Petition for Writ of Certiorari — StarLink Logistics, Inc., Petitioner v. ACC, LLC, et al.
Supreme Court briefNov 2, 2018
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No. 18-___
IN THE
STARLINK LOGISTICS INC.,
Petitioner,
v.
ACC, LLC; TENNESSEE SOLID WASTE DISPOSAL
CONTROL BOARD,
Respondents.
On Petition for a Writ of Certiorari
to the Court of Appeals of Tennessee
PETITION FOR A WRIT OF CERTIORARI
Matthew C. Blickensderfer
Christopher S. Habel
Lynda M. Hill
FROST BROWN TODD LLC
301 E. 4th Street
Suite 3300
Cincinnati, OH 45202
(513) 651-6800
Sarah E. Harrington
Counsel of Record
Erica Oleszczuk Evans
Daniel H. Woofter
GOLDSTEIN &
RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0636
sh@goldsteinrussell.com
QUESTION PRESENTED
The federal Clean Water Act, 33 U.S.C. § 1251
et seq., establishes a nationwide system of preventing,
remedying, and controlling the pollution of our waterways. Among other things, the Act flatly prohibits the
discharge of specified pollutants from point sources
into the navigable waters of the United States unless
the discharge is authorized under the Act. The principal means of authorizing such a discharge is by issuing
a permit pursuant to the National Pollutant Discharge
Elimination System (NPDES). 33 U.S.C. § 1342. Such
an “NPDES permit,” inter alia, sets limits on the
amount of pollutants that may be discharged and imposes monitoring and reporting requirements. 33 U.S.C.
§ 1342(b). Nearly all States implement the NPDES
program within their borders pursuant to a delegation
of authority under the Clean Water Act. The question
presented is:
Whether a state law that authorizes a polluter to
discharge covered pollutants from a point source into
the navigable waters of the United States without obtaining an NPDES permit and in concentrations that
exceed effluent limits established by the Clean Water
Act is preempted by the Clean Water Act and the Supremacy Clause, U.S. Const. art. VI, cl. 2.
ii
RULE 29.6 STATEMENT
Petitioner StarLink Logistics Inc. is an indirectly
wholly owned subsidiary of Sanofi S.A. No publicly held
corporation owns more than 10% of Sanofi S.A. stock.
iii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
RULE 29.6 STATEMENT ........................................... ii
TABLE OF AUTHORITIES ........................................ v
PETITION FOR A WRIT OF CERTIORARI .............. 1
OPINIONS BELOW .................................................... 1
JURISDICTION........................................................... 1
RELEVANT STATUTORY AND
CONSTITUTIONAL PROVISIONS ........................... 1
INTRODUCTION ........................................................ 2
STATEMENT............................................................... 2
REASONS FOR GRANTING THE WRIT ................ 12
I. The Decision Below Directly Conflicts With
Decisions Of Multiple Federal Courts Of
Appeals And State Courts Of Last Resort ......... 13
II. The Preemption Question Presented Is
Important............................................................. 21
CONCLUSION .......................................................... 25
APPENDIX A: Opinion of the Court of Appeals
(Tenn. Ct. App. 2018)................................................. 1a
APPENDIX B: Order of the Supreme Court
(Tenn. 2018) ............................................................. 21a
APPENDIX C: Opinion of the Supreme Court
(Tenn. 2016) ............................................................. 23a
APPENDIX D: Opinion of the Court of Appeals
(Tenn. Ct. App. 2015)............................................... 50a
APPENDIX E: Opinion of the Chancery Court
(Tenn. Ch. Ct. 2014) ................................................ 78a
iv
APPENDIX F: Constitutional and Statutory
Provisions ................................................................. 99a
APPENDIX G: Materials Demonstrating That
Federal Questions Were Raised Below ................. 111a
Transcript of Proceedings Before the
Tennessee Solid Waste Disposal Control
Board, In the Matter of ACC, LLC
(Aug. 7, 2012) ..................................................... 111a
Merit Brief of Petitioner StarLink
(Tenn. Ch. Ct. Feb. 15, 2013) ............................ 113a
Reply Brief of Petitioner StarLink
(Tenn. Ch. Ct. Apr. 8, 2013) .............................. 114a
Brief of Appellant StarLink
(Tenn. Ct. App. Aug. 11, 2014) .......................... 119a
Reply Brief of Appellant StarLink
(Tenn. Ct. App. Sept. 24, 2014) ......................... 123a
Superseding Brief of Appellant StarLink
(Tenn. Ct. App. Aug. 31, 2016) .......................... 126a
Superseding Reply Brief of Appellant
StarLink (Tenn. Ct. App. Oct. 21, 2016)........... 131a
Application for Permission to Appeal by
StarLink (Tenn. Apr. 2, 2018) ........................... 133a
v
TABLE OF AUTHORITIES
Cases
City of Burbank v. State Water Res. Control Bd.,
108 P.3d 862 (Cal. 2005) ............................ 15, 19, 20
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) .................................... 13, 14, 22
Columbus & Franklin Cty. Metro. Park Dist.
v. Shank,
600 N.E.2d 1042 (Ohio 1992) ........................... 15, 20
Concerned Area Residents for the Env’t v.
Southview Farm,
34 F.3d 114 (2d Cir. 1994) ..................................... 15
Coventry Health Care of Mo., Inc. v. Nevils,
137 S. Ct. 1190 (2017) ............................................ 21
DIRECTV, Inc. v. Imburgia,
136 S. Ct. 463 (2015) .............................................. 21
Dubois v. USDA,
102 F.3d 1273 (1st Cir. 1996) .......................... 14, 16
EPA v. California ex rel. State Water Res.
Control Bd.,
426 U.S. 200 (1976) .................................................. 4
Hawai‘i Wildlife Fund v. County of Maui,
886 F.3d 737 (9th Cir. 2018) .................................. 14
Home Builders Ass’n of Greater Chi. v. U.S.
Army Corps of Eng’rs,
335 F.3d 607 (7th Cir. 2003) .................................. 16
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) ........................................ passim
Middlesex Cty. Sewerage Auth. v. Nat’l Sea
Clammers Ass’n,
453 U.S. 1 (1981) .................................................... 16
vi
Miotke v. City of Spokane,
678 P.2d 803 (Wash. 1984) .................................... 15
Mut. Pharm. Co. v. Bartlett,
570 U.S. 472 (2013) ................................................ 21
Nat. Res. Def. Council v. EPA,
808 F.3d 556 (2d Cir. 2015) ................................... 16
Nat. Res. Def. Council, Inc. v. Costle,
568 F.2d 1369 (D.C. Cir. 1977) .............................. 15
Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644 (2007) ................................................ 15
Pickard v. Tenn. Water Quality Control Bd.,
424 S.W.3d 511 (Tenn. 2013) ............................... 5, 6
S. Appalachian Mountain Stewards v.
A & G Coal Corp.,
758 F.3d 560 (4th Cir. 2014) .................................. 16
Sierra Club v. ICG Hazard, LLC,
781 F.3d 281 (6th Cir. 2015) .................................. 15
Starlink Logistics Inc. v. ACC, LLC,
2012 WL 2395199 (M.D. Tenn. June 25, 2012)....... 7
United States v. Earth Scis., Inc.,
599 F.2d 368 (10th Cir. 1979) ................................ 14
United States v. Pozsgai,
999 F.2d 719 (3d Cir. 1993) ................................... 15
Webb v. Nashville Area Habitat for Humanity, Inc.,
346 S.W.3d 422 (Tenn. 2011) ................................. 11
Constitutional Provisions
U.S. Const. art. VI, cl. 2 ................................... 2, 21, 23
vii
Statutes
Clean Water Act, 33 U.S.C. § 1251 et seq.
33 U.S.C. § 1251(a) .................................................. 3
33 U.S.C. § 1251(a)(1)............................................ 23
33 U.S.C. § 1251(a)(3)............................................ 23
33 U.S.C. § 1311 ...................................................... 4
33 U.S.C. § 1311(a) .................................................. 3
33 U.S.C. § 1342 ...................................................... 3
33 U.S.C. § 1342(a)(1).......................................... 3, 4
33 U.S.C. § 1342(b) .................................................. 4
33 U.S.C. § 1342(b)(1)(A) ............................... 4, 5, 16
33 U.S.C. § 1342(d) .................................................. 5
33 U.S.C. § 1342(d)(1).............................................. 5
33 U.S.C. § 1342(d)(2).............................................. 5
33 U.S.C. § 1362(6) .................................................. 3
33 U.S.C. § 1362(11) ................................................ 4
33 U.S.C. § 1362(12) ................................................ 3
28 U.S.C. § 1257(a) ...................................................... 1
Tennessee Hazardous Waste Management Act,
Tenn. Code Ann. § 68-212-101 et seq. .................... 11
Tennessee Solid Waste Disposal Act,
Tenn. Code Ann. § 68-211-101 et seq. .................. 7, 8
Tenn. Code Ann. § 68-211-104(1) ............................ 8
Tenn. Code Ann. § 68-211-104(3) ............................ 8
Tenn. Code Ann. § 68-211-104(4) ............................ 8
viii
Water Quality Control Act of 1977,
Tenn. Code Ann. § 69-3-101 et seq. .......................... 5
Tenn. Code Ann. § 69-3-102(c) ................................ 5
Tenn. Code Ann. § 69-3-105(h)(1) ........................... 6
Tenn. Code Ann. § 69-3-108(a) ............................ 6, 7
Tenn. Code Ann. § 69-3-108(b) ................................ 7
Tenn. Code Ann. § 69-3-114(a) ................................ 7
Tenn. Code Ann. § 69-3-114(b) ................................ 7
Regulations
40 C.F.R. § 123.1(g)(1) ................................................. 6
Revision of the Tennessee National Pollutant
Discharge Elimination System (NPDES)
Program to Issue General Permits,
56 Fed. Reg. 21,376 (May 8, 1991) .......................... 5
Other Authorities
EPA, State Review Framework for Compliance
and Enforcement Performance,
https://www.epa.gov/compliance/state-reviewframework-compliance-and-enforcementperformance (last updated Dec. 30, 2016) ............... 4
S. Rep. No. 92-414 (1971) .......................................... 22
PETITION FOR A WRIT OF CERTIORARI
Petitioner StarLink Logistics Inc. respectfully
petitions for a writ of certiorari to review the judgment
of the Tennessee Court of Appeals.
OPINIONS BELOW
The opinion of the Tennessee Court of Appeals
(Pet. App. 1a-20a) is not published in an official or regional reporter but is available at 2018 WL 637941.
The Supreme Court of Tennessee’s order denying permission to appeal (Pet. App. 21a-22a) is not published.
An earlier opinion of the Supreme Court of Tennessee
(Pet. App. 23a-49a) is reported at 494 S.W.3d 659. An
earlier opinion of the Tennessee Court of Appeals (Pet.
App. 50a-77a) is not published in an official or regional
reporter but is available at 2015 WL 1186311. An opinion of the Chancery Court for Davidson County, Tennessee (Pet. App. 78a-98a) is not published in an official or
regional reporter but is available at 2014 WL 7001397.
JURISDICTION
The judgment of the Tennessee Court of Appeals
was entered on January 31, 2018. Pet. App. 1a. The
Supreme Court of Tennessee denied permission to appeal on June 7, 2018. Pet. App. 22a. On August 28,
2018, Justice Kagan extended the time within which
to file a petition for a writ of certiorari to and including
November 2, 2018. No. 18A215. This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).
RELEVANT STATUTORY AND
CONSTITUTIONAL PROVISIONS
The relevant constitutional and statutory provisions are reproduced at Pet. App. 99a-110a.
2
INTRODUCTION
Every day, respondent ACC, LLC discharges
highly toxic pollutants from point sources on its landfill into the navigable waters of the United States
without a permit and in concentrations that far exceed
the limits established by the Clean Water Act (CWA
or Act), 33 U.S.C. § 1251 et seq. Remarkably, the parties and the court below agree on that. But the Tennessee Court of Appeals held that ACC can continue
to violate the CWA—and continue to pollute petitioner’s private property—because the state law that
implements the CWA can be interpreted to permit the
violation of federal law. That holding is obviously incorrect and conflicts with decisions from every federal
court of appeals and state court of last resort that has
confronted the issue. The Supremacy Clause, U.S.
Const. art. VI, cl. 2, the CWA, and common sense require that ACC cease its toxic discharges unless or until it obtains a discharge permit that complies with federal law. Tennessee cannot simply exempt itself from
the requirements of federal law by pointing to a conflicting state law—particularly when that state law is
supposed to implement the federal law. This Court
should grant the petition for a writ of certiorari for plenary review or for summary reversal to bring the State
of Tennessee into line with the rest of the country in
this important area of environmental law.
STATEMENT
This case involves a direct conflict between state
and federal laws governing point-source discharges of
pollutants into the navigable waters of the United
States. The state court held that the state law must
3
prevail in the face of such a conflict—i.e., that the state
law preempts the conflicting federal law.
1. a. The federal Clean Water Act is intended
to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). Section 301 of the CWA prohibits “the discharge of any pollutant” except “as in compliance with”
specified provisions of the Act. Id. §§ 1311(a), 1362(12).
The term “pollutant” is defined to include various
types of waste (including chemical wastes, solid waste,
and incinerator residue) “discharged into water,” and
the term “discharge of a pollutant” is defined to include “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(6), (12).
The CWA thus establishes a regime in which
point-source discharges of covered pollutants are prohibited unless they are authorized by a permit issued
pursuant to the National Pollutant Discharge Elimination System (NPDES). 33 U.S.C. § 1342; Int’l Paper
Co. v. Ouellette, 479 U.S. 481, 489 (1987) (“Section
301(a) of the Act, 33 U.S.C. § 1311(a), generally prohibits the discharge of any effluent into a navigable
body of water unless the point source has obtained an
NPDES permit from the Environmental Protection
Agency.”). The CWA provides that the Administrator
of the Environmental Protection Agency (EPA) “may,
after opportunity for a public hearing issue a permit
for the discharge of any pollutant, or combination of
pollutants, notwithstanding” the general prohibition
on discharges in Section 1311(a), “upon condition that
such discharge will meet” statutory criteria or criteria
established by the Administrator. 33 U.S.C. § 1342(a)(1).
A typical NPDES permit is issued after a public hearing, limits the type and amount of pollutants that may
4
be discharged, and imposes monitoring and reporting
requirements on the discharger.
See ibid.; id.
§ 1362(11). As this Court has explained, “[a]n NPDES
permit serves to transform generally applicable effluent limitations and other standards—including those
based on water quality—into the obligations (including a timetable for compliance) of the individual discharger, and the [CWA] provide[s] for direct administrative and judicial enforcement of permits.” EPA v.
California ex rel. State Water Res. Control Bd.,
426 U.S. 200, 205 (1976).
The CWA authorizes the EPA Administrator to
delegate to a willing State the authority “to administer
its own permit program for discharges into navigable
waters within its jurisdiction,” 33 U.S.C. § 1342(b),
provided the Administrator determines that the proposed state program imposes discharge limits that are
at least as stringent as those imposed by the CWA,
Int’l Paper, 479 U.S. at 489-490. Any permit issued by
a State under that delegated authority must “apply,
and insure compliance with, any applicable requirements” of specified provisions of the CWA, including
Section 1311. 33 U.S.C. § 1342(b)(1)(A). Forty-six
States, including Tennessee, have opted to administer
their own NPDES permitting programs pursuant to
delegated CWA authority. See EPA, State Review
Framework for Compliance and Enforcement Performance, https://www.epa.gov/compliance/state-reviewframework-compliance-and-enforcement-performance
(last updated Dec. 30, 2016).
Under the CWA’s “regulatory ‘partnership’ between the Federal Government and” States that
choose to accept delegated authority, EPA retains authority to block the issuance of any NPDES permit to
5
which it objects. Int’l Paper, 479 U.S. at 490; 33 U.S.C.
§ 1342(d). In particular, a State exercising delegated
CWA authority must notify the EPA Administrator of
every application for an NPDES permit and must give
the Administrator 90 days in which to review, comment on, and potentially object to any permit the State
plans to issue. 33 U.S.C. § 1342(d)(1)-(2). Although
any State (whether exercising delegated authority or
leaving that to EPA) “may require discharge limitations more stringent than those required by the Federal Government,” Int’l Paper, 479 U.S. at 490, a State
may not implement an NPDES program by imposing
discharge limitations that are less stringent than
those established pursuant to the CWA, see 33 U.S.C.
§ 1342(b)(1)(A).
b. The Tennessee General Assembly enacted the
Water Quality Control Act of 1977 (WQCA), Tenn.
Code Ann. § 69-3-101 et seq., in part “to abate existing
pollution of the waters of Tennessee, to reclaim polluted waters, [and] to prevent the future pollution of
the waters.” Pickard v. Tenn. Water Quality Control
Bd., 424 S.W.3d 511, 518 (Tenn. 2013) (citation omitted). The legislature also intended with the enactment
of the WQCA “to qualify for full participation in” the
NPDES program. Tenn. Code Ann. § 69-3-102(c). In
1977, EPA authorized Tennessee to administer the
NPDES program in the State. See Revision of the Tennessee National Pollutant Discharge Elimination System (NPDES) Program to Issue General Permits,
56 Fed. Reg. 21,376, 21,376 (May 8, 1991) (noting that
Tennessee’s NPDES permit program was approved in
December 1977). Pursuant to federal regulation, any
state-administered NPDES program “must prohibit
all point source discharges of pollutants . . . except as
6
authorized by a permit in effect under the State program.” 40 C.F.R. § 123.1(g)(1).
The WQCA established the Tennessee Water
Quality Control Board (now known as the Tennessee
Board of Water Quality, Oil, and Gas), which, inter
alia, establishes water-quality standards and administers the State’s NPDES permit system. Pickard, 424
S.W.3d at 519; Tenn. Code Ann. § 69-3-105(h)(1). The
WQCA further provides that any person who discharges wastes into waters in Tennessee must do so
pursuant to a permit issued by the Commissioner of
the Tennessee Department of Environment and Conservation (TDEC). Tenn. Code Ann. § 69-3-108(a).
2. Petitioner owns a nearly 1,500-acre parcel of
real property in Maury County, Tennessee. Pet. App.
2a-3a. Petitioner’s property includes Arrow Lake and
parts of Sugar Creek. Id. at 3a. Respondent ACC,
LLC owns neighboring property on which it operated
a landfill for more than a decade, pursuant to a landfill
permit issued by TDEC. Id. at 2a. During the 13 years
in which ACC actively operated the landfill, ACC disposed of waste from a nearby aluminum smelting
plant—waste that included “salt cake slag” with high
concentrations of sodium chloride and potassium chloride salts and other pollutants. Ibid. Because chloride
salts are extremely soluble, they quickly dissolve and
migrate into the environment when chloride-containing slag comes into contact with rain water or groundwater. Pet. C.A. Br. 4.1 When water contacts slag like
that in ACC’s landfill, a chemical reaction releases
1
References to “Pet. C.A. Br.” are to Petitioner’s Superseding
Brief filed in the Tennessee Court of Appeals on Aug. 31, 2016. Excerpts of this brief are also reproduced at Pet. App. 126a-130a.
7
ammonia that also migrates into the environment.
Ibid. Polluted water containing chlorides and ammonia is known as “leachate.” Ibid. Ammonia is considered by EPA to be one of the worst water pollutants
because of its direct toxic effects on aquatic life. Ibid.
Within a few years of opening the landfill, ACC
learned that it was leaching high levels of chloride and
ammonia from the slag into the groundwater and surface water that drains into Sugar Creek and Arrow
Lake (on petitioner’s property). Pet. App. 3a. As a result of that leachate, Sugar Creek and Arrow Lake became extremely polluted, ibid., leading to destruction
of surrounding trees and surface vegetation and polluting the water to such a degree that no aquatic life
survives in the upper portion of the lake, Starlink Logistics Inc. v. ACC, LLC, 2012 WL 2395199 (M.D.
Tenn. June 25, 2012). Even after ACC closed the landfill, it has continued to pollute surrounding waters, including Arrow Lake and Sugar Creek. Pet. App. 23a25a. During this litigation, a geologist testified that
the concentration of ammonia flowing from ACC’s
landfill into Sugar Creek and Arrow Lake was at that
time 158 times higher than the maximum that would
be permitted by EPA in an NPDES permit. Pet. C.A.
Br. 6. The concentration of chloride in the affected water was 74 times higher than the maximum that would
be permitted by EPA in an NPDES permit. Ibid.
ACC has never applied for or obtained an NPDES
permit for its leachate discharges to navigable waters.
3. As a result of the pollution from ACC’s landfill, ACC was found to have violated the WQCA, Tenn.
Code Ann. §§ 69-3-108(a) and (b) (2012), 69-3-114(a)
and (b) (2012) and the Tennessee Solid Waste Disposal
8
Act 2 (SWDA), Tenn. Code Ann. § 68-211-104(1), (3),
and (4). Pet. App. 3a & n.1. Between 2003 and 2011,
ACC and TDEC engaged in various efforts to mitigate
the contamination, but the now-closed landfill continues to contaminate the ground and surface water that
flows into Arrow Lake and Sugar Creek. Id. at 5a-6a.
a. In 2011, ACC and TDEC entered into an Initial Consent Order that they then filed in the Davidson
County Chancery Court, seeking to make it a judicial
order. Pet. App. 6a. The Initial Consent Order acknowledged that ACC was in violation of the WQCA
and the SWDA and set out certain requirements for
ACC, in an attempt to address the ongoing pollution
from its landfill. Ibid. The Initial Consent Order did
not require ACC either to stop discharging leachate or
to obtain an NPDES permit for its discharges—but it
did purport to immunize ACC against third-party
claims based on its discharges, which continue to far
exceed federal limits. See ibid. Petitioner intervened
and objected to the Initial Consent Order. Ibid.
When the parties were unable to resolve their differences, the chancery court remanded the Initial Consent Order to the Tennessee Solid Waste Disposal
Control Board (Board), which generally oversees landfill matters. Pet. App. 6a. ACC and TDEC requested
entry of a privately negotiated amended consent order
(Amended Order) that would require ACC to take certain actions with respect to unauthorized discharge of
leachate contamination into water that flows from the
landfill into Arrow Lake and Sugar Creek. Id. at 6a10a. The privately negotiated order is not an NPDES
permit, is not enforceable as an NPDES permit would
2
Tenn. Code Ann. § 68-211-101 et seq.
9
be, and does not contain the effluent limitations that
an NPDES permit would be required to contain. Because it is not an NPDES permit, it was not submitted
to the EPA for review and potential veto. Petitioner
objected to the agreement on several grounds, including that the Amended Order expressly authorized
ACC to continue discharging untreated leachate into
navigable waters without requiring ACC to obtain and
comply with an NPDES permit for those discharges, in
violation of the CWA and of the WQCA, which implements the CWA. Id. at 10a, 111a-112a. The Board
entered an order approving the Amended Order. Id.
at 10a.
b. Petitioner appealed the Board’s decision to
the chancery court, which affirmed the Board’s decision approving the Amended Order, Pet. App. 10a, and
rejected petitioner’s argument that the CWA prohibits
TDEC from authorizing ACC’s discharges without issuing an NPDES permit, see id. at 113a-118a. Petitioner appealed that decision to the Tennessee Court
of Appeals, which remanded on the ground that the
Board failed to consider another feasible and potentially economically viable plan, id. at 10a, 76a-77a, but
did not rule on petitioner’s contention that ACC cannot continue to discharge pollutants without obtaining
an NPDES permit, id. at 59a & n.7, 119a-125a. The
Tennessee Supreme Court reversed, holding that the
court of appeals applied the wrong standard of review
for judicial review of agency decisions. Id. at 10a, 24a.
The supreme court remanded to the court of appeals
for consideration of the issues it pretermitted in its
earlier decision, including whether ACC is required to
obtain an NPDES permit. Id. at 49a & n.5.
10
c. On remand, the court of appeals affirmed the
chancery court’s decision upholding the Board’s approval of the Amended Order. Pet. App. 1a-20a. The
court of appeals rejected petitioner’s argument that
ACC and the Board must comply with the CWA, holding instead that the State was “not obligated to apply
federal law” when it authorized ACC to continue discharging pollutants into navigable waters, in violation
of the WQCA and CWA. Id. at 18a, 126a-132a.
The court of appeals first rejected petitioner’s argument that the Amended Order violates the CWA—
and the WQCA, which implements the CWA for Tennessee—by authorizing ACC to discharge pollutants
from a point source into navigable waters without an
NPDES permit. Pet. App. 12a-18a. Petitioner argued
that, if Tennessee law were interpreted to be less
stringent than federal law, “it would be preempted.”
Id. at 128a, 132a; see id. at 14a. The court noted that
petitioner’s “argument rest[ed] on the necessity to follow the federal Clean Water Act,” and agreed that,
“[u]nder the CWA, those with allegations of pollution
must either stop the actions that are causing the pollution or obtain a [NPDES] permit to limit and monitor the amount of pollutant released into the waterway
in question.” Id. at 14a. But the court rejected petitioner’s argument that, by approving a third option—
i.e., “permitting ACC to continue the harmful behavior
of allowing the leachate to seep into Sugar Creek and
Arrow Lake without the oversight of a NPDES permit”—the Amended Order violates the CWA and Tennessee’s WQCA, which is supposed to implement the
CWA. Ibid.
The court of appeals held that the CWA’s requirement that a polluter either cease polluting or obtain
11
an NPDES permit is “non-binding” when interpreting
what the state law requires, “even when the state and
federal rules are identical.” Pet. App. 15a (quoting
Webb v. Nashville Area Habitat for Humanity, Inc.,
346 S.W.3d 422, 430 (Tenn. 2011)). The court concluded that petitioner’s “reliance on the federal law
and interpretations of the federal CWA in this case
was misguided” because the text of the state statute
was sufficiently clear to justify the Board’s contrary
interpretation of that provision. Id. at 15a, 16a. The
court thus concluded that, because it was not required
“to follow the federal law” and was required (pursuant
to the Tennessee Supreme Court’s decision in this
case) to give “deference” to “TDEC and the Board,” the
Board did not err in interpreting the text of Tennessee’s WQCA to conflict with and preempt the more
stringent federal CWA. Id. at 16a. In so holding, the
court relied on the language of the WQCA, which provides that the “commissioner may grant permits authorizing the discharge[]” of pollutants, explaining
that the statute’s use of the word “may” “can be read
to give leniency in granting permits, putting the decision in the hands of the Commissioner.” Ibid.
The court of appeals also rejected petitioner’s argument that Tennessee’s Hazardous Waste Management Act (HWMA), Tenn. Code Ann. § 68-212-101
et seq., cannot authorize either TDEC or the Commissioner to continue allowing discharge of pollutants
without an NPDES permit. Pet. App. 18a-20a. The
court held that “the Board had the latitude to exempt
ACC from the typical requirement of the NPDES permit,” and again rejected petitioner’s argument that the
Board is obligated to comply with the requirements of
the CWA. Id. at 18a. The court held that “the Board
12
was not obligated to apply federal law and was not in
error in applying the [conflicting] state law.” Ibid.
The court explained that petitioner’s “reliance on”
“federal law” “is misguided” because “[n]either the
Board nor [the court of appeals is] obligated to follow
such precedent when the similar state law can be interpreted using plain language and legislative intent.”
Id. at 19a.
d. Petitioner sought permission to appeal to the
Tennessee Supreme Court, arguing both that the court
of appeals’ decision “create[d an] irreconcilable conflict
between federal and state law” and that Tennessee
cannot “impose less stringent or inconsistent requirements as they would be preempted by the CWA.” Pet.
App. 133a, 134a. On June 7, 2018, the Tennessee Supreme Court denied petitioner’s application for permission to appeal. Id. at 22a.
ACC continues to discharge ammonia and chlorides from point sources into waters that flow onto petitioner’s property without an NPDES permit, in violation of the CWA. And the Amended Order purports
to authorize such discharges indefinitely.
REASONS FOR GRANTING THE WRIT
The federal Clean Water Act, 33 U.S.C. § 1251
et seq., prohibits the discharge of pollutants into navigable waters unless the polluter obtains an NPDES
permit that imposes effluent limits that are at least as
stringent as those established under the CWA. Tennessee asserts that state law gives it discretion to ignore both the permit requirement and the minimum
effluent limits established by federal law when it sees
fit. The Tennessee Court of Appeals acknowledged
that the State’s interpretation of state law is directly
13
contrary to the federal Clean Water Act and to federal
decisions construing the CWA. The court nevertheless
held that the state agency’s interpretation of the state
law that purports to implement the CWA preempts the
requirements of the federal CWA. That decision is
plainly incorrect—and it conflicts with decisions of
every federal court of appeals and state court of last
resort to consider these issues. This Court should
grant the petition for a writ of certiorari for plenary
review or summary reversal.
I.
The Decision Below Directly Conflicts With
Decisions Of Multiple Federal Courts Of
Appeals And State Courts Of Last Resort.
The Tennessee Court of Appeals held that a state
law intended to implement the CWA preempts the requirements of the CWA itself when the state law provides less protection from pollution of the navigable
waters of the United States. That decision is contrary
to law and logic. It also conflicts with decisions from
multiple federal courts of appeals and state courts of
last resort. If the decision below is left undisturbed,
the federal CWA—a statute that Congress enacted “to
establish an all-encompassing program of water pollution regulation,” City of Milwaukee v. Illinois, 451 U.S.
304, 318 (1981)—will simply not apply to the State of
Tennessee’s delegated authority to implement the federal NPDES program. This Court’s intervention is
necessary to ensure that federal environmental mandates are not simply discarded in the State of Tennessee.
A. It is well settled throughout the Nation that
the CWA prohibits the discharge of covered pollutants
into the navigable waters of the United States from
14
point sources unless the discharger obtains a permit
under the NPDES program and complies with the effluent limits and monitoring and reporting requirements set out in the permit. This Court has explained,
for example, that under the CWA, “[e]very point source
discharge is prohibited unless covered by a permit,
which directly subjects the discharger to the administrative apparatus established by Congress to achieve
its goals.” City of Milwaukee, 451 U.S. at 318 (footnote
omitted); see Int’l Paper Co. v. Ouellette, 479 U.S. 481,
489 (1987) (“Section 301(a) of the Act, 33 U.S.C.
1311(a), generally prohibits the discharge of any effluent into a navigable body of water unless the point
source has obtained an NPDES permit from the Environmental Protection Agency.”).
Every federal court of appeals to address the issue
has similarly held that the CWA prohibits the discharge of pollutants from a point source into the waters of the United States without an NPDES permit.
E.g., Hawai‘i Wildlife Fund v. County of Maui,
886 F.3d 737, 744 (9th Cir. 2018) (“[A] party violates
the CWA when it does not obtain such a[n NPDES]
permit and (1) discharges (2) a pollutant (3) to navigable waters (4) from a point source.”) (internal quotation marks and brackets omitted), petition for cert.
pending, No. 18-260 (filed Aug. 27, 2018); Dubois v.
USDA, 102 F.3d 1273, 1296 (1st Cir. 1996) (“Section
301(a) of the Clean Water Act prohibits the ‘discharge
of any pollutant’ into navigable waters from any ‘point
source’ without an NPDES permit.”); United States v.
Earth Scis., Inc., 599 F.2d 368, 373 (10th Cir. 1979)
(“The touchstone of the regulatory scheme is that
those needing to use the waters for waste distribution
must seek and obtain a permit to discharge that waste,
15
with the quantity and quality of the discharge regulated.”); Nat. Res. Def. Council, Inc. v. Costle, 568 F.2d
1369, 1374 (D.C. Cir. 1977) (“[T]he legislative history
[of the CWA] makes clear that Congress intended the
NPDES permit to be the only means by which a discharger from a point source may escape the total prohibition of § 301(a).”); see, e.g., Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114,
117 (2d Cir. 1994) (same); United States v. Pozsgai,
999 F.2d 719, 725 (3d Cir. 1993) (same); Sierra Club v.
ICG Hazard, LLC, 781 F.3d 281, 284 (6th Cir. 2015)
(same).
State courts of last resort agree. E.g., Columbus
& Franklin Cty. Metro. Park Dist. v. Shank, 600
N.E.2d 1042, 1054-1055 (Ohio 1992) (“The guiding
principle of the [CWA] is that discharge of pollutants
into the waters of the nation is unlawful. As an exception to this general prohibition, the Act permits discharge where the point source possesses an NPDES
permit authorizing the activity.”); Miotke v. City of
Spokane, 678 P.2d 803, 812 (Wash. 1984) (en banc)
(“[T]he NPDES permit is the only way in which a
waste discharge from a point source may avoid the total proscription of 33 U.S.C. § 1311(a).”); see City of
Burbank v. State Water Res. Control Bd., 108 P.3d 862,
869 (Cal. 2005) (explaining that the CWA “prohibits
the discharge of pollutants into the navigable waters
of the United States unless there is compliance with
federal law”).
To be sure, States play a vital role in implementing the requirements of the CWA. Congress requires
the EPA to delegate implementation of the NPDES
system to a State that satisfies certain statutory criteria. Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
16
551 U.S. 644, 663 (2007). And Congress authorized
States to impose requirements that are more stringent
(i.e., more protective of water quality) than those imposed by the CWA and by EPA’s implementing rules
and regulations. 33 U.S.C. § 1342(b)(1)(A); Middlesex
Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n,
453 U.S. 1, 11 (1981) (noting that the CWA “created
various federal minimum effluent standards”). But
every federal court of appeals to address the question
has held that “the CWA provides a federal floor, not a
ceiling, on environmental protection”—i.e., that it permits States to enact standards that are more protective than those in the CWA, but that it requires States
to enforce standards that are at least as protective as
the CWA’s. Dubois, 102 F.3d at 1300; accord Nat. Res.
Def. Council v. EPA, 808 F.3d 556, 580 (2d Cir. 2015)
(“[T]he CWA provides a federal floor, not a ceiling, on
environmental protection.”) (citation omitted); S. Appalachian Mountain Stewards v. A & G Coal Corp.,
758 F.3d 560, 564 (4th Cir. 2014) (“The CWA sets the
minimum requirements that states must demand in
their NPDES applications, see 40 C.F.R. § 122.21(a)(2)(iv),
but states can, as Virginia has done here, exceed that
minimum and require more stringent reporting requirements.”); Home Builders Ass’n of Greater Chi. v.
U.S. Army Corps of Eng’rs, 335 F.3d 607, 617 (7th Cir.
2003) (“[T]he Clean Water Act’s permitting provisions,
like many federal regulatory laws, establish a floor,
but not a ceiling, on state and local regulation.”).
B. In a stark departure from that overwhelming
weight of authority, the Tennessee Court of Appeals
held both that Tennessee need not comply with the
CWA’s requirement that no pollutant may be discharged from a point source into navigable waters
17
without an NPDES permit and that state law allowed
Tennessee to authorize discharges that exceed the effluent limits established by federal law. In other
words, the Tennessee Court of Appeals held that state
law governing clean-water standards trumps federal
law governing the same, in direct contravention of the
U.S. Constitution and decisions of every federal court
of appeals and state court of last resort to address that
question.
The court of appeals did not dispute that the federal CWA flatly prohibits discharge of pollutants into
navigable waters from point sources unless the polluter obtains an NPDES permit. To the contrary, the
court held that “[u]nder the CWA, those with allegations of pollution must either stop the actions that are
causing the pollution or obtain a[n NPDES] permit to
limit and monitor the amount of pollutant into the waterway in question”—and it acknowledged the “federal
cases that focus on the necessity of a NPDES permit
when a person or entity is in conflict with the CWA.”
Pet. App. 14a. The court further agreed that “any discharge permit issued by TDEC falls under the NPDES
permit system.” Id. at 14a n.9. But the court then
refused to apply those principles in this case.
Following the Tennessee Supreme Court’s instruction in this case that courts must defer to the
Board’s interpretation of how to apply the WQCA, Pet.
App. 16a, 49a, the Tennessee Court of Appeals held
that, although federal law prohibits a polluter from
point-source discharges without an NPDES permit,
that requirement does not apply in Tennessee because
the “similar” state law (i.e., the state law that purports
to implement the federal CWA) can be construed to allow discharges that are not authorized by an NPDES
18
permit. Id. at 16a. The court of appeals expressly
acknowledged—and did not contest—petitioner’s argument that “the federal CWA cannot be read” to “give
leniency in granting permits, putting the decision in
the hands of the [state] Commissioner” whether or not
to require an NPDES permit for ongoing discharges.
Ibid. Citing “the lack of a necessity to follow the federal law,” however, the court held that the state law
that implements the CWA need not comply with the
CWA’s requirement that no discharges take place
without a permit. Ibid. Indeed, the court could not
have been more express about its rejection of ordinary
federal preemption principles, stating that petitioner’s
“reliance on the federal law and interpretations of the
federal CWA in this case was misguided.” Id. at 15a.
The court of appeals did not stop there. Lest there
be any ambiguity about the basis and effect of its holding, the court explained that “issuing a permit for”
ACC’s discharges “would actually be in direct conflict
with the language of the statute”—because ACC’s ongoing discharges are “causing a condition of pollution
into Sugar Creek and Arrow Lake.” Pet. App. 17a. In
other words, under the conditions TDEC imposed on
ACC, ACC’s ongoing discharges cannot qualify for an
NPDES permit because the level of pollution far exceeds any that could be authorized under the CWA.
But instead of requiring TDEC to come up with conditions that would satisfy the CWA and qualify for an
NPDES permit, the Tennessee Court of Appeals
simply wrote off the CWA, holding that TDEC “had the
latitude to exempt ACC from the typical requirement
of the NPDES permit” because “[n]either [TDEC] nor
th[e] Court are obligated to follow” the federal CWA
19
“when the similar state law can be interpreted using
plain language and legislative intent.” Id. at 18a-19a.
C. The Tennessee Court of Appeals’ holding that
the state law implementing the CWA preempts the
federal CWA’s minimum protections conflicts with the
unanimous body of authority cited supra at pp. 13-16,
holding that the CWA prohibits discharges that are
not authorized by an NPDES permit and that the
CWA prohibits States that implement NPDES programs from enforcing effluent limits that are less
stringent than those established under the CWA. As
explained above, every federal court of appeals and
every state court of last resort to address those questions is in agreement. The Tennessee Court of Appeals’ decision directly conflicts with those decisions.
To illustrate the starkness of the conflict, consider
the California Supreme Court’s decision in City of Burbank v. State Water Resources Control Board, supra.
That court considered claims by operators of
wastewater-treatment plants that the California law
implementing the State’s NPDES program required
consideration of costs when imposing restrictions
through NPDES permits—even when such considerations would require the permit conditions to be less
protective than the CWA’s standards. 108 P.3d at 864.
The California Supreme Court rejected that argument, holding that, “because the supremacy clause of
the United States Constitution requires state law to
yield to federal law, a regional board, when issuing a
wastewater discharge permit, may not consider economic factors to justify imposing pollutant restrictions
that are less stringent than the applicable federal
standards require.” Ibid.; id. at 869 (“Because [state
law] cannot authorize what federal law forbids, it
20
cannot authorize a regional board, when issuing a
wastewater discharge permit, to use compliance costs
to justify pollutant restrictions that do not comply
with federal clean water standards.”). That court correctly explained that, “[t]o comport with the principles
of federal supremacy, California law cannot authorize
[California’s] regional boards to allow the discharge of
pollutants into the navigable waters of the United
States in concentrations that would exceed the mandates of federal law.” Id. at 870. The Ohio Supreme
Court has similarly rejected an interpretation of state
law that would permit a state agency to authorize discharges that would violate the CWA. Columbus &
Franklin Cty. Metro. Park Dist., 600 N.E.2d at 10541055.
The Tennessee Court of Appeals held the exact opposite. The court held that state authorities were permitted to exempt ACC from the CWA’s discharge limits because, inter alia, requiring ACC to obtain an
NPDES permit that complied with the CWA would not
be cost effective and because state law could be interpreted to give TDEC discretion whether or not to require an NPDES permit at all. Pet. App. 18a-20a. The
boldness with which the Tennessee court dismissed
conflicting federal law underscores the directness of
the conflict between its decision and decisions of every
federal court of appeals and state court of last resort
to address these issues. This Court should intervene
to restore federal supremacy principles to Tennessee’s
water-quality laws.
21
II. The Preemption Question Presented Is
Important.
A. The Supremacy Clause of the U.S. Constitution provides that federal law “shall be the supreme
Law of the Land.” U.S. Const. art. VI, cl. 2. The Tennessee Court of Appeals turned that provision on its
head when it held that state law trumps conflicting
federal law—even when the state law purports to implement the more stringent federal law.
This Court plays a vital role in policing federal
preemption principles. In service of that role, the
Court routinely grants petitions for a writ of certiorari
when an outlier court erroneously holds that a state
law is not preempted by a conflicting federal law. See,
e.g., Coventry Health Care of Mo., Inc. v. Nevils,
137 S. Ct. 1190 (2017); DIRECTV, Inc. v. Imburgia,
136 S. Ct. 463 (2015); Mut. Pharm. Co. v. Bartlett,
570 U.S. 472 (2013). The Court should grant the petition in this case as well to bring Tennessee back into
line with federal law and with every other major court
to consider the question presented (not to mention
every other State in the Union).
B. If left undisturbed, the Tennessee Court of
Appeals’ erroneous decision will seriously undermine
Congress’s goal of enforcing comprehensive nationwide water-quality standards. Through the cooperative regulatory regime established by the CWA, Congress trusted and empowered States to enforce waterquality standards by running the NPDES programs
within their borders. But explicit in the CWA—backed
up by the power of the Supremacy Clause—is the condition that States implement their programs by applying the federal standards and requirements at a minimum. States are not free to simply disregard the
22
CWA’s minimum effluent standards and permit requirements. But that is exactly what Tennessee has
done.
As this Court has explained, “Congress’[s] intent
in enacting the [CWA] was clearly to establish an allencompassing program of water pollution regulation.”
City of Milwaukee, 451 U.S. at 318. Congress accomplished that goal by “occup[ying] the field” of setting
minimum clean-water standards “through the establishment of a comprehensive regulatory program supervised by an expert administrative agency.” Id. at
317. The Court has emphasized that “[t]he major purpose of the [CWA] was to establish a comprehensive
long-range policy for the elimination of water pollution,” id. at 318 (internal quotation marks omitted),
and has noted that “Congress criticized past approaches to water pollution control as being ‘sporadic’
and ‘ad hoc,’” id. at 325 (quoting S. Rep. No. 92-414, at
95 (1971)).
To be sure, Congress intended to include willing
States in the implementation of the CWA’s waterquality protections by granting to qualifying States
the authority both to enforce their own NPDES programs and to enforce water-quality standards that are
more stringent than those in the CWA. Int’l Paper,
479 U.S. at 489-490. States therefore enjoy a certain
degree of flexibility in implementing the CWA within
their own borders—but that leeway does not include
discretion to simply disregard the CWA’s requirements. To the contrary, under the CWA, EPA retains
the right to veto any state-authorized NPDES permit
that the EPA views as contrary to the CWA. Id. at
489. Under the scheme approved by the court below,
however, EPA’s oversight role (and potential veto
23
power) is entirely supplanted where, as here, the State
opts to exempt a polluter from the requirement to obtain an NPDES permit, in conflict with the CWA.
That usurpation of power contravenes the “regulatory
‘partnership’ between the Federal Government and
the source State,” id. at 490, that Congress envisioned.
It also ignores the Constitution’s Supremacy Clause.
This Court has made clear that, consistent with ordinary preemption principles, a state law “is pre-empted
if it interferes with the methods by which the [CWA]
was designed to reach th[e] goal” of eliminating water
pollution. Id. at 494; 33 U.S.C. § 1251(a)(1), (3) (describing Congress’s “national goal that the discharge
of pollutants into the navigable waters be eliminated”
and its “national policy that the discharge of toxic pollutants in toxic amounts be prohibited”).
The Tennessee Court of Appeals’ inverse-preemption ruling has serious real-world consequences.
Every day, ACC’s now-defunct landfill discharges
highly toxic pollutants into the ground and surface water that feeds Sugar Creek and Arrow Lake, bodies of
navigable water on petitioner’s property. The EPA
strictly limits the discharge of those pollutants (ammonia and chloride) into our Nation’s waters for good
reason: in concentrations like those discharged from
ACC’s landfill, they are deadly to aquatic life and to
acres of surrounding plant life. Pet. C.A. Br. 7.
Tennessee’s decision to ignore national discharge
limits also has adverse consequences for businesses.
As noted, Congress intended with the CWA to establish uniform national limits on the discharge of pollutants into navigable waters. When Tennessee opts to
ignore those limits, businesses operating within the
State face serious uncertainty about what standard
24
their own discharges will be subject to. A business
that believes it can take advantage of the lax approach
adopted in this case may forego investment in costeffective front-end pollution-control measures. And a
business that understands that it must comply with
federal effluent limits and permitting requirements
will be at an unfair disadvantage vis-à-vis competitors
like ACC to whom Tennessee has given a pass.
The Tennessee Supreme Court instructed the
court of appeals to defer to the Board’s views on how
the WQCA should be implemented in this case. Pet.
App. 49a. The court of appeals then deferred to the
Board’s view that it can unilaterally exempt polluters
from the NPDES requirements of the CWA. Id. at 16a
(explaining that its reverse-preemption holding is
compelled by “deference given to TDEC and the Board
[and] the lack of a necessity to follow the federal law”).
ACC has been polluting navigable waters that
flow into petitioner’s private property for more than
three decades. The Tennessee courts were wrong to
permit ACC to continue do so in violation of federal
law. This Court’s intervention is vitally important.
25
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted for plenary review. In
the alternative, the Court may wish to consider summarily reversing the decision below.
Respectfully submitted,
Matthew C. Blickensderfer
Christopher S. Habel
Lynda M. Hill
FROST BROWN TODD LLC
301 E. 4th Street
Suite 3300
Cincinnati, OH 45202
(513) 651-6800
November 2, 2018
Sarah E. Harrington
Counsel of Record
Erica Oleszczuk Evans
Daniel H. Woofter
GOLDSTEIN &
RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0636
sh@goldsteinrussell.com
APPENDIX
1a
APPENDIX A
COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
No. M2014-00362-COA-R3-CV
Appeal from the Chancery Court
for Davidson County No. 121435II
Carol L. McCoy, Chancellor
STARLINK LOGISTICS, INC.,
v.
ACC, LLC, ET AL.
Filed January 31, 2018, Clerk of the Appellate Courts
April 12, 2017 Session
JUDGMENT
This appeal came on to be heard upon the record
from the Chancery Court of Davidson County, briefs
filed on behalf of the respective parties, and argument
of counsel. Upon consideration thereof, this Court is
of the opinion that there is no reversible error in the
trial court’s judgment.
It is, therefore, ORDERED and ADJUDGED by
this Court that the judgment of the trial court is affirmed. This case is remanded to the trial court for
collection of costs assessed below. Costs on appeal are
taxed to the appellant, StarLink Logistics, Inc.
PER CURIAM
In this case, several entities were attempting to address the pollution issues of Sugar Creek and Arrow
Lake. An Amended and Restated Consent Order was
approved. StarLink Logistics, Inc., a property owner,
appealed. Initially, this court reversed. After an
2a
appeal, the Supreme Court of Tennessee remanded for
this court to review under the proper standard of review. We now affirm the trial court’s decision to approve the Consent Order.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Chancery Court Affirmed;
Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the
court, in which FRANK G. CLEMENT, P.J., M.S., and
W. NEAL MCBRAYER, J., joined.
*
*
*
OPINION
I. BACKGROUND
While the development of this case is complicated
and intricate, the underlying facts are not in dispute
between the parties. Even though most of the history
of this suit involves ACC, LLC (“ACC”) and the Tennessee Department of Environment and Conservation
(“TDEC”), StarLink Logistics, Inc. (“StarLink”) has no
issues with or opinions of the history preceding its involvement.
In 1981, the State of Tennessee through TDEC issued ACC a permit to construct and operate a landfill
in Maury County. The landfill was built on approximately 14 acres of a larger parcel owned by ACC. During the landfill’s 13 years of active operation, ACC disposed of aluminum recycling waste from a nearby aluminum smelting plant. This waste included mostly
bag-house dusts and “salt cake” slag, which contains
high concentrations of sodium chloride and potassium
chloride salts. ACC closed the landfill in 1993 and
submitted a certification of completion of closure to
3a
TDEC in 1995, which was approved with an acceptance of closure by TDEC in 1996.
Within a few years of beginning operation, ACC
and TDEC learned that the landfill was leaching high
levels of chloride and ammonia from the slag into the
groundwater and surface water that drained into
Sugar Creek and Arrow Lake, which is on 1,500 acres
owned by StarLink. This leachate resulted in the pollution of those two bodies of water. Both ACC and
TDEC worked to find a solution to the leaching, including various investigative and corrective efforts, but
they were unsuccessful. As a result of this pollution,
ACC was found to have violated Tennessee Code Annotated sections 69-3-108(a) and (b), 69-3-114(a) and
(b), and 68-211-104(1), (3), and (4).1
1
Tennessee Code Annotated sections 69-3-108(a) and (b)
(2012) provide under the Tennessee Water Quality Control Act:
(a) Every person who is or is planning to carry on any of the
activities outlined in subsection (b), other than a person who
discharges into a publicly owned treatment works or who is a
domestic discharger into a privately owned treatment works,
or who is regulated under a general permit as described in subsection (1), shall file an application for a permit with the commissioner or, when necessary, for modification of such person’s
existing permit.
(b) It is unlawful for any person, other than a person who
discharges into a publicly owned treatment works or a person
who is a domestic discharger into a privately owned treatment
works, to carry out any of the following activities, except in accordance with the conditions of a valid permit:
(1) The alteration of the physical, chemical, radiological,
biological, or bacteriological properties of any waters of the
state;
4a
(2) The construction, installation, modification, or operation of any treatment works, or part thereof, or any extension
or addition thereto;
...
(6) The discharge of sewage, industrial wastes or other
wastes into waters, or a location from which it is likely that
the discharged substance will move into waters[.]
T.C.A. § 69-3-114(a) and (b) (2012) provide under the Tennessee Water Quality Control Act:
(a) It is unlawful for any person to discharge any substance
into the waters of the state or to place or cause any substance
to be placed in any location where such substances, either by
themselves or in combination with others, cause any of the
damages as defined in § 69-3-1031 unless such discharge shall
be due to an unavoidable accident or unless such action has
been properly authorized. Any such action is declared to be a
public nuisance.
(b) In addition, it is unlawful for any person to act in a manner or degree which is violative of any provision of this part or
of any permits or orders issued pursuant to the provisions of
this part; or to fail or refuse to file an application for a permit
as required in § 69-3-108 . . . .
T.C.A. § 68-211-104(1), (3), and (4) provide under the Tennessee Solid Waste Disposal Act that it is unlawful to:
(1) Place or deposit any solid waste into the waters of the
state except in a manner approved by the department or the
Tennessee board of water, quality, oil and gas;
(3) Construct, alter, or operate a solid waste processing or
disposal facility or site in violation of the rules, regulations, or
orders of the commissioner or in such a manner as to create a
public nuisance; or
(4) Transport, process or dispose of solid waste in violation
of this chapter, the rules and regulations established under
this chapter or in violation of the orders of the commissioner or
board.
5a
It was not until 2003 that TDEC requested that
ACC provide a Corrective Action Plan (“the Plan”) detailing the feasibility of various options for mitigating
the release of contaminated leachate based on the information available. These options included waste removal from the landfill, leachate collection and treatment, and natural or enhanced site attenuation. However, the Plan ultimately concluded that there was no
remedy that could satisfy the criteria in Tennessee
Compilation of Rules and Regulations Chapter 12001-7-.04(7)(a)8(ii)2 within the next two to three years.
In 2004, TDEC did then approve ACC’s plan to build a
“Wetlands Treatment Alternative” that would retain
and buffer leachate and improve the water quality and
habitat of the affected waters. However, this system
failed to stop the pollution into Arrow Lake and Sugar
Creek.
After the wetlands failure, in 2008, TDEC requested that ACC submit a modified plan to address
the increase in contaminants in the groundwater.
Later that year, ACC submitted a modified plan (“the
Modified Plan”) that TDEC approved in 2010. This
Modified Plan included a report that detailed ACC’s
efforts since April 2010. It also included a request that
2
“Remedies must: (I) Be protective of human health and the
environment, (II) Attain the groundwater protection standard as
specified pursuant to Rule 1200-01-07-.04(7)(a)1 of this rule,
(III) Control the source(s) of releases so as to reduce or eliminate,
to the maximum extent practicable, further releases of Appendix
II constituents into the environment that may pose a threat to
human health or the environment, and (IV) Comply with standards for management of wastes as specified in subpart (IV) of part
9 of this subparagraph.”
6a
TDEC clarify the corrective action goals, summarize
the current site conditions, and other general actions.
The Modified Plan led to a series of meetings and inspections in determining the best next steps for ACC
to take in stopping the pollution from its landfill.
In June 2011, ACC and TDEC entered into an Initial Consent Order that acknowledged that ACC was
in violation of the Tennessee Water Quality Control
Act3 (“WQCA”) and the Tennessee Solid Waste Disposal Act4 (“SWDA”) and set forth ACC’s obligations in
moving forward to address the continued contamination. As specified in the order, ACC agreed to submit
a new plan to reduce the contamination stemming
from its landfill. This order gave the TDEC Commissioner permission to modify future plans and extend
compliance deadlines for a show of “good cause.” The
civil penalty of $228,300 would only become due if
ACC failed to file and implement the plans called for
by the order. The order could also be waived in its entirety by the TDEC Commissioner for demonstrated
good cause by ACC. This order was filed for entry as
a judgment by consent in the Davidson County Chancery Court.5 At this point, Star Link intervened and
objected to the initial consent order.
After failing to resolve the issues themselves
among the three parties, the Chancery Court remanded the order back to the Tennessee Solid Waste
Disposal Control Board (“the Board”) for further proceedings. StarLink was given specific notice that ACC
3
Tenn. Code Ann. §§ 69-3-101 to -148 (2011).
4
Tenn. Code Ann. §§ 68-211-101 to -124 (2011).
5
Pursuant to Tenn. Code Ann. § 68-212-114(e) (2011),
§ 68-212-215(f) (2011), and § 69-3-115(e) (2004 & Supp. 2011).
7a
and TDEC would be asking for adoption of an
Amended and Restated Consent Order (“the Amended
Order”) that had different orders and assessments
from the Commissioner. In relevant part, ACC was
ordered as follows:
A. [ACC] shall take the following actions to
prevent the unauthorized discharge of leachate contamination in water flowing from the
[landfill] Site into the Arrow Lake impoundment of Sugar Creek:
1. Within 120 days of the effective date of
this Amended and Restated Consent Order, or as is otherwise agreed to by the
parties, [ACC] shall construct a berm upgradient of the site to divert uncontaminated storm water away from the Landfill
prior to the commencement of any corrective action activities on the Landfill.
2. As a part of the Corrective Action Plan
[(“CAP”)] . . . [ACC] shall submit to the
Commissioner for his review and comment or approval a modified Discharge
Reduction Plan (hereinafter “DRP”) that
incorporates TDEC’s comments and revisions to [ACC’s] draft DRP that was submitted to TDEC in September 2011. The
modified DRP shall significantly reduce,
particularly during periods of low area
surface water flow, the loading of contaminants that are currently discharging from
the Site via surface waters. The modified
DRP shall include a schedule for implementation.
8a
3. The DRP shall contain a plan to divert
surface water away from the landfill area
and the current wetland system. The
DRP shall eliminate, to the extent practicable, the potential for surface water to
migrate from the surface into the landfill
and eliminate the potential for surface
water to enter the excavated area of the
landfill once corrective action begins.
...
B. [ACC] shall remove from the current landfill all solid waste, to the extent practicable,
that has the potential for future contact with
ground or surface water. All waste removed
will be located to a new landfill cell constructed on the Site or to a permitted off-site
landfill.
1. Prior to the Commissioner’s approval
of the Corrective Action Plan . . . but after
commencement of waste removal activities, [ACC] shall capture ground water entering the excavated area, analyze the
ground water to determine its chemical
characteristics, and then either (a) redirect the collected water back into the landfill or (b) discharge the collected ground
water directly into Arrow Lake if the water is consistent with background concentrations as approved by TDEC [or] Tennessee water quality criteria[.]
2. After the Corrective Action Plan . . .
has been approved by the Commissioner,
a list of constituents, their concentrations,
9a
and frequency of analysis shall follow the
sampling plan contained in the approved
Water Monitoring Plan as contained in
the approved CAP[.]
3. As waste is removed from the Site,
[ACC] shall capture ground water that is
upgradient of the remaining waste and
handle such ground water as described in
the approved DRP, or as is otherwise required by the CAP. Treatment, transport
or disposal of water is not required pursuant to this Order until the TDEC approved
CAP has been completed.
C. Within one hundred and fifty (150) days of
the effective date of this Amended and Restated Consent Order, [ACC] in general accordance with the ground water corrective action provisions of Rule 1200-01-07-.04(7),
shall submit to the Department a Corrective
Action Plan . . . which provides for the methods and schedule for removal of solid wastes
that have been disposed of in the ACC Landfill which have the potential for future contact
with surface or groundwater.
The Amended Order, which is the point of contention in this case, requires ACC to detail an estimate of
the amount of waste to be removed daily and proposed
methods of removal, a schedule for the removal and
relocation of all impacted waste, the design of any
landfill cell to be built on site, the development and
implementation of a water monitoring and sampling
plan for the leachate discharging from the landfill and
for any ground water pumped from the worksite. As
with the original order, the plan can be modified upon
10a
written approval of the Commissioner and ACC, and
the Commissioner may extend the compliance dates if
ACC provides a written request. The Amended Order
requires a civil penalty of $400,000 that comes due in
$100,000 increments yearly if ACC fails to meet milestone deadlines established in the CAP for removing
waste from the ACC Landfill.
At the contested hearing in front of the Board on
August 7, 2012, TDEC and ACC asserted that diverting the storm water away from the site and subsequently removing the waste from the landfill was the
only practical solution to solve the contamination.
StarLink argued that the plan did not adequately address the leachate still leaking into Sugar Creek and
StarLink’s property. The Board entered an order approving the Amended Order two days later. After
StarLink appealed by filing a petition for judicial review in the Chancery Court and subsequent oral argument, the court entered an order affirming the Board’s
decision approving the Amended Order.
On the initial appeal to this court, we found in favor of StarLink after deciding on an issue we raised:
that the Board failed to fully consider another feasible
and potentially economically viable plan. The Supreme Court reversed, finding that we did not properly
apply the narrow standard of review required for judicial review of agency decisions. Accordingly, the case
was remanded back to this court to properly apply the
standard of review.
II. ISSUES ON APPEAL
On appeal and remand, StarLink asserts two related issues. First, we must address whether the
Amended Order violates statutory provisions,
11a
specifically by not requiring that ACC obtain a
NPDES permit for its continued leachate discharges.
Second, we must also decide whether this action is outside of the authority of both the TDEC and the Commissioner under the Tennessee Hazardous Waste
Management Act.
III. STANDARD OF REVIEW
Judicial review of an agency’s action follows a
more statutorily specific standard than the de novo
standard of review that is typical of most civil cases.
Wayne Cnty. v. Tenn. Solid Waste Disposal Control
Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988). In
reviewing an agency’s decision, the court must follow
Tennessee Code Annotated section 4-5-322(h). We may
only reverse or modify the decision of the agency if the
Board’s finding is:
1. In violation of constitutional or statutory
provisions;
2. In excess of the statutory authority of the
agency;
3. Made upon unlawful procedure;
4. Arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion; or
5.(A) Unsupported by evidence that is both
substantial and material in the light of the
entire record.
(B) In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its
weight, but the court shall not substitute its
12a
judgment for that of the agency as to the
weight of the evidence on questions of fact.
Tenn. Code Ann. § 4-5-322(h)(1)-(5) (2011). This court
has the same scope of review as the trial court, which
is to “review findings of fact of the administrative
agency upon the standard of substantial material and
evidence.” Methodist Healthcare-Jackson Hosp. v.
Jackson-Madison Cnty. Gen. Hosp. Dist., 129 S.W.3d
57, 63 (Tenn. Ct. App. 2003). Even if the administrative body could have found a different result, the reviewing court must still follow the agency as to the
weight of the evidence. Wayne Cnty., 756 S.W.2d at
279 (citing Hughes v. Bd. of Comm’rs, 319 S.W.2d 481,
484 (Tenn. 1958)).
IV. DISCUSSION
As previously noted, this is not a case debating the
facts of the landfill owned by ACC polluting the surrounding land and waterways. Both parties involved
acknowledge the violations under the Tennessee Water Quality Control Act. This suit, instead, handles
the conflict surrounding the Amended Consent Order
that was approved by the Tennessee Solid Waste Disposal Control Board detailing the necessary actions to
be taken by ACC as a result of such violation.
A. NPDES Permit
In resolving the issues in this appeal, persuasive
weight is given to the decision made by TDEC and the
Board, as they are charged with enforcing the WQCA.6
6
See Consumer Advocate Div. v. Greer, 967 S.W.2d 759, 761
(Tenn. 1998) (“[A] state agency’s interpretation of a statute that
the agency is charged to enforce is entitled to great weight in
13a
Only when the court determines an interpretation by
the Board to be “erroneous” will the court be “impelled
to depart from it.”7 The burden is on StarLink to prove
that clear error as they are the party seeking relief.8
In this case, the court finds that the Board’s interpretation in creating the Amended Consent Order was not
erroneous.
determining legislative intent.”); Nashville Mobilphone Co. Inc.
v. Atkins, 536 S.W.2d 335, 340 (Tenn. 1976) (“[T]hey urged upon
us the general rule that weight and importance are given by the
Tennessee courts to the interpretation of the agency charged with
the enforcement or administration of a particular act. We agree
that such an interpretation is entitled to consideration and respect and should be awarded appropriate weight, and this is particularly true in the interpretation of doubtful or ambiguous statutes.”).
7
Nashville Mobilphone, 536 S.W.2d at 340 (quoting Collins v.
McCanless, 169 S.W.2d 850,853 (Tenn. 1943)). See also BellSouth
v. Tennessee Reg. Auth., 79 S.W.3d 506,514 (Tenn. 2002) (quoting
Jackson Express, Inc. v. Tennessee Pub. Serv. Comm., 679 S.W.2d
942, 945 (Tenn. 1984) (“Generally, courts must give great deference and controlling weight to an agency’s interpretation of its
own rules. A strict standard of review applies in interpreting an
administrative regulation, and the administrative interpretation
becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”) (internal quotation marks omitted).
8
Big Fork Mining Co. v. Tennessee Water Quality Control Bd.,
620 S.W.2d 515, 520 (Tenn. Ct. App. 1981) (“In administrative
proceedings, the burden of proof ordinarily rests on the one seeking relief, benefits, or privilege. . . Further, it is well established
in Tennessee case law that the burden of proof is on the party
having the affirmative of an issue, and that burden does not
shift.” See also Pack v. Royal-Globe Ins. Co., 457 S.W.2d 19
(Tenn. 1970); Freeman v. Felts, 344 S.W.2d 550 (Tenn. 1961).
14a
StarLink’s argument rests on the necessity to follow the federal Clean Water Act (“CWA”) and the federal precedent surrounding the statute. Under the
CWA, those with allegations of pollution must either
stop the actions that are causing the pollution or obtain a National Pollutant Discharge Elimination System (“NPDES”) permit to limit and monitor the
amount of pollutant released into the waterway in
question.9 StarLink argues that the Amended Order
ignores the only two options open to a pollutant by permitting ACC to continue the harmful behavior of allowing the leachate to seep into Sugar Creek and Arrow Lake without the oversight of a NPDES permit.
StarLink bases this argument on several federal cases
that focus on the necessity of a NPDES permit when a
person or entity is in conflict with the CWA.10 However, StarLink presents no evidence of any state cases
dictating the same necessity.
In the case of similar federal and state laws, here
the federal CWA and the WQCA, courts may adopt the
interpretation of the federal statutes from federal
9
33 U.S.C. § 1342. This statute also acknowledges that each
state may also establish its own permit program in compliance
with the NPDES. 33 U.S.C. § 1342(b). In Pickard v. Tennessee
Water Quality Control Bd., the Tennessee Supreme Court recognized that any discharge permit issued by TDEC falls under the
NPDES permit system. 424 S.W.3d 511, 514 n.1 (Tenn. 2013).
10
See Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987), City of
Milwaukee v. Illinois & Michigan, 451 U.S. 304 (1981), United
States v. Velsicol Chem. Corp., 438 F. Supp. 945 (W.D. Tenn.
1976).
15a
courts when considering the state statutes.11 However, “although federal judicial decisions ‘interpreting
rules similar to our own are persuasive authority for
purposes of construing the Tennessee rule,’ they ‘are
non-binding even when the state and federal rules are
identical.’”12 The court must also take into account the
legislative intent in the language of the statute itself,
considering the words with the natural and ordinary
meaning within the context of the statute, “presum[ing] that the General Assembly intended that
each word be given full effect.”13 Therefore, “when the
language of a Tennessee statute is clear and the statute can be interpreted and enforced as written, there
is little need to consider or follow the federal courts’
interpretation of similar federal provisions.”14 StarLink’s reliance on the federal law and interpretations
of the federal CWA in this case was misguided.
11
Knox Cnty. ex rel. Envtl. Termite & Pest Control, Inc. v. Arrow Exterminators, Inc., 350 S.W.3d 511,524 n.33 (Tenn. 2011).
12
Webb v. Nashville Area Habitat for Humanity, Inc., 346
S.W.3d 422, 430 (Tenn. 2011) (quoting Harris v. Chem, 33 S.W.3d
741, 745 n.2 (Tenn. 2000)). See also Bowman v. Henard, 547
S.W.2d 527,530 (Tenn. 1977) (“The Supreme Courts of the respective states are bound only by decisions of the Supreme Court of
the United States when that Court holds that a given course of
conduct is unconstitutional under the federal constitution. The
opinions of the other courts of the federal system are persuasive,
but not controlling.”)
13
Knox Cnty., 350 S.W.3d at 524.
14
Id. at 524 n.33.
16a
StarLink fails to take into consideration the language of the similar state statute, the WQCA. This
applicable statute provides:
The commissioner may grant permits authorizing the discharges or activities described in
subsection (b), including, but not limited to,
land application of wastewater, but in granting such permits shall impose such conditions, including effluent standards and conditions and terms of periodic review, as are necessary to accomplish the purposes of this part,
and as are not inconsistent with the regulations promulgated by the board. Under no circumstances shall the commissioner issue a
permit for an activity that would cause a condition of pollution either by itself or in combination with others.15
The wording of this statute can be read to give leniency
in granting permits, putting the decision in the hands
of the Commissioner. While StarLink argues that
courts have previously held that the similar language
in the federal CWA cannot be read this way, there is
no precedent from the Supreme Court of the United
States nor courts in Tennessee interpreting this language of the WQCA. With the deference given to
TDEC and the Board, the lack of a necessity to follow
the federal law, and no direct state precedent in conflict with the decision, this Court finds that the
Board’s interpretation of the statute is not inconsistent with the regulation.
15
Tenn. Code Ann. § 69-3-108(g) (emphasis added).
17a
The statute also places strict limits on the Commissioner in terms of the permitted activity causing or
continuing to cause a condition of pollution. In this
case, issuing a permit for the activity which StarLink
claims is necessary (the leachate flowing from ACC’s
property into Sugar Creek and Arrow Lake) would actually be in direct conflict with the language of the
statute. Without any mitigating efforts, the leachate
would still be causing a condition of pollution into
Sugar Creek and Arrow Lake. For this situation, the
Board properly focused on minimizing the amount of
storm water entering the landfill and removing the
source of the pollution, the salt cake slag, from the
landfill. By doing so, the Board attempted to reduce
the amount of leachate leaving ACC’s property by concentrating on a solution to the pollution rather than
simply monitoring it with the permit. This plan of action was more in line with the legislation’s purpose
and intent in creating the WQCA.16
In addition, the Amended Order included a schedule for the removal of the salt cake slag as well as a
time frame for subsequent reassessment of the actions
needed once the source of the pollution has been removed. Despite what StarLink contends, the Amended Order does not allow for an indefinite discharge of
leachate without any oversight. There is no statutory
requirement for a timeframe in which ACC would be
16
Tenn. Code Ann. § 69-3-102. As a declaration of policy and
purpose, the WQCA seeks to “Abate existing pollution of the waters of Tennessee, to reclaim polluted waters, to prevent the future pollution of the waters, and to plan for the future use of the
waters so that the water resources of Tennessee might be used
and enjoyed to the fullest extent consistent with the maintenance
of unpolluted waters.” Tenn. Code Ann. § 69-3-102(b).
18a
required to treat the discharged leachate. As discussed in the hearing before the Board, there was no
practical or cost effective option to treat the sodium
chloride and potassium chloride leaching from the
landfill before removing the salt cake slag. The
Amended Order does address the possibility for the remaining leachate to be treated once the cause of the
pollution has been removed from the site, and it is
more economically practical.
StarLink also emphasizes the publication aspect
of the NPDES permit as a necessity of the process.
However, the Amended Order was published in the local newspaper, which would fill the same role of notification as the publication of the NPDES permit. StarLink does not even dispute that it had notice of the
Amended Order and the opportunity to participate in
the hearing surrounding it.
B. Authorization of the Commissioner and TDEC
StarLink further argues that the Commissioner
and subsequently TDEC do not have the authority under the Tennessee Hazardous Waste Management Act
(“HWMA”) to implement the remedy provided in the
Amended Order. This argument again relies on the
necessity of a NPDES permit as determined by the federal interpretation of the CWA. Instead, as discussed
previously, the Board was not obligated to apply federal law and was not in error in applying the state law
of the WQCA, the HWMA, and the SWDA.
Specifically, the Board had the latitude to exempt
ACC from the typical requirement of the NPDES permit. One of the main requirements of the permit is to
include technology-based effluent limits based on the
water quality standards as well as the monitoring and
19a
reporting requirements to keep those limits in check.17
However, based on testimony by George Garden presented during the initial phase of this litigation, it
would not be feasible to impose such limitations on the
ACC landfill due to the high salt content.18 ACC would
not be able to meet the effluent limit requirements of
the permit without first removing the salt cake slag.
The HWMA allows the Commissioner to “[i]ssue an order to any liable or potentially liable party requiring
such party to contain, clean up, monitor and maintain
inactive hazardous substance sites” in taking into consideration the technological feasibility and cost-effectiveness of each alternative in selecting containment
and clean up actions.19 The SWDA also authorizes the
Commissioner to issue “order for corrections” when the
Act is being violated.20 Combined with the language of
the WQCA allowing the discharge of a substance if
“such action has been properly authorized,”21 the
Board was not in violation of Tennessee Code Annotated section 69-3-108 in requiring a permit nor the
HWMA, because it is properly authorized.
While StarLink’s argument relying on federal law
may have been persuasive, their reliance on such law
is misguided. Neither the Board nor this Court are
obligated to follow such precedent when the similar
state law can be interpreted using plain language and
legislative intent. Based on the language of the
17
33 U.S.C. §§ 1311 and 1318.
18
AR II, p. 142, lines 10-18; AR II, p. 144, lines 2-17.
19
Tenn. Code Ann. § 68-212-206(a)(3) and (d)(1).
20
Tenn. Code Ann. § 68-211-112.
21
Tenn. Code Ann. § 69-3-114(a).
20a
various statutes, the Board and the Chancery Court
had the authority and were not in error in approving
the Amended Consent Order without the requirement
of a NPDES permit.
V. CONCLUSION
The judgment of the trial court is affirmed, and
the case is remanded for such further proceedings as
may be necessary. Costs of the appeal are taxed to the
appellant, StarLink Logistics, Inc.
s/
JOHN W. MCCLARTY, JUDGE
21a
APPENDIX B
SUPREME COURT OF TENNESSEE
AT NASHVILLE
No. M2014-00362-SC-R11-CV
Chancery Court for Davidson County No. 121435II
STARLINK LOGISTICS, INC.,
v.
ACC, LLC, ET AL.
Date Printed: June 7, 2018
Notice/Date Filed: June 7, 2018
NOTICE – Case Dispositional Decision –
TRAP 11 Denied
The Appellate Court Clerk’s Office has entered
the above action.
James M. Hivner
Clerk of the Appellate Courts
22a
SUPREME COURT OF TENNESSEE
AT NASHVILLE
No. M2014-00362-SC-R11-CV
Chancery Court for Davidson County No. 121435II
STARLINK LOGISTICS, INC.,
v.
ACC, LLC, ET AL.
Filed June 7, 2018, Clerk of the Appellate Courts
ORDER
Upon consideration of the application for permission to appeal of StarLink Logistics Inc. and the record
before us, the application is denied.
The opinion of the Court of Appeals is designated
“Not For Citation” in accordance with Supreme Court
Rule 4, § E.
PER CURIAM
Page, Roger A., J., not participating.
23a
APPENDIX C
SUPREME COURT OF TENNESSEE
AT NASHVILLE
No. M2014-00362-SC-R11-CV
Chancery Court for Davidson County No. 121435II
STARLINK LOGISTICS, INC.,
v.
ACC, LLC, ET AL.
February 10, 2016 Session
Filed May 9, 2016
Appeal by Permission from the Court of Appeals,
Chancery Court for Davidson County, No. 121435II,
Carol L. McCoy, Chancellor
*
*
*
SHARON G. LEE, C.J., delivered the opinion of the
Court, in which CORNELIA A. CLARK, JEFFREY S.
BIVINS, and HOLLY KIRBY, JJ., joined.
OPINION
SHARON G. LEE, C.J.
After its closure, a Class II landfill continued to
discharge contaminants into a creek that flowed into a
lake located on adjoining property. Following years of
investigations and multiple failed remedial measures,
the landfill owner and the state agency with authority
to direct landfill cleanup operations agreed that the
most feasible, practical, and effective way to abate the
discharge was for the landfill owner to divert water
from entering the landfill and, over a four-year period,
to remove and relocate the landfill waste. The neighboring landowner of the property on which the lake affected by the discharge was located objected to the
24a
plan, arguing that the landfill owner should also be required to treat or divert water leaving the landfill site.
The Tennessee Solid Waste Disposal Control Board
(“the Board”) heard the case and approved the landowner’s plan of action and did not require diversion of
the water leaving the landfill. The neighboring landowner appealed, and the trial court affirmed the
Board’s decision. The Court of Appeals, dissatisfied
with the ruling, remanded the case to the Board to
take additional proof on whether the neighboring
landowner was willing to pay for the costs of diverting
the discharge, the costs of implementing the diversion
option, and the landfill owner’s ability to pay for the
diversion plan. We granted the Board’s application for
permission to appeal. We hold that the Court of Appeals failed to properly apply the judicial review provisions of Tennessee Code Annotated section 4-5322(h) (2011) and substituted its judgment for that of
the Board. The judgment of the Court of Appeals is
reversed.
I.
In 1981, the Tennessee Department of Environment and Conservation (“TDEC”) issued ACC, LCC
(“ACC”) a permit to construct and operate a Class II
landfill in Maury County.1 The landfill was located on
1
When the permit was issued, TDEC was known as the Tennessee Department of Public Health and ACC was known as Associated Commodities Corporation. The facts and procedural history in the opinion are taken from the Amended and Restated
Consent Order as presented by TDEC and ACC to the Davidson
County Chancery Court for approval. Starlink did not take issue
before the Tennessee Solid Waste Disposal Control Board with
any of the facts stated in the proposed Amended and Restated
Consent Order.
25a
approximately fourteen acres of the 48.02 acre parcel
owned by ACC. ACC disposed of aluminum recycling
wastes from Smelter Service Corporation’s local aluminum smelting plant. The waste consisted almost
exclusively of bag-house dusts and “salt cake” slag.
The salt cake slag contained high concentrations of
highly soluble sodium chloride and potassium chloride. ACC operated the landfill from 1981 to 1993. In
July 1995, ACC submitted a certification of completion
of closure to TDEC, and in April 1996, TDEC issued
an acceptance of closure to ACC.
TDEC and ACC learned, within a few years of
when the landfill became operational, that high levels
of chlorides and ammonia were being discharged from
the landfill into groundwater and surface water that
drained into Sugar Creek and Arrow Lake. The leaching of chloride and ammonia continued after the landfill’s closure and caused areas west of the landfill, including Sugar Creek and Arrow Lake, to become polluted. ACC worked with TDEC to identify and remedy
the leaching. ACC performed extensive investigative
efforts to determine the cause of the leaching and performed multiple remedial measures but was unsuccessful in abating the pollution.2 In December 2003,
2
Remedial measures included application of daily cover material to divert rainfall from the wastes; construction of ditches to
reroute surface water around the landfill; construction of multiple settling ponds and drainage control ditches; attempted sealing of springs and seeps; installation, development, and maintenance of a system of groundwater monitoring wells to delineate
the nature and extent of groundwater contamination; collection
and analysis of surface and groundwater samples; soil boring/rock coring with installation of piezometers along the landfill
26a
at TDEC’s request, ACC submitted a Corrective Action
Plan (“the Plan”) that evaluated available data, described the limitations of available options due to the
site conditions, and identified three remaining options
to mitigate the release of contaminated leachate from
the landfill: clean closure/waste removal, leachate collection/treatment, and natural or enhanced site attenuation. The Plan presented an assessment of the feasibility and potential effectiveness of these options and
concluded that a remedy that fulfilled all criteria in
Tennessee Compilation of Rules and Regulations
Chapter 1200-1-7-.04(7)(a)8(ii)3 within two to three
years was not technically and economically practical.
After a January 2004 public meeting, TDEC approved
ACC’s plan to build a wetlands system downgradient
perimeter and test pit/trench excavations within the landfill to
evaluate groundwater flow into the landfill; performance of dye
tracer studies to define groundwater flow and karst impact near
the landfill; investigation of landfill area for karst conditions; performance of electrical resistivity and microgravity surveys of the
landfill to define water flow paths beneath the landfill; and geoprobe and rotary auger investigations to evaluate depth to bedrock and groundwater conditions.
3
These criteria required corrective measures to:
(I) Be protective of human health and the environment,
(II) Attain the groundwater protection standard as specified
pursuant to Rule 1200-01-07-.04(7)(a)1 of this rule.
(III) Control the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of
Appendix II constituents into the environment that may pose
a threat to human health or the environment; and
(IV) Comply with standards for management of wastes as
specified in subpart (iv) of part 9 of this subparagraph.
Tenn. Comp. R. & Regs. 1200-1-7-.04(7)(a)8(ii) (2003).
27a
of the site to retain and buffer leachate and improve
water quality and habitat. The wetlands system was
constructed but was not successful.
In June 2008, TDEC requested that ACC submit
a modified plan because the rate of discharge of contaminants from groundwater was increasing. In August 2008, ACC submitted a modified plan (“the Modified Plan”) that TDEC approved in April 2010. The
Modified Plan acknowledged that the discharge problem stemmed from a failure to accurately characterize
the landfill’s hydrogeology features during the permitting and development process, identified options for
reducing the release of chlorides from the landfill and
for removal of the contaminated material, and provided a strategy and schedule to evaluate, select, and
implement ways to address the contaminated discharge. The first step was a preliminary evaluation of
potential corrective action options, followed by a report
to TDEC that would identify options as not feasible or
potentially feasible, provide additional information for
a more complete evaluation of potentially feasible options, and describe the field investigations or other efforts necessary to gather the additional information.
Under the Modified Plan, ACC submitted a preliminary report to TDEC in August 2010, detailing
ACC’s efforts since April 2010. The report requested
that TDEC clarify its corrective action goals, summarized current site conditions, identified corrective action alternatives, summarized planned additional
data gathering efforts to evaluate the feasibility of remaining alternatives, described the future corrective
action plans, and recommended a meeting to discuss
prioritization and timing of additional necessary efforts.
28a
In January 2011, representatives of ACC and
TDEC’s Divisions of Solid Waste Management and
Water Pollution Control met to discuss the necessary
level of contaminant reduction for Sugar Creek. ACC
discussed the potential remedy of removing the waste
from the landfill and planned to do test excavations of
waste material to assess the feasibility of the remedy.
In February 2011, TDEC personnel inspected the
landfill and took water samples at points along Sugar
Creek that confirmed that discharge from the landfill
caused high levels of chlorides, ammonia, and dissolved solids in Sugar Creek downstream of the landfill.
In June 2011, ACC and TDEC entered into an administrative consent order stating that the release of
contaminated discharge from the landfill constituted
violations of the Water Quality Control Act of 1977,
Tenn. Code Ann. §§ 69-3-101 to -148 (2011), and the
Tennessee Solid Waste Disposal Act, Tenn. Code Ann.
§§ 68-211-101 to -124 (2011). The proposed order provided for remedial actions to address the continuing
discharge from the landfill. ACC agreed to submit a
discharge reduction plan to significantly reduce the
amount of contamination flowing from the landfill site
in surface water and to develop and implement a plan
to effectively and permanently prevent the release of
landfill waste to the groundwater. The consent order
was filed in the Davidson County Chancery Court, under Tennessee Code Annotated sections 68-212-114(e)
(2011), 68-212-215(f) (2011), and 69-3-115(e) (2004 &
Supp. 2011).
StarLink Logistics Inc. (“StarLink”), which owns
approximately 1500 acres immediately west of the
landfill and on which Arrow Lake is located,
29a
intervened and objected to the consent order. After the
parties could not reach an agreement, the Davidson
County Chancery Court remanded the matter to the
Board for a contested hearing. On remand, ACC and
TDEC negotiated an Amended and Restated Consent
Order (“Amended Order”), which was presented to the
Board for approval.
The proposed Amended Order required ACC,
among other things, to:
1. Within 120 days of the effective date of the
proposed Amended Order and before the commencement of any corrective action, construct
a berm upgradient from the site to divert uncontaminated storm water away from the
site; and
2. Within four years or less from the effective
date of the proposed Amended Order, remove
from the landfill site, to the extent practicable, all solid waste that has the potential for
future contact with ground or surface water.
All waste must be removed to an approved
landfill cell on ACC’s property or to a permitted off-site landfill. After ACC begins removal of the waste, it must capture groundwater entering the excavated area, analyze
its chemical characteristics, and redirect it
back into the landfill or discharge it into Arrow Lake if the water meets certain water
quality criteria.
To promote compliance, the proposed Amended
Order assessed a $400,000 penalty to ACC due and
payable in four yearly installments of $100,000 if ACC
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failed to meet yearly milestones for the removal of
waste.
On August 7, 2012, the Board held a contested
hearing regarding approval of the proposed Amended
Order. TDEC and ACC urged the Board to approve
the proposed Amended Order, contending that the
only way to remedy the contamination coming from
the closed landfill was to divert storm water away from
the landfill site and to remove the waste from the landfill. StarLink objected to the proposed Amended Order, asserting, among other things, that the proposed
plan did not adequately address the continued discharge of leachate into Sugar Creek and onto StarLink’s property.
In response to preliminary questions from Board
members, Nancy Sullivan, a professional engineer
with Triad Environmental Consultants (“Triad”), explained that at least 250,000 cubic yards of waste
would need to be removed from the site. Chris Scott,
a professional geologist with Triad, explained that he
had been working on the landfill site for several years
and that after failed attempts to address surface water
contamination, it became clear that groundwater was
the major source of the problems with the landfill. Mr.
Scott explained that groundwater had been entering
the landfill from the north and east sides of the landfill, and the first phase of the proposed plan was removal of waste from the landfill’s northern side.
George Garden, an engineer with the engineering firm
Barge, Waggoner, Sumner & Cannon, stated that
based on his measurements of the water flow rate and
contaminant concentrations of the landfill for the past
year, there was no single point of contact between the
landfill waste and groundwater. Although he had
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studied ways to remove contaminant materials from
the water as it left the landfill area, Mr. Garden was
of the opinion that the only way to permanently address the problem was removal of the waste to another
location. According to Mr. Garden, the cost of treating
the discharge would be high and roughly equal to the
cost of removing some of the waste material. From an
economic standpoint, Mr. Garden opined that it would
be better to focus ACC’s resources on removing the
landfill’s waste material as opposed to treating discharge that leaves the landfill area.
StarLink called as its first witness, Dennis
Schucker, a professional geologist and associate director with BHE Environmental, who prepared an investigation work plan report for the StarLink property
that indicated elevated levels of chloride and ammonia
in ground and surface water and soil samples. Mr.
Schucker expressed concern that during the time the
waste was being removed, the site would continue to
leach chloride and ammonia into the streams. He presented no alternative plan to remedy the groundwater
or surface water issue.
StarLink’s next witness was Michael Bogdan, Director of Retained Environmental Matters with Sante
Fe, a healthcare company, of which StarLink was an
indirect subsidiary. Mr. Bogdan testified that he
agreed with the proposed Amended Order’s requirement that a berm be constructed, but insisted that it
should have been done many years ago and should be
installed sooner than 120 days. He took issue with the
proposed Amended Order’s requirement that the plan
“significantly reduce[ ]” the discharge of contaminants
via surface water and instead should have required a
definitive amount of reduction. He also stated that the
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proposed Amended Order should not provide for reductions in discharge “to the extent practicable” but instead should have specific requirements for ACC to
meet. He then stated that the proposed Amended Order should apply Tennessee water quality criteria to
water leaving ACC’s property in addition to the water
entering the landfill excavation area.
Mr. Bogdan testified that the crux of StarLink’s
complaint with the proposed Amended Order was that
it allowed ACC to continue releasing untreated discharge into Sugar Creek and onto StarLink’s property
for at least four more years while the waste is being
removed. When asked about alternative remedies,
Mr. Bogdan asserted that simply removing the waste
material would not solve the groundwater contamination on StarLink’s property. He further stated that
StarLink wanted the release of contaminated discharge onto StarLink’s property to stop immediately
and for any discharge leaving ACC’s property to meet
the Tennessee water quality criteria as outlined in the
proposed Amended Order. When asked about the specific technology StarLink was proposing to meet these
goals, Mr. Bogdan suggested that ACC construct a
slurry wall around its property line and extract and
treat groundwater from behind the wall. When asked
by a Board member if there are karst4 formations on
the property, Mr. Bogdan responded that although
karst formations existed on the property, he had not
observed any in the particular area of discussion. Mr.
4
Karst is defined as “an irregular limestone region with sinkholes, underground streams, and caverns.” Karst, Mirriam-Webster, http://www.merriamwebster.com/dictionary/karst (last visited April 12, 2016).
33a
Bogdan stated that the capture of some groundwater
was possible and indicated that he thought contaminated discharge was leaving ACC’s property through
a retention pond.
Dr. Schucker was recalled to testify and explained
that bedrock formations existed six to twenty feet below the surface, and it was unknown whether groundwater existed below that level of bedrock. Based on
the depth of bedrock, Dr. Schucker opined that
groundwater existing less than twenty feet below the
surface of the bedrock could be captured with a slurry
wall, but Dr. Schucker had not performed a feasibility
analysis on that option. The cost was also unknown.
ACC presented the testimony of Tom Grosko, who
was employed by Smelter Service, an aluminum recycling company in Maury County that is the sole member of ACC’s limited liability corporation. Mr. Grosko
testified that ACC’s objective was to correct the situation by removing the waste from the landfill and stopping the contaminated water from crossing the property line. He stated that ACC was not financially able
to remove the waste from the landfill and also treat
water discharging from the landfill. Therefore, ACC
decided it was best to focus on the root cause of the
contamination by removing the waste. Counsel for
StarLink asked Mr. Grosko if there had ever been a
proposal to pipe the water from the waste disposal site
to other property owned by ACC and if StarLink had
offered to pay for the pipe. Mr. Grosko responded that
he had heard of the proposal, did not personally reject
the idea, and did not recall who had rejected it. Mr.
Grosko later stated that no net environmental benefit
would result from piping the contaminated discharge
from one area to another.
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ACC next presented the testimony of Mike Apple,
retired director of the Tennessee Division of Solid
Waste Management, who had many years of experience dealing with solid waste disposal facilities. Mr.
Apple had reviewed the proposed Amended Order and,
in his opinion, the corrective action in the proposed
Amended Order would abate the problem, was reasonable, and was in the best interest of the public. Mr.
Apple testified that when ACC investigated potential
solutions to the discharge problem, it could not find
the source of the water infiltrating the landfill. Mr.
Apple stated that the flow of groundwater, its direction, and its depth are all unknowns, which is the reason the proposed Amended Order did not address water infiltration.
ACC then presented further testimony from Ms.
Sullivan. Ms. Sullivan testified that under the first
phase of ACC’s waste removal plan, ACC would work
to redirect groundwater infiltrating the landfill,
which, if at least partly successful, would immediately
improve the quality of discharge leaving the landfill.
This, combined with a downgradient surface water impoundment, would improve the quality of the water
flowing into Arrow Lake. Ms. Sullivan admitted that
the proposed Amended Order did not provide for the
evaluation of water entering Arrow Lake and any subsequent remedial action based on such an evaluation.
Ms. Sullivan also admitted that the proposed
Amended Order provided for the sampling and testing
of discharge from the landfill, but did not provide for
any specific action based on the results of these tests.
Ms. Sullivan further acknowledged that the proposed
Amended Order did not provide for specific criteria to
determine the success of the proposed Amended
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Order. Upon examination by TDEC, Ms. Sullivan explained that any plans called for by the proposed
Amended Order could be modified in the future.
Upon further examination by StarLink, Ms. Sullivan stated that the proposed Amended Order focused
on capturing the water entering the landfill because it
would be more cost-effective than capturing the water
leaving the landfill. Ms. Sullivan explained that if the
proposed Amended Order permitted water to enter the
landfill area, the water would have to be treated. The
water, however, would not have to be treated if it was
captured before it entered the landfill. The proposed
Amended Order contemplated that the money saved
by not treating the water entering the landfill would
be used to remove the landfill waste material.
ACC’s last witness was Mr. Garden. ACC hired
Mr. Garden’s employer, Barge, Waggoner, Sumner &
Cannon, to explore the most cost-effective way to treat
the water. Mr. Garden stated there was no possible
way to completely remove both the ammonia and salt
content from the landfill discharge so as to comply
with water quality standards without taking all of the
salt out of the water. The complete removal of the salt
from the discharge would leave a high saline water
residue, requiring the residue to either be dumped into
a very large source of water or forced to evaporate. Mr.
Garden testified that ACC could not legally dump the
residue and that high levels of heat would be needed
to evaporate the residue. Mr. Garden explained that
he had explored ways to generate heat sufficient to
evaporate the residue, but all were too dangerous to
justify. Moreover, the cost to build a plant to treat the
salt in the discharge would be the same whether built
before or after removing the waste material from the
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landfill. Even if such a plant were built, it could only
lower the level of salt leaving the landfill site by single
percentage points, which would make Mr. Garden unlikely to detect any impact from the plant on Arrow
Lake. Mr. Garden could not specify exactly when the
benefit from removing the waste might materialize.
Upon examination by StarLink, Mr. Garden testified that there are multiple points at which contaminated discharge leaves ACC’s property and enters
StarLink’s property. He believed that the volume of
salt in the water leaving the landfill would exceed the
ability of the local wastewater treatment plant in Mt.
Pleasant to handle and discharge the water. Mr. Garden estimated the cost of a plant to treat 30,000 gallons of the most concentrated discharge—a small portion of the flow—would cost about $5 million to construct and about $700,000 annually to operate, depending on how the facility was managed. Mr. Garden
explained that the only facility known to him and ACC
able to handle the anticipated volume of discharge was
in New Jersey.
During closing arguments, StarLink’s counsel
mentioned the earlier proposal by StarLink to pay to
pipe discharging water away from Arrow Lake. Before
the Board began deliberations, the administrative law
judge charged the Board members to make their decision based on the sworn testimony of witnesses and
exhibits introduced as evidence.
During deliberations, Board members discussed
the pros and cons of the proposed Amended Order.
Board member Elaine Boyd commented that it would
not make sense for ACC to focus its financial resources
on treating the symptom of contaminated discharge
when doing so would prohibit ACC from allocating its
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resources to the root cause of the problem—the waste
material. Board member Glenn Youngblood commented that until the waste material in the landfill is
addressed, all parties involved would just be “spinning
[their] wheels” and later commented that a consent order that bankrupts ACC would benefit no one. Board
member Michael Atchison echoed Board member
Youngblood’s concern. Board member Jared Lynn
stated that even if a strategy was implemented piping
surface water discharge to another location, this would
not affect the continuing groundwater discharge and
that removing the waste materials would be the most
effective use of ACC’s resources. Board member Mark
Williams noted that nothing in the proposed Amended
Order eliminated TDEC’s ability to continue enforcement actions. Board member Franklin Smith questioned why the proposed Amended Order could not
provide for a combination of remedies, combining the
terms in the consent order and StarLink’s proposal to
pay to pipe discharging water to another location. In
response, Board member Boyd said that given the subsurface geological conditions, she thought that there
would be some complexity in capturing groundwater
leaving the site given all of the points of discharge.
Board Chairman Ken Donaldson noted that StarLink
was willing to pay for the proposal to divert discharging water. Board member Atchison responded that
while it appeared StarLink offered to do so in the past,
it was unclear whether that offer still stood at the time
of the hearing. Board member Boyd commented that
if the Board brought StarLink on as a party to the proposed Amended Order for more negotiation, further
delay would occur before the root source of the problem—the waste material—was addressed. Upon a
question by Board member Youngblood, the admin-
38a
istrative law judge informed the Board that StarLink
had a private right of legal action against ACC. The
judge also informed the Board it could reopen the record to hear further evidence if it wished to do so.
The Board voted to approve the proposed
Amended Order, stating in its Order that “remediation
of the ACC Landfill in the manner specified in the
[proposed Amended Order] is necessary to protect the
health, safety and welfare of the public.” StarLink appealed the Board’s decision to the Chancery Court for
Davidson County. On January 29, 2014, the Davidson
County Chancery Court affirmed the Board’s approval
of the proposed Amended Order. StarLink appealed.
In the Court of Appeals, StarLink asserted that
the Davidson County Chancery Court erred in affirming the Board’s approval of the proposed Amended Order, raising four issues. On its own, the Court of Appeals raised the issue of “whether the Board’s adoption
of the [Amended] Order was in error where the Board
failed to fully consider a feasible and potentially economically viable plan that would contain the leachate
contamination from the landfill site from continued
discharge into Sugar Creek and Arrow Lake[.]” Starlink Logistics Inc. v. ACC, LLC, No. M2014-00362COA-R3-CV, 2015 WL 1186311, at *4 & n.7 (Tenn. Ct.
App. March 11, 2015); see also Tenn. R. App. P. 13(b).
The Court of Appeals reversed the Davidson County
Chancery Court’s decision, “find[ing] the Board’s decision to be arbitrary and capricious inasmuch [as] it
failed to fully consider the range of remedial options
which were available and discussed at the hearing before the Board.” Starlink Logistics Inc., 2015 WL
1186311, at *7. The intermediate appellate court remanded the matter for further proceedings. Id. at *10.
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We granted the Board’s application for permission
to appeal. The issue before us is whether the Court of
Appeals properly applied the narrow standard of review required for judicial review of agency decisions
under Tennessee Code Annotated section 4-5-322(h).
II.
It is not disputed that the Commissioner of TDEC
had the authority to enter into a consent order with
ACC to remediate the closed landfill site. See Tenn.
Code Ann. § 68-212-224(a)(1) (2011). Tennessee Code
Annotated section 68-212-224(e) requires the terms of
such a consent order to be based on the criteria established in Tennessee Code Annotated section 68-212206(d). Those criteria provide:
(1) In selecting containment and clean up actions, including monitoring and maintenance,
. . . the commissioner shall evaluate reasonable alternatives and select those actions
which the commissioner determines are necessary to protect public health, safety, and the
environment. The goal of any such action
shall be clean up and containment of the site
through the elimination of the threat to the
public health, safety, and the environment
posed by the hazardous substance. In choosing the necessary actions at each site, the
commissioner shall consider the following factors:
(A) The technological feasibility of each alternative;
(B) The cost-effectiveness of each alternative;
40a
(C) The nature of the danger to the public
health, safety, and the environment posed
by the hazardous substance at the site;
and
(D) The extent to which each alternative
would achieve the goal of this subsection (d).
Tenn. Code Ann. § 68-212-206(d) (2011).
TDEC and ACC reached an agreement, contained
in the proposed Amended Order, for the cleanup of the
landfill site. StarLink intervened and objected to the
plan. Following a contested hearing, the Board approved the proposed Amended Order. StarLink, aggrieved by the Board’s decision, sought judicial review
under Tennessee Code Annotated section 4-5-322.
The Uniform Administrative Procedures Act (“the
Act”), Tenn. Code Ann. §§ 4-5-101 to -404 (2011), sets
forth the extent of judicial authority to review agency
decisions. See Tenn. Code Ann. §§ 4-5-301 to -325.
Pursuant to Tennessee Code Annotated section 4-5322(b)(1)(A), StarLink filed a petition for judicial review in the Chancery Court for Davidson County.
StarLink alleged no procedural irregularities; therefore, under section 4-5-322(g), the Davidson County
Chancery Court’s review was confined to the record,
and no new proof was taken.
The reviewing court’s standard of review is narrow and deferential. Wayne Cnty. v. Tenn. Solid Waste
Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct.
App. 1988). The decision of the agency may be reversed or modified if the decision is shown to be:
(1) In violation of constitutional or statutory
provisions;
41a
(2) In excess of the statutory authority of the
agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion; or
(5)(A) Unsupported by evidence that is both
substantial and material in the light of the
entire record.
(B) In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its
weight, but the court shall not substitute its
judgment for that of the agency as to the
weight of the evidence on questions of fact.
Tenn. Code Ann. § 4-5-322(h).
This narrow standard of review, as opposed to the
broader standard of review applied in other appeals,
reflects the general principle that courts should defer
to decisions of administrative agencies when they are
acting within their area of specialized knowledge, experience, and expertise. Tenn. Envtl. Council, Inc. v.
Tenn. Water Quality Control Bd., 254 S.W.3d 396, 40102 (Tenn. Ct. App. 2007) (citing Willamette Indus., Inc.
v. Tenn. Assessment Appeals Comm’n, 11 S.W.3d 142,
147 (Tenn. Ct. App. 1999); Wayne Cnty., 756 S.W.2d at
279; CF Indus. v. Tenn. Pub. Serv. Comm’n, 599
S.W.2d 536, 540 (Tenn. 1980); Metro. Gov’t of Nashville v. Shacklett, 554 S.W.2d 601, 604 (Tenn. 1977)).
Courts do not review questions of fact de novo and,
therefore, do not second-guess the agency as to the
weight of the evidence. Humana of Tenn. v. Tenn.
Health Facilities Comm’n, 551 S.W.2d 664, 667 (Tenn.
42a
1977); Grubb v. Tenn. Civil Serv. Comm’n, 731 S.W.2d
919, 922 (Tenn. Ct. App. 1987) (citing Tenn. Code Ann.
§ 4-5-322(h); Tenn. Code Ann. § 4-5-323; Reece v. Tenn.
Civil Serv. Comm’n, 699 S.W.2d 808, 809 (Tenn. Ct.
App. 1985)). This is true even if the evidence could
support a different result. Wayne Cnty., 756 S.W.2d at
279 (citing Hughes v. Bd. of Comm’rs, 204 Tenn. 298,
319 S.W.2d 481, 484 (1958)).
The Act makes clear that a reviewing court shall
not substitute its judgment for that of the agency as to
the weight of the evidence on questions of fact. Tenn.
Code Ann. § 4-5-322(h)(5)(B). An appellate court applies the same limited standard of review as the trial
court. Davis v. Shelby Cnty. Sheriff’s Dep’t, 278
S.W.3d 256, 264 (Tenn. 2009); Ware v. Greene, 984
S.W.2d 610, 614 (Tenn. Ct. App. 1998).
A decision of an administrative agency is arbitrary or capricious when there is no substantial and
material evidence supporting the decision. Pittman v.
City of Memphis, 360 S.W.3d 382, 389 (Tenn. Ct. App.
2011); Jackson Mobilphone Co. v. Tenn. Pub. Serv.
Comm’n., 876 S.W.2d 106, 110 (Tenn. Ct. App. 1993).
The statute does not define “substantial and material
evidence,” but it is less than a preponderance of the
evidence, Wayne Cnty., 756 S.W.2d at 280 (citing Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620, 86
S. Ct. 1018, 16 L. Ed. 2d 131 (1966)), and more than a
“scintilla or glimmer” of evidence, id. (citing Pace v.
Garbage Disposal Dist., 54 Tenn. App. 263, 390 S.W.2d
461, 463 (1965)). A decision with evidentiary support
can be arbitrary or capricious if it amounts to a clear
error in judgment. City of Memphis v. Civil Serv.
Comm’n, 216 S.W.3d 311, 316 (Tenn. 2007) (citing
Jackson Mobilphone Co., 876 S.W.2d at 110). A
43a
decision is arbitrary or capricious if it “is not based on
any course of reasoning or exercise of judgment, or . . .
disregards the facts or circumstances of the case without some basis that would lead a reasonable person to
reach the same conclusion.” Civil Serv. Comm’n, 216
S.W.3d at 316 (quoting Jackson Mobilphone Co., 876
S.W.2d at 111). “If there is room for two opinions, a
decision is not arbitrary or capricious if it is made honestly and upon due consideration, even though [a reviewing court] think[s] a different conclusion might
have been reached.” Bowers v. Pollution Control Hearings Bd., 103 Wash. App. 587, 13 P.3d 1076, 1083
(2000) (citing Buechel v. Dep’t of Ecology, 125 Wash.2d
196, 884 P.2d 910, 915 (1994) (en banc)) (explaining
the “arbitrary or capricious” standard under Washington’s version of the Uniform Administrative Procedures Act). The “arbitrary or capricious” standard is a
limited scope of review, and a court will not overturn
a decision of an agency acting within its area of expertise and within the exercise of its judgment solely because the court disagrees with an agency’s ultimate
conclusion. See id. (citing Buechel, 884 P.2d 910 at
915).
Applying this limited standard of review to the
Board’s decision, we hold that the decision was not arbitrary or capricious. The Board, relying on its expertise and experience, carefully considered the evidence
presented to it. The Board’s decision was fully supported by substantial and material evidence. It was
based on reasoning and exercise of judgment and did
not disregard any facts, without some basis, that
would lead a reasonable person to reach the same result. While the Board may have chosen other remedies, its decision was sound, well-reasoned, and
44a
supported by the evidence. The Board’s decision was
not arbitrary merely because the reviewing court
might have reached a different decision.
For more than eight years, TDEC and ACC wrestled with the problem of contaminated water leaving
the landfill site and entering Sugar Creek and Arrow
Lake. ACC thoroughly investigated the condition of
the landfill and its hydrogeology features, compiled
data on the landfill site and remedial options, prepared and submitted reports to TDEC, reviewed the
feasibility and effectiveness of various remediation options, and unsuccessfully attempted multiple remediation efforts. The issue of leachate flowing out of the
landfill was clearly a difficult problem to resolve. In
2011, TDEC and ACC arrived at a solution that they
considered to be reasonable, feasible, cost-effective,
and practical. In simple terms, the agreement required ACC to divert water from entering the landfill
site and, over a four-year period, remove all of the
waste from the landfill and relocate it to an approved
landfill cell on its property or to a permitted off-site
location. This plan of action was supported by expert
testimony. StarLink’s primary bone of contention was
that the proposal did not require ACC also to divert or
treat water leaving the landfill site during the waste
removal process. StarLink, arguing that more should
be done to prevent contaminated water from flowing
into Arrow Lake, offered no other feasible alternative
plan. During the Board hearing, StarLink’s counsel
referenced a diversion option during cross-examination of ACC’s witness, Mr. Grosko:
Q: And so what I’m asking you now is, why
aren’t we focusing on diverting the water below?
45a
A: Around what? If it’s already been through
the landfill, I don’t understand.
Q: There is polluted water coming out the
other side.
A: Yes, sir.
Q: Would there be a way to divert the water
coming out the other side?
A: To?
Q: I guess, has there ever been a proposal to
pipe the water to other property that you
own?
A: I believe so, yes.
Q: And did [StarLink] not propose paying for
that pipe so that the water could be diverted
to other land that you own?
A: I’ve heard that, yes.
Q: And so that proposal was rejected, because you don’t want that polluted water any
more than [StarLink] does, do you?
A: I personally didn’t reject it, no.
Q: So who rejected it?
A: I don’t recall.
Q: So no cost solution that would have moved
the polluted water away from Arrow Lake to
your property was rejected?
A: I don’t recall.
When subsequently questioned by TDEC, Mr.
Grosko testified that no net environmental benefit
would result from piping discharge away from Arrow
Lake to another location. Upon inquiries by two Board
46a
members, Mr. Grosko reiterated that he could not recall the details of StarLink’s piping proposal and that
the landfill waste would still have to be addressed.
StarLink’s counsel mentioned the proposal during
closing arguments and suggested that ACC construct
a seepage-proof retention pond and divert discharging
water to that location in addition to treating the water.
This, however, was merely argument and not evidence
on which the Board could base its decision. See Oakes
v. Oakes, 235 S.W.3d 152, 158 (Tenn. Ct. App. 2007)
(citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988)) (explaining that arguments and
statements by counsel during a hearing are not evidence).
ACC presented proof that it could not afford to remove the waste material and also divert or treat the
water flowing out of the landfill. Mr. Apple, the former
director of the Division of Solid Waste Management,
explained that the proposed Amended Order did not
address the issue regarding water flowing out of the
landfill because the flow, direction, and depth of the
groundwater were not known. Mr. Garden testified
that contaminated discharge leaves ACC’s property at
multiple points, and there was no single point of contact between the landfill waste and groundwater. He
discounted the feasibility and effectiveness of treating
the water leaving the landfill. Ms. Sullivan testified
that the proposed plan focused on capturing the water
entering the landfill because it would be more costeffective than capturing the water leaving the landfill.
The record reflects that the Board gave fair consideration to the diversion option. Two Board members made inquiries in response to StarLink’s counsel’s
cross-examination
questions
regarding
47a
StarLink’s purported proposal to pay for piping. During deliberations, Board members commented that
piping off surface water would not address groundwater discharge, that capturing and piping water would
be complex given subsurface geological conditions, and
that negotiating a piping proposal would add further
unnecessary delay to addressing the problem. Board
member Smith suggested that the ideal solution would
be to perform actions in the proposed Amended Order
and divert discharge elsewhere through pipes at StarLink’s expense. After discussion, the Board voted to
approve the proposed Amended Order. The Board decided it was necessary to address the root cause of the
problem, avoid unnecessary delay, and that the geological conditions would make any piping proposal difficult to implement or, at best, only partially effective.
The Board also noted that it would be in no one’s interest to bankrupt ACC by requiring it to divert and
treat the water. The Board did not spend a great deal
of time discussing the diversion option primarily because StarLink failed to present any evidence that the
piping alternative was feasible or would be effective.
During oral argument before this Court, counsel for
StarLink acknowledged that StarLink was not advocating for the piping diversion remedy. Clearly, the
Board considered the evidence and made a reasonable
decision.
The Court of Appeals, in rejecting the Board’s decision and remanding the case to the Board to explore
more options, misapplied the arbitrary or capricious
standard and instead substituted its judgment for that
of the Board. The Court of Appeals determined that
the Board’s decision “failed to give any significant consideration to an option that would divert the flow of
48a
pollutants from discharge into waters of the [S]tate.”
Starlink Logistics Inc., 2015 WL 1186311, at *6. This,
according to the Court of Appeals, rendered the
Board’s decision arbitrary, capricious, and “a clear error in judgment.” Id. at *10. The primary “option” the
intermediate appellate court determined the Board
should have more carefully considered was the diversion of water before it entered Sugar Creek by piping
the water elsewhere. The evidence relied on by the
Court of Appeals was a reference by StarLink’s counsel to a piping proposal while cross-examining ACC’s
representative, Mr. Grosko, wherein Mr. Grosko
acknowledged hearing about a proposal by StarLink to
pay for the piping. From the brief exchange, the Court
of Appeals concluded:
Assuming StarLink is still willing to pay for
the pipe(s) necessary to divert the water, it
would be unreasonable to not implement the
diversion plan, under which leachate would
be contained on ACC’s property rather than
continually polluting the waters of the
[S]tate. ACC has sufficient remaining acreage outside of the landfill that could host a retention pond or other storage for the leachate,
and this should not be ignored at the expense
of continued pollution to waters of the [S]tate.
Id. at *9.
Calling the piping option a “feasible and potentially economically viable complement to the plan,” the
Court of Appeals remanded the case back to the Board
to hear proof on StarLink’s willingness to pay for the
pipe, the estimated costs of implementing the plan,
and ACC’s economic ability to implement the piping
plan. Id. at *10. Respectfully, this search for a
49a
solution was not within the province of the Court of
Appeals. The Board did not ignore the testimony regarding the piping option, but considered and rejected
it as a viable solution.
III. Conclusion
The Court of Appeals failed to properly apply the
judicial review provisions of Tennessee Code Annotated section 4-5-322(h) and substituted its judgment
for that of the Board. We reverse the decision of the
Court of Appeals and remand this case to the Court of
Appeals for consideration of the issues it pretermitted.5 Costs of this appeal are taxed to StarLink Logistics Inc. and its surety, for which execution shall issue
if necessary.
5
Amici Curiae argue before this Court that the Board’s approval of the Amended Order was arbitrary and capricious because the Amended Order does not require ACC to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit. Amici contend that an NPDES permit requirement would
ensure opportunity for the public to comment and participate in
the development of plans to address the discharge of pollutants
into Arrow Lake. Because we remand this matter to the Court of
Appeals for review of pretermitted issues, we do not reach the
issue raised by the Amici.
50a
APPENDIX D
COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
No. M2014-00362-COA-R3-CV
Appeal from the Chancery Court
for Davidson County No. 121435II
Carol L. McCoy, Chancellor
STARLINK LOGISTICS, INC.,
v.
ACC, LLC, ET AL.
Assigned on Briefs December 4, 2014
March 11, 2015
Application for Permission to Appeal Granted by
Supreme Court August 21, 2015
*
*
*
Arnold B. Goldin, J., delivered the opinion of the
Court, in which J. Steven Stafford P.J., W.S. and
Kenny Armstrong, J. joined.
OPINION
Arnold B. Goldin, J.
This appeal stems from an environmental dispute
involving the Appellant, StarLink Logistics Inc.
(“StarLink”), the Tennessee Department of Environment and Conservation (“TDEC”), and Appellee ACC,
LLC (“ACC”). StarLink appeals the trial court’s affirmance of an order of the Tennessee Solid Waste Disposal Control Board (“Board”), which had adopted a
consent order entered into between TDEC and ACC.
We affirm in part, and remand the case to the trial
51a
court for further remand to the Board for further proceedings consistent with this Opinion.
I. Background and Procedural History
Although the history leading up to the present appeal is both detailed and complicated, the basic facts
forming the controversy are not in dispute.1 In 1981,
the State of Tennessee issued ACC a permit to construct a landfill south of the City of Mt. Pleasant in
Maury County, Tennessee. ACC disposed wastes at
the site from 1981 until September 1993. The landfill,
which is a Class II solid waste disposal facility2, encompasses approximately 14 acres of land on a larger
parcel of 48.02 acres which is owned by ACC. During
its period of active use as a landfill, the site was used
for the disposal of aluminum recycling wastes from a
smelting plant located in Mt. Pleasant. These wastes
consisted almost entirely of “salt cake” slag3 and baghouse dusts from the nearby plant’s smelting operations. After ACC ceased using the landfill for the disposal of wastes, it performed final closure of the facility in accordance with the Closure/Post-closure Care
1
We note that much of the history in this case concerns the
relationship between TDEC and ACC. According to the administrative record which we have reviewed in this case, we note that
a witness on behalf of StarLink testified that StarLink “ha[s] no
issues” and “neither agree[s] or disagree[s] with what’s been ongoing and recorded . . . between ACC and TDEC over the last 30
years[.]”
2
The specific requirements for a Class II facility are found at
Tenn. Comp. R. & Regs. 1200-01-07-.04.
3
Salt cake contains high concentrations of sodium chloride
and potassium chloride salts.
52a
and Corrective Action Plans that were approved by the
State. TDEC certified completion of the closure in
1996.
Within a few years after the landfill had begun operations, both ACC and TDEC recognized that unacceptable levels of chlorides and ammonia were leaching out of the wastes and into the underlying groundwater and down-gradient surface water that drained
into nearby Sugar Creek and Arrow Lake.4 Various
efforts were taken by TDEC and ACC to investigate
and correct the leaching, but the problem was never
resolved. It continued after final closure of the facility
and unfortunately persists to this day.
In light of the continued leaching of contaminants
at the site, TDEC contacted ACC in the summer of
2003 and requested that ACC submit a corrective action plan pursuant to Tenn. Comp. R. & Regs. 120001-07-.04(7)7 and 8. ACC submitted a plan meeting
the regulatory requirements in December 2003. In its
plan, ACC presented an assessment of the feasibility
of the options available for the mitigation of the release of leachate and ultimately recommended that a
4
These bodies of water are separated from ACC’s land by Arrow Mines Road. Whereas ACC’s property is located immediately
east of the road, the Arrow Lake impoundment of Sugar Creek
lies immediately to the west. As “waters of the state,” Sugar
Creek is protected from pollution by both the Water Quality Control Act and the Tennessee Solid Waste Disposal Act. See, e.g.,
Tenn. Code Ann. § 69-3-114(a) (2012); Tenn. Code Ann. § 68-211104 (2013). The Arrow Lake impoundment of Sugar Creek is located on the property of the Appellant, StarLink. As represented
in StarLink’s brief and in statements before the Board at the contested case hearing, Arrow Lake was used in the past by residents
of the Mt. Pleasant area.
53a
“Wetlands Treatment Alternative” be pursued in order
to enhance attenuation of releases and impacts. After
a public hearing on the matter, TDEC allowed ACC to
pursue the wetlands treatment pending the acquisition of an Aquatic Resource Alteration Permit.
On April 2, 2004, ACC submitted a remedial plan
for a “Constructed Wetland System” down-gradient of
the landfill that it asserted would not only retain and
buffer leachate, but also improve the habitat and water quality of Sugar Creek and Arrow Lake. The wetland system was proposed to offer several benefits to
the environment, including the reduction of surges of
salt concentration downstream and the improvement
of water quality by the reduction of erosion and breakdown of nutrients and organic matter. On May 4,
2004, TDEC’s Division of Water Pollution Control issued public notice of its intent to issue an Aquatic Resource Alteration Permit to allow the proposed wetland restoration. TDEC’s Division of Solid Waste
Management approved the plan on June 2, 2004. Although the wetland system was subsequently built, site
and drought conditions prevented the full development of the communities of salt-tolerant vegetation
that were planned.
A compliance review meeting took place between
TDEC and ACC in April 2008. Shortly thereafter, in
a letter dated June 12, 2008, TDEC requested that
ACC submit modifications to the original corrective action plan in light of ACC’s failure to satisfy the previous remedial objectives. ACC submitted the required
modified corrective action plan to TDEC approximately two months later. TDEC approved the modified plan for implementation on April 19, 2010.
54a
In February 2011, three inspections conducted by
TDEC personnel revealed that leachate containing
high levels of chlorides and ammonia continued to flow
into Sugar Creek. As a result of this discovery, TDEC
and ACC entered into a consent order on June 6, 2011,
which set forth ACC’s obligations in addressing the
continued contamination. In addition to describing
the historical problems leachate contamination had
posed at the ACC landfill site, the order found ACC to
be in numerous violations of the Water Quality Control Act and the Tennessee Solid Waste Disposal Act.
In particular, ACC was cited for “causing or allowing
unauthorized discharges to waters of the state,” in addition to “allowing the release of solid waste or solid
waste constituents to the waters of the State.” The order mandated that ACC develop plans to reduce leachate contamination on the site but stated that the plans
which were developed and approved could be modified
in the future upon the written approval of the TDEC
Commissioner. In addition, the order stated that the
Commissioner could extend compliance dates for the
plans developed “for good cause shown[.]” Although
the order assessed a civil penalty against ACC in the
amount of $318,300.00, ACC was provided a means by
which it could receive a credit in the amount of
$90,000.00 against the penalty if it proposed certain
“Supplemental Environmental Projects.” The remaining $228,300.00 penalty was due and payable only if
ACC failed to submit and implement the plans called
for by the order. Moreover, the order provided that the
Commissioner could waive ACC’s noncompliance for
demonstrated good cause. Shortly after this order was
entered into, it was filed for entry as a judgment by
consent in the Davidson County Chancery Court pursuant to Tennessee Code Annotated § 68-212-114(e),
55a
Tennessee Code Annotated § 68-212-215(f), and Tennessee Code Annotated § 69-3-115(e).
StarLink,
whose property adjoins the landfill, subsequently intervened in the case.
When TDEC, ACC, and StarLink were unable to
resolve the issues among them, the Chancery Court
remanded the matter for further proceedings before
the Board as a contested case pursuant to the Tennessee Uniform Administrative Procedures Act. On May
17, 2012, TDEC gave written notice to StarLink that a
hearing before the Board was set for August 7, 2012.
Specific notice was given that ACC and TDEC would
be asking the Board to adopt an Amended and Restated Consent Order which would supersede the June
2011 consent order. Although the Amended and Restated Consent Order (“Consent Order”) found that
ACC committed the same violations of the Water
Quality Control Act and the Tennessee Solid Waste
Disposal Act that were cited in the original consent order, the Commissioner’s orders and assessments differed. In outlining a detailed remediation plan, the
Commissioner ordered that ACC take several steps to
improve conditions at the landfill site. In relevant
part, ACC was ordered as follows:
A. [ACC] shall take the following actions to
prevent the unauthorized discharge of
leachate contamination in water flowing
from the Site into the Arrow Lake impoundment of Sugar Creek:
1. Within 120 days of the effective date of this
Amended and Restated Consent Order, or as
is otherwise agreed to by the parties, [ACC]
shall construct a berm upgradient of the site
to divert uncontaminated storm water away
56a
from the Landfill prior to the commencement
of any corrective action activities on the Landfill.
2. As part of [a] Corrective Action Plan . . .
[ACC] shall submit to the Commissioner for
his review and comment or approval a modified Discharge Reduction Plan . . . that incorporates TDEC’s comments and revisions to
[ACC’s] draft DRP that was submitted to
TDEC in September 2011. The modified DRP
shall significantly reduce, particularly during
periods of low area surface water flow, the
loading of contaminants that are currently
discharging from the Site via surface waters.
The modified DRP shall include a schedule for
implementation.
3. The DRP shall contain a plan to divert surface water away from the landfill area and the
current wetland system. The DRP shall eliminate, to the extent practicable, the potential
for surface water to migrate from the surface
into the landfill and eliminate the potential
for surface water to enter the excavated area
of the landfill once corrective action begins.
****
B. [ACC] shall remove from the current
landfill all solid waste, to the extent practicable, that has the potential for future
contact with ground or surface water. All
waste removed will be relocated to a new
landfill cell constructed on the Site or to
a permitted off-site landfill.
57a
1. Prior to the Commissioner’s approval of
the Corrective Action Plan . . . but after commencement of waste removal activities,
[ACC] shall capture ground water entering
the excavated area, analyze the ground water
to determine its chemical characteristics, and
then either (a) redirect the collected water
back into the landfill or (b) discharge the collected ground water directly into Arrow Lake
if the water is consistent with background
concentrations as approved by TDEC[.]
****
2. After the Corrective Action Plan . . . has
been approved by the Commissioner, the list
of constituents, their concentrations, and frequency of analysis shall follow the sampling
plan contained in the approved Water Monitoring Plan as contained in the approved
CAP[.]
3. As waste is removed from the Site, [ACC]
shall capture ground water that is upgradient
of the remaining waste and handle such
ground water as described in the approved
DRP, or as is otherwise required by the CAP.
Treatment, transport or disposal of water is
not required pursuant to this Order until the
TDEC approved CAP has been completed.
C. Within one hundred and fifty (150) days
of the effective date of this Amended and
Restated Consent Order, [ACC] . . . shall
submit to the Department a Corrective
Action Plan . . . which provides for the
methods and schedule for removal of solid
58a
wastes that have been disposed of in the
ACC Landfill which have the potential
for future contact with surface or groundwater.
Under the Corrective Action Plan called for in the
Consent Order, which is the plan at the center of this
appeal, ACC is required to include an operation plan
concerning the amount of waste it proposes to remove
daily and a schedule for removal and relocation of all
impacted waste “which has the potential for future
contact with surface or ground water within four (4)
years or less[.]” In addition, ACC is required to develop and implement a monitoring and sampling plan
for the leachate discharging from the landfill and for
any groundwater pumped from the worksite. The Consent Order further provides that the Commissioner
can extend the compliance dates stated therein. Although the order also assesses a civil penalty in the
amount of $400,000.00, this penalty only comes due
and payable in $100,000.00 increments if ACC fails to
meet yearly milestones relative to the Corrective Action Plan’s deadlines for waste removal. Moreover, despite stating that the Commissioner does not implicitly or expressly waive any provisions of the Water
Quality Control Act or the Tennessee Solid Waste Disposal Act, the Consent Order notes that compliance
with its provisions can be considered as a mitigating
factor in determining the need for future enforcement
actions.
On July 30, 2012, StarLink formally moved the
Board to intervene in the contested case hearing. The
Board granted its motion on August 2, 2012, and the
hearing before the Board took place as noticed on August 7, 2012. The Board entered an order approving
59a
the Consent Order on August 9, 2012.5 On October 5,
2012, StarLink appealed by filing a Petition for Judicial Review in the Chancery Court for Davidson
County.6 Oral argument on the Petition was held on
May 23, 2013, and on January 29, 2014, the Chancery
Court entered an order affirming the Board’s decision
to approve the Consent Order. StarLink then commenced this timely appeal.
II. Issues on Appeal
On appeal, StarLink asserts that the Chancery
Court erred by upholding the Board’s adoption of the
Consent Order and raises four issues for our review.
Having reviewed the parties’ briefs and the record
transmitted to us, we find that there are two issues for
this Court to address at this juncture. As we perceive
it, the essence of the issues on appeal are twofold:
1) whether the Board’s adoption of the Consent Order
was in error where the Board failed to fully consider a
feasible and potentially economically viable plan that
would contain the leachate contamination from the
landfill site from continued discharge into Sugar
Creek and Arrow Lake;7 and 2) whether StarLink’s
5
We note that two provisions from the originally proposed
Consent Order were struck by TDEC and ACC at the beginning
of the administrative hearing before the Board. The order actually approved by the Board reflects this fact.
6
An amendment to its Petition for Judicial Review was filed
on October 9, 2012.
7
Although StarLink primarily phrases the issue on appeal as
one relating to the permit requirements outlined in Tennessee
Code Annotated § 69-3-108, the substantive underlying question
raised on appeal is whether the Board erred in adopting a remediation scheme that sanctions ACC’s pollution indefinitely where
60a
assertion that the Consent Order is deficient in that it
fails to assess significant monetary penalties against
ACC despite over thirty years of knowing environmental violations.
III. Standard of Review
Judicial review of an agency’s action follows the
statutorily defined standard contained in Tennessee
Code Annotated § 4-5-322(h) rather than the broad
standard of review generally applicable to civil appeals. Wayne County v. Tenn. Solid Waste Disposal
Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App.
1988) (citations omitted). The trial court may reverse
or modify the decision of the agency only if the petitioner’s rights have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority of the
agency;
(3) Made upon unlawful procedure;
the Board failed to fully consider a plan that could contain the
leachate contamination. Tennessee Rule of Appellate Procedure
13(b) “expressly grants the appellate courts authority to consider
issues not brought up for review by any party.” Panzer v. King,
743 S.W.2d 612, 616 (Tenn. 1988), abrogated on other grounds by
Lacy v. Cox, 152 S.W.3d 480 (Tenn. 2004)). In this case, to the
extent that we address an issue not specifically raised by the parties, we invoke our authority under Rule 13(b) in order “to prevent injury to the interests of the public,” one of the reasons expressly stated by the Rule. Tenn. R. App. P. 13(b).
61a
(4) Arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion; or
(5) (5) Unsupported by evidence that is both
substantial and material in the light of the
entire record.
Tenn. Code Ann. § 4-5-322(h)(1)-(5) (2011). The trial
court may not substitute its judgment concerning the
weight of the evidence for that of the agency, and the
same limitations apply to the appellate court. Tenn.
Envtl. Council, Inc. v. Tenn. Water Quality Control
Bd., 254 S.W.3d 396, 402 (Tenn. Ct. App. 2007) (citations omitted). “The scope of review in this Court is
the same as in the trial court[.]”
Methodist
Healthcare-Jackson Hosp. v. Jackson-Madison County
Gen. Hosp. Dist., 129 S.W.3d 57, 63 (Tenn. Ct. App.
2003). Therefore, in this Court’s review of an administrative agency’s decision, we are tasked with determining whether the trial court properly applied the
standard of review found at Tennessee Code Annotated § 4-5-322(h). Roy v. Tenn. Bd. of Med. Exam’rs,
310 S.W.3d 360, 364 (Tenn. Ct. App. 2009) (citation
omitted).
Substantial and material evidence “requires
something less than a preponderance of the evidence
. . . but more than a scintilla or glimmer.” Wayne
County, 756 S.W.2d at 280 (citation omitted). Although appellate courts “generally defer” to agency decisions on highly technical matters, “the court’s deference to an agency’s expertise is no excuse for judicial
inertia.” Id. The substantial and material evidence
standard “requires a searching and careful inquiry
that subjects the agency’s decision to close scrutiny.”
Id. (citations omitted).
62a
Agency decisions may be considered “arbitrary
and capricious if caused by a clear error in judgment.”
Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n,
876 S.W.2d 106, 110 (Tenn. Ct. App. 1993) (citations
omitted). “An arbitrary decision is one that is not
based on any course of reasoning or exercise of judgment . . . or one that disregards the facts or circumstances of the case without some basis that would lead
a reasonable person to reach the same conclusion.” Id.
at 111 (citations omitted).
IV. Discussion
As observed at the outset of this Opinion, the dispute in this case is not predicated on a factual controversy among the parties. There is no question that the
landfill operated by ACC is leaking contaminants and
polluting the land and waters of Tennessee. Indeed,
the consent order approved by the Board specifically
acknowledges that ACC has violated Tennessee Code
Annotated § 69-3-108(a) and (b), Tennessee Code Annotated § 69-3-114(a) and (b), and Tennessee Code Annotated § 68-211-104(1),(3), and (4).8 Further, there is
8
Tennessee Code Annotated § 69-3-108(a) (2012) provides as
follows:
Every person who is or is planning to carry on any of the
activities outlined in subsection (b), other than a person who
discharges into a publicly owned treatment works or who is a
domestic discharger into a privately owned treatment works,
or who is regulated under a general permit as described in subsection (l), shall file an application for a permit with the commissioner or, when necessary, for modification of such person’s
existing permit.
63a
Under Tennessee Code Annotated § 69-3-108(b) (2012):
It is unlawful for any person, other than a person who discharges into a publicly owned treatment works or a person who
is a domestic discharger into a privately owned treatment
works, to carry out any of the following activities, except in accordance with the conditions of a valid permit:
(1) The alteration of the physical, chemical, radiological,
biological, or bacteriological properties of any waters of the
state;
(2) The construction, installation, modification, or operation of any treatment works, or part thereof, or any extension
or addition thereto;
****
(6) The discharge of sewage, industrial wastes or other
wastes into waters, or a location from which it is likely that
the discharged substance will move into waters[.]
Under Tennessee Code Annotated § 69-3-114(a) (2012):
It is unlawful for any person to discharge any substance into
the waters of the state or to place or cause any substance to be
placed in any location where such substances, either by themselves or in combination with others, cause any of the damages
as defined in § 69-3-103, unless such discharge shall be due to
an unavoidable accident or unless such action has been
properly authorized. Any such action is declared to be a public
nuisance.
Under Tennessee Code Annotated § 69-3-114(b) (2012):
[I]t is unlawful for any person to act in a manner or degree
that is violative of any provision of this part or of any rule, regulation, or standard of water quality promulgated by the board
or of any permits or orders issued pursuant to this part; or to
fail or refuse to file an application for a permit as required in
§ 69-3-108; or to refuse to furnish, or to falsify any records, information, plans, specifications, or other data required by the
board or the commissioner under this part.
64a
no question that the leachate contamination that
caused these violations persists today. This dispute
focuses not on whether an environmental violation exists, but on the appropriate remediation effort and environmental law enforcement. Simply put, the question in this case is whether the Board erred in adopting the remediation plan agreed to by TDEC and ACC
in the Consent Order where that plan fails to address
the flow of leachate from the landfill site into Arrow
Lake and Sugar Creek.
We note that, in its brief, StarLink specifically
challenges the validity of the Consent Order due to the
fact that the Consent Order does not mandate ACC to
obtain a permit under Tennessee Code Annotated
§ 69-3-108 to bring its discharge of pollutants into
compliance with the Tennessee Water Quality Control
Act and the federal Clean Water Act. We further note
that ACC’s discharge of pollutants without a permit is
also at issue in a stayed federal action brought by StarLink against ACC in the United States District Court
Under Tennessee Code Annotated § 68-211-104 (2013), it is unlawful to:
(1) Place or deposit any solid waste into the waters of the
state except in a manner approved by the department or the
Tennessee board of water, quality, oil and gas;
****
(3) Construct, alter, or operate a solid waste processing or
disposal facility or site in violation of the rules, regulations, or
orders of the commissioner or in such a manner as to create a
public nuisance; or
(4) Transport, process or dispose of solid waste in violation
of this chapter, the rules and regulations established under
this chapter or in violation of the orders of the commissioner or
board.
65a
for the Middle District of Tennessee. Given our disposition herein, which remands the case to the Board for
further proceedings, we find that this issue and all
other issues raised by StarLink which are not directly
addressed herein, are pretermitted as advisory. As
will be further explained in this Opinion, the Board
acted capriciously in the manner that it failed to give
any significant consideration to an option that would
divert the flow of pollutants from discharge into waters of the state. Because this diversion option could
potentially eliminate ACC’s unlawful discharges if it
is adopted and implemented on remand, the issue of a
discharge permit could ultimately be mooted.
Sufficiency of the Assessed Civil Penalties
Before addressing the Board’s failure to fully consider this diversion option, we first consider StarLink’s assertion that the Consent Order is deficient because it fails to impose civil penalties against ACC for
environmental violations that have been occurring for
over the past thirty years. In addition to complaining
about the State’s failure to impose significant penalties for past violations, StarLink notes that the
$400,000.00 that can be imposed as civil penalties is
only due and payable under the Consent Order if ACC
fails to meet future deadlines relative to the ordered
remediation scheme. On appeal, our review of an
agency’s sanctions is subject to “very limited judicial
review.” Armstrong v. Metro. Nashville Hosp. Auth.,
No. M2004-01361-COA-R3-CV, 2006 WL 1547863, at
*3 (Tenn. Ct. App. June 6, 2006) (citation omitted).
The appropriateness of a sanction is peculiarly within
the discretion of the agency, McClellan v. Bd. of Regents of State Univ., 921 S.W.2d 684, 693 (Tenn. 1996),
and we will only review whether the sanction is
66a
“unwarranted in law” or “without justification in fact.”
Rawdon v. Tenn. Bd. of Med. Exam’rs, No. M201202261-COA-R3-CV, 2013 WL 5874779, at *2 (Tenn. Ct.
App. Oct. 30, 2013). In its brief on appeal, the State
generally argues that the emphasis in the Consent Order is on compliance rather than retribution; as it puts
it, the focus is on “expending resources for remediation, rather than on filling the Department’s coffers.”
We agree with this characterization of the Consent Order, and we find that the Board did not abuse its discretion in adopting an order that assesses penalties
against ACC with such remediation efforts in mind.
Although the rampant pollution that the landfill site
has generated over the years certainly warrants stringent state enforcement, the State’s focus on preserving
ACC’s resources for remediation of the site is a reasonable one. The Board was not without justification
when it made the civil penalties provided for in the
Consent Order contingent upon ACC’s failure to comply with the ordered remediation activities. The sufficiency of the remediation efforts actually required by
the Consent Order, however, is another question.
Sufficiency of the Ordered Remediation Efforts
As we have already noted, the Consent Order
broadly addresses the remediation efforts ACC is required to fulfill at the landfill site. Although its provisions are both varied and detailed, its terms obligate
ACC to perform two primary tasks. First, ACC is required to take steps to divert water upgradient of the
site so that the water does not enter the waste-ridden
landfill area. Second, ACC is required to excavate the
landfill and remove all solid waste, “to the extent practicable,” that has the potential for future contact with
surface or groundwater. The order requires the
67a
removed waste to be relocated to a new landfill cell
constructed on site or to a permitted off-site landfill.
This waste removal process is contemplated to occur
over a four year period.
Noticeably absent from the Consent Order is any
mandate that ACC treat or otherwise divert the leachate before it discharges into Sugar Creek. Although
ACC is required to develop and implement a water
monitoring plan, the adopted consent order expressly
states that “[t]reatment, transport or disposal of water
is not required pursuant to this Order until the TDEC
approved CAP has been completed.” On appeal, StarLink generally contends that the absence of such a requirement invalidates the appropriateness of the Consent Order in light of our state’s environmental laws
and policies.
As is evident from the administrative record, the
Board’s decision to adopt the Consent Order was
grounded in a belief that ACC’s funds would be applied
most efficiently in removing waste from the landfill
site. During deliberations on the date of the contested
case hearing, one Board member commented, “[I]t
doesn’t make sense to spend a lot of money on the
symptoms and divert that money away from addressing the root cause. It’s a waste of funds, in my opinion.” This view was echoed by several other Board
members, including one who stated as follows:
If you try to just treat the system and not go
ahead of the stream, then if you just try to
treat it, if you do that in a manner that you
bankrupt the company, that does neither
party in this matter any good if you bankrupt
them. They’ve got to remediate that site, if
they ever get started. Then, hopefully, they’ll
68a
have something to measure to see if it’s getting better or worse.
These comments were in response to testimony
from ACC’s wastewater engineering consultant,
George Garden (“Mr. Garden”). When before the
Board, Mr. Garden testified that treating the discharged leachate, although technically possible, would
be expensive and of little impact:
We costed out 30,000 gallons of the most concentrated waste that we could collect. And a
plant to do that would probably cost—and I
say a plant to do that, using the most efficient
technologies that we could come up with, going all the way to salts, taking that salt and
dumping it in somebody else’s stream, was
probably $5 million. And that is a mall [sic]
percentage of the flow when you have a good
bit of wet weather flow from groundwater
coming out as surface water from the landfill.
So we’re talking about, at the best of times,
only removing about 45 percent of the salt
leaving the site. That’s the best day. Any
other day in the year it’s probably going to be
much less than 45 percent and, in fact, overall
it’s probably less than 10 percent in a year.
Mr. Garden estimated that in addition to the five million dollar cost needed to build the required plant, the
operational costs would be nearly $700,000.00 each
year.
Although concerns of economic efficiency may
have been the impetus for the Board’s action in adopting the Consent Order, this Court finds the Board’s decision to be arbitrary and capricious inasmuch it failed
69a
to fully consider the range of remedial options which
were available and discussed at the hearing before the
Board. Having reviewed the testimony before the
Board, we note that sufficient evidence of a feasible
complement to the Board-approved plan exists. This
complement, which involves diversion of leachate contamination before it enters Sugar Creek rather than
direct treatment of the leachate, would help preserve
the integrity of our state’s waters.
That this diversion option was discussed before
the Board cannot be disputed. During the contested
case hearing, StarLink’s counsel specifically questioned a representative of ACC, Tom Grosko (“Mr.
Grosko”), on why remediation efforts had focused on
the removal of waste from the landfill site instead of
the continued discharge of leachate into Sugar Creek:
Q: And so what I’m asking you now is, why
aren’t we focusing on diverting the water below?
A: Around what? If it’s already been through
the landfill, I don’t understand.
Q: There is polluted water coming out the
other side.
A: Yes, sir.
Q: Would there be a way to divert the water
coming out the other side?
A: To?
Q: I guess, has there ever been a proposal to
pipe the water to other property that you
own?
A: I believe so, yes.
70a
Q: And did [StarLink] not propose paying for
that pipe so that the water could be diverted
to other land that you own?
A: I’ve heard that, yes.
Q: And so that proposal was rejected, because you don’t want that polluted water any
more than [StarLink] does, do you?
A: I personally didn’t reject it, no.
Immediately following the above exchange, ACC’s
counsel questioned Mr. Grosko on the proposal that
contaminated leachate be diverted onto ACC’s lands
instead of being allowed to discharge into the waters:
Q: Were you a party to any of these so-called
offers of piped water? Was that during your
tenure with the company, or is that something that you have heard of or about?
A: I believe it was last year.
When the Board deliberated the case at the conclusion of the parties’ proof, one Board member questioned why StarLink’s proposed offer of diversion
should not be implemented:
Starlink indicated that they would pay for
catching the water after it runs through the
landfill and apply it to another location on the
site. All right. The State and ACC have proposed berms to slow down the water running
into the landfill and excavating the landfill.
Why don’t we do a combination of the three, if
they’re still willing to do that, if that’s possible. And if they want to be a party to the consent order, then everybody is participating in
it. We’re catching as much water as we can
71a
catch before it gets into the landfill. We’re excavating the landfill, and then we’re catching
whatever water goes through it and applies it
to another location on the 48 acres at no cost
to ACC, as I heard it. To me, I see that as a
much better resolution to the problem than
just part of trying to resolve part of the problem.
Although the Board members briefly discussed
the merits of this proposed diversion of contaminated
leachate, they were ultimately dismissive of the option
as a complement to the remediation scheme outlined
in the Consent Order. The Board’s cursory discussion
included an unresolved query into the extent to which
the leachate could be captured before entering the waters and concerns regarding a possible delay in order
to make StarLink a party to the consent order.
We find that the Board’s disregard of the proposed
complement to the remediation scheme was in error.
First, notwithstanding some testimony that the direction of the flow was unknown with respect to some of
the groundwater that eventually discharged, other
testimony
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