Opposition — Tennessee Water Quality Control Board v. Tennessee Valley Authority

PBitice Supreme Court, U.S.

| FILED

No. 83-1184 MAR 23 (964

ALEXANOER L. STEVAS.

In the Supreme Court of the Unit =

OCTOBER TERM, 1983

TENNESSEE WATER QUALITY CONTROL BOARD, ET AL.,

PETITIONERS

Vv.

TENNESSEE VALLEY AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

HERBERT S. SANGER, JR.

General Counsel

Tennessee Valley Authority

Knoxville, Tennessee 37902

(615) 632-2241

JAMES E. Fox

Associate General Counsel

RoBerT C. GLINSKI

Attorney

Tennessee Valley Authority

Knoxville, Tennessee 37902

QUESTIONS PRESENTED

1. Whether the waiver of sovereign immunity contained

in Section 313 of the Clean Water Act, 33 U.S.C. (Supp. V)

1323, for state pollution regulation of federal facilities

authorizes the State of Tennessee to require the Tennessee

Valley Authority to obtain a permit in order to continue to

operate its Ocoee No. 2 dam.

2. Whether Section 313 of the Clean Water Act permits

TVA to remove to federal court a state administrative pro-

ceeding concerning the State's effort to regulate TVA’s

operation of one of its dams.

a) d

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

California v. United States, 438 U.S.

PCE CRECEeesbaseuseccceccccocces 7

Ocoee River Council v. TVA,

MEE Merebphedsoccesccccccccocs 3

National Wildlife Federation v. Gorsuch,

EM Grtiiawisebieneeeeccccecccccs 6

State of Missouri ex rel. Ashcroft v.

Department of the Army, 672 F.2d 1297 ...... 6

Statutes:

Act of Apr. 4, 1938, ch. 61, 52 Stat. 154

Denia catsewhWedvererdscoscooccs 2

Clean Water Act, 33 U.S.C. (Supp. V)

1151 et seq.:

§ 208, 33 U.S.C. (& Supp. V)

Mi saWhebdebbbsarecesovedocccccces 7

§ 313, 33 U.S.C. (Supp. V)

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§ 402, 33 U.S.C. (& Supp. vy)

1342 eeeeeeee eee eee eee ee eee eeeeeee 5, 6,7

§ 502(6), 33 U.S.C. 1362(6) .........666. ooo &

(111)

IV

Page

Statutes—Continued:

Tennessee Valley Authority Act, 16 U.S.C.

831 ef seq. :

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Tennessee Water Quality Control Act

of 1977, Tenn. Code Ann. §$§ 69-3-101

et seq. (1983 & Supp. 1983) ........ceeeeeees 3

Fe SEE ViebidaWaredevcistctuvecnaners 7

Miscellaneous:

S. Doc. 56, 76th Cong., Ist Sess.

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dn the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 83-1184

TENNESSEE WATER QUALITY CONTROL BOARD, ET AL.,

PETITIONERS

Vv.

TENNESSEE VALLEY AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A15) is

reported at 717 F.2d 992. The opinion of the district court

(Pet. App. A1l7-A24) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

September 23, 1983. A petition for rehearing was denied on

October 20, 1983 (Pet. App. A16). The petition for a writ of

certiorari was filed on January 18, 1984. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. In the Tennessee Valley Authority Act (TVA Act),

Congress provided generally that there should be a “unified

development and regulation of the Tennessee River sys-

tem,” and stated that the basic statutory objective is the

achievement of “(1) the maximum amount of flood control;

(2) the maximum development of said Tennessee River for

navigation purposes; [and] (3) the maximum generation of

electric power consistent with flood control and naviga-

tion.” Sections 23 and 26a of the TVA Act, 16 U.S.C. 83lv

and 83ly-1; see also 16 U.S.C. 83lh-1.' The Tennessee

Valley Authority’s (TVA) Ocoee No. 2 hydroelectric pro-

ject, which was originally built by a private power company

in 1913, was purchased by TVA in 1939 to serve as part of

the unified river control system on the Tennessee River

(Pet. App. A2, A6).2 Ocoee No. 2 consists of a diversion

dam, a 4.6 mile wooden flume and a powerhouse (Pet. App.

Al17). The dam has no storage capacity; it simply diverts

water into the flume (id. at A18). The flume then carries the

water to the powerhouse, where it is used to generate elect-

ric power (id. at A17).

'In 1939, a special Joint Congressional Committee created by statute,

Act of Apr. 4, 1938, ch. 61, 52 Stat. 154 et seq., to investigate all aspects

of TVA and its operations stated (S. Doc. 56, 76th Cong., Ist Sess. 20

(1939)):

If the unified river control is to be financed by the Federal

Government, it is apparent that the combined program must be

under Federal control * * *. In judging the draw-backs inevitable

in ary large program, the fact must be kept constantly in mind

that unified river control, under Federal authority, provides the

only method known for solving a network of problems that are by

their nature beyond the scope of private initiative, or of State or

local government.

?The purchase was specifically authorized, and its financing through

the issuance of bonds was provided for by Congress in Section 1 Sc of the

TVA Act, 16 U.S.C. 831n-3. The bonds have been repaid from power

revenues provided by TVA’ rate payers (Pet. App. A19 n.2).

3

In 1976, operation of the Ocoee No. 2 project was tem-

porarily suspended to make repairs to the dam and flume

(Pet. App. A19). While operation was suspended, the water

of the Ocoee River that had previously been diverted

through the flume was permitted to flow past the dam along

its natural course. The newly expanded portion of the river

became very popular for recreational rafting (ibid.).

During the period of shutdown, TVA completed exten-

sive studies on the cost and desirability of repairing and

returning the project to operation. On the basis of these

studies, TVA concluded that Ocoee No. 2 was a valuable

power asset that could and should be repaired and returned

to operation as part of TVA’s power system. TVA also

concluded that it was precluded from wholly or partially

diverting such a power asset to a non-power use unless the

TVA power system was compensated for the lost power

(Pet. App. Al9-A20). When efforts to devise a means of

reimbursing TVA for allowing the Ocoee River to be used

for power part time and recreation part time fell through,

the Ocoee River Council, an organization composed of

rafters and commercial rafting interests, undertook to halt

TVA from renewing operation of the power project.’

Eventually, the Council filed a complaint with the Com-

missioner of the Tennessee Department of Public Health,

alleging that TVA’s restoration of Ocoee No. 2 to operation

would violate the Tennessee Water Quality Control Act of

1977, Tenn. Code Ann. $§ 69-3-101 et seg. (1983 & Supp.

1983). “The complaint did not state or suggest that TVA's

plans involve the discharge of any foreign substance into the

3The Ocoee River Council initially brought suit in the United States

District Court for the Eastern District of Tennessee, seeking to enjoin

TVA from reopening the project on environmental and other grounds.

The court eventually entered judgment in favor of TVA. Ocoee River

Council v. TVA, $40 F. Supp. 788 (E.D. Tenn. 1981).

.

ry

4

waters of the Ocoee River. Rather, it claimed that diversion

of such waters through the restored flume would itself

constitute a “degradation of these high quality recreation

waters” (Pet. App. A22-A23). The Commissioner thereafter

issued an order prohibiting TVA from diverting water

through the repaired flume or using the water to produce

power without a State permit. The order stated (C.A. App.

18-19): “TVA’s proposed diversion of the waters of the

Ocoee River will constitute an ‘* * * alteration of the physi-

cal, chemical, radiological, biological or aah

properties of * * * waters of the state.’ ”

2. TVA appealed the Commissioner's decision to the

Tennessee Water Quality Control Board and simultane-

ously petitioned, pursuant to Section 313 of the Clean

Water Act, 33 U.S.C. (Supp. V) 1323, to remove the case to

the United States District Court for the Middle District of

Tennessee. TVA also filed a separate complaint in the dis-

trict court, requesting a declaratory judgment that Tennes-

see had no authority over TVA’s dam operations.

The district court granted TVA's motion for summary

judgment (Pet. App. A17-A24). The court held that Section

313 of the Clean Water Act authorizes states to regulate

only facilities or activities that involve the discharge or

runoff of pollutants, and that TVA's dam and diversion

structures, which involve only diversion and do not dis-

charge any pollutants, are therefore not facilities covered by

the Act (Pet. App. A24).

3. The court of appeals affirmed (Pet. App. Al-A15).

The court did not decide whether Section 313 limits the

State's authority to regulate a federal agency to situations

where the agency is actually causing a discharge or runoff of

5

a pollutant (Pet. App. A14).‘ Instead, the court held that the

State could not require TVA to obtain a permit for dis-

charges of a dam—a nonpoint source of pollution—under

the authority of the permit system provided for in Section

402 of the Clean Water Act, 33 U.S.C. (& Supp. V) 1342.

The court of appeals upheld the EPA's interpretation of

Section 402 as limited to point sources that discharge “pol-

lutants” as that term is defined in Section 502(6) of the

Clean Water Act, 33 U.S.C. 1362(6).5 The court concluded

that the Ocoee No. 2 project does not discharge “pollutants”

and therefore held that the project does not require a Sec-

tion 402 permit. Since the Tennessee Commissioner had

expressly relied upon the permit requirements of Section

402, the court did not “undertake to determine the limits of

[the State’s] authority” under any other provisions of the

Act (Pet. App. Al4).

ARGUMENT

1. Petitioners argue (Pet. 6-9) that the decision of the

court of appeals constitutes a significant limitation on the

authority of states to regulate water pollution. In fact, the

decision below is a narrow one, rejecting the State’s effort to

regulate by permit the Ocoee No. 2 project. Since the basic

decision of the court of appeals, rejecting the State's

‘The court of appeals accepted briefs from the United States (on

behalf of the Department of Justice and the Environmental Protection

Agency), and the Ocoee River Council as amici curiae. The United

States argued in its brief amicus curiae that federal facilities “having

jurisdiction over any property or facility” were to some extent subject to

state pollution control requirements whether or not a “discharge or

runoff” was involved (Pet. App. A10).

*Section 502(6) of the Clean Water Act, 33 U.S.C. 1362(6) provides in

pertinent part:

The term “pollutant” means dredged spoil, solid waste, inciner-

6

attempt to halt the operation of the TVA project, is correct,

conflicts with no decision of this Court or any other court of

appeals, and the decision will affect nothing except the

single water project involved in this case, further review by

this Court is unwarranted.

As petitioners concede (Pet. 9), the potentially important

issue in this case—whether the waiver of sovereign immun-

ity in Section 313 of the Clean Water Act for federal agen-

cies with “jurisdiction over any property or facility” is

limited to situations where there is an actual runoff of

pollutants (see State of Missouri ex rel. Ashcroft v.

Department of the Army, 672 F.2d 1297, 1304 (8th Cir.

1982))—was not decided by the court of appeals. What the

court did decide was that Tennessee was attempting to

enforce the discharge permit requirement embodied in Sec-

tion 402 of the Clean Water Act, but was doing so in a way

that was inconsistent with the limitations of that provision.

Petitioners do not challenge the court's legal conclusion

that Section 402 does not apply to dams, such as Ocoee No.

2, that do not discharge any pollutants. See Nationa! Wild-

life Federation v. Gorsiuch, 693 F.2d 156 (D.C. Cir. 1982).

But instead petitioners argue (Pet. 7) that the court of

appeals erred in concluding that Tennessee's attempt in this

case to control TVA’s potential water pollution was limited

to its authority under Section 402 of the Clean Water Act.

The question of what the State of Tennessee was in fact

relying upon as the basis for requiring a permit in this case is

hardly a matter of any importance outside the context of

this specific dispute. Moreover, the court reached its

*The court of appeals mentioned in passing that “[t}he right of the

State to require discharge permits is derived solely from section 402”

(Pet. App. A13). Petitioners argue (Pet. 7) that this is a completely

unwarranted restriction on the State's power to deal with water pollu-

tion. If the court's statement were interpreted literally, it would seem to

restrict unduly the State's power to control water pollution, but

7

conclusion regarding Tennessee's action on the basis of the

State Commissioner's reliance on an opinion of the State's

Attorney General that Section 402 is the basis for the State's

permit enforcement efforts (Pet. App. Al4).

In any event, this case is not an appropriate vehicle for

deciding generally what the proper scope of a State's

authority to regulate federal facilities is. This facility, unlike

most, is backed by a specific congressional judgment that a

dam should be operated on this site and as part of a unified

system of river control (see notes | & 2, supra). Whatever

power the State otherwise may have in such matters, it is

clear that it has no power to halt continued operation of a

particular project such as Ocoee No. 2, which Congress has

specifically authorized, and thereby to frustrate the kind of

unified operation of TVA'’s dam and reservoir system for

which Congress specifically provided. See California v.

United States, 438 U.S. 645 (1978).

2. Petitioners seek (Pet. 9-10) review of the court of

appeals’ decision not to address the issue whether state

administrative proceedings are removable under 28 U.S.C.

1441. The court of appeals held (Pet. App. A1l4-A15) that

removal under Section 313 of the Act is broader than under

28 U.S.C. 1441, because the former permits removal of “any

proceeding” that involves the availability of Section 313's

waiver of sovereign immunity. This interpretation is a reas-

onable reading of the statute, and conflicts with no decision

of any other court. Accordingly, the decision does not

warrant review by this Court.

petitioners read far too much into this single statement in the court's

opinion. It seems quite clear that the court only meant that the State's

authority is limited to Section 402 in this case because “the state sought

only to require a permit under authority derived from section 402” (Pet.

App. Al4). This interpretation of the opinion is consistent with the

court's later comment that the State also has authority under Section

208 of the Clean Water Act, 33 U.S.C. 1288, to regulate pollution (Pet.

App. 14).

kK

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

Hersert S. SANGER, JR.

General Counsel

Tennessee Valley Authority

James E. Fox

Associate General Counsel

Ropert C. GLINSK!

Attorney

Tennessee Valley Authority

Knoxville, Tennessee 37902

Marcu 1984

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