September 6, 2001
Dear Pretreatment Coordinator:
You have the following question, which I’ve discussed with you and with the wastewater
consultant: Can the city require the owner of a restaurant to install a grease trap in the
restaurant, where the restaurant is leased to an operator?
In my opinion, the answer is no, but only because he is probably not the “user” as that
term is defined in the city’s sewer ordinance. The “user” within the meaning of the city’s sewer
ordinance is probably the restaurant’s leaseholder. However, if we assumed that the property
owner is the user, his claim that he is somehow “grandfathered” under the language of Section
18-307 has no legal support. A similar claim on the part of the restaurant’s leaseholder would
also fail. However, as I shall point out below, the city should probably not try the remedy of
terminating water service to the restaurant under the present wording of the sewer ordinance.
The city actually has two regulations on sewer use that apply to your question, both
found in the Municipal Code: (1) Supplementary Sewer Regulations, found in Title 18, Chapter
2, and (2) Regulation of Sewer Use, found in Title 18, Chapter 3. Because the dispute has been
about the application of the Regulation of Sewer Use found in Title 18, Chapter 3, I will first
address the application of that ordinance to the question.
Section 18-302, contains the definitions that apply to Title 18, chapter 3. Section 18302(50) defines “user” as “Any person who contributes, causes or permits the contribution of
wastewater into the city’s POTW.” Obviously, under that definition, if the owner of the restaurant
is also its operator, then he is the “user.” But I am hard-pressed to believe that a Tennessee
court would hold that the owner of a restaurant who has leased the restaurant to an operator
qualifies as a person who ”contributes, causes or permits the contribution of wastewater into the
city’s POTW.” My conclusion is supported by Village of Sauget v. Cohn, 610 N.E.2d 104 (Ill.
App. 5th Dist. 1993). That case addressed the specific question of whether the title record holder
of rental property was a “user” of the city’s sewer system for the purposes of requiring users to
pay for sewer charges. The ordinance and agreement required “users” to pay pretreatment and
sewer use fees, but did not define “user.” No, held the court, reasoning that:
The 1982 amendments are at issue here. Paragraph E states:
“E. Commencing no later than June 30, 1983, the Village may
enforce against users [emphasis the court’s] in ... such
pretreatment sewer use and user rate ordinances as may be
reasonable and necessary or as may be required under applicable
law and regulations...”
In holding that “user,” as employed in this agreement, does not
include the record title holder of the real estate, unless he is the
user of the services, we note that the trial court concluded that
September 6, 2001
Page 2
”user,” without any qualifying phrases, “is logically presumed to be
that of a user of the services.” This is consistent with the Black’s
Law Dictionary definition of user. Black’s defines a user as “[t]he
actual exercise or enjoyment of any right, property, drugs,
franchise, etc.” (Black’s Law Dictionary 1383 (5th ed. 1979).)
Because the defendant is not the person who receives the
services, he is not the person who actually exercises or enjoys the
benefits provided by American Bottoms. He is, at most, an indirect
beneficiary of the services, i.e., his properties are more marketable
because they have indoor plumbing. [At 108]
But the “user” (the person who leases and operates the restaurant) is clearly not
“grandfathered” under Section 18-307 with respect to the requirement that a grease trap be
installed in a restaurant. Section 18-307(2) provides that:
(2) Nondomestic wastewater discharge. Any user which
generates nondomestic wastewater may be required to install
grease, oil, and sand interceptors/traps, or any other facility to
prevent the entry of harmful materials or substances into the City’s
sanitary sewer system. All interception units shall be of type and
capacity approved by the Utility Director or the authorized
representative, and shall be located to be easily accessible for
cleaning and inspections. Such interceptors/traps shall be
installed, inspected, cleaned, and repaired regularly, as needed,
by the user at the user’s expense. Failure to maintain the
interceptor/trap in proper working order shall result in the user
receiving a notice of violation requiring compliance within thirty
days. Failure to comply with the provisions of the notice of
violation may result in discontinuance of water service.
(a) Trap required. All establishments which commercially prepare
food for distribution to the general public is [sic] required to h have
a properly sized and functioning grease trap. The following types
of facilities will be required to have grease traps: restaurants,
schools, hospitals, nursing homes, and any other facility that
handles grease...
There is no question that a restaurant that dumps grease into the public sewer line is
engaged in nondomestic wastewater discharge. The term “domestic wastewater” is defined by
Section 18-302(13) as “Wastewater that is generated by a single family, apartment or other
dwelling unit, or dwelling unit equivalent containing sanitary facilities for the disposal of
wastewater and used for residential purposes.” A restaurant obviously does not fit into that
category. Recall that under Section 18-302(50), a “user” is “any person who contributes, causes
or permits the contribution of wastewater into the city’s POTW.”
As I understand the facts, the owner of the building argues that Section 18-307 applies
only to new users and to existing users desiring additional services users because Section 18-
September 6, 2001
Page 3
307 (1) provides that:
Applications for discharge of wastewater. All users, which
generate wastewater shall make application to the Utility director
for written authorization before discharging into the City’s sanitary
sewer system. Applications shall be required from all new
dischargers as well as for any existing discharger desiring
additional service.
As the owner’s argument goes, Section 18-307 applies only to new dischargers and to
existing dischargers desiring additional service, and he does not fit into either category. He
reaches that conclusion from the headlines of Section 18-307. The headlines for Section 18307 read: “Applications for domestic wastewater discharge, non-domestic wastewater discharge,
and industrial wastewater discharge permits, monitoring and testing, confidential information.” I
assume he is arguing that the rule of ejusdem generis applies to the headlines. That is a rule of
statutory construction under which, where a statute in general words follows special words that
limit the scope of the statute, the general words will be read to apply to things of the same kind
of class as those indicated by the preceding special words. However, the rules of statutory
construction are an aid to the courts to find legislative intent. Where a statute is unambiguous,
the courts will look no further than the face of the statute to find its intent, and give it a plain
reading. [Roddy Manufacturing Co. v. Olsen, 661 S.W.2d 868 (Tenn. 1983); Neff v. Cherokee
Insurance Co., 704 S.W.2d 1 (Tenn. 1986); McClain v. Henry I. Siegel Co., 834 S.W.2d 295
(Tenn. 1992); State ex. rel. Metro. Gov’t v. Spicewood Creek Watershed Dist., 848 S.W.2d 70
(Tenn. 1993); Van Pelt v. State, 246 S.W.2d 87 (1952).] In my opinion, Section 18-307 is not
ambagious. A plain reading of that ordinance appears to me to require appropriate grease traps
in all restaurants in the city.
But for the purposes of analysis, let us assume that Section 18-307 is ambagious. Under
the rule of ejusdem generis, it can be argued that:
1. The headlines of Section 18-307 reflect special words that restrict the subsequent
general words of the text of the section to applications for wastewater discharger permits of
various kinds (and monitoring and testing, and confidential information);
2. The headline of Section 18-307(1), and the following language “Applications shall be
required from all new dischargers as well as for any existing discharger desiring additional
service” reflect special words that restrict the subsequent general words that deal with nondomestic wastewater dischargers in Section 18-307(2) to new dischargers and existing
dischargers desiring additional service.
3. The user (whether he be the property owner or the leaseholder) is neither a new user
nor an existing user desiring additional service.
That argument ignores the other half of the rule of ejusdem generis, which is that it is
only a rule to be used in the aid of ascertaining the intention of the legislature, and does not
apply where a reading of the whole statute makes it clear that the special words do not restrict
September 6, 2001
Page 4
the application of the general words. [Nashville v. State Board of Equalization, 360 S.W.2d 458
(1961); Hackerman v. State, 223 S.W.2d 1984 (1949); Nance ex rel. Nace v. Westside Hospital,
750 S.W.2d 740 (Tenn. 1988).]
A reading of all Section 18-307(2) points to a conclusion that it applies to all
establishments, not only to new dischargers and existing dischargers who desire additional
service. It declares that it applies to “Any user which generates non-domestic wastewater....” It
declared that, “All establishments which commercially prepare food for distribution to the general
public...,” and that “The following types of facilities will be required to have grease traps:
restaurants...” Section 18-307(2)(e) says that, “(e) Existing Interceptors/Traps. All
interceptors/traps currently in use, or in existence at the time of this revised policy will be
considered...”
In addition, the policy of the law supports that conclusion. Section 18-301 declares that:
The objectives of this chapter are:
(1) To protect the public health;
(2) To provide problem free wastewater collection and treatment
service;
(3) To prevent the introduction of pollutants into the municipal
wastewater treatment system, which will interfere with the system
operation, will cause the city’s discharge to violate its National
Pollutant Discharge Elimination System (NPDES) permit or other
applicable state requirements or will cause physical damage to the
wastewater treatment facilities...
(5) To enable the City to comply with the provisions of the Federal
Clean Water Act, the General Pretreatment Regulations (40 CFR
Part 403), and other applicable federal and state laws and
regulations.
Under the rules of statutory construction, the preamble to a statute is not a part of the
controlling provision of the statute, but is an aid in determining the intent of the legislature.
[Harrell v. Hamblen County Quarterly Court, 526 S.W.2d 505 (1975)] A similar rule of statutory
construction is that a construction of a statute that impairs, defeats or frustrates the object of
statute should be avoided, and that where two possible readings of a statute are possible, the
statutes should be construed to give effect to its purpose. [Knox County ex rel. Kessell v. Knox
County Personnel Board, 753 S.W.2d 367 (Tenn. Ct. App. 1988); Polk County v. State Board of
Equalization, 484 S.W.2d 49 (Tenn. Ct. App. 1972).]
As I understand the facts, the grease from the restaurant has flowed out onto the ground.
It cannot have been the intent of the city that this ordinance be interpreted so narrowly as to
include only new users and existing users who desire additional services to install appropriate
grease traps. That reading would exempt current restaurant operators from the application of
the ordinance, permitting them ultimately to pollute the surface and ground waters of the state,
September 6, 2001
Page 5
and ultimately all of the purposes of the ordinance. One of those purposes is to insure the city’s
compliance with the Federal Clean Water Act. That Act plainly imposes a tough obligation upon
the city to regulate city-source pollution of the waters of the state, not to mention the privatesource pollution of the ground waters of the state.
Another rule of statutory construction is that statutes on the same subject be read
together. [ Neff v. Cherokee Insurance Co., 704 S.W.2d 1 (Tenn. 1986); State v. Moss, 727
S.W.2d 229 (Tenn. 1986); Coleman v. Acuff, 569 S.W.2d 459 (Tenn. 1978)]. That brings us to
Title 18, Chapter 2, of the Lawrenceburg Municipal Code, entitled Supplementary Sewer
Regulations. Section 18-205(4) flatly provides that:
No person shall discharge or cause to be discharged the following
described substances, materials, waters, or wastes if it appears
likely in the opinion of the superintendent that such wastes can
harm either the sewers, sewerage treatment process, or
equipment, have an adverse effect on the receiving stream, or can
otherwise endanger life, limb, or public property, or constitute a
nuisance...
(b) Any water or waste containing fats, wax, grease, or oils,
whether emulsified or not, in excess of one hundred (100) mg/l or
containing substances which may solidify or become viscous at
temperatures between thirty-two degrees (32o) and one hundred
fifty degrees (150o) (0 and 65oC).
Section 18-205(6) also provides that:
(6) Grease, oil, and sand interceptors shall be provided when, in
the opinion of the superintendent, they are necessary for the
proper handling of liquid wastes containing grease in excessive
amounts...
Read together, Title 18, Chapters 2 and 3, point to the right of the city to require all users
of the city’s sewer system to install grease traps that meet appropriate standards.
But it does not appear to me wise to use water termination as a remedy, for two reasons:
First, Section 18-307 provides with respect to that remedy that:
Failure to maintain the interceptor/trap in proper working order
shall result in the user receiving a notice of violation requiring
compliance within thirty days. Failure to comply with the provisions
of the notice violation may result in a discontinuance of water
service.
That provision appears to restrict the remedy of water service termination to cases where
September 6, 2001
Page 6
the user receives notice of, and fails to correct, grease trap maintenance deficiencies. That
section could be amended to provide for water service termination where the user has failed to
install an appropriate grease trap.
Second, even such an amendment may not save that provision of the ordinance. I
cannot find any statutory authority for the city to terminate water service to a customer who has
failed to install a grease trap. Tennessee Code Annotated, '' 7-35-201and 68-221-209,
authorize cities that have financed their sewer system through bonds or state funds,
respectively, to terminate water service to a customer who fails or refuses to connect to the
public sewer, but do not speak of the right of the city to terminate such service after the
connection is made. I have not yet had the opportunity to research the question of the
circumstances under which a municipality could provide by ordinance for the termination of water
service where a user fails or refuses to install equipment that plays a role in the preservation of
clean water. Because I am going to be out of town for a few days, I will not be able to do that
immediately. I will get back with you on that question in a week or so.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/