Petition for Writ of Certiorari — Village of Oconomowoc Lake v. Dayton Hudson Corp.
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OO RR ee IN
In The
Supreme Court of the United States
October Term, 1994
— +
TILLAGE OF OCONOMOWOC LAKE,
Petitioner,
DAYTON HUDSON CORPORATION, et al.,
Respondents.
- —
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit
——= @®
PETITION FOR A WRIT OF CERTIORARI
WiLu1AM S. Rousn, Jr.”
KATHRYN A. LONSDORI
Counsel for the Petitioner
Village of Oconomowoc Lake
Davis & KUELTHAU, S.C.
111 East Kilbourn
Suite 1400
Milwaukee, Wisconsin 53202
414-276-0200
* Counsel of Record
é ||
COCKLE LAW BRIEF PRINTING CO., (800) 22
OR CALL COLLECT (402) 342-2831
et
QUESTION PRESENTED FOR REVIEW
Contrary to the United States Environmental Protec-
tion Agency’s interpretation of its statutory authority to
either prohibit or regulate the “discharge of any pollu-
tant” to waters of the United States under Sections 301
and 402 of the Clean Water Act, 33 U.S.C. §§ 1311 and
1342, the United States Court of Appeals for the Seventh
Circuit construed the Clean Water Act to preclude the
regulation of discharges of pollutants to waters of the
United States that occur through shallow groundwaters
when there is a direct, hydrological connection between
the point source and nearby waters of the United States.*
The question presented for review is as follows:
Should the phrase “discharge of any pollutant”
used in Sections 301 and 402 of the Clean Water
Act, as defined by Section 502(12) and subse-
quently interpreted by the United States Envi-
ronmental Protection Agency, be narrowly
construed to preclude Clean Water Act jurisdic-
tion over point source discharges of pollutants
to surface waters of the United States that occur
when pollutants are intentionally discharged
from a point source through shallow, hydro-
logically connected groundwaters to nearby sur-
face waters of the United States?
* The Village is not seeking review of that portion of the Court
of Appeals’ decision construing the subsection of the “citizen
suit” statute in the Clean Air Act, 42 U.S.C. § 7604(a)(3).
li
STATEMENT NAMING ADDITIONAL PARTIES
The parties to the Proceedings below who are not
reflected in the caption include the City of Oconomowoc,
which intervened in the District Court and participated in
the Court of Appeals; the Wisconsin Department of Natu-
ral Resources and its Secretary, George E. Meyer; and the
Town of Summit, a Wisconsin municipal corporation. The
Town of Summit did not Participate in the proceedings in
the Court of Appeals, and counsel for the petitioner has
been informed by counsel for the Town that it will not be
participating in these proceedings.
The United States Environmental Protection Agency,
Carol Browner in her capacity as Administrator, and
Valdus Adamkus in his capacity as Regional Administra-
tor for EPA Region V, were initially parties in the District
Court but were dismissed by stipulation, without preju-
dice. In the Court of Appeals the United States, on behalf
of the United States Environmental Protection Agency,
sought leave to file a brief amicus curiae, which was
denied by the Court of Appeals on February 16, 1994.
[App. 22a, 23a].
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ............ i
STATEMENT NAMING ADDITIONAL PARTIES.... ii
ee PUMP UMME PINE REE 6 ccc ccc cesvics clawed sane vi
I I isis eS bees cine seu decsseccsucees 1
ES ee ee er eee re err 2
SiAtW ies AND REGULATIONS ...............0:. 3
RMRREEE GE WEEE GOES cde cece eee ees 3
Ce SG eee ee tee 3
B. The Unpermitted Storm Water Discharges.... 5
C. Proceedings In The Lower Courts............ 7
REASONS FOR GRANTING THE WRIT ........... 9
I. The Seventh Circuit’s Decision Is Contrary To
EPA’s Interpretation Of Its Jurisdiction And
The Standards Established By This Court For
Disregarding That Interpretation ............ 10
I]. This Case Presents A Narrow Legal Issue Of
National Importance Which This Court
ips a ES a seis Sep ania Anne pene 15
III. The Court Of Appeals’ Decision May Leave A
Gaping Hole In Federal Environmental Regu-
lation That Was Not Intended By Congress.. 19
ge din yale Pew wS ad akn ed on deb heon 20
phasis
iv
TABLE OF CONTENTS - Continued
APPENDIX
Decision of the United States Court of Appeals
for the Seventh Circuit, Village of Oconomowoc
Lake v. Dayton Hudson, et al., Docket No. 93-3380
(My TE WA ee
Judgment of the United States Court of Appeals
for the Seventh Circuit, Village of Oconomowoc
Lake v. Dayton Hudson, et al., Docket No. 93-3380
ee ee re ii
Decision and Order of the United States District
Court for the Eastern District of Wisconsin, Vil-
lage of Oconomowoc Lake v. Dayton Hudson, et al.,
Civil Action No. 93-C-0797 (September 24, 1994) ...
Judgment Entered in the United States District
Court for the Eastern District of Wisconsin, Vil-
lage of Oconomowoc Lake v. Dayton Hudson, et al.,
Civil Action No. 93-C-0797 (September 24, 1994)...
Order of the United States Court of Appeals for
the Seventh Circuit denying Motion for Leave to
File Out of Time Brief for the United States as
Amicus Curiae, Docket No. 93-3380 (February 16,
Pec ck i casbneaiin cr eee
Motion for Leave to File Out of Time Brief for the
United States as Amicus Curiae, Docket No.
93-3380 Geeunty 16 Te
Brief for the United States as Amicus Curiae (Pro-
posed), Docket No. 93-3380 (February 14, 1994)...
Wisconsin Department of Natural Resources
Acknowledgement of Notice of Intent (April 22,
WPMD Rix eiv Cire) agecciiceg
Page
13a
2la
Vv
TABLE OF CONTENTS - Continued
Page
Be ee es ere rr err err re 67a
8 RR ere errerrreriys eee: 67a
Be RP Oe I sx vc inns edie che seueenenvewes 68a
BF Ss Se EE 8 5a von 6 pea nes Ree ewneR 71a
ee ae EE Fa vk cee cove es nceeenneenureas 72a
Oe Tee te Rs on 55 5A ceeds sane dew 72a
Pe a Cie vt en cn we Saks he nekane eens 74a
a x Sip 5b Shaw iNivin ne os cers 79a
National Pollution Discharge Elimination System
General Permit and Reporting Requirements for
Discharges From Concentrated Animal Feeding
Operations (Preamble Excerpts), Final General
Permit, 58 Fed. Reg. 7610, 7623, 7631 (February
ae. Se nen wy Sy rey eben Te ¢ Peg ee 80a
Amendments to the Water Quality Standards Regu-
lation That Pertains to Standards on Indian Lands
(Preamble Excerpts), Final Rule, 56 Fed. Reg.
64876, 64892 (December 12, 1991)................ 8la
National Pollution Discharge Elimination System
Permit Application Regulations for Storm Water
Discharges (Preamble Excerpts), Final Rule, 55
Fed. Reg. 47990, 47996, 47997 (November 16,
ROE bc CEE od HERA ORT ERIN BMERN GO0 6 dR S08 WS 8la
§ 147.021(1)(a), Wisconsin Statutes ............... 82a
Order of the United States Court of Appeals for
the Tenth Circuit Dismissing Appeal, Sierra Club
v. Colorado Refining Co., Docket No. 94-1062
CSE: Se Sc nce PENRO Ch Sue kawereeere ees 83a
vi
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Arkansas v. Oklahoma, 503 U.S. a bee See. 10066
PREG TRS esd Weeden s seen sss vi PEREUli ks less 13, 20
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)........... 13, 14, 20
Dague v. City of Burlington, 935 F.2d 1343 (2nd Cir.
1991), rev'd on other om, US... 333
ce cath cates CEN EAL LL 7
Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir.
cine, CE EEE Na eae an ort eee 15, 18
Inland Steel Co. v. EPA, 901 F.2d 1419 (7th Cir.
EE heme nne. Sheradl ey 14, 15, 18, 20
Kelie, » United States, 618 FSupp. 1103 (W.D.Mich.
PUR at cbieiiatiecith iu tlund ahh wks keed idk sxe. 8, 17
McClellan Ecological Seepage Situation (MESS) v. Wein-
berger, 707 F.Supp. 1182 (E.D.Cal. 1988) ............. 17
McClellan Ecological Seepage Situation v. Cheney, 763
Bu he CAE, TON oo. oc cs ckccccnces, 17
Quivira Mining Co. v. United States EPA, 765 F.2d 126
(10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986) .... 16
Sierra Club v. Colorado Refining Co., 38 E.R.C. 1700
ike ee 16
Sierra Club v. Colorado Refining Co., 838 F.Supp. 1428
ot a a gaek Soy lagi acs 15, 17, 18
United States v. Earth Sciences, Inc., 599 F.2d 368 (10th
Ne Sh sR al oe ang Sane e Olen Lecds 16
Village of Oconomowoc Lake v. Dayton Hudson Corp., 24
ee ee MS Sea ey ee ge 2
Wilshire Westwood Assocs. v. Atlantic Richfield, 881 F.2d
eB ce Bee eg UP ye eae Or 19
Zands v. Nelson, 779 F.Supp. 1254 (S.D.Cal. 1991)........ 7
Vii
TABLE OF AUTHORITIES - Continued
Unitep States Cope
28 U.S.C.
28 U.S.C.
28 U.S.C.
33 U.S.C.
33 USC.
33 U.S.C.
a USA.
33 U.S.C.
sy USL.
33 U.S.C.
33 USC.
oF USL.
33 U.S.C.
33 U.S.C.
33 USC.
33 USC.
33 U.S.C.
33 U.S.C.
33 U.S.C.
Page
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a KRG dn in. 66048 05 eae Ee 2
NLS Shades bs xa Vos 5kG 0 ¥y nae SORE OREEES 8
EE Gok Aa's's VE abn sb ves SORAD ENE ROR: 10, 12
CRAG wg) 46% CXC uv xO Aon oe 2
eck ob 60460 v os a cen k es caebi 3, 10
NID 6 5.50 vivian Kvehiestweetvabnad 16
NC eda Sn 4 06. beh 4s Hose Ts ao. 35
PP Sails cans scenceweanaee shaken’ 3, 10
ane Sire ath aohehes cas «tei sn een wes 3
EE vad o's §.85 Ve ed bd omen ene eK Os 5
EL 6. yen ya nas 0046 pe eda wn Ud6en 040% 5
EEE EEE Pe eee ery Pee 5, 10
EE Seavert Hak wawe wed seas $d od teeiyes 3
Sin sie Sasa enw she ha eo ee saw 3, 11
a ad a 4a magia hes Ue en Adee 7
aa ek Fines hha ean SACOM aT eRe ROSES 7
EE er reer eee ee ree 7
EE had INI Satan eee 19
Vili
TABLE OF AUTHORITIES - Continued
Page
ee ee I oi es aos dno babies cee ceec ents 19
I i tr do os a no 19
I ie 7
A a oe La) eS ER ae 3. 7
Te nn gid ee RL 7
ee ee oie oe coos ck. eek 19
STATE STATUTES
a eh 6
FEDERAL /4)SULATIONS
Oy I se ee ee 6, 11
ear Si ks 06a bea cada a ae oe oe
FEDERAL RULES oF Crvit PROCrDURE
Sy te ns hc eo ee 2
OTHER AUTHORITIES
55 Fed. Reg. 47990 (Nov. 16, 1990).................. 9, 12
36 Fed. Reg. 64876 (Dec. 12, 1991).................... 12
wo Fed. Reg. 7610 (eb. §, 1999)... o.oo occas. 12
*
In The
Supreme Court of the United States
October Term, 1994
4
VILLAGE OF OCONOMOWOC LAKE,
Petitioner,
DAYTON HUDSON CORPORATION, et al.,
Respondents.
¢
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit
o
PETITION FOR A WRIT OF CERTIROARI
+
The Petitioner, the Village of Oconomowoc Lake
(“the Village”), a Wisconsin municipal corporation,
respectfully prays that a writ of certiorari issue to review
the judgment and opinion of the United States Court of
Appeals for the Seventh Circuit entered in the above
entitled proceeding on May 18, 1994.
¢
OPINIONS BELOW
On September 24, 1993, the United States District
Court for the Eastern District of Wisconsin entered and
docketed a final judgment, dismissing petitioner’s Com-
plaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction, consistent with the written
Decision and Order of the District Court issued on the
same date. The District Court held, as a matter of law,
that discharges of pollutants to waters of the United
States that occur through shallow groundwater directly
connected to a point source were not subject to regulation
or jurisdiction under the Clean Water Act because
groundwater is not among “waters of the United States”
covered by 33 U.S.C. §§ 1311 and 1342. The Decision and
Order of the District Court is reprinted in the Appendix
at App. 13a-20a, and the judgment is reprinted in the
Appendix at App. 21a.
On appeal, the Seventh Circuit Court of Appeals
affirmed the judgment of the District Court in a decision
entered May 18, 1994, and entered judgment consistent
with the decision that same day. The decision is reported
at Village of Oconomowoc Lake v. Dayton Hudson, et al., 24
F.3d 962 (7th Cir. 1994), and a copy of the decision and
judgment are reprinted in the Appendix at App. la-10a
and App. 11a-12a, respectively.
2
JURISDICTION
The Seventh Circuit judgment for which review is
sought was entered on May 18, 1994. [App. 11a-12a]. The
jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§§ 1254(1) and 2101(c).
STATUTES AND REGULATIONS
This case concerns the issue of what constitutes a
“discharge of any pollutant,” as that phrase is used in
Sections 301(a) and 402(a) of the Clean Water Act, 33
U.S.C. §§ 1311(a) and 1342(a). The definition of “dis-
charge of a pollutant” and “point source” are codified
separately in Sections 502(12) and 502(14), respectively, 33
U.S.C. §§ 1362(12) and (14). The text of those statutes and
the statute authorizing the regulation of storm water
discharges, 33 U.S.C. § 1342(p) are set out in full in the
appendix. [App. 68a-71a].
The petitioner’s “citizens suit” was commenced in
the District Court pursuant to Section 505(a) of the Clean
Water Act, 33 U.S.C. § 1365(a), and Section 304(a) of the
Clean Air Act, 42 U.S.C. § 7604(a). [App. 74a-78a; App.
72a-73a]. The regulation mandating authorized States to
empower themselves to implement their storm water per-
mitting programs and to actually implement their storm
water programs consistently with the Clean Water Act
and the standards promulgated by the United States
Environmental Protection Agency is 40 C.F.R.
§ 123.25(a)(9). [App. 79a].
STATEMENT OF THE CASE
A. The Facility.
The Target Distribution Center (the “Facility”) is a
regional warehouse, owned and operated by Dayton
Hudson Corp. (“Dayton Hudson”), for distributing mer-
chandise to its Target Stores retail outlets. The Facility is
located on approximately 100 acres of land on the north-
west corner of the intersection of State Highway 67 and
County Highway B in the City of Oconomowoc, Wau-
kesha County, State of Wisconsin.
Dayton Hudson commenced construction of the facil-
ity on or shortly after June 4, 1993. The building itself
currently occupies approximately 1.1 million square feet
of the 100-acre parcel, and it is expected to be expanded
to 1.4 million square feet in two to three years. The
roadways and associated parking areas for the Facility
cover approximately 25 acres of the 100-acre parcel. The
Facility is authorized to service up to 504 trucks per day
and has parking for 672 employee vehicles. It is projected
to employ 700 “full-time equivalent” employees, operat-
ing on two ten-hour shifts, Monday through Friday, and
single 10-hour shifts on Saturday and Sunday.
All of the snow melt and precipitation runoff (collec-
tively “storm water”) from the building roof and imper-
vious paved areas is directed to an unlined, 6-acre
“exfiltration” pond, after passing through a sand “filter.”
Once in the pond, the storm water drains to a shallow
groundwater aquifer that is approximately 15 feet below
the ground surface, or a few feet below the bottom of the
exfiltration pond.
The shallow groundwater system beneath the
exfiltration pond is hydrologically connected to
numerous, nearby surface waters that surround the Facil-
ity. Among such surface waters are wetlands, ponds, and
two large lakes. Silver Lake is located approximately 0.4
miles west-southwest, and Oconomowoc Lake is located
approximately 0.8 miles north-northeast. The Village of
Oconomowoc Lake surrounds the Lake, and the Village
owns a substantial parcel of land closer to the facility,
large portions of which are occupied by wetland areas
and canals.
B. The Unpermitted Stormwater Discharges
No permit for storm water discharges associated with
the Facility has ever been issued to Dayton Hudson.
Discharges of storm water associated with an “industrial
activity” are required to obtain National Pollution Dis-
charge Elimination Program (“NPDES”) permits from the
EPA, or the State equivalent of such permits from States
with EPA approved programs pursuant to Section 402
(p)(2)(B), (3) and (4), § 402(p)(2)(B), 33 U.S.C.
§ 1342(p)(2)(B), (3) and (4).
In 1975, Wisconsin and the Wisconsin Department of
Natural Resources (“WDNR”) first became authorized to
implement the Wisconsin Pollution Discharge Elimination
Program (“WPDES”) in lieu of the NPDES program
administered by the EPA under Section 402 of the Clean
Water Act, 33 U.S.C. § 1342.
Federal regulations mandate that authorized States
and State agencies implementing the NPDES program
secure adequate legal authority to implement and actu-
ally administer their storm water permit programs in a
manner consistent with the regulations promulgated by
EPA. 40 C.F.R. § 123.25(a)(9). [App. 79a].
Notwithstanding the federal mandate to secure ade-
quate legal authority and actually implement a storm
water permitting program consistent with the federal
regulations, 40 C.F.R. §§ 122.26 and 123.25(a)(9), as of the
date that Dayton Hudson commenced construction of the
Facility, June 4, 1993, the WDNR had not yet promulgated
the necessary rules and regulations to begin processing or
issuing permits for storm water discharges associated
with industrial activity.1 In the absence of the requisite
regulatory authority, the WDNR was instructing new dis-
chargers to simply file a “Notice of Intent” with the
agency to indicate their intention to commence dis-
charges and their desire to be covered by. the regulations
and permits the WDNR hoped to promulgate and begin
issuing some time in the future.
Dayton Hudson filed such a Notice of Intent (NOI)
with the WDNR on April 9, 1993. WDNR acknowledged
receipt of the NOI by return letter dated April 22, 1993,
indicating that “the State of Wisconsin [was] in the process
of implementing a storm water discharge control program
in accordance with federal regulations.” [App. 65a-66a].
Since the WDNR could not issue a permit and Dayton
Hudson did not apply for an EPA issued permit, no
NPDES or WPDES permit was ever issued to Dayton
Hudson for the Facility.
1 The Wisconsin legislature had, however, enacted chapter
147, Wis. Stats, requiring, inter alia, that an owner or operator of
a facility “obtain a permit ... for... [a] discharge associated
with an industrial activity, including construction, that meets
criteria in rules promulgated by the [WDNR].” § 147.021(1)(a),
Wis. Stats. [App. 82a].
C. Proceeding In The Lower Courts.
The Village commenced an action in the United
States District Court for the Eastern District of Wisconsin
on July 30, 1993, against Dayton Hudson and the WDNR?
asserting separate claims pursuant to the “citizen suit”
statutes in the federal Clean Air Act, 42 U.S.C. § 7604(a),
as well as the Clean Water Act, 33 U.S.C. § 1365(a). Prior
to filing the action, the Village served a Notice of Intent
to commence the action on July 26, 1991.
The Village did not wait 60 days before filing suit
because the suit was, in part, premised upon 42 U.S.C.
§ 7604(a)(3), and the timing of the separate claim under
33 U.S.C. § 1365 was governed by the decisions in Dague
v. City of Burlington, 935 F.2d 1343, 1351 (2nd Cir. 1991),
rev d in part on other grounds, __ U.S. __, 112 S.Ct. 2638
(1992), and Zands v. Nelson, 779 F.Supp. 1254, 1260-61
(S.D.Cal. 1991). The Complaint alleged, inter alia, that the
ongoing discharges of storm water associated with the
industrial activity at the Facility, without a NPDES storm
water permit, violated the Clean Water Act.
2 The City of Oconomowoc successfully moved to inter-
vene in the District Court.
3 This Court’s order granting certiorari in Dague was
explicitly limited to the question of whether a court may
enhance an attorney fee awarded under § 7002 of the Solid
Waste Disposal Act, 42 U.S.C. § 6972(e), or § 505 of the CWA, 33
U.S.C. § 1365(d), above the lodestar amount to reflect the fact
that the attorneys had taken the case on a contingent fee basis.
On August 27, 1993, the defendants moved to dismiss
the Complaint for lack of federal subject matter jurisdic-
tion. On September 24, 1993, the Clerk of the District
Court entered and docketed a final judgment, dismissing
the Complaint. With respect to its decision to dismiss the
Clean Water Act claims, the District Court held that the
Village did not allege a claim upon which relief could be
granted under the Clean Water Act because the Act does
not extend to discharges of pollutants occurring through
directly connected ground water systems because ground
water is not among the “waters of the United States.” As
stated by the District Court: “The fact that groundwater
pollution will eventually migrate into waters of the
United States does not. . . bring such pollution within the
terms of the CWA.” (Citing, Kelley v. United States, 618
F.Supp. 1103, 1105-07 (W.D. Mich. 1985)). [App. 19a].
Upon entry of the final judgment by the Clerk of
Court on September 24, 1993, the Village appealed the
decision of the District Court dismissing the Complaint
for lack of subject matter jurisdiction to the United States
Court of Appeals for the Seventh Circuit, pursuant to 28
U.S.C. § 1291. On February 15, 1994, while the case was
pending before the Court of Appeals, the EPA filed a
Motion for Leave to File Out of Time Brief for the United
States as Amicus Curiae pursuant to Rule 26(b) of the
Federal Rules of Appellate Procedure, and a Brief in
Support of the Motion. [App. 23a-64a]. The Seventh Cir-
cuit denied the motion by Order entered on February 16,
1994. [App. 22a].
On May 18, 1994, the Seventh Circuit Court of
Appeals affirmed the decision of the District Court. The
Seventh Circuit found that “[nJeither the CWA nor the
EPA’s definition asserts authority over ground waters,
just because these may be hydrologically connected to
surface waters.” [App. 7a]. In holding that Congress
intended to exclude ground waters from regulation under
the Act, the Seventh Circuit noted that “EPA has noted
the potential connection between ground waters and sur-
face waters, but has left the regulatory definition alone.”
Citing Preamble to NPDES Permit Application Regulations
for Stormwater Discharges, 55 Fed. Reg. 47990 (Nov. 16,
1990). [App. 8a-9a].
On August 16, 1994 the Village filed this Petition.
+
REASONS FOR GRANTING THE WRIT
The decision below held that a discharge of pollu-
tants to waters of the United States is beyond the jurisdic-
tion of the Clean Water Act if the discharge occurs
through a shallow groundwater system that is directly
connected to the point source and the nearby surface
water.
The petition for a writ of certiorari should be granted
in this case because: (1) the decision is contrary to the
authoritative interpretation of the Clean Water Act ren-
dered by the United States Environmental Protection
Agency (“EPA”), the agency that is responsible for inter-
preting the scope of the Clean Water Act in the first
instance, according to its considerable technical expertise
and judgement; (2) the substantial authorities contrary to
the Court of Appeals’ decision indicate that the scope of
the act is at worst ambiguous, which would require defer-
ence to EPA’s construction of its own authority; and (3)
10
the Court of Appeals has decided a narrow, purely legal
issue of great national importance, in a manner that is
contradictory Congress’ explicit statement of national
policy because the practical effect of the decision is to
promote the pollution of the Nation’s waters.
The Court of Appeals’ decision is in conflict with the
decisions of this Court, the decisions of other Circuit
Courts of Appeal and District Courts in other Circuits.
Such a decision should not be allowed to stand without
careful review by this Court.
I. The Seventh Circuit’s Decision is Contrary To EPA’s
Interpretation Of Its Jurisdiction And The Standards
Established By This Court For Disregarding That
Interpretation.
The stated objective of the Clean Water Act is to
“restore and maintain the chemical, physical, and biolog-
ical integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
In furtherance of this objective, Congress has prohibited
the “discharge of any pollutant” in the absence of a
permit issued by the United States Environmental Protec-
tion Agency (“EPA”) or an authorized State.
Except as in compliance with this section and
sections 1312, 1316, 1317, 1328, 1342, and 1344 of
this title, the discharge of any pollutant by any
person shall be unlawful.
33 U.S.C. § 1311(a). Pursuant to 33 U.S.C. § 1342(a),
Congress has authorized the Administrator of EPA or a
State with an EPA-approved program, to issue permits
for the “discharge of any pollutant,” and pursuant to 33
U.S.C § 1342(p)(4), Congress directed the Administrator
11
of EPA or an authorized State to begin issuing or denying
permits for the discharge of pollutants occurring as a
result of storm water discharges associated with indus-
trial activity, “[nJot later than 4 years after February 4,
1987."4
Rather than focusing on whether a “discharge of any
pollutant” to waters of the United States without a permit
had been alleged, the Seventh Circuit Court of Appeals
focused entirely on the particular means by which the
pollutants were alleged to be discharged to waters of the
United States.5 Since the shallow, hydrologically con-
nected groundwater system, the means of the alleged
discharge, was not itself a “water[s] of the United States,”
the Court of Appeals held that the discharge of pollutants
thereby conveyed and discharged to waters of the United
States was not subject to federal regulation or jurisdiction
under the Clean Water Act.
Contrary to the Court of Appeals’ decision, the EPA
has consistently and reasonably interpreted the phrase
“discharge of any pollutant” to include discharges that
occur through hydrologically connected groundwater
systems.
4 The EPA dutifully promulgated regulations to regulate
the discharge of pollutants in industrial stormwater discharges,
40 C.F.R. § 122.26, and required all authorized State programs to
be legally authorized and implemented in accordance with
those requirements. 40 C.F.R. § 123.25(a)(9).
> Congress defined the term “point source” as “including
but not limited to” such underground features as tunnels, wells
and fissures. 33 U.S.C. § 1362(14). The definition is, by its terms,
inclusive rather than limited.
12
Notwithstanding the strong language in the leg-
islative history of the Clean Water Act to the
effect that the Act does not grant EPA authority
to regulate pollution of groundwaters, EPA and
most courts addressing the issues have recog-
nized two limited instances where, for the pur-
pose of protecting surface waters and their uses,
EPA may exercise authorities that may affect
underground waters. First, the Act requires
NPDES permits for discharges te groundwater
where there is a direct hydrological connection
between groundwaters and surface waters. In
these situations, the affected groundwaters are
not considered to be “waters of the United
States” but discharges to them are regulated
because such discharges are effectively dis-
charges to the directly connected surface waters.
Amendments to the Water Quality Standards Regulation That
Pertains to Standards on Indian Lands, Final Rule, 56 Fed.
Reg. 64876, 64892 (U.S. EPA, December 12, 1991). See also,
National Pollution Discharge Elimination System General
Permit and Reporting Requirements for Discharges From Con-
centrated Animal Feeding Operations, U.S. EPA Region 6,
Final Permitting Decision, 58 Fed. Reg. 7610, 7623, 7631
(U.S. EPA, February 8, 1993); National Pollution Discharge
Elimination System Permit Application Regulations for Storm
Water Discharges, Final Rule, 55 Fed. Reg. 47990, 47996,
47997 (U.S. EPA, November 16, 1990). [App. 80a-83a].
EPA’s interpretation reflects its technical expertise
and judgment, and it promotes the essential purpose of
the Act, which is to restore and maintain the quality and
integrity of the Nation’s waters. 33 U.S.C. § 1251(a).
Under EPA’s interpretation, dischargers cannot escape
|
— ee ee ee ee ee
13
regulation by pumping their pollutants into the ground-
water or allowing their pollutants to “exfiltrate” into
groundwater from containment basins if the pollutants
are discharged through directly connected groundwater
systems to nearby surface waters. In other words, EPA
does not allow dischargers of pollutants to do indirectly
what the Clean Water Act expressly forbids them from
doing directly.
Under similar circumstances in Arkansas v. Oklahoma,
903 U.S. __, 112 S.Ct 1046, 1056-57 (1992), this Court
reversed the Court of Appeals because it had failed to
defer to EPA’s technical expertise and judgment in con-
struing and applying its authority under the same statute
at issue in this case, 33 U.S.C. § 1342. In the past, this
Court has also carefully instructed the Court of Appeals
on the very limited circumstances in which EPA’s inter-
pretation and application of its authority may be disre-
garded or superseded. Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984).
The decision of the Court of Appeals in this case not
only disregards EPA’s authoritative interpretation of the
Act, without even paying lip service to the standards
established under Chevron, in fact it actually promotes the
pollution of the Nation’s waters. The practical effect of
the decision is to encourage regulated dischargers to
redirect their discharges to shallow, directly connected
groundwater systems that discharge to surface waters
because, under the Court of Appeals’ construction of the
Clean Water Act, the EPA is powerless to regulate such
discharges or prevent the resulting pollution of the
Nation’s waters.
te
14
The Court of Appeals’ decision is even inconsistent
with the Seventh Circuit’s own decision in Inland Steel
Company v. EPA, 901 F.2d 1419, 1422-23 (7th Cir. 1990):
Second, since the legal concept of navigable
waters might include ground waters connected
to surface waters — though whether it does or
not is an unresolved question . . . — a well that
ended in such connected ground waters might
be within the scope of the [Clean Water] Act. But
the waters at the bottom of these wells are not
connected to surface waters. (emphasis added)
[citations omitted].
The only factual difference between this case and Inland
Steel is that this case does concern an alleged discharge of
pollutants from a point source, through directly con-
nected shallow groundwater, to navigable waters. The
only legal difference between this case and Inland Steel is
that in Inland Steel the Seventh Circuit Court of Appeals
deferred to EPA’s interpretation of the Act, as required by
Chevron, because EPA’s interpretation was not contrary to
the express language of the statutes in question and was
supported by the underlying policies of the Act. Id., 901
F.2d at 1424.
In this case the EPA’s interpretation of its jurisdiction
to regulate the “discharge of a pollutant” is not contrary
to the express language of the statutes. It is consistent
with the stated policy of the Act, and, under Chevron,
EPA’s interpretation is entitled to deference. The Seventh
Circuit’s decision is contrary to all of these, and it should
be reviewed and reversed.
15
II. This Case Presents A Narrow Legal Issue of
National Importance Which This Court Should
Resolve.
The vigor with which the Court of Appeals narrowly
circumscribed the regulation of a “discharge of any pollu-
tant” under the Clean Water Act in this case creates a
huge hole in the regulatory program through which great
quantities of pollutants may be discharged to the
Nation’s waters. The decision raises substantial questions
regarding the continued efficacy of EPA’s interpretation
of its jurisdiction. And, it creates a conflict between the
Court of Appeals’ decision and the better reasoned
authorities that have deferred to or concurred with EPA’s
interpretation of its jurisdiction.
As noted above, the Court of Appeals’ decision in
this case is in conflict with the reasoning of the Seventh
Circuit’s own decision in Inland Steel, in which the Court
of Appeals deferred to EPA’s interpretation of the Clean
Water Act. In another case, decided by the Fifth Circuit,
Exxon Corp. v. Train, 554 F.2d 1310, 1312 n.1 (5th Cir.
1977), the Court of Appeals refused to extend EPA’s
Clean Water Act jurisdiction to isolated groundwaters,
where there was no allegation of any discharge to surface
waters; however, the Court of Appeals expressly dis-
claimed that, “We mean to express no opinion on what
the result would be if that were the state of facts.”
At the time this case was pending, a District Court in
the Tenth Circuit issued a decision reaching exactly the
opposite conclusion of the Court of Appeals in this case.
Sierra Club v. Colorado Refining Co., 838 F.Supp. 1428
(D.Colo. 1993). In that case the court held:
16
These decisions leave little doubt that the Tenth
Circuit has chosen to interpret the terminology
of the Clean Water Act broadly to give full effect
to Congress’ declared policy “to restore and
maintain the chemical, physical and biological
integrity of the Nation’s waters. 33 U.S.C.
§ 1251(a). With this in mind, I conclude that the
Clean Water Act’s preclusion of the discharge of
any pollutant in “navigable waters” includes
such discharge which reaches “navigable
waters” through groundwater. I therefore find
that Sierra Club’s allegations that CRC has and
continues to discharge pollutants into the soils
and groundwater beneath the refinery which
then make their way to Sand Creek through the
groundwater state a cause of action under the
Clean Water Act. Accordingly, I deny CRC’s
Rule 12(b)(6) motion to dismiss the first cause of
action.
Id. at 1434;6 discussing, United States v. Earth Sciences, Inc.,
599 F.2d 368, 373, 375 (10th Cir. 1979) and Quivira Mining
Co. v. United States EPA, 765 F.2d 126, 129-130 (10th Cir.
1985), cert. denied, 474 U.S. 1055 (1986).
° At the request of the defendants, the quoted decision was
certified for immediate appeal to the Tenth Circuit. On June 20,
1994, the Tenth Circuit dismissed the interlocutory appeal as
having been improvidently granted. See [App. 83a-85a]. In a
subsequent decision the District Court dismissed the action on
the basis of an existing Consent Order and the jurisdictional bar
in 33 U.S.C. § 1319(g)(6)(A)(ii). Sierra Club v. Colorado Refining
Co., 38 E.R.C. 1697, 1704-1706 (D.Colo. 1994). That final judg-
ment is now on appeal and cross-appeal to the Tenth Circuit,
Docket No. 94-1248 (May 24, 1994) and Docket No. 94-1265
(June 9, 1994).
Sea
17
In another case, out of the Ninth Circuit, McClellan
Ecological Seepage Situation (MESS) v. Weinberger, 707
F.Supp. 1182, 1193-96 (E.D.Cal. 1988) (“MESS I”), the
District Court concluded that some discharges to ground-
water could be subject to regulation under the Clean
Water Act if the groundwater was “naturally connected to
surface waters that constitute ‘navigable waters’ under
the Clean Water Act.” Id. at 1196. The District Court
subsequently denied summary judgment to the defen-
dants, based on conflicting expert evidence, holding that
the plaintiffs should have an opportunity to prove at trial
that seepage from the waste pits into the groundwater
had a “reasonably foreseeable and temporally imminent
effect on surface waters of the United States.” McClellan
Ecological Seepage Situation v. Cheney, 763 F.Supp. 431, 437
(E.D.Cal. 1989) (“MESS II”). |
Indeed, the only court that has ever construed the
Clean Water Act similarly to the Court of Appeals in this
case is the District Court in Kelley v. United States, 618
F.Supp. 1103, 1106-07 (W.D. Mich. 1985) (“Kelley II”), in
the Sixth Circuit. That decision rejected an earlier,
unpublished decision from the very same court, Kelley v.
: United States, No. 79-10199, slip op. at 2-3 (E.D. Mich. Oct.
: 28, 1980) (“Kelley I”). See also, Sierra Club v. Colorado
_ Refining Co., 838 F.Supp. at 1433, discussing Kelley I and
Kelley II. The District Court in Kelley II made the same
mistake as the Court ot Appeals in this case, holding that
the “unmistakably clear” legislative history demonstrated
that Congress “did not intend the Clean Water Act to
extend federal regulatory enforcement authority over
groundwater contamination,” regardless of whether the
toxic chemicals were being discharged into the East Arm
18
of Grand Traverse Bay, which was indisputably a naviga-
ble water of the United States. Id. at 1107.
Even if it is “clear” that Congress did not intend to
federally regulate all groundwater contamination,” that is
not the issue presented by this case. The Village has never
suggested that Congress intended to regulate all ground-
water contamination. What the Village alleged in this case
was a “discharge of any pollutant” to waters of the
United States, from a point source, through a directly
connected shallow groundwater system. This is precisely
the issue that the Fifth Circuit declined to rule on in
Exxon Corp. v. Train and that the Seventh Circuit expressly
reserved ruling on in Inland Steel Co. v. EPA. It is also the
issue on which EPA has a well-developed interpretation
which was inexplicably rejected by the Seventh Circuit
Court of Appeals in this case.
The Village submits that the issue presented is too
narrow and too important to allow contradictory inter-
pretations in courts across the country based on varia-
tions in those courts’ willingness to defer to EPA’s
authoritative interpretation. On balance, the Court of
Appeals decision in this case in an anomaly. The time is
ripe to resolve the issue of EPA’s and the Clean Water
Act's jurisdiction that has been squarely presented by a
badly reasoned decision of the Seventh Circuit Court of
Appeals.
? Even the decision below conceded that, “Decisions not to
enact proposed legislation are not conclusive of the meaning of
the text actually enacted. Laws sometimes surprise their
authors.” [App. 8a].
19
Ill. The Court Of Appeals’ Decision May Leave A
Gaping Hole In Federal Environmental Regulation
That Was Not Intended By Congress.
Aside from the obvious impacts that the Court of
Appeals’ decision may have on EPA’s regulatory program
under the Clean Water Act, the broad brush pronounce-
ment of the Court of Appeals in this case may also have
dire consequences for other environmental regulatory
programs, which was neither intended nor anticipated by
Congress. One good example is the interrelationship
between the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”) and the Oil
Pollution Act of 1990 (“OPA”).
It is well established that CERCLA covers discharges
of “hazardous substances” anywhere and everywhere,
but it expressly excludes “petroleum.” Wilshire Westwood
Assocs. v. Atlantic Richfield, 881 F.2d 801 (9th Cir. 1989),
construing the “petroleum exclusion” in 42 U.S.C.
§ 9601(14). In contrast, although OPA clearly covers dis-
charges of “petroleum” or “oil,” it is expressly limited to
discharges to “navigable waters.” 33 U.S.C. §§ 2701(23),
2702(a). And, under OPA, “navigable waters” are defined
as, “waters of the United States, including the territorial
sea.” 33 U.S.C. § 2701(21).
Under the narrowly circumscribed interpretation of a
“discharge” to “waters of the United States” pronounced
by the Court of Appeals in this case, one could literally
spill or discharge thousands of gallons of petroleum to a
shallow groundwater system, knowing full well that it
will seep into a directly connected, nearby navigable
water, and according to the Seventh Circuit the discharge
20
would escape any federal regulation or response author-
ity. There is no good reason for creating such a hole in
environmental regulation. Cf. Inland Steel Co. v. EPA, 901
F.2d 1419, 1423 (7th Cir. 1990). Clearly, this is not what
Congress intended.
CONCLUSION
The issue in this case has been squarely presented.
The interpretation of the statutes by the responsible fed-
eral agency is well established, and the national policy is
clear. There appears to have been no good reason for the
Court of Appeals to have disregarded EPA’s interpreta-
tion of its jurisdiction or this Court’s decisions in Chevron
and Arkansas v. Oklahoma.
The potential for damage to the Nation’s waters and
the potential uncertainty regarding EPA’s existing regula-
tory program and permits is too great not to address this
narrow issue at this time. For all of the foregoing reasons,
the Village of Oconomowoc Lake urges this Court to
grant the petition, accept this case for review, and reverse
the decision of the Court of Appeals.
Respectfully submitted,
WiiuiAM S. Rousn, Jr.*
KATHRYN A. LONSDORF
Davis & KUELTHAU, S.C.
111 E. Kilbourn
Suite 1400
Milwaukee, WI 53202
(414) 276-0200
oe
Counsel of Record
a
la
In the
United States Court of Appeals
For the Seventh Circuit
No. 93-3380
VILLAGE OF OCONOMOWOC LAKE,
Plaintiff-Appellant,
v.
DayTON HupDson CorporATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 93-C-0797-John W. Reynolds, Judge.
ARGUED Fesruary 16, 1994 — Decipep May 18, 1994
Before EAsTerBROOK and Manion, Circuit Judges, and
McDabe, District Judge.*
EASTERBROOK, Circuit Judge. Target Stores, a division of
Dayton Hudson Corporation, is building a warehouse
(which it calls a “distribution center”) in the City of
Oconomowoc, Wisconsin. It holds all necessary state and
local permits. Federal clearance is unnecessary, for the
* Hon. Joe Billy McDade, of the Central District of Illinois,
sitting by designation.
2a
Environmental Protection Agency has authorized Wiscon-
sin to perform the tasks required by the Clean Air and
Clean Water Acts. The Village of Oconomowoc Lake, a
nearby municipality, wishes the warehouse would disap-
pear. We have for decision one among more than a dozen
suits and administrative proceedings the Village has com-
menced in pursuit of that objective.
Warehouses do not spew pollutants, but they have
indirect effects. Trucks that carry goods to and from the
warehouse emit nitrogen oxides and other gasses. A well-
sited warehouse cuts down on wasted movement of
goods, and therefore on pollution in the United States as
a whole, but increases the volume of emissions nearby.
While parked near the warehouse trucks drip oil, which
collects in the runoff from a storm. A few inches of rain
falling on a large paved surface means many acre-feet of
water. This warehouse has a retention pond, from which
the water seeps into the ground - carrying hydrocarbons
and other unwelcome substances, the Village fears.
State officials concluded that the warehouse would
be such a trivial source of pollution that it should not be
classified as a “major source” requiring full-scrutiny. The
Village wanted a federal judge to inquire further, but the
judge declined to cooperate. The Clean Air Act requires
permits only for “stationary sources” of pollution. A defi-
nitional provision provides not only that vehicles are not
“stationary sources” but also that vehicular emissions are
not attributed to the buildings served as points of origin
or destination. 42 U.S.C. §7602(z); see also 42 U.S.C.
§7410(a)(5)(C). Whatever requirements the state has
added to federal law must be enforced in state court, the
judge held, As for the rainwater runoff: the Clean Water
‘
j
;
:
3a
Act regulates discharges into “navigable waters from a
point source”. 33 U.S.C. §1362(12). Parking lots and reten-
tion ponds are not exactly “navigable,” but another stat-
ute defines “navigable waters” as all “waters of the
United States”. 33 U.S.C. §1362(7). Some water from the
pond evaporates into the air, and the rest seeps into the
ground. Even though ground water eventually reaches
streams, lakes, and oceans, the court held, it is not part of
the “waters of the United States”. The district court
accordingly dismissed the complaint under Fed. R. Civ. P.
12(b)(1).
As a rule, persons wishing to sue under the Clean Air
Act must give 60 days’ notice to the potential defendant.
42 U.S.C. §7604(b). Notice provisions pervade environ-
mental statutes, and would-be plaintiffs often appear to
be desperate to evade them. Hallstrom v. Tillamook County,
493 U.S. 20 (1989); Supporters to Oppose Pollution, Inc. v.
Heritage Group, 973 F.2d 1320 (7th Cir. 1992). Why plain-
tiffs are unwilling to wait even 60 days — when an effort
to jump the queue may lead to outright dismissal of the
case under Hallstrom - eludes us. The Village filed suit
only three days after giving notice. To justify this expedi-
tion, it invoked 42 U.S.C. §7604(a)(3), which is not subject
to the 60-day rule. Although this enabled it to sue 57 days
sooner than it could have done had it used §7604(a)(1) as
the foundation for the suit, the strategy does little besides
illustrate the adage that haste makes waste. (This saying
predates the Clean Air Act and shows that not all waste is
within federal jurisdiction.)
Section 7604(a)(3) permits a citizen to file a civil
action
4a
against any person who proposes to construct or
constructs any new or modified major emitting
facility without a permit required under... part
D of subchapter I of this chapter (relating to
nonattainment) or who is alleged to be in viola-
tion of any condition of such permit.
The warehouse is in a “nonattainment” area, and the
Village contends that it lacks the permit required for a
“major emitting facility”. Wisconsin treated the ware-
house as a minor rather than a major source. But to use
§7604(a)(3) the Village had to show that “part D of sub-
chapter I of this chapter” requires a major-facility permit,
and it is impossible to see how this could be so. Recall
that the warehouse itself does not emit pollutants and
that the Clean Air Act does not require the attribution of
motor-vehicle emissions to stationary sources. 42 U.S.C.
§7410(a)(5)(A), (C); see also South Terminal Corp. v. EPA,
504 F.2d 646, 668 n.24 (1st Cir. 1974). “[P]art D of sub-
chapter I” does not require Dayton Hudson to obtain a
permit; any such requirement must come from Wisconsin
law and therefore cannot serve as the foundation for suit
under §7604(a)(3).
If the Village had waited for the prescribed 60 days, it
would have been eligible to use §7604(a)(1), which autho-
rizes citizen suits
against any person .. . who is alleged to be in
violation of (A) an emission standard or limita-
tion under this chapter or (B) an order issued by
the Administrator or a State with respect to such
a standard or limitation.
If this had been the foundation of the suit, and if we were
to assume that the emissions from trucks going to and
5a
from the warehouse violate Wisconsin's implementation
plan — for the state has elected to regulate such indirect
emissions despite the lack of federal compulsion to do so
— then it would have been necessary to decide whether a
provision of a state plan going beyond the federal min-
ima is “an emission standard or limitation under this
chapter”. States must clear their implementation plans
with the EPA and enforce them faithfully; it is accord-
ingly possible to characterize a state’s rules as “an emis-
sion standard or limitation under this chapter” in the
sense that it is adopted under the chapter and includes
rules that satisfy the chapter. It may even be that rules
going beyond federal requirements are essential to satisfy
federal law. How could that be? Suppose the EPA
approved a plan that was less stringent in some respects
than the EPA would have demanded, only because in
other respects it did more than federal law required and
the rules, taken as a whole, would produce the desired
cleanliness. Then failure to comply with the “extra” rules
would reduce air quality below the federal minimum.
The EPA believes that federal courts (and the Administra-
tor) may enforce provisions in state plans. 40 C.FR.
§51.165(a)(1)(xiv). We need not decide whether this
means enforcement under §7604(a)(1), as some courts
have held. E.g., Coalition Against Columbus Center v. New
York City, 967 F.2d 764, 771 (2d Cir. 1992); Delaware Valley
Citizens Council v. Davis, 932 F.2d 3256, 265-67 (3d Cir.
1991). See also Sierra Club v. Larson, 2 F.3d 462, 469 (1st
Cir. 1993) (remarking that indirect-source rules in a state
implementation plan “may at least in some circumstances
be within the purview of a citizens suit under 42 U.S.C.
§7604.”). But see Atlantic States Legal Foundation, Inc. v.
6a
Eastman Kodak Co., 12 F.3d 353, 358-60 (2d Cir. 1993)
(provisions of state plans exceeding federal requirements
are not enforceable under provisions of the Clean Water
Act parallel to §7604). There will be ample opportunity
for full consideration when the need arises.
The Village’s claim under the Clean Water Act does
not depend on any state rule or plan. This time the
obstacle is the limitation of the Act’s coverage to the
“waters of the United States.” Rainwater runoff from the
110-acre site (including 25 acres of paved parking) will
collect in a 6-acre artificial pond. The pond is supposed to
retain oil, grease, and other pollutants while “exfiltrat-
ing” the water to the ground below. The Clean Water Act
is a broad statute, reaching waters and wetlands that are
not navigable or even directly connected to navigable
waters. United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985). But not even the EPA shares Justice
Story’s view that the national government has regulatory
power over every drop of water: “It was said of the late
Justice Story, that if a bucket of water were brought into
his court with a corn cob floating in it, he would at once
extend the admiralty jurisdiction of the United States
over it.” Note, 37 Am. L. Rev. 911, 916 (1903). See DeLovio
v. Boit, 7 Fed. Cas. 418 (No. 3,776) (CC Mass. 1815). The
Agency’s regulatory definition of “waters of the United
States” includes “intrastate lakes, rivers, streams (includ-
ing intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation or destruction of
which could affect interstate or foreign commerce”. 40
C.F.R. §230.3(s)(3). Hoffman Homes, Inc. v. Administrator,
EPA, 999 F.2d 256, 260-61 (7th Cir. 1993), concluded that
7a
the EPA did not exceed its power when promulgating this
definition but that even a rule with such broad scope did
not cover a one-acre wetland 750 feet from a small creek.
A six-acre retention pond, farther from a body of surface
water, is an easier case. The EPA’s definition speaks of
“natural ponds”; Dayton Hudson built an artificial pond.
What of the possibility that water from the pond will
enter the local ground waters, and thence underground
aquifers that feed lakes and streams that are part of the
“waters of the United States”? Justice Story’s bucket was
part of the navigable waters in this sense. We know from
Wickard v. Filburn, 317 U.S. 111 (1942), that wheat a
farmer bakes into bread and eats at home is part of
“interstate commerce” because these activities affect the
volume of interstate shipments. On a similar rationale all
ground waters could be thought within the power of the
national government. Inland Steel Co. v. EPA, 901 F.2d
1419, 1422 (7th Cir. 1990) (reserving the question). But the
' Clean Water Act does not attempt to assert national
power to the fullest. “Waters of the United States” must be
a subset of “water”; otherwise why insert the qualifying
clause in the statute? (No one suggests that the function
of this phrase is to distinguish domestic waters from
those of Canada or Mexico.) Neither the Clean Water Act
nor the EPA’s definition asserts authority over ground
waters, just because these may be hydrologically con-
nected with surface waters.
The omission of ground waters from the regulations
is not an oversight. Members of Congress have proposed
adding ground waters to the scope of the Clean Water
Act, but these proposals have been defeated, and the EPA
evidently has decided not to wade in on its own. The
8a
most concerted effort in Congress occurred in 1972, and
the Senate Committee on Public Works explained why it
had not accepted these proposals:
Several bills pending before the Committee pro-
vided authority to establish Federally approved
standards for groundwaters which permeate
rock, soil, and other subsurface formations.
Because the jurisdiction regarding groundwaters
is so complex and varied from State to State, the
Committee did not adopt this recommendation.
S. Rep. No. 414, 92d Cong., 1st Sess. 73 (1972). See also
Exxon Corp. v. Train, 554 F.2d 1310, 1325-29 (5th Cir. 1977)
(recounting this history). In other words, Congress
elected to leave the subject to state law - and Wisconsin
has elected to permit Target Stores to build a warehouse
that will affect the local ground waters.
Decisions not to enact proposed legislation are not
conclusive on the meaning of the text actually enacted.
Laws sometimes surprise their authors. But we are confi-
dent that the statute Congress enacted excludes some
waters, and ground waters are a logical candidate. Two
courts have held that ground waters are not part of the
(statutory) “waters of the United States.” Exxon; Kelley v.
United States, 618 F. Supp. 1103 (W.D. Mich. 1985). The
possibility of a hydrological connection cannot be denied,
see Sierra Club v. Colorado Refining Co., 838 F. Supp. 1428
(D. Colo. 1993); McClellan Ecological Seepage Situation v.
Cheney, 763 F. Supp. 431, 437 (E.D. Cal. 1989), but neither
the statute nor the regulations makes such a possibility a
sufficient ground of regulation. On several occasions the
EPA has noted the potential connection between ground
waters and surface waters, but it has left the regulatory
9a
definition alone. E.g., Preamble to NPDES Permit Appli-
cation Regulations for Storm Water Discharges, 55 Fed.
Reg. 47990, 47997 (Nov. 16, 1990) (“[T]his rulemaking
only addresses discharges to waters of the United States,
consequently discharges to ground waters are not cov-
ered by this rulemaking (unless there is a hydrological
connection between the ground water and a nearby sur-
face water body.”) Collateral reference to a problem is not
a satisfactory substitute for focused attention in rulemak-
ing or adjudication. By amending its regulations, the EPA
could pose a harder question. As the statute and regula-
tions stand, however, the federal government has not
asserted a claim of authority over artificial ponds that
drain into ground waters.
AFFIRMED
Manion, Circuit Judge, concurring. I agree with the
court’s hoiding that the plaintiff’s claims invoking the
Clean Air Act and the Clean Water Act should fail. For
whatever reason the Village of Oconomowoc Lake wishes
the warehouse would disappear (be it political, environ-
mental, or simple resentment because it doesn’t get a bite
at the tax base), the regulations under the Clean Air and
Clean Water Acts do not facilitate the attack. In addition,
I would not speculate how to characterize a citizen’s suit
under §7604(a)(1). Before federal courts begin deciding
under the Clean Air Act whether or not such things as
shopping malls are permissible because of their side
effects, we should ensure that Congress has specifically
authorized the EPA to regulate at that level. Nor would I
suggest that the EPA can figuratively “wade in” to
ground water as part of the waters of the United States
without first having specific direction from Congress to
10a
do so. This would take more than a simple amendment of
regulations by the administrators at the EPA. Regulations
are promulgated at the direction of Congress, and at this
juncture, Congress has not permitted collateral attacks
against parking lots, septic tanks, and sprinkler systems —
the natural consequence if we were to approve the inter-
pretation espoused by the plaintiffs.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
lla
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
JUDGMENT - WITH ORAL ARGUMENT
Date: May 18, 1994
BEFORE: Honorable FRANK H. EASTERBROOK,
Circuit Judge
Honorable DANIEL A. MANION,
Circuit Judge
Honorable JOE BILLY MCDADE,
District Judge*
No. 93-3380
VILLAGE OCONOMOWOC,
Piaintiff - Appellant
V.
DAYTON-HUDSON CORPORATION, GEORGE E.
MEYER, Secretary of the Wisconsin Department of
Natural Resources, WISCONSIN DEPARTMENT OF
NATURAL RESOURCES, et al.,
Defendants - Appellees
and
CITY OF OCONOMOWOC,
Intervenor - Appellee
Appeal from the United States District Court for the
Eastern District of Wisconsin
No. 93 C 797, John W. Reynolds, Judge
* The Honorable joe Billy McDade, of the Central District of
Illinois, is sitting by designation.
12a
The judgment of the District Court is AFFIRMED,
with costs, in accordance with the decision of this court
entered on this date.
(1061-110393)
13a
Copy mailed to Attorneys for
parties by the court pursuant
to rule 77(O) Federal rules of
civil procedure
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
VILLAGE OF OCONOMOWOC
LAKE and
the TOWN OF SUMMIT,
Plaintiffs,
V.
DAYTON-HUDSON
CORPORATION; GEORGE E.
MEYER, Secretary; and the
WISCONSIN DEPARTMENT OF
NATURAL RESOURCES,
Defendants,
and
CITY OF OCONOMOWOC
Intervenor.
Civil Action
No. 93-C-0797
(Filed
Sept. 24, 1988)
DECISION AND ORDER
Plaintiffs Village of Oconomowoc Lake (“The Vil-
lage”) and the Town of Summit (the “Town”) claim that
the ongoing construction in the City of Oconomowoc
(“the City”) of a distribution center for Target Stores, a
division of defendant Dayton-Hudson Corporation
14a
(“Dayton-Hudson”), violates the Clean Air Act and Clean
Water Act because pollution permits necessary to the
construction and operation of the center have not been
properly issued. On August 27, 1993, defendants moved
that this action be dismissed for lack of subject matter
jurisdiction, or that the court abstain from deciding it
because of pending state litigation. For reasons stated
below, the motion to dismiss will be granted.
I. The Clean Air Act Claim
Plaintiffs claim that when the distribution center
becomes operational in August, 1994, the trucks and
employee vehicles travelling to and from it will emit at
least 300 tons of nitrogen oxides per year, as well as 260
tons of carbon monoxide per year. (Compl. at I 27, Ex. B
at J 5.) Because nitrogen oxides combine with other mat-
ter to form ozone, plaintiffs say, operation of the center
will increase the level of ozone pollution in southeastern
Wisconsin, where the ozone level already exceeds what it
should be under the applicable National Ambient Air
Quality Standard (“NAAQS”). (Id. at J 27.) Plaintiffs con-
tend that under these circumstances, the Clean Air Act
(“CAA”), 42 U.S.C. §§ 7502(c)(5), 7503, and Wisconsin's
State Implementation Plan (“SIP”), Wis. Stat. § 144.30 et
seq., require that prior to construction of the center, which
began June 4, Dayton-Hudson obtain and the state issue a
permit treating the center as a “major emitting facility” or
“major stationary source” being constructed in an
NAAQS “nonattainment area.”!
1 Under the CAA, the EPA is required to establish an
NAAQS for each of various air pollutants, and each state is
IRE ENTER Rs Sa
15a
No such permit was issued. Rather, on May 19, 1993,
the defendant Wisconsin Department of Natural
Resources (“DNR”) issued to Target Stores an “air pollu-
tion control permit” describing the center as a “minor,
new, attainment air pollution source.” Issuance of the
permit was not, therefore, subject to the far more strin-
gent standards applicable to the issuance of permit for
construction of a major emitting facility or major station-
ary source in a nonattainment area. See Wis. Stat.
§ 144.393; 42 U.S.C. § 7503(a).
Plaintiffs’ suit challenging Dayton-Hudson’s failure
to obtain such a permit is brought pursuant to Section
304(a)(3) of the CAA, which provides in part that “any
person may commence a civil action . . . against any
person who proposes to construct or constructs any new
or modified major emitting facility without a permit
required under” parts C or D of the Act. 42 U.S.C.
§ 7604(a)(3). Those parts provide, among other things,
that permits must be issued prior to the construction of
any “major emitting facility” or of any “major stationary
source” in a nonattainment area. 42 U.S.C. §§ 7475(a),
7502(c)(5).
Defendants contend that the citizen-suit provision
upon which plaintiffs rely is inapplicable because the
distribution center is not a facility for which a permit is
required under parts C or D of the CAA.? Indeed, it is
required to develop and adopt a SIP, through which the NAAQS
is to be attained. 42 U.S.C. §§ 7408-7410.
2 Plaintiffs contend that because defendants’ argument
goes to the substance of their federal claim, the motion to dis-
miss for lack of jurisdiction (under Fed. R. Civ. P. 12(b)(1))
16a
clear that the CAA does not itself require a permit for a
facility like the distribution center. Permits are required
only for a “major emitting facility” or “major stationary
source,” both of which refer to a “stationary . . . source”
of pollution. 42 U.S.C. § 7602(j). “Stationary source” is
defined to mean “any source of an air pollutant except
those emissions resulting directly from an internal combustion
engine for transportation purposes or from a nonroad engine
or nonroad vehicle.” 42 U.S.C. § 7602(z) (emphasis
added). Because the distribution center will cause only
the excepted type of emission, it cannot be a major emit-
ting facility or major stationary source within the mean-
ing of the CAA. Thus, the CAA does not by its own terms
require that Dayton-Hudson obtain a permit for the cen-
ter.
The exception for internal combustion engines to the
permit requirements of Parts C and D is consistent with a
related provision in Section 110 of Part A, 42 U.S.C.
§ 7410, which sets forth the conditions to federal approval
of state implementation plans. That section provides that
the Environmental Protection Agency (“EPA”) may not
require as a condition of approving a plan that the plan
include a program for determining whether an “indirect
source” of air pollution would cause or contribute to
nonattainment of an NAAQS. 42 U.S.C. § 7410(5)(A)(i).
“Indirect source” is defined to mean “a facility, building,
should be treated instead as a motion to dismiss for failure to
state a claim (under Fed. R. Civ. P. 12(b) (6)), in which case no
facts other than those alleged in the pleadings may be consid-
ered. The court need not resolve this conceptual wrinkle, how-
ever, because its decision does not hinge on facts outside the
complaint.
a
Se ee a ee ee
17a
structure, installation, real property, road, or highway
which attracts, or may attract, mobile sources of pollution.”
42 U.S.C. § 7410(a)(5)(C) (emphasis added). There is no
dispute that the distribution center falls within this defi-
nition and that, therefore, the EPA could not have
required Wisconsin to include in its SIP a program under
which a permit for the center would have been necessary.
Plaintiffs point out, however, that although Wiscon-
sin was not required to adopt an “indirect source review
program,” it has chosen to do so, and the program, along
with the rest of the Wisconsin SIP, has been approved by
the EPA in accordance with the CAA. See 42 U.S.C.
§ 7410(a)(5)(A)(i). As a result of that approval, plaintiffs
contend, the requirements of the Wisconsin SIP have
become, in effect, the requirements of the CAA. Thus,
plaintiffs say, if the SIP requires Dayton-Hudson to obtain
a major-source permit prior to construction of the center,
then the permit is also required under the CAA, and so
the citizen-suit provision applies.
The difficulty with this analysis is that the pertinent
citizen-suit provision refers only to permits “required
under” Parts C or D of the Act, and nothing in those parts
purports to incorporate by reference the permit require-
ments of an approved SIP. This is significant, because
when Congress intended to allow civil actions or enforce-
ment actions based on noncompliance with the terms of a
SIP, as opposed to the terms of the CAA, it made that
clear. Under a separate citizen-suit provision, for exam-
ple, a federal suit may be brought against “any person
. who is alleged to be in violation of . . . an emission
standard or limitation under this Act,” and such a stan-
dard or limitation is defined to include any “standard,
18a
limitation, or schedule established . . . under any applica-
ble State implementation plan.” 42 U.S.C. §§ 7604(a)(1),
7604(f)(4). See also 42 U.S.C. § 7413(a)(1) (permitting EPA
to issue orders requiring compliance with “an applicable
implementation plan”).
Thus, as the citizen-suit provision upon which plain-
tiffs rely refers only to permits required under Parts a
and D of the Act, it cannot afford a basis for challenging
the failure to issue or obtain a permit required under a
state implementation plan. Because that is indeed the
nature of the instant claim, the court lacks jurisdiction to
hear it, and the claim must therefore be dismissed.
Il. The Clean Water Act Claim
The Clean Water Act (“CWA”) prohibits the dis-
charge of pollutants into the “waters of the United States”
without a National Pollutant Discharge Elimination Sys-
tem (“NPDES”) permit, which is to be issued by the EPA
unless a state permit program has been adopted and
approved. 33 U.S.C. §§ 1311(a), 1342(a), 1342(b). Plaintiffs
claim that construction of the distribution center requires
an NPDES permit because stormwater runoff from the
construction site will be intentionally discharged from a
large retention pond into the groundwater system,
through which the polluted runoff will migrate “into
nearby wetlands and surface waters that are waters of the
United States.” (Compl. at {{ 45-50.) Plaintiffs further
claim that an application for a stormwater discharge per-
mit filed by Dayton-Hudson’s general contractor on April
9, 1993, and the DNR’s subsequent acceptance of the
application, did not satisfy the requirements applicable to
19a
an NPDES permit. Indeed, plaintiffs claim, the state has
failed to obtain federal authority to issue such permits.
(Compl. at { 66.)
Defendants contend that plaintiffs have failed to state
a violation of the CWA because they allege that the
stormwater will be directly discharged only into the
groundwater system, and groundwater is not among the
“waters of the United States.”? This position finds direct
support in Kelley v. United States, 618 F. Supp. 1103,
f 1105-1107 (W.D. Mich. 1985), where the court held, based
- ona thorough analysis of the CWA’s legislative history
' and related caselaw, that the CWA does not cover
“groundwater contamination.” Plaintiffs argue, however,
that their case differs from Kelley because they have
alleged that the polluted stormwater will migrate through
the groundwater system into “nearby wetlands and sur-
face waters.” But Kelley in fact involved a similar claim,
which the court described as follows:
4
‘ Plaintiffs further allege that these chemicals
contaminated the groundwater underlying the
Air Station and that the plume of contamination
‘ is migrating downgradient in a north-easterly
direction through East Bay Township and even-
tually discharging into the East Arm of Grand
3 Traverse Bay.
Kelley, 618 F. Supp. at 1105. The fact that groundwater
pollution will eventually migrate into waters of the
United States does not, therefore, bring such pollution
within the terms of the CWA.
3 See note 2, supra.
es ae ae
20a
Thus, because plaintiff's CWA claim is based on alle-
gations of groundwater pollution, the claim must be dis-
missed.
IT IS THEREFORE ORDERED that defendants’
August 27, 1993 motion to dismiss is GRANTED and this
action DISMISSED.
Dated at Milwaukee, Wie onsin, this 24th day of
September, 1993.
BY THE COURT
/s/ John W. Reynolds
John W. Reynolds
Senior Judge
MERITS COEF! PAB HS ARE PNA En OS ili HUD ge 7%
2la
United States District Court
EASTERN DISTRICT OF WISCONSIN
VILLAGE OF OCONOMOWOC JUDGMENT IN
LAKE and TOWN OF SUMMIT, A CIVIL CASE
v. (Filed
DAYTON-HUDSON Sep. 24, 1993)
CORPORATION, et al. CASE NUMBER
93-C-797
Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury
has rendered its verdict.
| ><
Decision by Court. This action came to trial or hear-
ing before the Court. The issues have been tried or
heard and a decision has been rendered.
IT Is ORDERED AND ADJUDGED that the defen-
dants’ motions to dismiss are granted and this action is
hereby DISMISSED.
September 24, 1993 SOFRON B. NEDILSKY
Date Clerk
/s/ Rita Zevers
(By) Deputy Clerk
22a
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 16, 1994
By the Court:
VILLAGE OCONOMOWOC,
Plaintiff-Appellant,
No. 93-3380 V.
DAYTON-HUDSON
CORPORATION, GEORGE E. Wisconsin.
MEYER, Secretary of the
Wisconsin Department of Pe
] Appeal from the
]
J
]
]
]
J
]
Natural Resources, ] John W.
]
]
]
]
J
]
]
United States
District Court for
the Eastern
District of
WISCONSIN DEPARTMENT OF Reynolds,
NATURAL RESOURCES, et al., judge.
Defendants-Appellees,
and,
CITY OF OCONOMOWOC,
Intervenor-Appellee.
Upon consideration of the “MOTION FOR LEAVE
TO FILE OUT OF TIME BRIEF FOR THE UNITED
STATES AS AMICUS CURIAE” FILED 2/15/94, by
counsel for the United States,
IT IS ORDERED that the motion is DENIED.
Sa AE iy ag et EY Aa RS RUT ie Ta a ea
tt aah 2 alle eS
23a
No. 93-3380
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
VILLAGE OF OCONOMOWOC LAKE,
_ Plaintiff-Appellant,
v.
DAYTON-HUDSON CORPORATION; GEORGE E.
MEYER, Secretary; and the WISCONSIN
DEPARTMENT OF NATURAL RESOURCES,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF WISCONSIN
THE HONORABLE JOHN W. REYNOLDS, PRESIDING
MOTION FOR LEAVE TO FILE OUT OF TIME BRIEF
FOR THE UNITED STATES AS AMICUS CURIAE
LOIS J. SCHIFFER
Acting Assistant
Attorney General
THOMAS PAUL SCHNEIDER
United States Attorney
Eastern District of Wisconsin
ELLEN J. DURKEE
CAROL ANNETTE PETSONK
Attorneys, Department of Justice
Washington D.C. 20530
(202) 514-7982
24a
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 93-3380
VILLAGE OF OCONOMOWOC LAKE,
Plaintiff-Appellant,
v.
DAYTON-HUDSON CORPORATION; GEORGE E.
MEYER, Secretary; and the WISCONSIN
DEPARTMENT OF NATURAL RESOURCES,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF WISCONSIN
MOTION FOR LEAVE TO FILE OUT OF TIME BRIEF
FOR THE UNITED STATES AS AMICUS CURIAE
Pursuant to Rule 26(b) of the Federal Rules of Appel-
late Procedure and Rule 26 of this Court, the United
States of America hereby moves for leave to file out of
time a brief as amicus curiae in the above-referenced
action. The grounds for this motion are explained below
and are supported by the attached Declaration of Carol
Annette Petsonk, Trial Attorney, Policy, Legislation and
Special Litigation Section, Environment and Natural
Resources Division, United States Department of Justice.
In accordance with Rule 31 of this Court, fifteen copies of
the Brief for the United States as Amicus Curiae are
25a
attached to this motion. Copies of the Motion, Declara-
tion, and Brief have been sent today by overnight mail to
counsel for the parties.
1. The above-referenced lawsuit is a “citizens’ suit”
brought under the Clean Water Act, 33 U.S.C. § 1251 et
seg., and the Clean Air Act, 42 U.S.C. § 7401 et seq.
2. The United States was originally a party to the
lawsuit, and was dropped from the litigation by stipula-
tion of the parties on August 26, 1993.
3. Because the United States was dismissed from the
action early on in the litigation, the United States was not
required to file briefs on the issue in the Court of
Appeals. When the parties filed their briefs, the United
States reviewed them to determine the appropriateness of
filing an amicus curiae submission.
4. Mindful of this Court’s admonition in its Rule 29
to ascertain the position of the parties,! the United States
examined all of the briefs of the parties. On the basis of
this review, the United States determined that the current
posture of the case, as well as perspectives unaddressed
by the parties in their briefs, presented significant issues
involving the interest of the United States in the effective
enforcement of the Clean-Water Act and the Clean Air
Act. Petsonk Decl. at 7 5.
1 Rule 29(a) of this Court provides, “Before completing
the preparation of an amicus brief, counsel for an amicus curiae
shall attempt to ascertain the arguments that will be made in the
brief of any party whose position the amicus is supporting, with
a view to avoiding any unnecessary repetition or restatement of
those arguments in the amicus brief.”
26a
5. At the time briefing on the case was concluded,
President Clinton was involved in developing his posi-
tion on a number of issues in the context of the current
legislative debate on reauthorization of the Clean Water
Act. Petsonk Decl. at J 6. Included in this was the devel-
opment of a position on the legal issue of the relationship
between groundwater and surface water. Petsonk Decl. at
{ 7. The necessity of coordinating our legal position in
the attached brief with the Administration’s legislative
position in the context of CWA reauthorization resulted
in substantial delay in our finalization of the legal posi-
tion contained in the attached brief. Petsonk Decl. at { 8.
6. President Clinton forwarded his Clean Water Ini-
tiative, including the Administration’s position on the
groundwater-surface water issue, to the concerned con-
gressional committees on February 1, 1994. Petsonk Decl.
at { 9. Prompt finalization of this brief following that
submission was hampered somewhat by the weather-
related closure of the Federal Government in Washington,
D.C. on February 11. Id. at { 10. The finalized brief is
attached to this motion.
7. For the foregoing reasons, the United States
respectfully requests that this Court grant our Motion for
Extension of Time to file the attached amicus curiae brief
stating the views of the United States in the above-refer-
enced appeal. In accordance with Rule 26 of this Court,
27a
counsel for the parties have been given notice by tele-
phone of the United States’ intent to file this motion prior
to its filing.
Respectfully submitted,
/s/ Carol Annette Petsonk
LOIS J. Schiffer
Acting Assistant
Attorney General
THOMAS PAUL SCHNEIDER
United States Attorney
Eastern District of Wisconsin
ELLEN J. DURKEE
CAROL ANNETTE PETSONK
Attorneys, Department of Justice
Washington, D.C. 20530
(202)- 514-7982
93-3380
February 14, 1994
7 ne Ee rer a ee
28a
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
VILLAGE OF OCONOMOWOC
LAKE,
Plaintiff-Appellant,
Case No. 93-3380
v.
DAYTON-HUDSON
CORPORATION;
GEORGE E. MEYER,
Secretary, and the
WISCONSIN DEPARTMENT
OF NATURAL RESOURCES,
Defendants-Appellees.
DECLARATION OF CAROL ANNETTE PETSONK
I, Carol Annette Petsonk, declare as follows:
1. I am a Trial Attorney in the Policy, Legislation,
and Special Litigation Section of the Environment and
Natural Resources Division of the United States Depart-
ment of Justice. I am admitted to the bar in the Common-
wealth of Massachusetts and the State of Colorado. I
assumed my current position on March 26, 1990.
2. I am generally familiar with the appellate litiga-
tion, Village of Oconomowoc Lake v. Dayton-Hudson et al,
now pending in the Seventh Circuit Court of Appeals, a
“citizens’ suit” brought under the Clean Water Act, 33
U.S.C. § 1251 et seq., and the Clean Air Act, 42 U.S.C.
§ 7401 et seq.
a ees ae ee Se ee ee ee eS ~~
ee, a EN
29a
3. The United States was originally a party to the
lawsuit, and was dropped from the litigation by stipula-
tion of the parties on August 26, 1993. Because the United
States was dismissed from the action early on in the
litigation, the United States was not required to file briefs
on the issue in the Court of Appeals.
4. When the parties filed their briefs, the United
States reviewed them to determine the appropriateness of
filing an amicus curiae submission.
5. On the basis of this review, the United States
determined that the current posture of the case, as well as
perspectives unaddressed by the parties in their briefs,
presented significant issues involving the interest of the
United States in the effective enforcement of the Clean
Water Act and the Clean Air Act.
6. At the time the parties concluded their briefing of
this case, the Clinton Administration was involved in a
process of developing positions on issues for the upcom-
ing legislative debate on reauthorization of the Clean
Water Act. This process culminated in the finalization on
January 31, 1994 of President Clinton’s Clean Water Ini-
tiative.
7. Among the issues included in the President's
Clean Water Initiative was the issue of the relationship
between groundwater and surface water.
8. The Department of Justice determined, as a legal
and policy matter, that it would need to coordinate any
position taken-in an amicus brief on the groundwater-
surface water issue in the Village of Oconomowoc Lake v.
Dayton-Hudson litigation with the position taken on
30a
groundwater-surface water issues in the President’s
Clean Water Initiative. Accordingly, our schedule on
briefing in this case was necessarily delayed pending the
President’s finalization of his Initiative.
9. President Clinton’s Clean Water Initiative was
made public and transmitted to the relevant congres-
sional committees on February 1, 1994.
10. Immediately following the transmittal to Con-
gress of the President’s Clean Water Initiative, the Envi-
ronment and Natural Resources Division sought to
finalize an amicus brief for submittal to this court in the
above-referenced appeal. The statements in the Presi-
dent’s Initiative concerning the groundwater-surface
water relationship provided the basis for the legal stan-
dard articulated in the attached Brief of the United States
as Amicus Curiae, at page 13. Our finalization of the
brief, however, was hampered by a spate of inclement
weather that resulted in shutdowns of the Federal Gov-
ernment in Washington, D.C. The most recent shutdown
occurred Friday, February 11, 1994.
11. In accordance with Rule 26 of this Court, I have
notified counsel for the parties by telephone of the
United States’ intent to file a Motion for Leave to File
Amicus Curiae Brief Out of Time prior to the filing of said
motion. Specifically, on February 14, 1994, I informed
Messrs. William S. Roush, Jr., Friebert, Finerty & St. John,
attorney for Plaintiff-Appellant; Paul G. Kent, DeWitt
Porter, attorney for Defendant-Appellee Target Stores,
and for Intervenor-Appellee City of Oconomowoc; and
John S. Greene, Assistant Attorney General, State of Wis-
consin, attorney for Defendant-Appellants George E.
g
4
4
4
‘
*
2
3la
Meyer and Wisconsin Department of Natural Resources,
by telephone on February 14, 1994, of the United States’
intention to file the Motion and amicus curiae brief.
I declare under penalty of perjury that the foregoing
is a true and correct statement.
February 14, 1994 /s/ Carol Annette Petsonk
Date: Carol Annette Petsonk,
Attorney
32a
United States Court Of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
APPEARANCE FORM
Appellate Court No.: 93-3380
Short Caption: Village of Oconomowoc Lake v.
Dayton-Hudson
District Court Judge: John W. Reynolds, Eastern
District of Wisconsin
District Court No.: Civ. No. 93-C-0797
26 EE ee ae aE oe Oe a ae a ee 2 ae a 2 a 2 ae a ae ae a oe ee a ee oe ee ae 2 ee a a ee ae 2 a a a a a ob a ee
THE CLERK WILL ENTER MY APPEARANCE AS
COUNSEL ON BEHALF OF:
United States of America as the
(party name)
[ ] appellant(s) [ ] appellee(s) [XX] amicus curiae
[ ] petitioner(s) [ ] respondent(s) [ |] intervenor‘(s)
Verify that the address and firm (if any) information is
accurate. If incorrect, strike through the incorrect infor-
mation and record it correctly:
*** Achmnitttecdto bead Not
Appettate-Court trvotved
XZ AL XZ AL
i IN I iN
***Pursuant to Circuit Rule 46(c), attorneys for the federal gov-
ernment may appear before this court in connection with their
official duties without being formally admitted to practice
before the court.
4
{
¥
¥
i
3
4
>
i
eae hal ee ea aniiak eae Rites Ba cadena tot:
33a
1) Name: Carol Annette Petsonk, Ellen Durkee
Firm, ‘“ffice or Facility: Department of Justice
Unit, Division or Section: Environment & Natural
Resources Division
Address Rm. 2133: 10th & Constitution Ave., NW
City/State/Zip: Washington, DC 20530
Firm Telephone Number: 202 - 514 - 1442
Direct Line to Individual #1 at Firm: 202-514-7982
You must sign to either enter your appearance or indicate
your non-invoivement and return this form within 10
days of docketing this appeal. Failure to do so will result
in your name being stricken from the Clerk’s records in
this appeal. A “Certificate of Interest” pursuant to Circuit
Rule 12(d) must also accompany this form if you intend
to participate in this case.
1) Carol Annette 2) Ellen Durkee ee
Petsonk Printed Name Printed
Printed Name Name
1) /s/ Carol Annette 2) /s/ Ellen Durkee 3) /s/ —_
Petsonk Signature Signature
Signature
If above counsel will not be participating in this case, but
other counsel from the firm will appear, or additional
counsel from the firm will be participating with you, the
attorneys’ printed names with signatures should appear
below
Name Signature Admitted?
Y N Lead? Y N
Name Signature Admitted?
» N Lead? Y N
34a
Name Signature Admitted?
Y N Lead? Y N
*Only one counsel per firm may be designated as “Lead Coun-
sel” and that counsel must be admitted to this Court within 30
days of docketing, per Circuit Rule 46(a).
(1076-021992)
1 35a
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 93-3380
VILLAGE OF OCONOMOWOC LAKE,
Plaintiff-Appellant,
v.
DAYTON-HUDSON CORPORATION;
GEORGE E. MEYER, Secretary; and
the WISCONSIN DEPARTMENT
OF NATURAL RESOURCES,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN
CERTIFICATE OF SERVICE
I hereby certify that pursuant to Rule 25, Fed. R. App.
P., I have served a copy of the following: -
i. Motion of the United States for Leave to File
Out of Time an Amicus Curiae Brief. The
Declaration of Carol Annette Petsonk is
: attached to the Motion; and
36a
2. Brief of the United States as Amicus Curiae,
by overnight mail, this 14th day of February, 1994, on:
William S. Roush, Jr.
Friebert, Finerty & St. John
P330 East Kilbourn Avenue Suite 1250
Milwaukee, WI 53202
Paul G. Kent
DeWitt Porter
Suit 600
Two East Mifflin Street
Madison, WI 53705
John. S. Greene
Assistant Attorney General
State of Wisconsin
Department of Justice
123 West Washington Avenue
P.O. Box 7857
Madison, WI 53707-7857
/s/ Carol Annette Petsonk
CAROL ANNETTE PETSONK
U.S. Department of Justice
Environment and Natural
Resources Division
Room 2133
10th and Constitution Ave., N.W.
Washington, D.C. 20530
37a
No. 93-3380
IN THE UNITED STATE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
VILLAGE OF OCONOMOWOC LAKE,
Plaintiff-Appellant,
v.
DAYTON-HUDSON CORPORATION; GEORGE E.
MEYER, Secretary; and the WISCONSIN
DEPARTMENT OF NATURAL RESOURCES,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR it ASTERN DISTRICT OF WISCONSIN
THE HONORABLE JOHN W. REYNOLDS, PRESIDING
BRIEF FOR THE UNITED STATES AS.
AMICUS CURIAE
LOIS J. SCHIFFER
ie. Acting Assistant Attorney General
| 4 THOMAS PAUL SCHNEIDER
| 4 United States Attorney
Eastern District of Wisconsin
ELLEN J. DURKEE
CAROL ANNETTE PETSONK
Attorneys, Department of Justice
Washington, D.C. 20530
(202) 514-7982
INDEX
PAGE
Opinion Below .......-.::eeeeeee eens r eter erences
Subject Matter Jurisdiction and Appellate Jurisdiction
Sy ey tre pe rrr rr Tore tte ee eee 1
Statutes Involved........... cee cee cee ree eee eeceees 2
Statement of Issues.......... esse eee eee tee eens 2
Statement of the Case ......-.--. eee eee eeeeees Te
Statement of Facts........00- see e cece erent eeeeee 4
Related Cases and Proceedings .......----++++++++> 4
Standard of Review .......-:- see cece eect eer ete 4
Argument -—
I. Discharges Of A Pollutant To Groundwater
Are Within CWA Jurisdiction In Specific Cir-
CUMStANCES.. 0... cere e reece rere eeeceeereerers 4
A. The majority of cases recognize that dis-
charges to groundwater may, in specified
circumstances, come within Clean Water
Act regulatory jurisdiction.........-----: 5
B. EPA’s view is in accord with the majority
of caselaw and is entitled to Chevron def-
Pr TT Tre Cee ee ee 8
C. Discharges to groundwater come within
CWA regulatory jurisdiction where there
is a reasonably foreseeable direct hydro-
logical connection between the ground-
water in the proximity of the release, and a
greater than de minimis quantity of pollu-
tants reasonably is able to reach the sur-
face WatOP. ... 02. cece cece Mob ccc ccccceees 13
39a
Il. Indirect Source Permit Requirements
Approved Into State Implementation Plans To
Satisfy Requirements Of Part D Of The Clean
Air Act Are Enforceable By Citizens Under
Section 304(A)(3) Of That Act............... 14
A. Caselaw supports the proposition that cit-
izens may sue under CAA Section
304(a)(3) to enforce SIP indirect source
DIGI orc he een tinh dake nt coed cea: 17
B. The case should be remanded to the lower
court for further determination regarding
the Wisconsin SIP indirect source review
provisions for emissions of NOx ........ 19
ee ee Pe er Pee eee TEED 20
CITATIONS
PAGE
CASES:
American Lung Association v. Kean, 871 F.2d 319 (3d
ee ee eee re ee ee ee 18
Arkansas v. Oklahoma, 503 U.S. __, 112 S. Ct. 1046
Cn Oe ee eh ee et ee 10
Chevron U.S.A. v. Natural Resources Defense Council,
RN 6 50:5 nh 65 SAR AL RASS RONG 10
Citizens for a better Environment v. Deukmejian, 731
Be ROM CPE, CML, FO cece ceccceesseten 18
Coalition Against Columbus Center v. City of New
tere, Sor wae 708 Cie Cis. 1992) 06. ccc ceeceei 18
Delaware Valley Citizens Council v. Davis, 932 F.2d
PS arb hae ect ean bos dek vad neae ees 18
Exxon v. Train, 554 F.2d 1310 (5th Cir. 1977)........ 7,9
Inland Steel Co. v. EPA, 901 F.2d 1419 (7th Cir. 1990) ...5, 6
z
40a
Kelley v. United States, No. 79-10199 (E.D. Mich.
Oct. 26, 19GO) onc ccccccccccccccsvscvccscevccoocess 7
Kelley v. United States, 618 F. Supp. 1103 (W.D.
Mich. 1985)......ccccccccccccccccccccscceesssescess 8
McClellan Ecological Seepage Situation (MESS) v.
Cheney, 763 F. Supp. 431 (E.D. Cal. 1989), appeals
dockets, Nos. 91-16308, 91-16467 (9th Cir. Aug.
ye, rrr rier rer rere re eee 7
McClellan Ecological Seepage Situation (MESS) v.
Cheney, 707 F. Supp. 1182 (E.D. Cal. 1988) Pee Fo
Natural Resources Defense Council v. EPA, 966 F.2d
1292 (9th Cir. 1992)...... cc eecc ence cece eeneneees 11
New York v. United States, 620 F. Supp. 374 (E.D.
DE DO ooo cc ccc cccascscessesedetsevenascesoses 7
Quivira Mining Co. v. United States EPA, 765 F.2d
126 (10th Cir. 1985), cert. denied, 474 U.S. 1055
(19OG) occa ck cc cecccdcecncssceentoecnatscceresere: 7
Sierra Club v. Colorado Refining Company (CRC), 383
F. Supp. 1428 (D. Colo. 1993).....-.-eeeeeerereeees 6
Sierra Club v. Larson, 2 F.3d 462 (1st Cir. 1993) ...17, 18
Town of Norfolk v. United States Army Corps of Engi-
neers, 968 F.2d 1438 (1st Cir. 1992)......-----++eee 10
United States v. GAF Corporation, 389 F. Supp. 1379
(S.D. Tex. 1975)... 0c cccccccccccccceeeeneeeseeees 8
United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (19GB) ccvcccvdccsccccccccccsessioccsccss 11
Village of Oconomowoc Lake et al. v--Dayton-Hudson
et al., No. 93-C-0797 (E.D. Wisc. Sept. 21, 1993) ..3, 15
4la
STATUTES, RULES and REGULATIONS:
Clean Air Act,
Ec cee ese nceyedsvetccecceseereess 2
Section 110(a)(2)(A), 42 U.S.C. 7410(a)(2)(A)....... 17
| Section 113(a)(1), 42 U.S.C. 7613(a)(1) ............. 18
| Section 113(a)(5), 42 U.S.C. 7613(a)(5) ............. 18
| Section 304(a)(3), 42 U.S.C. 7604(a)(3) ......... Passim
| Section 304(a)(1), 42 U.S.C. 7604(a)(1) ..........--. 18
| Section 304(b)(1)(A), 42 U.S.C. 7604(b)(1)(A)....... 18
| ES ...19
| Gs PEs sc cctcnccssceas -eeaeeeoeaneteeoune ]
| Clean Water Act,
| 33 U.S.C. 1251 et seq. ... 0c. c cece cece ccc cecceeccee: 2
| Section 301(a), 33 U.S.C. 131l1(a)....... ceeadesauen 4
ye BY i i ee ..4
ED vce cdecvessesecesoccesescess ...8
ee .8
I EDs cb coscccdccsvsscecases errr rs
Ee re 8
ao USL. 156012) ....... Cre Oa ae eT 8
DI rc bcccscccccvscevccccoses pease
ES rr ]
des duendasedenand cess eset l
Ea ee l
Ta ner snr er ne one 1
ik cesses bee cawecaees asad eer etesee 1
40 C.E.R. 51.165(a)(1)(xiv) «6... cee eee eee eee eee 16
Bed. Am. Fi 29, nnn ccc r errs ccncscsseseerees 2
55 Fed. Reg. 47,990, 47,997 (Nov. 16, 1990).......--- 11
56 Fed. Reg. 64,876, 64,892 (Dec. De BED ous wenss 12
58 Fed. Reg. 7,610, 7,631 (Feb. 8, 1993)......----++:: 12
MISCELLANEOUS:
12 Harv. Envtl. L. Rev. 569, 613-614 (1988) .........- 10
118 Cong. Rec. 10666 (1972) (remarks of Rep.
A ee nk oe eee 10
118 Cong. Rec. 10668 (1972) (remarks of Rep.
PHATGIA) 6 occ eee cece cece sce neecsccesescvensconns 9, 10
Wis. Admin. Code § NR 408.02(21)(b)3....-----.-++: 19
43a
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 93-3380
VILLAGE OF OCONOMOWOC LAKE,
Plaintiff-Appellant,
v.
DAYTON-HUDSON CORPORATION; GEORGE E.
MEYER, Secretary; and the WISCONSIN DEPARTMENT
OF NATURAL RESOURCES,
- Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF WISCONSIN
| BRIEF FOR THE UNITED STATES
| AS AMICUS CURIAE
OPINION BELOW
The unreported decision of the district court (Honor-
able John W. Reynolds, District Judge) was issued Sep-
tember 24, 1993.
SUBJECT MATTER JURISDICTION AND
APPELLATE JURISDICTION
The complaint predicated the subject matter jurisdic-
tion of the district court on 28 U.S.C. §§ 1331, 1361, 2201,
44a
and 2202; 33 U.S.C. § 1365; and 42 U.S.C. § 7604. (App. 8)
The judgment entered on September 24, 1993 was final as
to all issues and parties. (App. 7) The notice of appeal
was filed on September 24, 1993. (App. 7) This Court's
jurisdiction rests on 28 U.S.C. § 1291.
STATUTES INVOLVED
This appeal involves the Clean Water Act, 33 USA.
§ 1251 et seq., and the Clean Air Act, 42 U.S.C. § 7401 et
seq.
STATEMENT OF ISSUES
Pursuant to Rule 29 of the Federal Rules of Appellate
Procedure and Rule 29 of this Court, the United States of
America submits this memorandum on the following
issues:
(1) Whether the discharge of pollutants to
groundwater, in certain circumstances, may be
subject to the CWA prohibition against unper-
mitted point source discharges of pollutants to
waters of the United States.
(2) Whether State Implementation Plan (SIP)
provisions, approved by EPA pursuant to Part D
of the CAA, that regulate “indirect sources” of
air pollution, are enforceable by citizens under
CAA section 304(a)(3).
The United States has a direct interest in the develop-
ment of the law regarding citizen enforcement under the
CWA and CAA because citizens play a major role in the
integrated federal-state-citizen enforcement scheme
45a
under these statutes. Moreover, the United States is con-
cerned that district court’s erroneous reasoning, if not
corrected on appeal, could undermine federal enforce-
ment of these laws. Accordingly, the United States
requests that the judgment of the district court be
reversed and the case remanded-to that court for further
proceedings.
STATEMENT OF THE CASE
Plaintiffs, Village of Oconomowoc Lake and Town of
Summit, Wisconsin, brought suit on July 30, 1993, against
the Dayton-Hudson Corporation, the Wisconsin Depart-
ment of Natural Resources and its Secretary, George E.
Meyer, and the United States Environmental Protection
Agency (EPA) and its Administrator and Regional
Administrator, alleging that defendants had failed to
obtain or issue permits required under the CWA and the
CAA in connection with Dayton-Hudson’s proposed con-
struction of a merchandise distribution center for its Tar-
get Department store chain. The federal defendants were
dropped from the litigation by stipulation of the parties
on August 26, 1993.
The district court dismissed plaintiffs’ CWA claim in
an opinion issued September 24, 1993. The district court
held that since plaintiffs had alleged that Dayton-Hud-
son’s proposed facility would discharge pollutants to
waters of the United States via groundwater, rather than
directly to surface water, no National Pollution Discharge
Elimination System (NPDES) permit could be required
46a
under the CWA. Village of Oconomowoc Lake et al. v. Day-
ton-Hudson et al., No. 93-C-0797, slip opinion at 7 (E.D.
Wisc. Sept. 21, 1993).
The district court also dismissed plaintiffs’ CAA
claim. Plaintiffs had claimed that Dayton-Hudson was
required to obtain a “major source” CAA permit for its
facility under portions of the Wisconsin SIP regulating
“indirect sources” of air pollution such as parking lots
and other attractors of mobile source pollution. Plaintiffs
had filed suit under a portion of the citizen suit provision
of the CAA, section 304(a)(3) of the CAA, 42 U.S.C.
§ 7604(a)(3), which provides that citizens may bring suit
against any person who proposes to construct or con-
structs any new or modified major emitting facility with-
out a permit “required under” specific parts of the CAA.
The district court found that plaintiffs could not invoke
Section 304(a)(3) because permits for indirect sources are
not “required under” the CAA.
On September 24, 1993, the Village of Oconomowoc
Lake appealed the district court's judgment. The case has
been fully briefed by the parties. Oral argument is set for
February 16, 1994.
STATEMENT OF FACTS
The statement of the facts is provided in the briefs of
the parties.
RELATED CASES AND PROCEEDINGS
These are provided in the briefs of the parties.
47a
STANDARD OF REVIEW
The standard of review is stated in the brief of the
Appellant.
ARGUMENT
I.
DISCHARGES OF A POLLUTANT TO GROUNDWATER
ARE WITHIN CWA JURISDICTION IN SPECIFIC CIR-
CUMSTANCES
A discharge of a pollutant to groundwater comes
within Clean Water Act (CWA) jurisdiction where the
discharge is tantamount to a discharge to waters of the
United States. In such circumstances, under Sections
301(a) and 402 of the Clean Water Act (CWA), 33 U.S.C.
§§ 1311(a) and 1342, a point source discharge of a pollu-
tant to ground or to groundwater is subject to CWA
regulation. Whether these circumstances exist in any par-
ticular case is a question of fact. The lower court, how-
ever, erroneously assumed that as a matter of law, point
source discharges to groundwater may never be subject
to CWA permitting jurisdiction; on that basis, it dis-
missed plaintiffs’ CWA claim.
Citizen suit plaintiffs “should have the opportunity
to demonstrate through expert testimony that any seep-
age of pollutants . . . into groundwater” is effectively a
discharge into surface waters. See McClellan Ecological
Seepage Situation (MESS) v. Cheney, 763 F. Supp. 431, 437
(E.D.Cal. 1989), appeals docketed, Nos. 91-16308, 91-16467
(9th Cir. Aug. 23, 1991). This Court should reverse the
48a
judgment of the district court on the CWA claim and
remand the claim to the lower court for further examina-
tion of the factual circumstances.
A. The majority of cases recognize that discharges
_ to groundwater may, in specified circumstances,
come within Clean Water Act regulatory jurisdic-
tion.
This Court has expressly recognized the possibility
that point source discharges to groundwater may be sub-
ject to regulation under the CWA where the groundwater
is hydrologically connected to surface waters. In the
Inland Steel case, this Court stated that “the legal concept
of navigable waters might include ground waters con-
nected to surface waters — though whether it does or not
is an unresolved question.” Inland Steel Co. v. EPA, 901
F.2d 1419, 1422 (7th Cir. 1990) (emphasis added).
The majority of courts have refused to rule out the
possibility that discharges of pollutants to groundwater
can come within the regulatory compass of the CWA.
Most recently, in Sierra Club v. Colorado Refining Company
(CRC), 838 F. Supp. 1428 (D. Colo. 1993), plaintiffs alleged
that pollutants discharged from a point source were
entering surface waters via groundwater. The court found
these allegations sufficient to withstand a motion to dis-
miss:
I therefore find that Sierra Club’s allegations
that CRC has and continues to discharge pollu-
tants into the soils and groundwater beneath the
refinery which then make their way to Sand
Creek through the groundwater state a cause of
action under the Clean Water Act. Accordingly, I
49a
deny CRC’s Rule 12(b)(6) motion to dismiss the
first cause of action.
Sierra Club v. CRC, slip op. at 17-18.
Although Sierra Club v. CRC is, to our knowledge, the
only case other than the present one to confront the
question Squarely in the context of a motion to dismiss,
all but one of the other courts that have considered the
issue have specifically held out the possibility that
NPDES permits may be required in specific circumstances
for discharges to groundwater where the groundwater is
connected to waters of the United States. In Inland Steel,
supra, this Court suggested that “a well that ended in
such connected ground waters might be within the scope
of the [Clean Water] Act.” Id., 901 F.2d at 1423 (7th Cir.
1990) (citations omitted). Although the Court of Appeals
for the Fifth Circuit has indicated that an NPDES permit
is not required for discharges of pollutants into isolated
groundwaters because those groundwaters are not waters
of the United States, it “express[ed] no opinion” on what
the result would be under the CWA if the contaminated
groundwater migrated to navigable waters. Exxon v.
Train, 554 F.2d 1310, 1312 n. 1 (5th Cir. 1977). And in
Kelley v. United States, No. 79-10199 (E.D. Mich. Oct. 28,
1980) (“Kelley I”), the district court found that wastes
migrating from groundwater under an air base into
nearby surface waters could fall within CWA jurisdiction.
See Sierra Club v. CRC, supra, slip op. at 12 (discussing
Kelley I).
In McClellan Ecological Seepage Situation v. Weinberger,
707 F. Supp. 1182, 1193-96 (E.D.Cal. 1988) (“MESS I”), the
50a
district court concluded that some discharges to ground-
water could fall within the regulatory purview of the
CWA if the groundwater is “naturally connected to sur-
face waters that constitute ‘navigable waters’ under the
Clean Water Act.” 707 F. Supp. at 1196. In a later phase of
the MESS litigation, after defendant presented testimony
showing the “naturally connected” standard was not met,
the court elaborated a more detailed standard, holding
that the CWA encompasses discharges to groundwater
where it is “reasonably foreseeable and temporally immi-
nent” that the discharges will percolate to surface waters.
MESS II, supra, 763 F. Supp. at 437.!
Only in Kelley v. United States, 618 F. Supp. 1103,
1106-7 (W.D. Mich. 1985) (“Kelley II”) did a district court
hold that CWA jurisdiction did not extend to the alleged
release of toxic chemicals into groundwater that allegedly
was migrating into a bay. The other authorities cited are
better-reasoned than Kelley II and the court below. Thus,
this Court should hold, as a matter of law, that discharges
1 In New York v. United States, 620 F. Supp. 374 (E.D.N.Y.
1985), the court “decline[d] to reach defendants’ argument as to
the scope of section 301 [of the CWA] as applied to ground-
waters, since it is clear that plaintiff has alleged that the pollu-
tants threaten to contaminate [various creeks], all of which are
indisputably navigable waters.” Id. at 381. And, Quivira Mining
Co. v. United States EPA, 765 F.2d 126, 129-130 (10th Cir. 1985),
cert. denied, 474 U.S. 1055 (1986), affirmed EPA’s decision that a
CWA permit was required for discharges of pollutants into
surface arroyos which, during storms, channelled rainwater
both directly to navigable-in-fact streams and into underground
aquifers that connected with such streams.
5la
of pollutants to groundwaters may fall within the regula-
tory jurisdiction of the CWA, depending on the factual
circumstances.
B. EPA’s view is in accord with the majority of
caselaw and is entitled to Chevron deference.
Section 402 of the CWA authorizes states to adminis-
ter permit systems for the discharge of pollutants. “Dis-
charge of a pollutant” is defined as any addition of
pollutants “to navigable waters from a point source.” 33
U.S.C. § 1362(12). The statute defines “navigable waters”
as “waters of the United States.” 33 U.S.C. § 1362(7). The
CWA distinguishes between and refers separately to nav-
igable waters and ground waters. See 33 U.S.C. §§ 1252(a),
1254(a)(5), 1256(e)(1).2 Thus, isolated groundwaters are
not “navigable waters”, and discharges to groundwaters
per se are not covered by the CWA permitting scheme.
The statute does not explicitly address, however, whether
the prohibition on unpermitted discharges includes the
addition of pollutants to navigable waters from a point
source through groundwater.
The legislative history is similarly inconclusive on
this point. Congress specifically considered — and rejected
2 The legislative history of the CWA also demonstrates that
“Congress did not intend groundwater and navigable waters to
be synonymous.” McClellan Ecological Seepage Situation v. Wein-
berger, 707 F. Supp. 1182, 1194 (E.D.Cal. 1988) (“MESS I”); see
also United States v. GAF Corporation, 389 F. Supp. 1379, 1383
(S.D. Tex. 1975).
es
52a
~ extension of the NPDES program to all groundwater.*
There is no evidence, however, that rejecting this extension,
Congress intended to create a groundwater loophole through
which discharges of pollutants could flow, unregulated, to
surface water. The legislative debated [sic] coalesced around
an amendment introduced by Representative Aspin, that
would have extended CWA regulatory jurisdiction to all
discharges to groundwater. A review of the debate illustrates
that Congress was primarily concerned with the Aspin
amendment’s extension of CWA jurisdiction to groundwater
per se including isolated groundwater. For example, Rep.
McClory, arguing in favor of the Aspin amendment, stated,
“to consider that we are providing for the protection of the
surface waters .. . and omitting from the strong provisions of
this measure — vast groundwater supplies - is to my mind
unthinkable”. 118 Cong. Rec. 10668 (1972) (remarks of Rep.
McClory). Rep. Sisk objected to the Aspin Amendment
because, in his view, “what they are attempting to do here is
bring groundwater under the control of the EPA.” 118 Cong.
Rec. 10669 (1972) (remarks of Rep. Sisk).4
3 See Exxon Corp., supra, 554 F.2d at 1326-1329 (reviewing
legislative history); MESS I, 707 F. Supp. at 1194.
4 See also 118 Cong. Rec. 10668 (1972) (remarks of Rep.
Harsha) (“[T]his amendment purports to require water-quality
standards for groundwater”). Rep. Aspin himself was con-
cerned not only with pollution of isolated groundwater, but
with hydrologically connected groundwater as well:
If we do not stop pollution of ground waters through
seepage and other means, ground water gets into
navigable waters, and to control only the navigable
water and not the ground water makes no sense at all.
118 Cong. Rec. 10666 (1972) (remarks of Rep. Aspin). The tenor
of the debate indicates, however, that the representatives were
most concerned with application of the NPDES program to the
53a
Congress ultimately rejected the Aspin amendment.
But there is no evidence that Congress intended to throw
jurisdiction over affected surface waters out with the
groundwater.
Since the plain language and legislative history do
not answer definitively the precise question presented
here, a reviewing court should defer to the views of the
EPA, the agency charged with administering the CWA.
See Chevron U.S.A. v. Natural Resources Defense Council,
467 U.S. 837, 842-844 (1984). EPA’s interpretation of the
CWA, including the jurisdictional limits of the NPDES
requirements, are entitled to deference. Arkansas v. Okla-
homa, 503 U.S. __, 112 S. Ct. 1046, 1056 (1992). As recog-
nized in Town of Norfolk v. United States Army Corps of
Engineers, 968 F.2d 1438 (1st Cir. 1992), the determination
whether a discharge to “waters of the United States”
includes discharges to hydrologically connected ground-
waters should be left in the first instance to the discretion
of the EPA, “since such a determination ultimately
involves an ecological judgment about the relationship
between surface waters and groundwaters.” Id., 968 F.2d
at 1451 (citing United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 134 (1985) (deference should be given
to administering agency’s ecological judgment about the
relationship between wetlands and adjacent surface
waters)).
nation’s vast and isolated groundwater reserves. See generally
Exxon v. Train, supra, 554 F.2d at 1326-1329 (reviewing legislative
history); and see Mary Christina Wood, “Regulating Discharges
into Groundwater: The Crucia! Link in Pollution Control under
the Clean Water Act,” 12 Harv. Envtl. L. Rev. 569, 613-614 (1988).
54a
EPA has repeatedly expressed its view that the CWA
encompasses discharges to groundwaters that are hydro-
logically connected to waters of the United States. For
example, EPA explained this interpretation when it pro-
mulgated regulations on storm water discharges. See Pre-
amble, NPDES Permit Application Regulations for Storm
Water Discharges, EPA Final Rule, 55 Fed. Reg. 47990,
47997 (Nov. 16, 1990) (“[T]his rulemaking only addresses
discharges to waters of the United States, consequently
discharges to ground waters are not covered by this
rulemaking (unless there is a hydrological connection
between the ground water and a nearby surface water
body)”).°
EPA also interpreted the statute in this way when it
promulgated regulations governing discharges from ani-
mal feedlots. See NPDES General Permit and Reporting
Requirements for Discharges from Concentrated Animal
Feeding Operations, EPA Region 6 Public Notice of Final
Permitting Decision, 58 Fed. Reg. 7610, 7631 (Feb. 8, 1993)
(feedlots required to obtain NPDES permit for discharges
to groundwater unless permittee can demonstrate lack of
hydrologic connection to surface water).
_ EPA’s statement of its position in connection with the
promulgation of other recent regulations is particularly
instructive:
Notwithstanding the strong language in the leg-
islative history of the Clean Water Act to the
effect that the Act does not grant EPA authority
to regulate pollution of groundwaters, EPA and
5 See Natural Resources Defense Council v. EPA, 966 F.2d 1292
(9th Cir. 1992) (upholding rule, remanding on other grounds).
55a
most courts addressing the issue have recog-
nized that . . . the Act requires NPDES permits
for discharges to groundwater where there is a
direct hydrological connection between ground-
waters and surface waters. In these situations,
the affected groundwaters are not considered
“waters of the United States” but discharges to
them are regulated because such discharges are
effectively discharges to the directly connected sur-
face waters.”
Amendments to the Water Quality Standards Regulations
that Pertain to Standards on Indian Reservations, Final
Rule, 56 Fed. Reg. 64, 876, 64, 892 (Dec. 12, 1991)
(emphasis added).
This Court should defer to EPA’s scientific judgment
in the complex area of groundwater-surface water rela-
tionships and hold that the discharge of pollutants to
groundwaters may come within CWA jurisdiction,
depending on the circumstances.
C. Discharges to groundwater come within CWA
regulatory jurisdiction where there is a reason-
ably foreseeable direct hydrological connection
between the groundwater and the surface waters
in the proximity of the release, and a greater than
de minimis quantity of pollutants reasonably is
able to reach the surface water.
As noted above, a discharge to groundwater comes
within the CWA’s regulatory compass when the discharge
is tantamount to a discharge to waters of the United
States. This occurs when there is a reasonably foreseeable
direct hydrological connection to waters of the United
States in the proximity of the release, and a greater than
56a
de minimis quantity of the pollutant reasonably is able to
reach the waters of the United States (provided that no
other Federal statute directly addresses the activity caus-
ing the release).
It bears emphasizing that EPA does not take the
position that groundwaters themselves are “waters of the
United States” within the meaning of the CWA. Rather,
the mere fact that groundwaters are not waters of the
United States does not mean that discharges of pollutants
to groundwaters can never be regulated discharges
within the meaning of the CWA. Such discharges are
regulated by the CWA where the discharge to groundwa-
ter is effectively a discharge to waters of the United
States. Thus, where there is a reasonably ascertainable
direct hydrological connection to surface waters in the
proximity of a release of pollutants, and it is reasonably
foreseeable that pollutants discharged into groundwater
will reach surface waters in greater than de minimis quan-
tities, CWA jurisdiction attaches (provided, of course,
that no other Federal statute directly regulates the release
or the activity causing the release).
The United States recognizes that expert analysis of
hydrological conditions may be required in order to
determine whether this standard has been met. Precisely
because such factual determinations may be required, it is
inappropriate to dismiss a CWA complaint simply
because the plaintiff alleges that pollutants will flow to
waters of the United States via groundwater. Accordingly,
the judgment of the district court should be reversed. The
case should be remanded to the lower court for further
57a
factual examination to determine whether, under this
standard, CWA jurisdiction is properly invoked.®
If.
INDIRECT SOURCE PERMIT REQUIREMENTS
APPROVED INTO STATE IMPLEMENTATION PLANS
TO SATISFY REQUIREMENTS OF PART D OF THE
CLEAN AIR ACT ARE ENFORCEABLE BY CITIZENS
UNDER SECTION_ 304(A)(3) OF THAT ACT
The district court concluded that because defendant
Dayton-Hudson’s distribution center will cause air pollu-
tion only indirectly, and because EPA may not require
states to include indirect source review programs in SIPs,
EPA could not have required Wisconsin to include in its
SIP a program requiring the distribution center to obtain
a permit. Village of Oconomowoc Lake v. Dayton-Hudson,
slip op. at 4-5. The court held that Section 304(a)(3) of the
CAA, 42 U.S.C. § 7604(a)(3), does not provide jurisdiction
over citizen suits alleging a failure to issue or obtain a
permit required under a SIP if the permit requirement is
not specifically mandated under the CAA itself. Slip op.
at 5-6.
6 In this case, appellant seeks prospectively to prevent dis-
charges to groundwater. The record indicates that the distribu-
tion center is still under construction, and the citizens have not
alleged that any discharges to groundwater in violation of the
CWA have occurred. Appellants have argued that the CWA
does not provide a basis for prospective enforcement jurisdic-
tion. On remand, after conducting the factual inquiry described
above, the district court may need to consider whether the CWA
affords a basis for prospective jurisdiction.
58a
Section 304(a)(3) of the CAA provides:
Except as provided in subsection (b) of this sec-
tion, any person may commence a civil action on
his own behalf - * * * *
(3) against any person who proposes to
construct or constructs any new or modified
major emitting facility without a permit
required under part C of subchapter I of this
chapter (relating to significant deterioration
of air quality) or part D of subchapter I of
this chapter (relating to nonattainment) . . .
42 U.S.C. § 7604(a)(3) (emphasis added). The district
court reasoned that Section 304(a) (3)’s phrase, “required
under”, limits jurisdiction to challenges alleging violation
of requirements to obtain a permit stated in the CAA
itself.
The district court’s conclusion is overly broad. The
correct reading of Section 304(a)(3) is that citizen suits
will lie to enforce all permit requirements approved by
EPA into a SIP under Part D of Title I of the CAA. The
court should have construed the Section 304(a) (3) refer-
ence to permits “required under . . part D of subchapter
I” to include permits required under the implementation plan
of a state by virtue of EPA’s approval (or promulgation) of
the plan pursuant to Part D.’
This construction is the one adopted by EPA, the
agency charged with administering the CAA, in its regu-
lations governing approval of SIPs. There, EPA takes the
7 The statute, and the analysis in this brief, apply as well to
permits required under Part C of subchapter I of the CAA, but
Part C is not at issue in this case.
59a
position that all provisions of an applicable SIP are feder-
ally enforceable, regardless of their provenance:
(xiv) Federally enforceable means all limitations
and conditions which are enforceable by the
Administrator, including those requirements
developed pursuant to 40 CFR parts 60 and 61,
requirements within any applicable State implemen-
tation plan, any permit requirements established
pursuant to 40 CFR 52.21 or under regulations
approved pursuant to 40 CFR part 51, subpart I,
including operating permits issued under an
EPA-approved program that is incorporated into
the State implementation plan and expressly
requires adherence to any permit issued under
such program.
40 CFR § 51.165(a)(1)(xiv) (emphasis added). Thus, EPA
has authority to enforce all SIP provisions - including
indirect source review requirements - approved by it
under Part D, even though such requirements are not
mandated by the CAA.
Interpreting the Section 304(a)(3) citizen suit provi-
sion to omit coverage of such requirements would strain
the balance of the integrated statutory scheme of the
CAA. It would also fail to recognize that, beyond a rela-
tively small number of federally mandated specific
requirements, Congress gave states broad discretion to
fashion appropriate air pollution control measures to
meet their SIP obligations. See CAA Section 110 (a)(2)(A),
42 U.S.C. § 7410(a)(2)(A).
Moreover, such an interpretation would leave a sig-
nificant hole in citizen enforcement, and require a review-
ing court in every Section 304(a)(3) citizen suit to trace
60a
the pedigree of each SIP provision back to the parent
CAA in order to determine whether the provision was
mandated by the Act and thus could be enforced in
federal court. There is no evidence in the statute or the
legislative history to indicate that Congress intended
such a strained result.
A. Caselaw supports the proposition that citizens
may sue under CAA Section 304(a)(3) to enforce
SIP indirect source provisions.
While there is no direct precedent addressing the
precise question whether citizen suits under Section
304(a)(3) will lie to enforce indirect source review
requirements contained in state plans approved by EPA
under Part D, the tenor of the caselaw indicates that such
suits should be allowed as part of the integrated CAA
statutory scheme. Only one court of appeals has
addressed the question, and it specifically saw some
ambit for citizen enforcement. In Sierra Club v. Larson, 2
F.3d 462, 469 (1st Cir. 1993), the Court of Appeals held
that Massachusetts SIP provisions on indirect sources
can, in certain cases, be enforceable by citizen suit under
Section 304(a)(3):
“Of course, not every state-law restriction on a
project is a matter of federal concern, but a state
restriction that is part of a federally approved
state implementation plan under the Clean Air
Act may at least in some circumstances be within
the purview of a citizens suit under 42 U.S.C.
§ 7604.”
Sierra Club v. Larson, 2 F.3d at 469 (emphasis added)
(construing section 304(a)(3)). The court did not decide
6la
the question definitively in Larson because the relevant
provision of the state SIP had not yet been approved by
EPA. Id. at 469-470.
In a number of other cases, courts have held that
indirect source review provisions can constitute an “emis-
sions standard or limitation” within the meaning of sec-
tion 304(a)(1) of the CAA.® While these cases are not
dispositive of the issue on appeal, they do support the
proposition that the CAA’s integrated enforcement
scheme allows for citizen enforcement of indirect source
requirements approved into a SIP under Part D.?
8 See, e.g., Coalition Against Columbus Center v. City of New
York, 967 F.2d 764, 771 (2d Cir. 1992); Citizens for a Better Environ-
ment v. Deukmejian, 731 F. Supp. 1448, 1454 (N.D. Cal. 1990);
Delaware Valley Citizens Council v. Davis, 932 F.2d 256, 264-67 (3d
Cir. 1991); American Lung Association v. Kean, 871 F.2d 319,
321-324 (3d Cir. 1989). CAA Section 304(a)(l) provides that any
person may commence a civil action against any person who is
“alleged to have violated . . . or to be in violation of (A) an
emission standard or limitation under this chapter or (B) an order
issued by the Administrator or a State with respect to such a
standard or limitation.” 42 U.S.C. § 7604(a) (1) (emphasis
added).
9 The citizen suit provisions of Section 304 parallel the
federal enforcement authorities of Section 113. EPA’s general
SIP enforcement authority is contained in Section 113(a)(1) of
the CAA, 42 U.S.C. § 7413(a)(1), which requires 30 days notice to
the person alleged to be in violation before a suit may be filed.
However, in recognition of the exigencies surrounding viola-
tions of new source permitting requirements, Section 113(a)(5)
of the CAA, 42 U.S.C. § 7413(a) (5), allows the Administrator to
bring suit without issuing a 30 day notice whenever a state fails
to comply with new source permitting requirements. Similarly,
Section 304(a)(1), 42 U.S.C. § 7604(a)(1), allows citizens to file
suit regarding SIP violations only after giving 60 days advance
62a
These cases are particularly important in view of the
district court’s misinterpretation of the distinction
between Sections 304(a)(1) and 304(a)(3). The district
court interpreted Section 304(a)(3) as having a narrower
scope than Section 304(a)(1). The proper distinction
between these provisions, however, relates not to the
question whether a particular SIP provision is mandated
by federal law, but whether EPA approved the SIP provi-
sion under the authority of the new source permitting
requirements of Part D of the CAA.
B. The case should be remanded to the lower court
for further determination regarding the Wiscon-
sin SIP indirect source review provisions for
emissions 0: NOx.
Appellee State cf Wisconsin has raised the argument
that the specific Wisconsin SIP provisions invoked by
appellant have not yet been approved by EPA. It is true
that the recent proposed SIP revisions submitted by the
State of Wisconsin to EPA, Wis. Admin. Code § NR
408.02(21)(b)3. (1992), have not been approved by EPA,
and thus cannot be enforced in a citizen suit. However,
any existing SIP requirements for indirect source review
are enforceable by citizens under Section 304(a)(3) if the
requirements were approved by EPA under Part D. The
record in this case is not sufficient to determine whether
notice to the Administrator, the affected state, and the alleged
violator, see Section 304(b)(1)(A), 42 U.S.C. § 7604(b)(1)(A),
while Section 304(b) in its entirety pointedly omits this advance
notice requirement forsuits brought under Section 304(a)(3). See
42 U.S.C. § 7604(b)(1)\A).
63a
Wisconsin’s indirect source review requirements were
approved into its SIP pursuant to Part D, and if so,
whether they mandate permit distinctions between
“major” and “minor” indirect sources of NOx. The United
States therefore respectfully suggests that this Court
remand the CAA claim to the lower court for it to make
these determinations. While remand would entail some
delay for review of an extensive administrative record
that is nearly fifteen years old, the need for integrated
enforcement of the CAA mandates that citizens be
allowed under CAA Section 304(a) (3) to enforce all indi-
rect source review requirements contained in a state’s
implementation plan. To hold otherwise would be to
create an unwarranted gap in the CAA’s comprehensive
federal, state, and citizen enforcement scheme.
64a
CONCLUSION
For the foregoing reasons, the judgment below
should be reversed, and the case should be remanded to
the district court.
Respectfully submitted,
/s/ Carol Annette Petsonk
LOIS J. Schiffer
Acting Assistant Attorney General
THOMAS PAUL SCHNEIDER
United States Attorney
Eastern District of Wisconsin
ELLEN J. DURKEE
CAROL ANNETTE PETSONK
Attorneys, Department of Justice
Washington D.C. 20530
(202) 514-7982
93-3380
February 14, 1994
65a
[LOGO] State of Wisconsin\ DEPARTMENT OF
George E. Meyer NATURAL RESOURCES
Secretary 101 South Webster Street
PO Box 7921
Madison, Wisconsin 53707
TELEPHONE 608-267-7694
TELEFAX 608-267-7664
TDD 608-267-6897
April 22, 1993
Mr. Keith Beneke
Witcher Construction
9855 West 78th Street, Suite 270
Minneapolis, MN 55344
Received April 28, 1993
SUBJECT: Storm Water Discharge Construction
Permit Target Distribution Center -
Oconomowoc
Dear Mr. Beneke:
This letter is to confirm our receipt of the Notice of Intent
(NOI) you filed for the proposed construction of a Target
distribution center in the City of Oconomowoc on April 9,
1993. The NOI is an application for coverage under the
State of Wisconsin’s proposed permit for construction
sites five acres or larger. As you are already aware, the
State of Wisconsin is in the process of implementing a
storm water discharge control program in accordance
with federal regulations.
The construction site erosion control general permit will
be used to cover appropriate construction site applicants.
The general storm water permits will contain require-
ments for preventing and minimizing storm water pollu-
tion. I have enclosed a fact sheet that briefly outlines
68a
33 U.S.C. § 1342
(p) Municipal and industrial stormwater discharges
(1) General rule
Prior to October 1, 1994, the Administrator or the
State (in the case of a permit program approved under
section 1342 of this title) shall not require a permit under
this section for discharges composed entirely of storm-
water.
(2) Exceptions
Paragraph (1) shall not apply with respect to the
following stormwater discharges:
(A) A discharge with respect to which a
permit has been issued under this section before
February 4, 1987.
(B) A discharge associated with industrial
activity.
(C) A discharge from a municipal separate
storm sewer system serving a population of
250,000 or more.
(D) A discharge from a municipal separate
storm sewer system serving a population of
100,000 or more but less than 250,000.
(E) A discharge for which the Administra-
tor or the State, as the case may be, determines
that the stormwater discharge contributes to a
violation of a water quality standard or is a
significant contributor of pollutants to waters of
the United States.
69a
(3) Permit requirements
(A) Industrial discharges
Permits for discharges associated with industrial
activity shall meet all applicable provisions of this section
and section 1311 of this title.
(B) Municipal discharge
Permits for discharges from municipal storm
sewers —
(i) may be issued on a system- or jurisdic-
tion-wide basis;
(ii) shall include a requirement to effec-
tively prohibit non-stormwater discharges into
the storm sewers; and
(iii) shall require controls to reduce the
discharge of pollutants to the maximum extent
practicable, including management practices,
control techniques and system, design and engi-
neering methods, and such other provisions as
the Administrator or the State determines
appropriate for the control of such pollutants.
(4) Permit application requirements
(A) Industrial and large municipal discharges
Not later than 2 years after February 4, 1987, the
Administrator shall establish regulations setting forth the
permit application requirements for stormwater dis-
charges described in paragraphs (2)(B) and (2)(C). Appli-
cations for permits for such discharges shall be filed no
later than 3 years after February 4, 1987. Not later than 4
years after February 4, 1987, the Administrator or the
70a
State, as the case may be, shall issue or deny each such
permit. Any such permit shall provide for compliance as
expeditiously as practicable, but in no event later than 3
years after the date of issuance of such permit.
(B) Other municipal discharges
Not later than 4 years after February 4, 1987, the
Administrator shall establish regulations setting forth the
permit application requirements for stormwater dis-
charges described in paragraph (2)(D). Applications for
permits for such discharges shall be filed no later than 5
years after February 4, 1987. Not later than 6 years after
February 4, 1987, the Administrator or the State, as the
case may be, shall issue or deny each such permit. Any
such permit shall provide for compliance as expeditiously
as practicable, but in no event later than 3 years after the
date of issuance of such permit.
(5) Studies
The Administrator, in consultation with the States,
shall conduct a study for the purposes of -
(A) identifying those stormwater dis-
charges or classes of stormwater discharges for
which permits are not required pursuant to
paragraphs (1) and (2) of this subsection;
(B) determining, to the maximum extent
practicable, the nature and extent of pollutants
in such discharges; and
(C) establishing procedures and methods
to control stormwater discharges to the extent
necessary to mitigate impacts on water quality.
7la
Not later than October 1, 1988, the Administrator shall
submit to Congress a report on the results of the study
described in subparagraphs (A) and (B). Not later than
October 1, 1989, the Administrator shall submit to Con-
gress a report on the results of the study described in
subparagraph (C).
(6) Regulations
Not later than October 1, 1993, the Administrator, in
consultation with State and local officials, shall issue
regulations (based on the results of the studies conducted
under paragraph (5)) which designate stormwater dis-
charges, other than those discharges described in para-
graph (2), to be regulated to protect water quality and
shall establish a comprehensive program to regulate such
designated sources. The program shall, at a minimum,
(A) establish priorities, (B) establish requirements for
State stormwater management programs, and (C) estab-
lish expeditious deadlines. The program may include per-
formance standards, guidelines, guidance, and
management practices and treatment requirements, as
appropriate.
33 U.S.C. § 1362
+ * *
(12) The term “discharge of a pollutant” and the
term “discharge of pollutants” each means (A) any addi-
tion of any pollutant to navigable waters from any point
source, (B) any addition of any pollutant to the waters of
72a
the contiguous zone or the ocean from any point source
other than a vessel or other floating craft.
*+ * *
(14) The term “point source” means any discernible,
confined and discrete conveyance, including but not lim-
ited to any pipe, ditch, channel, tunnel, conduit, weil,
discrete fissure, container, rolling stock, concentrated ani-
mal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged. This
term does not include agricultural stormwater discharges
and return flows from irrigated agriculture.
+ * *
42 U.S.C. § 7604. Citizen suits [CAA § 304]
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section,
any person may commence a civil action on his own
behalf -
(1) against any person (including (i) the
United States, and (ii) any other governmental
instrumentality or agency to the extent permit-
ted by the Eleventh Amendment to the Consti-
tution) who is alleged to have violated (if there
is evidence that the alleged violation has been
repeated) or to be in violation of (A) an emission
standard or limitation under this chapter or (B)
an order issued by the Administrator or a State
with respect to such a standard or limitation,
(2) against the Administrator where there
is alleged a failure of the Administrator to per-
form any act or duty under this chapter which is
not discretionary with the Administrator, or
73a
(3) against any person who proposes to
construct or constructs any new or modified
major emitting facility without a permit
required under part C of subchapter I of this
chapter (relating to significant deterioration of
air quality) or part D of subchapter I of this
chapter (relating to nonattainment) or who is
alleged to have violated (if there is evidence that
the alleged violation has been repeated) or to be
in violation of any condition of such permit.
The district courts shall have jurisdiction, without regard
to the amount in controversy or the citizenship of the
parties, to enforce such an emission standard or limita-
tion, or such an order, or to order the Administrator to
perform such act or duty, as the case may be, and to
apply any appropriate civil penalties (except for actions
under paragraph (2)). The district courts of the United
States shall have jurisdiction to compel (consistent with
paragraph (2) of this subsection) agency action unrea-
sonably delayed, except that an action to compel agency
action referred to in section 7607(b) of this title which is
unreasonably delayed may only be filed in a United
States District Court within the circuit in which such
action would be reviewable under section 7607(b) of this
title. In any such action for unreasonable delay, notice to
the entities referred to in subsection (b)(1)(A) of this
section shall be provided 180 days before commencing
such action.
74a
33 U.S.C. § 1365. Citizen suits [FWPCA § 505]
(a) Authorization; jurisdiction
Except as provided in subsection (b) of this section
and section 1319(g)(6) of this title, any citizen may com-
mence a civil action on his own behalf —
(1) against any person (including (i) the
United States, and (ii) any other governmental
instrumentality or agency to the extent permit-
ted by the eleventh amendment to the Constitu-
tion) who is alleged to be in violation of (A) an
effluent standard or limitation under this chap-
ter or (B) an order issued by the Administrator
or a State with respect to such a standard or
limitation, or
(2) against the Administrator where there
is alleged a failure of the Administrator to per-
form any act or duty under this chapter which is
not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard
to the amount in controversy or the citizenship of the
parties, to enforce such an effluent standard or limitation,
or such an order, or to order the Administrator to per-
form such act or duty, as the case may be, and to apply
any appropriate civil penalties under section 1319(d) of
this title.
(b) Notice
No action may be commenced -
(1) under subsection (a)(1) of this section -
75a
(A) prior to sixty days after the plain-
tiff has given notice of the alleged violation
(i) to the Administrator, (ii) to the State in
which the alleged violation occurs, and (iii)
to any alleged violator of the standard, lim-
itation, or order, or
(B) if the Administrator or State has
commenced and is diligently prosecuting a
civil or criminal action in a court of the
United States, or a State to require compli-
ance with the standard, limitation, or order,
but in any such action in a court of the
United States any citizen may intervene as a
matter of right.
(2) under subsection (a)(2) of this section
prior to sixty days after the plaintiff has given
notice of such action to the Administrator,
except that such action may be brought immediately after
such notification in the case of an action under this sec-
tion respecting a violation of sections 1316 and 1317(a) of
this title. Notice under this subsection shall be given in
such manner as the Administrator shall prescribe by reg-
ulation.
(c) Venue; intervention by Administrator; United
States interests protected
(1) Any action respecting a violation by a discharge
source of an effluent standard or limitation or an order
respecting such standard or limitation may be brought
under this section only in the judicial district in which
such source is located.
76a
(2) In such action under this section, the Adminis-
trator, if not a party, may intervene as a matter of right.
(3) Protection of interests of United States
Whenever any action is brought under this section in
a court of the United States, the plaintiff shall serve a
copy of the complaint on the Attorney General and the
Administrator. No consent judgment shall be entered in
an action in which the United States is not a party prior
to 45 days following the receipt of a copy of the proposed
consent judgment by the Attorney General and the
Administrator.
(d) Litigation costs
The court, in issuing any final order in any action
brought pursuant to this section, may award costs of
litigation (including reasonable attorney and expert wit-
ness fees) to any prevailing or substantially prevailing
party, whenever the court determines such award is
appropriate. The court may, if a temporary restraining
order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with
the Federal Rules of Civil Procedure.
(e) Statutory or common law rights not restricted
Nothing in this section shall restrict any right which
any person (or class of persons) may have under any
statute or common law to seek enforcement of any efflu-
ent standard or limitation or to seek any other relief
77a
(including relief against the Administrator or a State
agency).
(f) Effluent standard or limitation
For purposes of this section, the term “effluent stan-
dard or limitation under this chapter” means (1) effective
July 1, 1973, an unlawful act under subsection (a) of
section 1311 of this title; (2) an effluent limitation or other
limitation under section 1311 or 1312 of this title; (3)
standard of performance under section 1316 of this title;
(4) prohibition, effluent standard or pretreatment stan-
dards under section 1317 of this title; (5) certification
under section 1341 of this title; (6) a permit or condition
thereof issued under section 1342 of this title, which is in
effect under this chapter (including a requirement appli-
cable by reason of section 1323 of this title); or (7) a
regulation under section 1345(d) of this title,.}
(g) Citizen
For the purposes of this section the term “citizen”
means a person or persons having an interest which is or
may be adversely affected.
(h) Civil action by State Governors
A Governor of a State may commence a civil action
under subsection (a) of this section, without regard to the
limitations of subsection (b) of this section, against the
Administrator where there is alleged a failure of the
1 So in original.
78a
Administrator to enforce an effluent standard or limita-
tion under this chapter the violation of which is occurring
in another State and is causing an adverse effect on the
public health or welfare in his State, or is causing a
violation of any water quality requirement in his State.
79a
40 C.ER. § 123.25 Requirements for permitting.
(a) All State Programs under this part must have
legal authority to implement each of the following provi-
sions and must be administered in conformance \ .n
each, except that a State which chooses not to administer
a sludge management program pursuant to section 405(f)
of the CWA as part of its NPDES program is not required
to have legal authority to implement the portions of the
following provisions which were promulgated after the
enactment of the Water Quality Act of 1987 (Pub. L.
100-4) and which govern sewage sludge use and disposal.
In all cases, States are not precluded from omitting or
modifying any provisions to impose more stringent
requirements:
a * +
(9) § 122.26 -— (Storm water discharges):
eee
80a
National Pollution Discharge Elimination System General
Permit and Reporting Requirements for Discharges From Con-
centrated Animal Feeding Operations (U.S. EPA Region 6
Final Permitting Decision), 58 Fed. Reg. 7610, 7623, 7631
(U.S. EPA, February 8, 1993):
Summary: Pursuant to sections 301, 304(b) and
(c), and 308(b) and (c) of the Clean Water Act
(CWA) 40 CFR 122.23 defines concentrated ani-
mal feeding operations as point sources subject
to the NPDES permit program.
+ + *
Many comments questioned the requirement of
liners to protect from hydrologic connection.
Many commenters believed that this require-
ment was to protect ground water. Over most of
EPA Region © -urface water flow is sustained
throughout much of the year by groundwater
inflow. As a result, contaminants which leak
from containment structures to the ground
water will typically move underground toward
local streams and rivers where they will be dis-
charged and affect water quality. EPA has
included a liner requirement spec. ‘fically where
there is potential for pond leakage to impair
surface waters. Region 6 strongly believes this is
consistent with the effluent guideline require-
ment of “no discharge” technology. It is EPA’s
position that a discharge through the bottom of
the retention structure constitutes a violation of
the required technology requirement if signifi-
cant pollutants from that discharge reach a sur-
face water. Also, see answer D.4.
+ + *
8la
(H) Liner Requirement. The permittee shall
include in the plan, site specific documentation
that no significant hydrologic connection exists
between the contained wastewater and surface
waters of the United States. Where the permittee
cannot document that no significant hydrologic
connection through ground water exists, the
ponds, lagoons and basins of the retention facili-
ties must have a liner which wili prevent the
potential contamination of surface waters.
Amendments to the Water Quality Standards Regulation That
Pertains to Standards on Indian Lands (Final Rule), 56 Fed.
Reg. 64876, 64892 (U.S. EPA, December 12, 1991):
Response: Notwithstanding the strong language
in the legislative history of the Clean Water Act
to the effect that the Act does not grant EPA
authority to regulate pollution of groundwaters,
EPA and most courts addressing the issues have
recognized two limited instances where, for the
purpose of protecting surface waters and their
uses, EPA may exercise authorities that may
affect underground waters. First, the Act
requires NPDES permits for discharges to
groundwater where there is a direct hydrologi-
cal connection between groundwaters and sur-
face waters. In these situations, the affected
groundwaters are not considered to be “waters
of the United States” but discharges to them are
regulated because such discharges are effec-
tively discharges to the directly connected sur-
face waters.
National Pollution Discharge Elimination System Permit
Application Regulations for Storm Water Discharges (Final
Rule), 55 Fed. Reg. 47990, 47996, 47997 (U.S. EPA,
November 16, 1990):
82a
This regulation covers discharges of storm water
associated with industrial activity and dis-
charges from municipal separate storm sewer
systems serving a population of 100,000 or more
into waters of the United States. Therefore, dis-
charges from basins that are part of a convey-
ance system for a storm water discharge
associated with industrial activity or part of a
municipal separate storm sewer system serving
a population of 100,000 or more are covered by
this regulation. Flows which are channeled into
basins and which do not discharge into waters
of the United States are not addressed by
today’s rule.
*+ + *
EPA intends to embrace the broadest definition
of point source consistent with the legislative
intent of the CWA and court interpretations to
include any identifiable conveyance from which
pollutants might enter the waters of the United
States.
147.021. Storm water discharge permits
(1) Requirement. An owner or operator shall obtain
a permit under this section for any of the following:
(a) A discharge from a discernible, confined and
discrete conveyance of storm water associated with an
industrial activity, including construction, that meets cri-
teria in rules promulgated by the department.
83a
SIERRA CLUB, a nonprofit corporation,
Plaintiff-Appellee,
Vv.
COLORADO REFINING COMPANY,
a Colorado corporation,
Defendant-Appellant,
COLORADO ASSOCIATION OF COMMERCE AND
INDUSTRY, AMERICAN IRON AND STEEL INSTITUTE,
AMERICAN PETROLEUM INSTITUTE, CHAMBER OF
COMMERCE OF THE UNITED STATES OF AMERICA,
INDEPENDENT LIQUID TERMINALS ASSN, ACME
METALS, INC., AMERICAN CYANAMID CO., APACHE
CORP., CONSOLIDATED RAIL CORP., CYPRUS-AMAX,
INC., DRESSER INDUSTRIES, INC., GAF CORP., MUR-
PHY OIL USA, INC., SHELL OIL CO., STAUFFER MAN-
AGEMENT CO., U.S. STEEL GROUP, a division of USX
Corp.; WITCO CORP., Amici Curiae.
SIERRA CLUB v. COLORADO REF. CO.
No. 94-1062
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
1994 U.S. App. LEXIS 15183
June 20, 1994, Filed
NOTICE:! THIS ORDER AND JUDGMENT IS NOT
BINDING PRECEDENT, EXCEPT UNDER
THE DOCTRINES OF LAW OF THE CASE,
1 This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collat-
eral estoppei. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment
may be cited under the terms and conditions of the court’s
General Order. 151 F.R.D. 470 (10th Cir. 1993).
84a
RES JUDICATA, AND COLLATERAL
ESTOPPEL. THE COURT GENERALLY DIS-
FAVORS THE CITATION OF ORDERS AND
JUDGMENTS; NEVERTHELESS, AN ORDER
AND JUDGMENT MAY BE CITED UNDER
THE TERMS AND CONDITIONS OF THE
COURT’S GENERAL ORDER FILED
NOVEMBER 29, 1993, 151 F.R.D. 470.
PRIOR HISTORY: (D.C. No. 93-K-1713). (D. Colo.)
Before KELLY and BARRETT, Circuit Judges, and
O’CONNOR, District Judge.
OPINION BY: PAUL J. KELLY, JR.
OPINION:
ORDER AND JUDGMENT*
This appeal presents no [*2] live case or controversy.
The denial of Colorado Refining’s (CRC) Fed. R. Civ. P.
12(b)(6) motion in no way precludes it from making such
a motion on the same grounds, should it need to in a
future case; neither does the denial of a Rule 12(b)(6)
motion establish any binding precedent. The mere fact
that CRC may be sued again for violations of the Clean
Water Act does not confer jurisdiction upon us, making
any opinion in this case advisory.
Accordingly, this interlocutory appeal is dismissed as
improvidently granted.
APPEAL DISMISSED.
2 The Honorable Earl E. O’Connor, Senior United States
District Judge for the District of Kansas, sitting by designation.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.