ohio 2009) ("each and every day" language construed as specifying dates for notice)
- The Piney Run Pres. Ass’n v. The Cnty. Comm’rs of Carroll Cnty., 523 F.3d 453 (4th Cir. 2008) (definition of "diligent prosecution" for CWA preclusion)
- Jones v. City of Lakeland, 224 F.3d 518 (6th Cir. 2000) (consent orders that permit continued violations may show lack of diligent prosecution)
- Gwaltney of Smithfield, Inc. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) (citizen suits require allegation of ongoing or intermittent violations)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000) (aesthetic and recreational injuries can support standing)
- Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007) (diligent‑prosecution bar requires only that government action be diligent, not zealous)