# Petition for Writ of Certiorari — Jones v. Rockdale County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 962

## Text

ILED

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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
Questions Presented .......... ccc csccccccccce i
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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

17

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:
BO UBS GC IZSS) 606ceecstedesaeneesasane l ;
3a Ula: OS 6AS 8 CUO, ons divcniscweas eee 9
oe Ue. © LST «v0 0000k einen 5

vii

Cited Authorities

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gtk Ca | . PPPPrrrerrTrerr<rrcri erie, i, 10, 17
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GRUBER. SGD 60sec darsveddccwccevesess 19
UBL. SGD cc cdcccsccoseccavasses 3, 18, 19
GE UBL. BG oc cck ccccantnsccasciaseses 3, 12
42 U.S.C. §& GOTHAM IMA) «..ccccccscccccscess 4,12

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

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Cited Authorities

Page
Rules:
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i oo a ea aa ee a em eae ae ae ad passim
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,
ar rire errr Pere eer ras ie

Appendix E — Agreement Dated September 27,
PE. i:didvrabex nade ekodsn wade sanaeseereass

Page

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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.

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1348%3A1. Public record. Not legal advice.