Environmental Law - Travis M. Trimble

• Citation: Vol. 56 No. 4
• Publication year: 2005

Environmental Lawby Travis M. Trimble^*

In 2004 courts in the Eleventh Circuit addressed several Clean Water Act¹ issues. The Eleventh Circuit Court of Appeals arguably expanded the scope of the injuries a plaintiff may allege to have standing to sue under the Clean Water Act. The court held that the federal court had jurisdiction over a Clean Water Act citizen suit alleging violations of a permit issued by the State of Georgia under its permitting program authorized under the Act.² The Eleventh Circuit also addressed whether a Florida state regulation effectively revised or added to the state's Clean Water Act, which mandated water quality standards, necessitating a formal Environmental Protection Agency ("EPA") review and approval of the regulation.³ In an appeal from the Eleventh Circuit, the United States Supreme Court held that a pump, which moves contaminated water from one water body to another but does not itself add pollutants to the water, is nevertheless a point source for purposes of the Act.⁴ Finally, the United States District Court for the Northern District of Georgia held that the Corps of Engineers was not required to produce an Environmental Impact Statement ("EIS") for the issuance of a Section 404⁵ permit for the construction of one of many pending reservoir projects in north Georgia.⁶

In addition, the Eleventh Circuit directed the EPA to determine whether, under Georgia's state-implemented Clean Air Act⁷ permit program, a power company could be denied a pre-construction permit for a new major stationary source of air pollutants because it was a part-owner of an existing noncompliant major stationary source.⁸ Finally, the Eleventh Circuit, under the Wilderness Act⁹ and the National Environmental Policy Act ("NEPA"),¹⁰ addressed the National Park Service's use of vehicles to transport tourists on a road that runs through the Cumberland Island wilderness area.¹¹

I. Clean Water Act

A. Standing

In Parker v. Scrap Metal Processors, Inc. ,¹² the Eleventh Circuit held, among other things,¹³ that plaintiffs had standing to sue under the Clean Water Act¹⁴ ("CWA") when plaintiffs alleged that defendants, who owned and operated a scrap metal recycling business adjacent to plaintiffs' property, allowed contaminated storm water to migrate onto plaintiffs' property.¹⁵ Plaintiffs also had standing when plaintiffs alleged that defendants allowed contaminated storm water to migrate into a stream that was not on plaintiffs' property even though plaintiffs did not allege any harm to them resulting from that contamination.¹⁶ The court also held that it had subject matter jurisdiction over plaintiffs' CWA claims despite the fact that the claims alleged violations of the National Pollutant Discharge Elimination System ("NPDES") permit conditions, which were administered by the State of Georgia under itsown permit program and had been authorized by the EPA pursuant to the CWA.¹⁷

In Parker plaintiffs owned property in Covington, Georgia (the "Parker property"). Defendants owned and operated a metal recycling facility (the "SMP facility") on adjacent property that the EPA had previously determined was contaminated with metals, petroleum products, solvents and paint wastes, discarded drums containing hazardous substances, and discarded underground storage tanks. In 2001 plaintiffs discovered contamination on their property, which they reported to the Georgia Environmental Protection Division ("EPD"). The EPD determined that the SMP facility was the probable source of the contamination. Storm water from the SMP facility flowed across the Parker property, depositing contaminated dirt and sediment and causing erosion. The storm water also flowed into a stream located on property adjacent to the facility and owned by one of defendants. Defendants had neither the storm-water discharge permit the CWA required nor the required Resource Conservation and Recovery Act ("RCRA") permits. However, defendants did obtain the storm-water permit prior to the commencement of litigation.¹⁸

Before addressing the lower court's determinations, the Eleventh Circuit addressed two threshold issues raised by defendants on appeal: standing and subject matter jurisdiction with respect to the federal claims.¹⁹ The court first held that plaintiffs had standing under the CWA.²⁰ To have standing, a plaintiff must have suffered an "injury-in-fact," caused by the defendant's conduct, and the plaintiff must have requested relief likely to redress the injury.²¹ Regarding the first prong of the standing test, injury-in-fact, the court determined that plaintiffs showed "water runoff originating on the defendants' property caused hazardous substances ... to migrate onto the Parker property, where the substances contaminated the soil and eventually made their way into the stream. This injury is fairly traceable to the defendants' alleged failure to obtain or comply with their . . . NPDES permit."²² In other words, the incidental injury from defendants' failure to comply with an NPDES permit was sufficient to satisfy the injury-in-fact prong of thestanding test under the CWA.²³ This incidental injury was sufficient, even though the injury was in addition to and did not necessarily result from the contamination of a body of water that the NPDES permit requirement was intended to prevent.²⁴

Next, the court addressed its subject matter jurisdiction over plaintiffs' CWA and RCRA claims.²⁵ Among other things, defendants contended that because Georgia has implemented its own programs under these statutes, plaintiffs' claims arose under state law and not federal law.²⁶

After examining the relevant language in the CWA and United States Supreme Court precedent, the Eleventh Circuit concluded that "a plain reading of this statute indicates that state permits and conditions fallwithin the effluent standards of conditions covered [by the CWA]"²⁷ and that "the Supreme Court apparently has incorporated state law standards under the CWA into federal environmental law for jurisdictional purposes."²⁸

Regarding its jurisdiction over plaintiffs' RCRA claim, the court noted that an EPA-approved state implementation program under RCRA, unlike the CWA, operates '"in lieu of the federal program.'"²⁹ The court declined to determine if the "RCRA grants federal courts jurisdiction over citizen suits alleging a violation of an EPA-approved state law under the RCRA."³⁰ The court ultimately did not decide the RCRA jurisdiction question, concluding that, because it had jurisdiction over plaintiffs' CWA claims, it had supplemental jurisdiction over the RCRA claim.³¹

The court determined there was sufficient evidence on the merits to support the jury's determination that defendants were liable under the state law theories for the CWA and RCRA claims.³² However, the court remanded the case for a new trial on damages because the district court failed to instruct the jury that plaintiffs, who were not owners of the Parker Property prior to filing the complaint, could not recover damages.³³

B. Water Quality Standards

In Florida Public Interest Research Group Citizen Lobby, Inc. v. Environmental Protection Agency,³⁴ the Eleventh Circuit remanded the case to the United States District Court for the Northern District of Florida to determine whether a Florida administrative rule³⁵ actually changed or added to the CWA water quality standards, which would have required a full review of the new regulation by the EPA.³⁶ The Florida administrative rule was adopted ostensibly to provide criteria for the state to use in evaluating if state waters should be designated as"impaired" under Florida's separate water quality standards, which were adopted pursuant to the CWA.³⁷ The court held that plaintiffs, Florida Public Interest Research Group ("PIRG") and other groups, had standing and had presented a claim that was not moot.³⁸

The substantive issue the case presented was whether the Florida Department of Environmental Protection ("FDEP") modified the state's existing water quality standards by establishing a new rule.³⁹ The CWA requires each state to establish water quality standards for all its bodies of water.⁴⁰ The standards must designate permissible use or uses of the water body and must also set basic criteria for the level of water quality necessary to allow the water body's designated use or uses safely. Each state may express the criteria numerically or narratively.⁴¹ While the state initially establishes its own water quality standards, the EPA must undertake a review of any new or revised water quality standards adopted by the state.⁴² Any new or revised state rule cannot allow further degradation of a water body's quality.⁴³

The state must also maintain a list of waters it deems unsafe for its intended uses, known as the "Impaired Waters List." Once the state determines a water is impaired, both the state and federal governments must take action to control and remedy the pollution.⁴⁴

Florida's water quality standards regulations, which set the maximum levels of pollutants that each water body can contain without becoming unsafe for use, state, among other things, that "[u]nless otherwise stated, all criteria express the maximum not be exceeded at any time."⁴⁵ The rules also provide that "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna."⁴⁶

In April 2001 FDEP adopted an "Impaired Waters Rule," the stated purpose of which was to '"interpret existing water quality criteria and evaluate attainment of established designated use.'"⁴⁷ The rule further provided that its purpose was "not ... to establish new water qualitycriteria or standards."⁴⁸ The EPA provided the FDEP guidance in drafting the Impaired Waters Rule, but the EPA did not conduct the official review, which the CWA would require for any new or revised water quality standard.⁴⁹

Plaintiffs sued under the CWA's citizen suit...