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Stephens v. Koch Foods, LLC
Citations: 667 F. Supp. 2d 768; 71 ERC (BNA) 1072; 2009 U.S. Dist. LEXIS 95411; 2009 WL 3297289Docket: 2:07-cv-175
Court: District Court, E.D. Tennessee; October 13, 2009; Federal District Court
The case involves Patricia Stephens and others suing Koch Foods, LLC and the City of Morristown, Tennessee, for alleged violations of the Clean Water Act and state laws concerning nuisance, trespass, negligence, and inverse condemnation. The United States District Court for the Eastern District of Tennessee is addressing three motions for summary judgment: one from the plaintiffs seeking partial summary judgment against both defendants, one from Koch Foods seeking partial summary judgment, and one from the City of Morristown seeking summary judgment on all claims. The City holds a National Pollutant Discharge Elimination System (NPDES) permit, issued by the EPA and delegated to it by the Tennessee Department of Environment and Conservation, permitting the discharge of treated municipal wastewater into the Holston River. The City acts as a "control authority" for enforcing regulations and has contracted with Veolia Water North America for the operation of its sewer system. It issues Industrial User Permits (IUP) to industrial facilities, which are subject to specific conditions related to wastewater discharge. The NPDES permit mandates the City to conduct inspections and monitoring to ensure compliance with pretreatment standards, require compliance schedules for industrial users, enforce monitoring and reporting requirements, maintain records of discharges for at least three years, and ensure proper operation and maintenance of treatment facilities to comply with permit conditions. Overflows from the collection, transmission, or treatment systems are strictly prohibited, defined as any discharge of waste outside of permitted outfalls. An "upset" is characterized as an unexpected incident leading to temporary noncompliance with effluent limitations, resulting from factors outside the reasonable control of the City. To utilize an upset as a defense against noncompliance actions, the City must provide evidence such as signed operating logs demonstrating that: (i) the upset occurred and its cause was identified; (ii) the facility was operated prudently and maintained properly; (iii) the City reported the upset within 24 hours of awareness, with a written follow-up within five days; and (iv) the City complied with any remedial measures required for adverse impacts. Koch Foods operates a poultry processing plant (Plant 2) at 1620 Progress Parkway, having transferred operations from Plant 1 in February 2005. The City manages the Witt sewer line, which includes four pump stations and connects to the Morristown Sewer Treatment Plant. Koch Foods was issued Industrial User Permit No. 1017 on April 30, 2003, allowing discharge from Plant 1 until May 1, 2005. This permit outlined specific outfalls and effluent limitations, including maximum concentrations for conventional pollutants: 250 mg/L for BOD and TSS, and 100 mg/L for FOG, all subject to surcharge fees. Noncompliance with permit conditions may result in administrative actions or enforcement, including penalties and injunctive relief. Condition five allows for permit termination if effluent limitations are not met. Condition eleven outlines the 'General Prohibitive Standards' prohibiting the discharge of specific pollutants into public sewers or treatment works, including solid or viscous substances that could obstruct operations, pollutants that may cause environmental interference, noxious substances that could create public nuisances, and wastewater containing harmful compounds. Section F describes 'significant noncompliance,' detailing chronic violations and Technical Review Criteria (TRC) violations based on measurement thresholds over a six-month period. Part six states that the City can accept waste with excessive compatible pollutants but will charge a surcharge based on discharge strength, with noncompatible wastes not accepted unless specified. The permit does not list maximum levels, but Appendix B provides formulas for surcharge calculations and pricing for BOD, TSS, and FOG. City Ordinance section 18-404(2)(c) mandates that wastewater discharge permits are specific to users and operations and cannot be transferred without city approval. Sections 18-403(2)(q) and (t) define BOD, TSS, and FOG as compatible pollutants, while the industrial surcharge is a fee for excessive contributions of compatible pollutants to the treatment works. On July 16, 2003, City Administrator James H. Crumley issued amendments to Industrial User Permit No. 1017, effective July 15, 2003, authorizing the discharge of process wastewater from specified outfalls during the period from May 1, 2003, to May 1, 2007. During the period from July 15, 2003, to May 1, 2007, discharge from outfall 001 was subject to specific effluent limitations for Conventional Pollutants, including BOD, TSS, and FOG, which were also designated as 'Subject to Surcharge Fee.' The original permit’s terms, including the surcharge formula, remained unchanged despite the original documents being marked 'VOID.' On December 10, 2004, Koch Foods communicated with the City regarding the wastewater pretreatment system for Plant 2, requesting a meeting to discuss system startup and potential future adjustments to the maximum daily flow parameter as production increased. On January 21, 2005, Morristown's City Engineer issued Compliance Order No. 05-001, acknowledging Koch Foods' wastewater pretreatment description and outlining a compliance schedule for activities prior to Plant 2's production. The order allowed for extension requests under certain conditions. Koch Foods requested an extension on January 27, 2005, citing delays with equipment installations, which was granted the following day. The extension required Koch Foods to monitor BOD, FOG, and TSS levels at outfall 001 due to potential increases from the removal of the pretreatment system. Plant 2 commenced operations in February 2005, and on November 29, 2005, the discharge limit was revised from 100,000 gallons per day to 175,000 gallons per day to accommodate increased production. On September 29, 2006, Koch Foods submitted an Industrial User Permit Application for Plant 2. Finally, on April 27, 2007, the City Administrator confirmed the review and processing of Koch Foods’ application for reissuance of Industrial User Permit No. 1017 in accordance with local water pollution control regulations. The enclosed pages are to replace specific pages in Industrial User Permit No. 1017, which was effective from May 1, 2007, to May 1, 2010. The revisions maintain the existing effluent limitations for BOD, TSS, and FOG but now specify that any concentration exceeding daily maximum limits is subject to a surcharge fee. All other provisions of the permit remain unchanged. Plant 2, operational since February 2005, discharges wastewater into the Witt sewer line. Plaintiffs allege that this facility has caused persistent foul odors in the Witt and Roe Junction communities. A detailed chart indicates numerous instances where Koch Foods exceeded the permit's pollutant limits, including dates and specific concentration levels for BOD, TSS, and pH. Notably, plaintiffs claim Koch Foods has not paid any fines or civil penalties for these excess discharges, although the City asserts it has assessed surcharges, which Koch Foods has reportedly paid. Actions taken by the City in response to Koch Foods' discharges include multiple Notices of Violation and Orders issued from September 2005 through August 2008, addressing various compliance issues primarily related to pH violations and administrative hearings. The City reported 14 sewer line overflows on the Witt sewer line between July 2005 and June 2008, detailing specific incidents caused by power loss, leaking valves, and blockages, among other issues. On March 20, 2007, plaintiffs notified Koch Foods of their intent to file a citizen suit under the Clean Water Act, alleging ongoing violations since the operation of Plant 2 began on February 7, 2005. A similar notice was sent to the City on December 6, 2007. The plaintiffs claimed that violations were ongoing at the time of their notices and provided a chart detailing alleged effluent limitation exceedances. Notably, there were no communications from the plaintiffs to Koch Foods regarding violations after March 20, 2007, and the notices did not specify issues related to pH levels or the daily flow limit of 100,000 gallons. Plaintiffs attached a September 27, 2005 Notice of Violation from the City to Koch Foods, indicating flow exceeding 100,000 gallons per day, without specifying a date. They allege that the Morristown pump station overflowed on April 14, 2007, and July 19, 2007, with potential additional overflow incidents. The plaintiffs initiated legal action against Koch Foods on July 30, 2007, and against the City on March 28, 2008, with the cases consolidated on June 10, 2008. Summary judgment is appropriate when there is no genuine issue of material fact, as per Fed. R. Civ. P. 56(c). The court must view evidence favorably for the non-moving party and cannot assess credibility or weigh evidence. The moving party must initially show the absence of material fact, while the non-moving party must provide substantial evidence to necessitate a trial. A mere scintilla of evidence is insufficient. If the non-moving party fails to demonstrate a necessary element of its case, summary judgment may be granted. The Federal Clean Water Act (CWA) establishes a regulatory framework to control pollutant discharges into navigable waters, aiming to restore and maintain water integrity. It prohibits unauthorized pollutant discharges and mandates effluent limitations for allowable pollutant quantities. The term 'discharge of a pollutant' refers to the addition of any pollutant to navigable waters from a point source. Pollutants encompass a wide range of materials, including dredged spoil, solid waste, sewage, and various chemical and biological substances. A 'point source' is defined as any identifiable, confined, and discrete conveyance, such as pipes or vessels, from which pollutants may be discharged. 'Navigable waters' are defined as the waters of the United States, including territorial seas. The Environmental Protection Agency (EPA) enforces the Clean Water Act (CWA) through the National Pollutant Discharge Elimination System (NPDES), which allows the issuance of permits for discharges under specific conditions. Section 1317 of the CWA establishes a federal pretreatment program for regulating industrial discharges into publicly owned treatment works (POTWs). It prohibits operations that violate discharge or pretreatment standards. The EPA has adopted certain pretreatment standards, and states, including Tennessee, are authorized to implement these programs, as seen with the Tennessee Water Quality Control Act (TWQCA), which aligns with EPA regulations. Cities, such as Morristown, are empowered to adopt ordinances for compliance with these laws, regulating industrial discharges and issuing permits. While the CWA is typically enforced by the EPA and states, private citizens may also file civil actions against violators of effluent standards or limitations. The CWA defines 'citizen' as anyone with a potentially adverse interest in the matter. In a current case, both defendants argue that the court lacks jurisdiction due to inadequate notice and standing. The plaintiffs assert that these arguments are unfounded. The court must address these jurisdictional issues before considering the merits of the case. The City claims that the plaintiffs lack standing because they have not demonstrated a specific interest in the affected navigable waters, further asserting that their alleged injury is outside the protective scope of the CWA and cannot be remedied by a favorable court ruling. Koch Foods contends that the plaintiffs lack standing under the Clean Water Act (CWA) because their alleged injuries pertain solely to land interests rather than water interests, and that these injuries cannot be remedied by a favorable court ruling. In contrast, the plaintiffs assert that they do not need to demonstrate a specific interest in navigable waters to establish standing for their CWA claims and maintain they have Article III standing to enforce all conditions of a National Pollutant Discharge Elimination System (NPDES) permit. They argue that the zone of interest test is not applicable to citizen suits under the CWA, and even if it were, their injuries fall within that zone. Furthermore, they claim their injuries can be remedied through this CWA action. To establish Article III standing, a plaintiff must show: (1) an injury in fact that is concrete and particularized, and actual or imminent; (2) a causal connection between the injury and the defendant’s conduct; and (3) a likelihood that a favorable decision will redress the injury. It is emphasized that standing is determined based on the injury to the plaintiff rather than the environment itself. Additionally, the CWA allows any citizen to initiate a civil action against those violating effluent standards or limitations. The statute defines "citizen" as someone whose interest may be adversely affected and includes permits issued under the NPDES regime. Congress intended to grant standing to enforce the CWA to the fullest extent permissible under the Constitution. Therefore, satisfying the constitutional requirements for standing also meets the statutory threshold. The City argues that the plaintiffs lack standing due to an absence of specific interest in navigable waters, as their claims revolve around discharges into the sewer system, which may not qualify as navigable waters according to Rapanos v. United States. However, Rapanos also suggests that the CWA prohibits the addition of pollutants directly into navigable waters, indicating an allowance for claims related to such discharges. The Supreme Court references the case United States v. Velsicol Chemical Corp., which established that discharges into a sewer system that lead to navigable waters meet the criteria for "waters of the United States." This matter is more about the merits of the case rather than jurisdiction. The court is tasked with determining the plaintiffs' Article III standing under the Clean Water Act (CWA) to enforce NPDES permit conditions, indicating that such standing does not necessarily require a specific interest in navigable waters for alleged permit violations. Under Section 505(a) of the CWA, any "citizen" can initiate a suit if they have an interest that may be adversely affected. Various court rulings support the notion that plaintiffs can establish standing by alleging violations of any NPDES permit provision. The court notes that the CWA's language allows citizens to enforce all permit conditions and highlights that there is no legislative history suggesting a limitation to conditions directly related to navigable water quality. This ruling indicates that the plaintiffs have standing based on specific NPDES permit violations, even if it appears that anyone could sue for such violations, regardless of their relationship to the affected area. The court plans to examine all claims through the lens of Article III requirements, given that the Sixth Circuit has not addressed this specific issue. Koch Foods has seemingly abandoned its zone-of-interests argument, and the City has not provided authority requiring the application of this test in the citizen suit context. Consequently, the Court will evaluate the case based on Article III standing, as guided by Supreme Court precedent regarding citizen suits under the Clean Water Act (CWA). The Court will first examine the injury-in-fact requirement, where Koch Foods has conceded that the issue is not ripe for summary judgment. For redressability, plaintiffs must demonstrate that their injury is likely to be remedied by a favorable ruling. Koch Foods contends that expert testimony indicates odors would persist even with strict compliance to permit limits, suggesting plaintiffs fail the redressability test. The City echoes this argument but does not substantiate it beyond a general claim. Plaintiffs assert that the City's permit mandates proper sewer system operation and prohibits sewer overflows, arguing that an injunction requiring compliance would address their injuries, including reducing Koch Foods' discharges. They also claim that civil penalties under the CWA fulfill redressability criteria. Furthermore, plaintiffs note the IU permit prohibits discharges causing odors and those interfering with the sewer system, claiming an injunction to enforce these provisions would alleviate their injuries. They argue they are not required to demonstrate complete injury relief to satisfy standing. Expert Dr. Cox acknowledges that odors are likely to persist unless total kjeldahl nitrogen (TKN) levels are significantly reduced, but he also suggests additional treatment to mitigate odor issues. He indicates that while complete odor elimination cannot be assured, significant reductions can be achieved. Thus, enforcing effluent limitations could largely remedy the odor problem, supporting the case for an injunction. Civil penalties are deemed sufficient to satisfy Article III's redressability requirement, as established in Laidlaw. The plaintiffs need only demonstrate that a favorable ruling can alleviate a specific injury, without needing to address every injury, as articulated in Massachusetts. The Court concludes that the plaintiffs' requested relief—injunctions and civil penalties—would address their injuries, even if not all odor issues are resolved. Consequently, the plaintiffs are found to have standing for their claims against both defendants. Regarding the notice requirement under the Clean Water Act (CWA), plaintiffs must notify alleged violators and allow 60 days for a response before initiating a lawsuit. The notice must include specific details about the violations, including the standards breached, the responsible parties, the location and date of violations, and the notifying party's contact information. Strict adherence to this notice requirement is essential and serves as a jurisdictional prerequisite for citizen suits, as affirmed in various case law. Defendant Koch Foods initially contested the adequacy of the plaintiffs' March 20, 2007 notice, claiming it failed to indicate the dates of alleged violations and lacked specifics on the frequency of violations. However, following the plaintiffs' response and the inclusion of additional documentation, Koch Foods retracted its challenge to some extent, acknowledging that the attachments addressed "some but not all" of the deficiencies in the notice. Plaintiffs’ motion for summary judgment contends that Koch Foods violated effluent limitations set forth in its Industrial User (IU) permits, leading to interference issues and exceeding limits for biochemical oxygen demand (BOD), total suspended solids (TSS), pH, and daily flow. Koch Foods counters that the notice requirements were not met, specifically regarding pH and flow exceeding 100,000 gallons per day, as these were allegedly not mentioned in the March 20 notice. They assert that the notice is deficient for failing to specify any other violations or pollutants occurring after that date. The plaintiffs argue they have complied with notice requirements, stating that their notice adequately referenced pH and flow problems, which they believe satisfies specificity requirements. They further claim entitlement to prove additional violations without issuing new 60-day notices as long as the violations recur or are discovered, relying on a Third Circuit case for support. The court finds that the notice lacks specificity regarding pH and flow limitations; it neither mentions pH nor provides dates for alleged pH violations. The complaint does not cite a violation for pH, and notice is deemed improper if it generally alleges illegal discharges without naming specific substances. Although the attached September 27, 2005 Notice of Violation indicates that Koch exceeded the 100,000 gallons per day limit, this reference does not meet the circuit's specificity requirements. Furthermore, the complaint does not allege a violation for exceeding this flow limit. Regarding alleged effluent violations post-March 20, 2007, the notice did not address these, and the second amended complaint fails to provide specific dates, merely asserting that continuing violations were ongoing. The court concludes that simply stating a violation is "continuing" does not fulfill the notice requirements essential for jurisdiction. The Court lacks jurisdiction over violations occurring before the specified notice period, as established in Atlantic States Legal Foundation v. United Musical Instruments, which found that notice requirements were not met for violations listed outside the relevant timeframe. The plaintiffs assert that, following Hercules, they can include additional violations of the same type during summary judgment or trial without needing new 60-day notice letters. However, this interpretation is not supported by Sixth Circuit precedent, as affirmed in Frilling, which mandates strict compliance with notice requirements. Although the Sixth Circuit has suggested that private plaintiffs may not need to send additional notice letters for related violations post-complaint, this Court will adhere to the established precedent. The City contends that the plaintiffs did not meet notice requirements for certain alleged overflows, claiming jurisdiction only over two listed incidents from December 6, 2007. The plaintiffs seek summary judgment for 14 alleged overflows, while the City disputes the existence of certain events, particularly an April 14, 2007, overflow, which the plaintiffs did not address in their undisputed facts. The City also challenges the plaintiffs' claims regarding a January 26, 2008, overflow, asserting no report was made to TDEC. The plaintiffs attempt to substitute an August 28, 2008, overflow for the January 26 incident. The Court concludes that the notice lacks specificity for 13 out of the 14 alleged overflows not mentioned in the December 6 notice, which only identifies two specific violations on April 14 and July 19, 2007, involving untreated sewage discharges. The notice regarding alleged overflows lacks sufficient detail, as it does not specify the occurrences, dates, or locations, failing to meet jurisdictional requirements. This inadequacy parallels the case Sierra Club Ohio Chapter v. City of Columbus, which emphasized the necessity of detailed notice for violations. The Court determines it lacks subject matter jurisdiction over claims against Koch Foods related to pH and flow limit violations and any alleged violations post-March 20, 2007. For the City, jurisdiction is only present for the overflow on July 19, 2007. In addressing whether Koch Foods violated the Clean Water Act (CWA), the plaintiffs assert that the IU permit No. 1017 does not cover Plant 2. Koch Foods seeks summary judgment, asserting the transfer of the IU permit from the 4901 East Morris Boulevard location to Plant 2 was valid and that the permit was timely renewed. The Court finds no genuine issues of material fact regarding these claims. Koch Foods contends that the plaintiffs did not allege the expiration of the 2003 permit prior to the transfer, which impacts jurisdiction; however, the Court concludes that the plaintiffs failed to provide adequate notice on this point as well. The Court briefly examines the merits of the permit transfer issue, noting that permits can be transferred under city ordinance with prior written authorization. The Plant 1 permit was set to expire on May 1, 2005, and Koch Foods initiated the transfer process with a letter to Veolia on December 10, 2004. The City Engineer acknowledged receipt of the pretreatment plans on January 21, 2005, and established a Compliance Schedule. Koch Foods communicated the shutdown of Plant 1 and commencement of operations at Plant 2 in February 2005, with a permit revision occurring on November 29, 2005, maintaining the same effective dates. The Court highlights that the City's modifications to the Industrial User Permit would be meaningless if the permit had not been correctly transferred to the Plant 2 site. On September 29, 2006, Plant 2 submitted an Industrial User Permit Application, leading the City to send Koch Foods a letter indicating the reissuance of Permit No. 1017, which included updated pages and an extension of the effective dates from May 1, 2007, to May 1, 2010. Declarations from Cindy Krebs (project manager at Veolia) and Barry Calfee (director of Morristown's pretreatment program) substantiate these actions, while the plaintiffs fail to provide evidence to counter these claims, only noting that some pages from a July 2003 amendment are marked "void." However, Krebs and Calfee clarify this notation, and without conflicting affidavits from the plaintiffs, their assertion regarding the void pages does not raise a material fact issue. Koch Foods seeks summary judgment, arguing that any exceedances of Biochemical Oxygen Demand (BOD) and Total Suspended Solids (TSS) limits do not constitute a permit violation, supported by the declarations of Krebs, Calfee, and deposition of David Wilds. Koch asserts that the permit and city ordinance permit the City to impose surcharges for exceedances, which they have been charged and paid. Conversely, the plaintiffs argue that the permit's language explicitly states Koch Foods "shall not" exceed limits, citing several clauses as evidence. A principal dispute arises concerning whether the 250 mg/l limit in Koch's permit serves as a surcharge threshold or a ceiling for civil penalties up to $32,500 per day. The permit allows for the treatment of waste with excessive pollutants, indicating that surcharges will apply for compatible pollutants, but does not specify what constitutes "maximum levels," creating a factual issue. Koch Foods contends that even if the permit's language is ambiguous, the City's interpretation should be given deference, referencing relevant case law, yet fails to provide Sixth Circuit support for its position. Consequently, the Court identifies this as a factual matter for trial. The plaintiffs claim entitlement to summary judgment based on Koch Foods' alleged repeated violations of the general prohibitive standards outlined in the Industrial User Permit. Plaintiffs argue that Koch Foods is liable for violations supported by the City’s notice of violations and Dr. Cox's opinions. Koch Foods counters that the Clean Water Act (CWA) does not impose liability on indirect dischargers without proven causation, citing relevant case law. It claims that the general pretreatment standards require a showing of "Interference" caused by the discharger for liability to be established. Koch Foods further asserts that evidence indicates only one plaintiff, Stephens, is affected by the alleged odors and that other potential odor sources exist. Regarding the City of Morristown, it seeks summary judgment on the CWA claim related to a July 19, 2007, overflow, arguing it falls under the "upset" defense as defined by its National Pollutant Discharge Elimination System (NPDES) permit. The City acknowledges the overflow occurred but attributes it to a power outage caused by a thunderstorm, which the plaintiffs argue should not be considered due to the City's failure to plead this defense specifically. However, the court finds that the City’s admission of the overflow gives notice of this defense, allowing it to be considered. The plaintiffs, asserting that the permit explicitly prohibits overflows, seek summary judgment on this issue, claiming the City admitted to the overflow in its discharge monitoring report. An 'upset' is characterized as an unintentional, temporary noncompliance due to circumstances beyond the City's control, requiring the City to provide evidence of the upset and compliance with specific procedures to establish the defense. The court concludes that a factual issue remains regarding the City's affirmative defense of upset. Additionally, the plaintiffs claim the City has violated its NPDES permit by not enforcing the Industrial Pretreatment Program concerning Koch Foods' violations, emphasizing the permit's requirement for independent inspection and monitoring. The excerpt addresses issues related to the compliance of Industrial Users (IUs) with pretreatment standards, including the necessity for compliance schedules for control technologies, adherence to monitoring and reporting requirements, and record-keeping for IU discharges for at least three years. The City asserts it has enforced the pretreatment program, while plaintiffs argue that these efforts have been ineffective, creating a material fact issue regarding the adequacy of the City's enforcement actions. Additionally, the plaintiffs seek summary judgment, claiming the City violated its NPDES permit by failing to maintain the sewer system, citing multiple malfunctions as evidence of this failure, which the City disputes, again presenting a factual dispute. In terms of state law claims, the City has moved for summary judgment on all such claims, while Koch Foods has not. The plaintiffs allege that unauthorized discharges into the sewer system create odors that constitute public and private nuisances, claiming the City has not taken reasonable measures to mitigate these issues, leading to loss of property value and quality of life. The City contends it is entitled to summary judgment on the nuisance claim, arguing that the plaintiffs must demonstrate an inherently dangerous condition and affirmative action by the City, which they claim the plaintiffs cannot establish. The City does not separately address public versus private nuisance claims but asserts a failure to state a claim. The plaintiffs counter the City's arguments, particularly regarding private nuisance, citing case law to differentiate their situation from precedent. The City continues to rely on its prior case law argument without clarifying distinctions between public and private nuisance claims. The landowners sued the city for loss of rent caused by the delay in issuing a building permit, which the city withheld until the street was paved. The trial court determined that the case did not constitute a nuisance or negligence claim but instead was a matter for declaratory judgment and incidental damages. The Tennessee Court of Appeals classified the case as a nuisance abatement suit, affirming damages for paving costs and lost rent. However, the state supreme court disagreed, stating that the appellate court erred in categorizing the case as a nuisance abatement action. It referenced the Pate case, where a city's sewage lagoon was deemed a temporary nuisance due to its interference with property use. To establish municipal liability for nuisance, Tennessee law requires proof of an inherently dangerous condition and an affirmative act by the municipality. The supreme court found no evidence of danger from the street's condition, nor any affirmative act by the city causing harm, thereby rejecting the appellate court's nuisance classification. The discussion also noted that while the Pate case recognized a nuisance, it did not explicitly apply the Dean standard for municipal liability, which remains valid and was cited as recently as 2008. Paduch establishes a rule for assessing municipal liability in nuisance cases, though the current case is not classified as such. The Court opts to apply Paduch's later standard, finding no conflict with Pate, despite the plaintiffs' failure to explicitly cite "inherently dangerous condition" or "affirmative act" in their complaint. A factual issue regarding the City's liability for maintaining a temporary, private nuisance is acknowledged. Regarding the trespass claim, plaintiffs allege that harmful gases and wastewater entered their property without consent, with knowledge of the City regarding Koch Foods' discharges that would disrupt the Morristown sewer system. The City contends it is immune from the trespass claim under the Tennessee Governmental Tort Liability Act (GTLA), which it argues does not waive immunity for this type of action. Plaintiffs counter by referencing Pate and Burchfiel v. Gatlinburg Airport Authority, asserting that the GTLA does not prevent injunctions related to governmental trespass. In Burchfiel, the court ruled that the GTLA did not apply because the Airport Authority took intentional steps in constructing a sign, distinguishing between negligence and intentional action. The GTLA's limitations on immunity do not extend to injunctive relief for trespass, paralleling rulings on nuisance abatement. The court confirms that the rationale used for nuisance cases is equally applicable to the current trespass issue. The GTLA allows for injunctions against governmental entities for trespass. The City differentiates its case from Burchfiel, which permitted a trespass claim against a government entity only when the entity's actions were affirmative and intentional, not negligent. The Court emphasizes that Burchfiel's key factor was the case's focus on injunctive relief, which is generally not immune under Tennessee law. The City asserts it is entitled to summary judgment based on the traditional definition of trespass in Tennessee, requiring direct physical entry onto land, arguing that no cases extend this to include odors or intangibles. The City references Morrison v. Smith, which discussed trespass in the context of utility disconnection, noting its comments are dicta and not applicable here. In contrast, the plaintiffs argue for a modern interpretation of trespass that includes intangible entries, citing various jurisdictions but acknowledging the lack of Tennessee cases supporting this view. The Court opts for the modern interpretation, recognizing a factual dispute regarding the alleged trespass involving odorous gases. Regarding the inverse condemnation claim, the City seeks summary judgment, asserting that, per Edwards v. Hallsdale-Powell Utility District, a governmental entity must engage in a purposeful or intentional act for a taking to be established. The City contends that merely assisting Koch Foods in locating to the ETPC does not meet this threshold. The City contends that its alleged failure to maintain the sewer system does not amount to a taking. Plaintiffs assert that the City (1) intentionally operates the sewer system, (2) authorizes discharges into it, including from Koch Foods, and (3) has not remedied odor issues despite complaints. They argue that their case differs from Edwards, as the sewer overflows in that case were due to tree roots rather than the defendant's actions. The court finds that the plaintiffs' claim of a taking based on the City's operation of the sewer system is insufficient; such failures would be considered negligence, not a taking, thus barring an inverse condemnation claim. However, the court identifies a factual issue regarding the City's intentional actions concerning the odor and discharge issues, allowing those theories to proceed. In conclusion, the court grants and denies various motions: it finds plaintiffs have standing for the citizen CWA suit, denies Koch Foods' and the City's motions for summary judgment on that basis, and grants the plaintiffs' motion. The court determines that plaintiffs did not provide adequate notice for violations related to pH and excessive flow or for violations post-March 20, 2007, leading to a lack of subject matter jurisdiction over those claims, granting Koch Foods' motion in this regard. The court confirms it has jurisdiction over the July 19, 2007 overflow due to proper notice. Koch Foods' motion regarding the transfer and renewal of the IU permit is granted, confirming the permit was properly handled. There are genuine issues of material fact regarding substantive CWA violations by both Koch Foods and the City, leading to the denial of their motions. The City's motion on the nuisance claim is partially granted, requiring proof of an inherently dangerous condition and affirmative action, while denying it based on factual disputes. The trespass claim against the City is not dismissed under GTLA provisions, and the court adopts a modern approach to trespass law. The City's motion is denied due to a genuine issue of material fact regarding whether the odors from the sewer system constitute a trespass onto the plaintiffs' properties. Concerning the inverse condemnation claim, a governmental entity must have acted "purposefully or intentionally" for a taking to be established. The court found no genuine issue of material fact regarding the plaintiffs' initial theory of intentional action by the City, resulting in the City's motion being granted. However, for the plaintiffs' other two theories, there remains a genuine issue of material fact regarding the City's intentions, leading to the denial of the City's motion. Additional notes indicate that Koch Foods’ motion does not seek summary judgment on all claims, and the defendants did not comply with local rules regarding the submission of lengthy documents. Oral arguments were deemed unnecessary. The City argues that previous letters constitute prior written authorization for a permit transfer, while the plaintiffs reference a Compliance Order issued after a Notice of Violation, which the City contends is related. A supplemental brief from the plaintiffs cites a TDEC Order received by the City, asserting it evidences violations of the NPDES permit. The City acknowledges the Order requires remedial actions but claims it addresses the same issues in the plaintiffs' complaint. The court notes that the timing of the Order does not render the citizen suit moot, as it was filed after the suit and the City intends to appeal. The court clarifies that proceedings before TDEC do not count as "court enforcement," allowing the citizen suit to proceed. Lastly, Koch Foods has not differentiated between claims of direct discharges into the sewer system and runoff from trucks, and it acknowledges that the zone-of-interests test generally pertains to statutory standing considerations rather than Article III standing. The excerpt outlines key legal points regarding the Clean Water Act (CWA) claims against Koch Foods and the City of Morristown. The plaintiffs must demonstrate an Article III injury-in-fact to establish standing, but this issue is not ripe for summary judgment. To prove a CWA violation, plaintiffs need to show a discharge of a pollutant from a point source into navigable waters. The plaintiffs assert standing by alleging a CWA violation despite not referencing specific NPDES permit violations; however, they have, in fact, alleged such violations against the City. Koch Foods does not seek summary judgment on the lack of NPDES violations but focuses on redressability. The plaintiffs filed addendum notices adding new plaintiffs without alleging further violations. Koch Foods emphasizes that earlier complaints lacked allegations regarding pH limits or flow limits. The excerpt discusses the relevance of notice provisions from the CWA and Emergency Planning and Community Right-to-Know Act, noting that violations must be related to the same parameters and outfall. The City did not initially argue for lack of jurisdiction due to notice failures but later raised it in response to the plaintiffs' motion, which the court will address. Additionally, evidence of other overflows not listed in the 60-Day Notice is admissible against Koch Foods concerning common law claims, but not against the City if the judge grants summary judgment. However, such evidence remains admissible under the CWA claim against the City. The City amended its IU permit in 2003, extending its expiration to 2007, but due to inadequate notice by the plaintiffs, only one overflow falls under the court’s jurisdiction. The Court notes that the City has not filed a specific motion for summary judgment regarding public nuisance claims under Tennessee Code Annotated section 69-3-114, which prohibits discharging harmful substances into state waters unless authorized or due to unavoidable accidents, classifying such discharges as public nuisances. Additionally, the Second Restatement of Torts establishes that a party may be liable if their reckless or negligent actions, or activities deemed abnormally dangerous, cause harm while entering another's land, differentiating between liability for intentional and non-intentional intrusions. In this context, the City does not seek summary judgment for the sewage claim pertaining to Plaintiff Stephens' home.