Petition for Writ of Certiorari — Jones v. Rockdale County

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fe

ne meetin

No. 04-

IN THE

Supreme Court of the United States

FRAN JONES,

Petitioner,

vV.

ROCKDALE COUNTY, GEORGIA,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Rosert B. Jackson, IV

Counsel of Record

DonaLp D.J. STack

Stack & AssocisTEs, P.C.

260 Peachtree Street, NW

Suite 1200

Atlanta, Georgia 30303

(404) 525-9205

Attorneys for Petitioner

192398 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

Rockdale County, Georgia entered into contracts with

the State of Georgia Department of Transportation (“GA

DOT”) and others to widen a stretch of state route 20 that

passes near Ms. Jones’ residence and her once pristine private

lake. During road construction, Rockdale County

intentionally directed the polluted stormwater runoff from

the road and the developing right-of-way into Ms. Jones’ lake

without her consent, without any Clean Water Act 33 U.S.C.

§§ 1251 et seq. (“CWA”) permits, and without a Resource

Conservation Recovery Act 42 U.S.C. §§ 6901 et seq.

(“RCRA”) disposal permit. To this day, no permits have been

obtained, many tons of the dumped materials remain in

Ms. Jones’ lake, and the polluted stormwater runoff from

the widened road continues to be intentionally and illegally

dumped into Ms. Jones’ lake with every storm.

Four questions of great national importance are

presented:

1. Whether only persons having authority to make “final

decisions” about CWA and RCRA compliance have

liability for CWA and RCRA violations.

2. When is a discharge “subject to” a CWA § 402

permit, and thereby excluded from the RCRA 42 U.S.C.

§ 6903(27) solid waste definition.

3. Whether RCRA’s application and integration provisions

at 42 U.S.C. § 6905 bar simultaneous citizen suits under

RCRA and the CWA.

4. Whether the “Surprise” Alleged to Support an Exclusion

of Evidence Under FRCP 37(c)(1) Must be Genuine and

Justified.

ii

LIST OF PARTIES

In addition to plaintiff Ms. Fran Jones, the other parties

to the proceedings in the United States District Court for the

Northern District of Georgia — Atlanta Division were the

following defendants: Reynolds, Inc.; E.R. Snell Contractor,

Inc.; State of Georgia Department of Transportation; J. Tom

Coleman, Jr., in his Official Capacity as Commissioner of

the Georgia Department of Transportation; and Rockdale

County, Georgia. All of the Defendants except Rockdale

County, Georgia have settled with Ms. Jones and been

dismissed from the case.

ili

TABLE OF CONTENTS

Page

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Table of Cited Authorities ..................... Vv

Table Of Appendices ........ ccc ccc cc cccscces iX

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Statement of Jurisdiction ..................... l

Statutory Provisions Involved ................. l

Statement Of the Case 2.2.2.0... cc ccc cccccccccs 8

Reasons for Granting the Petition .............. 10

I. The Lower Courts’ Opinions are Directly

Contrary to the Plain Language of RCRA, the

CWA, and Binding U.S. Supreme Court

eae sce beh we hms ue Se 10

Il. The Conflicting Federal Court Decisions

Interpreting RCRA’s Solid Waste Exclusion

Perpetuate Great Uncertainty About What the

CCL I on sun cute pice eweees caus 13

iv

Contents

Ill. The District Court and the Court of Appeals

Have Failed or Refused to Interpret and Apply

RCRA According to Its Plain Language. ...

IV. A Defendant’s Claimed “Surprise” Which

Would Support Exclusion of Plaintiff's

Evidence Under FRCP 37(c)(1) Must Be

Genuine, Not a Fabrication, and Not the

Result of Defendant’s Willful Ignorance. ..

Conclusion

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Page

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20

24

iat nt hance Gabo aPC? Tints il BEA Oe

TABLE OF CITED AUTHORITIES

Cases:

Buchholz v. Dayton International Airport, 1995 WL

811897 (S.D. Ohio 1995) ...........eeeeeee

Carbone v. Town of Clarkston, 511 U.S. 383,

VTS Ree si. | eerereeerrererry rere

Connecticut Coastal Fishermen's Ass'n v. Remington

Arms Co., Inc., 989 F.2d 1305 (2d Cir. 1993) ...

Environmental Protection Agency v. California

ex rel. State Water Resources Control Bd.,

426 U.S. 200, 96 S. Ct. 2022 (1976) ..........

Fishel v. Westinghouse, 617 F. Supp. 1531 (D.C. Pa.

FOOD ns cdcadnnc ect canedus sdenueeeeneeey

Inland Steel Co. v. U.S.E.P.A., 901 F.2d 1419

‘Cal? Be Peer r rere rr or Te res

Lutz v. Chromatex, Inc., 725 F. Supp. 258 (M.D. Pa.

BOOP) kn ckcndnkecdecéewaknnscusisass eee

Meghrig v. KFC Western, Inc., 516 U.S. 479,

116 S. Ce. E251 CESSES) 2 ccc ocnccsssvencanss

Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474

Ci errr errors ery yes

Radzanower v. Touche Rose & Co., 426 U.S. 148,

06 &. Ce. SOP CIGD) once ccawcv sr annesncees

Page

15

10

19

13

16

16

15

12

17

17

vi

Cited Authorities

Page

South Florida Water Management District v.

Miccosukee Tribe of Indians, 541 U.S. 95,

cae . CB, Es Gee kde cade ceusescsuus 10, 11, 13

State v. PVS Chemicals, Inc., 50 F. Supp.2d 171

CWA DCS COMED 6s kucvckecckbaxabaneeeuaess 15-16

U.S. Dept. of Energy v. Ohio, 503 U.S. 607, 112

D. CE BGT CASSe 0 vbcceeresnsucieseseee 10, 11

United States v. Allegan Metal Finishing Co.,

696 F. Supp. 275 (W.D. Mich. 1988) .......... 15

United States v. Dean, 969 F.2d 187 (6° Cir. 1992)

PUTT OTETT TCT Tere ee ee ee 16

United States v. Vineland Chemical Company, Inc.,

? 692 F. Supp. 415 (D.N.J. 1988) .............. 19

Water Keeper Alliance v. U.S. Department of

Defense, 152 F. Supp.2d 163 (D. PR 2001) .... 15

Williams Pipeline Company v. Bayer Corporation,

964 F. Supp. 1300 (S.D. lowa 1997) .......... 16

Statutes:

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Cited Authorities

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42 U.SC. § GOTHAM I ME) 22 cccsccccccccccsess 4,12

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Cited Authorities

Page

Rules:

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Regulations:

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ix

TABLE OF APPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Eleventh Circuit Dated

And Filed September 8, 2004 ................

Appendix B — Order Of The United States District

Court For The Northern District Of Georgia

Atlanta Division Filed January 30, 2004 .......

Appendix C — Judgment Of The United States

District Court For The Northern District Of

Georgia, Atlanta. Division Dated And Filed

February 3, 2006 2.0... 2cccccccccececes aes

Appendix D — Order Of The United States Court

Of Appeals For The Eleventh Circuit Denying

Petition For Rehearing Dated November 2,

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Appendix E — Agreement Dated September 27,

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OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the Eleventh

Circuit and the U.S. District Court for the Northern District

of Georgia — Atlanta Division are unreported and are set forth

in the Appendix to this Petition for Writ of Certiorari at

Appendix A and B respectively.

STATEMENT OF JURISDICTION

On September 8, 2004, the U.S. Court of Appeals

affirmed the Order of the U.S. District Court holding that

simultaneous suits under RCRA and the CWA are prohibited,

and that certain waste discharges are excluded from RCRA’s

solid waste definition by a CWA permit that was never sought

or obtained, and that only persons with ultimate authority

have liability for RCRA and CWA violations.

On November 2, 2004, the Court of Appeals denied

Ms. Jones’ timely Petition for Rehearing and Petition for

Rehearing en banc. (App. D). The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

— Federal Resource Conservation and Recovery Act — -

42 U.S.C.A. § 6903(3)

The term “disposal” means the discharge, deposit,

injection, dumping, spilling, leaking, or placing

of any solid waste or hazardous waste into or on

any land or water so that such solid waste or

2

hazardous waste or any constituent thereof may

enter the environment or be emitted into the air

or discharged into any waters, including ground

waters.

42 U.S.C.A. § 6903(27)

The term “solid waste” means any garbage, refuse,

sludge from a waste treatment plant, water supply

treatment plant, or air pollution control facility

and other discarded material, including solid,

——liquid, semisolid, or contained gaseous material

resulting from industrial, commercial, mining, and

agricultural operations, and from community

activities, but does not include solid or dissolved

material in domestic sewage, or solid or dissolved

materials in irrigation return flows or industrial

discharges which are point sources subject to

permits under section 1342 of Title 33, or source,

special nuclear, or byproduct material as defined

by the Atomic Energy Act of 1954, as amended

(68 Stat. 923) [42 U.S.C.A. § 2011 et seq.].

42 U.S.C. § 6905(a)

Nothing in this chapter shall be construed to apply

to (or to authorize any State, interstate, or local

authority to regulate) any activity or substance

which is subject to the Federal Water Pollution

Control Act [33 U.S.C.A. § 1251 et seq.], the Safe

Drinking Water Act [42 U.S.C.A. § 300f et seq.],

the Marine Protection, Research and Sanctuaries

Act of 1972 [16 U.S.C.A. §§ 1431 et seq., 1447

et seq., 33 U.S.C.A. §§ 1401 et seq., 2801 et seq.],

3

or the Atomic Energy Act of 1954 [42 U.S.C.A.

§ 2011 et seq.] except to the extent that such

application (or regulation) is not inconsistent with

the requirements of such Acts.

~ 42: U.S.C. § 6905(b)(1)

The Administrator shall integrate all provisions

of this chapter for purposes of administration and

enforcement and shall avoid duplication, to the

maximum extent practicable, with the appropriate

provisions of the Clean Air Act [42 U.S.C.A.

- § 7401 et seq.], the Federal Water Pollution

Control Act [33 U.S.C.A. § 1251 et seq.], the

Federal Insecticide, Fungicide, and Rodenticide

Act [7 U.S.C.A. § 136 et seq.], the Safe Drinking

Water Act [42 U.S.C.A. § 300f et seq.], the Marine

Protection, Research and Sanctuaries Act of 1972

[16 U.S.C.A. §§ 1431 et seq., 1447 et seq.,

33 U.S.C.A. §§ 1401 et seq., 2801 et seq.], and

such other Acts of Congress as grant regulatory

authority to the Administrator. Such integration

shall be effected only to the extent that it can be

done in a manner consistent with the goals and

policies expressed in this chapter and in the other

acts referred to in this subsection.

42 U.S.C. § 6945(a)

Upon promulgation of criteria under section

6907(a)(3) of this title, any solid waste

management practice or disposal of solid waste

4

or hazardous waste which constitutes the open

dumping of solid waste or hazardous waste is

prohibited, except in the case of any practice or

disposal of solid waste under a timetable or

schedule for compliance established under this

section. The prohibition contained in the

preceding sentence shall be enforceable under

section 6972 of this title against persons engaged

in the act of open dumping.

42 U.S.C. § 6972(a)(1)(A)

Except as provided in subsection (b) or (c) of this

section, any person may commence a civil action

on his own behalf — against any person (including

(a) the United States, and (b) any other

governmental instrumentality or agency, to the

extent permitted by the eleventh amendment to

the Constitution) who is alleged to be in violation

of any permit, standard, regulation, condition,

requirement, prohibition, or order which has

become effective pursuant to this chapter;

42 U.S.C. § 6972(a)(1)(B)

Except as provided in subsection (b) or (c) of this

section, any person may commence a civil action

on his own behalf — [.. .] against any person,

including the United States and any other

governmental instrumentality or agency, to the

extent permitted by the eleventh amendment to

the Constitution, and including any past or present

5

generator, past or present transporter, or past or

present owner or operator of a treatment, storage,

or disposal facility, who has contributed or who

is contributing to the past or present handling,

storage, treatment, transportation, or disposal of

any solid or hazardous waste which may present

an imminent and substantial endangerment to

health or the environment;

— Federal Clean Water Act —

33 U.S.C. § 1342(a)(1)

National pollutant discharge elimination system.

Permits for discharge of pollutants. Except as

provided in sections 1328 and 1344 of this title,

the Administrator may, after opportunity for public

hearing, issue a permit for the discharge of any

pollutant, or combination of pollutants,

notwithstanding section 1311(a) of this title, upon

condition that such discharge will meet either (A)

all applicable requirements under sections 1311,

1312, 1316, 1317, 1318, and 1343 of this title, or

(B) prior to the taking of necessary implementing

actions relating to all such requirements, such

conditions as the Administrator determines are

necessary to carry out the provisions of this

chapter.

33 U.S.C. § 1311(a)

Illegality of pollutant discharges except in

compliance with law. Except as in compliance

with this section and sections 1312, 1316, 1317,

6

1328, 1342, and 1344 of this title, the discharge

of any pollutant by any person shall be unlawful.

— Federal Rules of Civil Procedure —

FRCP 26(a)(1)(B)

Initial Disclosures. Except in categories of

proceedings specified in Rule 26(a)(1)(E), or to

the extent otherwise stipulated or directed by

order, a party must, without awaiting a discovery

request, provide to other parties: .. . a copy of, or

a description by category and location of, all

documents, data compilations, and tangible things

that are in the possession, custody, or control of

the party and that the disclosing party may use to

support its claims or defenses, unless solely for

impeachment;

FRCP 26(a)(2)(B)

Disclosure of Expert Testimony. Except as

otherwise stipulated or directed by the court, this

disclosure shall, with respect to a witness who is

retained or specially employed to provide expert

testimony in the case or whose duties as an

employee of the party regularly involve giving

expert testimony, be accompanied by a written

report prepared and signed by the witness. The

report shall contain a complete statement of all

opinions to be expressed and the basis and reasons

therefor; the data or other information considered

by the witness in forming the opinions; any

exhibits to be used as a summary of or support

7

for the opinions; the qualifications of the witness,

including a list of all publications authored by the

witness within the preceding ten years; the |

compensation to be paid for the study and

testimony; and a listing of any other cases in which

the witness has testified as an expert at trial or by

deposition within the preceding four years.

FRCP 26(e)

Supplementation of Disclosures and Responses.

A party who has made a disclosure under

subdivision (a) or responded to a request for

discovery with a disclosure or response is under a

duty to supplement or correct the disclosure or

response to include information thereafter

acquired if ordered by the court or in the following

circumstances: (1) A party is under a duty to

supplement at appropriate intervals its disclosures

under subdivision (a) if the party learns that in

some material respect the information disclosed

is incomplete or incorrect and if the additional or

corrective information has not otherwise been

made known to the other parties during the

discovery process or in writing. With respect to

testimony of an expert from whom a report is

required under subdivision (a)(2)(B) the duty

extends both to information contained in the report

and to information provided through a deposition

of the expert, and any additions or other changes

to this information shall be disclosed by the time

the party’s disclosures under Rule 26(a)(3) are

due. (2) A party is under a duty seasonably to

amend a prior response to an interrogatory, request

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for production, or request for admission if the

party learns that the response is in some material

respect incomplete or incorrect and if the

additional or corrective information has not

otherwise been made known to the other parties

during the discovery process or in writing.

FRCP 37(c)(1)

A party that without substantial justification fails

to disclose information required by Rule 26(a) or

26(e)(1), or to amend a prior response to discovery

as required by Rule 26(e)(2), is not, unless such

failure is harmless, permitted to use as evidence

at a trial, at a hearing, or on a motion any witness

or information not so disclosed. In addition to or

in lieu of this sanction, the court, on motion and

after affording an opportunity to be heard, may

impose other appropriate sanctions. In addition

to requiring payment of reasonable expenses, |

including attorney’s fees, caused by the failure, ;

these sanctions may include any of the actions

authorized under Rule 37(b)(2)(A), (B), and (C) :

and may include informing the jury of the failure :

to make the disclosure.

STATEMENT OF THE CASE

Rockdale County, Georgia entered into contracts with

the State of Georgia Department of Transportation

(“GA DOT”) and others to widen a stretch of state route 20

that passes near Ms. Jones’ residence and her once pristine

private lake. Rockdale County’s responsibilities on the

project included clearing the proposed new right-of-way of

9

underground storage tanks and other obstructions, developing

and managing project design and implementation, certifying

that “all needed rights of way” had been obtained, and

obtaining “all needed permits” for the project. Construction

on the stretch of road in the watershed that drains to

Ms. Jones lake began sometime after February of 1996.

During construction on that stretch of road, Rockdale County

intentionally directed the polluted stormwater runoff from

the road and the developing right-of-way into Ms. Jones’ lake

without her consent, without any Clean Water Act, 33 U.S.C.

§§ 1251 et seq. (“CWA”) permits, and without a Resource

Conservation Recovery Act, 42 U.S.C. §§ 6901 et seq.

(“RCRA”) disposal permit. Road construction ended on or

about October of 2001. To this day, no permits have been

obtained, much of the dumped material remains in Ms. Jones’

lake, and the polluted stormwater runoff from the widened

road continues to be intentionally and illegally dumped into

Ms. Jones’ lake with every storm. The polluted stormwater

carries and deposits trash, chemicals, eroded soils, detritus

— and during the construction — tons and tons of sand, silt

and clay exposed by the construction land disturbance, into

Ms. Jones’ lake.

The increased volume and flows of polluted stormwater

are an eyesore, flood and devalue Ms. Jones’ property,

kill her fish and other aquatic life, scour and erode her lake

inlet and shore, and threaten her lake’s earthen dam with

overtopping and collapse. Ms. Jones brought suit seeking

inter alia, an injunction against Rockdale County and others

for violation of the permit requirements of the CWA and

RCRA, and for violation of RCRA’s open dumping and

imminent and substantial endangerment prohibitions. The

Eleventh Circuit Court of Appeals affirmed the District

Court’s conclusion that unless Rockdale County had authority

to make so-called “ultimate” or “final decisions” about how

10

the stormwater runoff was directed, it could have no liability

under RCRA or the CWA. The Eleventh Circuit affirmed the

District Court’s conclusion that the waste disposed of into

Ms. Jones’ lake is excluded from the definition of a 42 U.S.C.

§ 6903(27) RCRA solid waste because it is “subject to”

a CWA under 33 U.S.C. § 1342 (i.e., a CWA § 402 permit).

The 11" Circuit affirmed the District Court’s conclusion that

RCRA’s application and integration provisions at 42 U.S.C.

§ 6905 prohibit Ms. Jones from simultaneously bringing her

claims under RCRA and the CWA. Rockdale County claimed

surprise when Ms. Jones argued at summary judgment that

its CWA liability might, in part, be based on its ownership

and control of the point source (i.e. the culvert pipe) that

discharges the polluted stormwater. In response, the District

Court excluded the ownership evidence pursuant to FRCP

37(c\(i), and the Eleventh Circuit affirmed.

REASONS FOR GRANTING THE PETITION

I. The Lower Courts’ Opinions are Directly Contrary

to the Plain Language of RCRA, the CWA, and

Binding U.S. Supreme Court Precedent.

The Clean Water Act (CWA) regulates the discharge of

pollutants into navigable waters of the United States.

U.S. Dept. of Energy v. Ohio, 503 U.S. 607, 112 S. Ct. 1627

(1992). South Florida Water Management District v.

Miccosukee Tribe of Indians, 541 U.S. 95, 124 S. Ct. 1537

(2004). The Resource Conservation and Recovery Act

(RCRA) is a “sweeping statute intended to regulate solid

waste from cradle to grave.” Carbone v. Town of Clarkston,

511 U.S. 383, 114 S. Ct. 1677 (1994). Under RCRA, solid

waste is defined to include liquids. 42 U.S.C. § 6903(27).

Pe Ae OAD

11

The CWA and RCRA prohibit the discharge of pollutants

and disposal of solid waste, respectively, without the proper

permits. Jd.; Ohio; Miccosukee. In this case, it is undisputed

that Ms. Jones’ lake was used for poilutant discharges and

waste disposals during construction and is still being used

for pollutant discharges and waste disposals from the widened

road. Rockdale County’s position is that it has no liability

for the disposals and discharges. Ms. Jones has consistently

identified three independent factual bases for Rockdale

County’s CWA and RCRA liability.

First, in its contract with GA DOT, Rockdale County

specifically accepted responsibility for obtaining a// the

permits needed for their road widening project.

See, Appendix E. It is undisputed that no CWA or RCRA

permits were applied for or obtained. Second, Rockdale

County actually performed and was responsible for drainage

design, and controlled portions of the land disturbance and

other work that occurred in the watershed upgradient of Ms.

Jones’ lake. It is undisputed that Rockdale County’s project

design and implementation intended to put the discharges

and disposals into Ms. Jones’ lake. Third, Rockdale County

owns and gave express approval for use of its Lennox Road

right of way, including specifically its outfall culvert pipe,

to convey the polluted stormwater runoff from the widened

road into Ms. Jones’ lake.’

The Court of Appeals and District Court opinions in this

case hold that Rockdale County has no obligation to comply

with the CWA or RCRA so long as GA DOT had final or

ultimate authority to direct the stormwater into Ms. Jones

lake. That is not the law.

1. The District Court excluded evidence of Rockdale County's

ownership of the point source (i.e. the culvert pipe). That issue is

taken up infra at IV.

12

Under RCRA’s “imminent and substantial endanger-

ment” (ISE) citizen suit section at 42 U.S.C. § 6972(a)(1 (B),

any person may bring suit against any person “who has

contributed or who is contributing to the past or present

handling, storage, treatment, transportation, or disposal of

any solid or hazardous waste which may present an imminent

and substantial endangerment to health or the environment

(emphasis added). Meghrig v. KFC Western, Inc., 516 U.S.

479, 116 S. Ct. 1251 (1996). This Court should grant the

Writ of Certiorari because the lower Courts’ opinions that

only those persons having final or ultimate authority are liable

for violating RCRA’s ISE prohibition is plainly contrary to

the express statutory language and purpose of RCRA.

Ms. Jones is entitled to demonstrate that Rockdale County

caused or contributed to an ISE, irrespective of whether

Rockdale County had final or ultimate authority.

Under RCRA’s “violations” citizen suit section at

42 U.S.C. § 6972(a)(1)(A) - which section also allows

RCRA’s 42 U.S.C. § 6945(a) open dumping prohibition to

be enforced by citizen suit — any person may bring suit against

“any person ... who is alleged to be in violation of any

permit, standard, regulation, condition, requirement,

prohibition, or order which has become effective pursuant

to” RCRA. 42 U.S.C. § 6972(a)(1)(A). This Court should

grant the Writ of Certiorari because the lower Courts’

opinions that only those persons having final or ultimate

authority are liable for violations of any permit, standard,

regulation, condition, requirement, prohibition, or order

which has become effective pursuant to RCRA, is plainly

contrary to the express statutory language and purpose of

RCRA. Ms. Jones is entitled to demonstrate that Rockdale

County violated RCRA — by for example, failing or refusing

to satisfy the compliance obligation it assumed to obtain the

Serial SA Sendai AA itn A ah Bek

13

necessary permits — irrespective of whether Rockdale County

had final or ultimate authority.

Under the CWA, “all dischargers of water pollution” may

be sued to enforce permit conditions... .” Environmental

Protection Agency v. California ex rel. State Water Resources

Control Bd., 426 U.S. 200, 96 S. Ct. 2022 (1976); South

Florida Water Management District v. Miccosukee Tribe of

Indians, 541 U.S. 95, 124 S. Ct. 1537 (2004) (persons whose

conduct is a “cause-in-fact of the discharge of pollutants”

in violation of the CWA have liability). Rockdale County’s

failure or refusal to obtain any permits, or otherwise obtain

compliance with the CWA, makes Rockdale County a

discharger on this project. This Court should grant the Wnt

of Certiorari because the lower Courts’ opinions that only

those persons having final or ultimate authority are CWA

dischargers is plainly contrary to the binding CWA precedent

of this Court.

II. The Conflicting Federal Court Decisions Interpreting

RCRA’s Solid Waste Exclusion Perpetuate Great

Uncertainty About What the Law Is.

RCRA defines solid waste at 42 U.S.C. § 6903(27).

Material that is discarded and not expressly excluded by 42

U.S.C. § 6903(27) is a RCRA solid waste. RCRA’s solid

waste definition expressly includes liquids but expressly

excludes “industrial discharges which are point sources

subject to permits under section 1342 of title 33....”

(emphasis supplied). 42 U.S.C. § 6903(27). In this case, the

District Court and the Court of Appeals held that all the

materials dumped into Ms. Jones’ lake are excluded from

RCRA’s solid waste definition.

14

An analysis of the “subject to” possibilities helps clarify

the issue. As an initial matter, the material being considered

as RCRA solid waste must be both an industrial discharge

and a point source for the 42 U.S.C. § 6903(27) exclusion to

even arguably apply in the first place. During construction

for the road widening in this case, the me*erials in Ms. Jones’

lake that were stormwater and pollutants collected and sent

through the Lennox Drive culvert, were an industrial

discharge from a point source (significantly, that material is

not all of the waste for which Rockdale County was

+esponsible). However, when the “construction activity” on

the Project ended, the industrial nature of the discharge ended.

See, 40 C.F.R. § 122.26. As a result, all of the stormwater

and other waste sent to Ms. Jones’ lake since the end of

cor struction, and all of the stormwater and waste sent to

Ms. Jones’ lake that did not discharge from the point source

obviously are not excluded from RCRA’s solid waste

definition. Also, during construction, all the stormwater and

other waste that was not discharged through the point source

but, for example, eroded from or was otherwise carried off

of the Church property and transported to the lake ‘is also not

excluded.

However, for those portions of the materials that

constitute “industrial discharges which are point sources”

the question remains whether those materials are “subject

to” a CWA § 402 permit. The District Court and Court of

Appeals held that the materials are excluded from RCRA

regulation even though no CWA § 402 permit was sought or

obtained and even though any other compliance with the

CWA is disputed. This interpretation is error and is against

the weight of case authority on the issue.

veh yl goa. ae Oem TPR ee ete Mea, oR .

15

In Water Keeper Alliance v. U.S. Department of Defense,

152 F. Supp.2d 163, 169-70 (D. PR 2001), the court held

that discharges occurring before the defendant obtained its

CWA § 402 permit, or which — even after defendant obtained

its permit — occurred to soil and groundwater rather than to

navigable waters of the U.S., were not “subject to” that permit

within the meaning of 42 U.S.C. § 6903(27). Likewise, in

United States v. Allegan Metal Finishing Co., 696 F. Supp.

275, 281 (W.D. Mich. 1988), the Court found:

... no merit in defendant’s argument that a

NPDES permit — which did not authorize

discharges into the Kalamazoo River until October

1987 — somehow precludes RCRA regulation with

respect to the disposal of hazardous waste to its

onsite ponds that occurred continuously from

1980 until October 1987.

Id. The majority of Courts addressing the 42 U.S.C.

§ 6903(27) “subject to” issue have reached a similar result.

See e.g., Lutz v. Chromatex, Inc., 725 F. Supp. 258 (M.D.

Pa. 1989) (RCRA solid waste exclusion only for those actual

discharges from point sources which are made pursuant to

and authorized by a NPDES permit); United States v. Allegan

Metal Finishing Co., 696 F. Supp. 275 (W.D. Mich. 1988)

(industrial wastewater discharged into holding ponds not

excluded from RCRA waste definition); Buchholz v. Dayton

International Airport, 1995 WL 811897, *23-24 (S.D. Ohio

1995) (“Dayton’s discharges from the spillway are not

authorized by Dayton’s NPDES permit; thus, these discharges

to the Mill Creek constitute disposal of ‘solid waste’ under

RCRA” and subject defendants to RCRA liability if they may

present an imminent and substantial endangerment to

health or the environment); cf. State v. PVS Chemicals, Inc.,

16

50 F. Supp.2d 171, 178-9 (W.D. NY 1998) (discharges to

groundwater are not excluded from solid waste definition,

while point source discharges subject to CWA permit are

excluded whether or not they are within effluent levels set in

the permit); Williams Pipeline Company v. Bayer

Corporation, 964 F. Supp. 1300, 1328-29 (S.D. lowa 1997);

Fishel v. Westinghouse, 617 F. Supp. 1531, 1538 (D.C. Pa.

1985).

In United States v. Dean, 969 F.2d 187, 194 (6" Cir.

1992), the Sixth Circuit held that waste was not excluded

because the exclusion applied only to the point source

discharge itself, “not the contents of the pond or discharges

into it.” Jd. The Court in Dean based its reasoning on a

comment to an EPA regulation defining the jurisdiction

between RCRA and the CWA. The regulation clarified that

RCRA’s solid waste exclusion:

... [a]pplies only to the actual point source

discharge. It does not exclude industrial

wastewaters while they are being collected, stored,

or treated before discharge ...

Id.; 40 C.F.R. § 261.4(a)(2). The Seventh Circuit reached

the same result in a different case, noting that the RCRA

exclusion is limited to certain discharges (i.e. covers only a

subset of point sources regulated under the CWA), that not

all disposals are discharges, and that “[t]he Clean Water Act

is designed for the protection of navigable waters.” Inland

Steel Co. v. U.S.E.P.A., 901 F.2d 1419, 1422-23 (7 Cir.

1990).

In this case, the waste about which Ms. Jones’ complains

arrived at her property as runoff from an adjacent church

property and/or through the Lennox Drive point source

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17

culvert for which Rockdale County never sought or obtained

any CWA § 402 permit. Therefore, all the waste constitutes

solid waste within the meaning of 42 U.S.C. § 6903(27).

Alternatively, only those wastes that did not pass through

the Lennox Drive culvert, are solid waste within the meaning

of 42 U.S.C. § 6903(27). In either event, a significant amount

of solid waste as defined by RCRA, was not “subject to” a

CWA permit under § 402, and was disposed of at Ms. Jones’

property in violation of RCRA and the CWA. In light of the

conflicting federal court decisions, this Court should grant

the Writ of Certiorari to clarify the circumstances where a

discharge is “subject to” a CWA § 402 permit within the

meaning of RCRA 42 U.S.C. § 6903(27).

Ill. The District Court and the Court of Appeals Have

Failed or Refused to Interpret and Apply RCRA

According to Its Plain Language.

The Court of Appeals and the District Court were

required to give full effect to RCRA unless its provisions

are in irreconcilable conflict with the CWA. See, e.g., Morton

v. Mancari, 417 U.S. 535, 551, 94 S. Ct. 2474, 2483 (1974);

Radzanower v. Touche Rose & Co., 426 U.S. 148, 155,

96 S. Ct. 1989, 1993 (1976) (where two statutes are capable

of co-existence, it is the duty of the courts to regard each as

effective). Instead, the District Court and Court of Appeals

hold that RCRA’s application and integration provisions at

42 U.S.C. § 6905 bar Ms. Jones’ simultaneous citizen suits

under RCRA and the CWA. The District Court and Court of

Appeals are clearly wrong. RCRA’s application provision at

42 U.S.C. § 6905(a) requires in pertinent part:

[nJothing in this chapter shall be construed to

apply to (or to authorize any State, interstate, or

AE YARN BP 7 ORF RIL PRCNCALDS MONS LIE ee Mee Een I

LOWS TR ET NEE AOR

18

local authority to regulate) any activity or

substance which is subject to the Federal Water

Pollution Control Act [33 U.S.C. 1251 et seq.]

. except to the extent that such application

(or regulation) is not inconsistent with the

requirements of such Acts. (Emphasis supplied).

It is patently obvious from the statutory text that

Congress intended for RCRA to apply to some activities or

substances “subject to” the CWA. Otherwise, 42 U.S.C.

§ 6905(a) could have simply excluded application of RCRA

altogether from any activity or substance “subject to” the

CWA. Instead, 42 U.S.C. § 6905(a) excepts RCRA

application only “to the extent that such application (or

regulation) 1s not inconsistent with the requirements” of the

CWA. The Court of Appeals and District Court both ignored

the plain language of the statute and failed to give full effect

to RCRA, as neither demonstrates how RCRA and the CWA

are inconsistent in this case. They simply held summarily

that Ms. Jones’ RCRA claims are barred by 6905(a). This

Court should grant the Writ of Certiorari to clarify and require

the lower courts to interpret and apply the statute as it is

written.

RCRA’s integration provision at 42 U.S.C. § 6905(b)(1)

requires in pertinent part:

[t]he Administrator shall integrate all provisions

of this chapter for purposes of administration and

enforcement and shall avoid duplication, to the

maximum extent practicable, with the appropriate

provisions of the ... the Federal Water Pollution

Control Act [33 U.S.C. 1251 et seq.],. . . and such

other Acts of Congress as grant regulatory

authority to the Administrator. Such integration

19

shall be effected only to the extent that it can be

done in a manner consistent with the goals and

policies expressed in this chapter and in the other

acts referred to in this subsection. (Emphasis

supplied).

This “anti-duplication” section on its face operates only on

the U.S. EPA Administrator. It cautions the Administrator against

promulgating RCRA regulations that are “inconsistent with the

requirements” of the CWA. Thus, 42 U.S.C. § 6905(b) is nothing

more than a general admonition to the U.S. EPA Administrator

against wasteful regulation. United States v. Vineland Chemical

Company, Inc., 692 F. Supp. 415, 420-21 (D.N.J. 1988) (Section

6905(b) creates no rights in defendants to resist regulation;

rather, it constitutes an exhortation to the U.S. EPA to avoid

unnecessary and overlapping regulation). Because RCRA’s

Section 6905(b) anti-duplication provision is a mere

admonishment to the U.S. EPA to avoid unnecessary and

overlapping regulation, it is not a right enforceable by the

regulated community that wish to avoid application of RCRA

to their waste disposal activities. Connecticut Coastal

Fishermen’s Ass’n v. Remington Arms Co., Inc. ,989 F.2d 1305,

1317 (2d Cir. 1993).

The Court of Appeals and the District Court ignored the

plain language of RCRA and failed to give full effect to the

statute. Neither court states how RCRA’s congressional

admonishments to the U.S. EPA in 6905(b)(1), preclude

Ms. Jones from bringing her claims simultaneously under RCRA

and the CWA. This Court should therefore grant the Wnit of

Certiorari to reverse the lower courts’ erroneous determination

that statutory directives to the United States EPA Administrator

regarding regulation promulgation, somehow preclude

consistent simultaneous citizen suits under RCRA and the CW A.

20

IV. A Defendant’s Claimed “Surprise” Which Would

Support Exclusion of Plaintiff’s Evidence Under

FRCP 37(c)(1) Must Be Genuine, Not a Fabrication,

and Not the Result of Defendant’s Willful Ignorance.

In her summary judgment briefing, Ms. Jones argued that

Rockdale County’s CWA liability is in part based upon its

ownership of an outfall pipe culvert at Lennox Road

(i.e., the point source). In response, Rockdale County

succeeded in having the evidence of its ownership of the

culvert excluded under FRCP 37(c)(1) by claiming that it

understood Ms. Jones’ case against it was based solely on its

role in obtaining a project design that used Ms. Jones’

lake (so-called “design flaw”) to dispose of the stormwater.

If, as it claimed, Rockdale County understood the case against

it to consist solely of what it calls a design flaw, then it simply

fabricated that allegation and/or had its proverbial head in

the sand. From the outset, Ms. Jones had always claimed in

writing that Rockdale County had CWA liability as an “owner

and/or operator.” The only point source that has ever been

discussed in detail in this case is Rockdale County’s outfall

pipe culvert at Lennox Road that discharges onto the Church

property.

Rockdale County disclosed its ownership of the Lenox

Drive right-of-way (that includes the culvert) to Ms. Jones

in its pre-litigation correspondence with Ms. Jones. In her

written discovery responses to the County, Ms. Jones

specifically informed the County she intended to rely on a//

of their correspondence to prove Rockdale County’s CWA

liability. In the CWA portion of her brief in support of partial

summary judgment, Ms. Jones argued “... the storm drains,

culverts, storm sewers and other pipes handling stormwater

from the Project here are point sources under the CWA.”

21

The fact that Rockdale County owned the only point source

discharging onto the church property that had ever been at

issue in the case, could not have come as a surprise to

Rockdale County. The fact that Ms. Jones was alleging

“owner and/or operator” liability against Rockdale County,

for whatever it owned or operated that caused or contributed

to the violations, could not possibly have surprised Rockdale.

Ms. Jones had specifically stated in her Complaint that

Rockdale is an “Owner and/or Operator.” Ms. Jones’ had

previously served expert reports to Rockdale County that

included the alleged new information, as required by FRCP

26(a)(2)(B). The report of Ms. Jones’ expert biologist (Mark

Larue) for example discusses the Lennox Road right of way

and outfall culvert specifically and at length. Mr. Larue’s

report contains photographs of the Lenox Drive outfall

culvert and contains the results of numerous analytical

samples taken at the Lenox Drive outfall culvert (identified

interchangeably as “Discharge of Culvert” and as “storm

outlet”). Rockdale deposed Mr. Larue at length specifically

about the Lennox Drive stormwater collection and discharge

structures. At one point during their deposition questioning,

Rockdale just told Mr. Larue:

p48

1 QQ. When I ask you these questions, | am

talking

2 about Lenox Road. I am assuming you didn’t

do any

3. research outside of that along Lenox Road,

did you?

22

4 A. My scope was limited to that stretch of

20 that

5 drains along Lenox Road.

Thus, any failure by Ms. Jones to again supplement or

amend with the fact that she was basing her claim on

Rockdale’s ownership of the Lenox Drive culvert outfall was

harmless within the meaning of FRCP 37(c)(1), because that

is the only point source discharging onto the church property

that the parties had been fighting over for almost five years

before the lawsuit was filed. In fact, virtually every piece of

written correspondence between Rockdale County and

Ms. Jones discussed the discharge from that culvert.

Ms. Jones was not required to supplement or amend her prior

responses. See, FRCP 26(e); FRCP 26(a)(2)(B).

There was never — as a matter of law and common sense

— any justification for Rockdale County to “understand” that

the owner/operator allegations in Ms. Jones’ complaint were

not being made against it. There was no justification for

Rockdale County to disregard Ms. Jones’ owner/operator

allegations as “boilerplate” (as it refers to them) — e.g. not to

be taken seriously. Ms. Jones’ Complaint specifically plead

that “Defendant County ... is an owner and/or operator” . . .

“of the source. ...” There was no justification for Rockdale

County to not take seriously Ms. Jones’ interrogatory

response that she was relying on all of Rockdale County’s

correspondence with her to prove her case against Rockdale

County. As a result, any failure to supplement discovery by

Ms. Jones in this case was upon “substantial justification”

within the meaning of Rule 37(c)(1) because Ms. Jones

reasonably and correctly believed her discovery responses

were complete, and she actually knew that the information

23

Rockdale County claims is a surprise had already been made

known to Rockdale County in discovery, in other writings,

and during depositions. Thus, the District Court abused its

discretion by excluding the evidence. FRCP 37(c)(1) permits

the Court to impose “appropriate sanctions” other than

evidence exclusion. Ms. Jones was not required to

supplement or amend her prior responses. See FRCP 26(e);

FRCP 26(a)(2)(B).

The Federal Rules of Civil Procedure are concerned with

prevention of surprise to be sure, but the surprise must be

genuine and justified. Where as here, the complaining party

cannot legitimately claim surprise because FRCP 26(e) was

satisfied by its correspondence in writing for years with the

Plaintiff regarding the facts and claims alleged to be a

surprise, and had served and received discovery thereon, and

was on notice of Plaintiff's facts and claims via the

Complaint, and the Initial Disclosures pursuant to FRCP

26(a)(1)(B), and the expert disclosures pursuant to FRCP

26(a)(2)(B), it must certainly be an abuse of discretion for

the harsh sanction imposed by the district court to be allowed

to stand in the face of such an obviously fabricated allegation

of surprise. This Court should grant the Writ of Certiorari to

establish that the “surprise” which will support exclusion of

evidence under FRCP 37(c)(1) must be genuine, not a

fabrication, and not the result of willful ignorance.

24

CONCLUSION

For the reasons stated above, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Roserr B. Jackson, [V

Counsel of Record

Donacp D.J. STACK

Stack & AssociaTEs, P.C.

260 Peachtree Street, NW

Suite 1200

Atlanta, Georgia 30303

(404) 525-9205

Attorneys for Petitioner

ae ee Sy