UNITED STATES COURT OF APPEALS FOR
THE TWELFTH CIRCUIT

Friends of the Roaritan, Inc. (FOR) has brought a citizens suit under the Clean Water Act, 33 U.S.C. §§1251, 1365 (CWA), and the Resource Conservation and Recovery Act, 42 U.S.C. §§6901, 6972 (RCRA), against XXX Corp. (XXX). The State of New Union (New Union) intervened in the action. The United States Court for the District of New Union denied a motion by XXX to dismiss all of the CWA causes of action against it. New Union joined FOR in opposing the motion as to some causes of action, but joined XXX in arguing for the motion as to other causes of action. The District Court certified its order for appeal under 28 U.S.C. §1292(b) because of the commonality of factual issues between the dismissed causes of action under the CWA and the remaining causes of action under RCRA. XXX appealed the order.

Each party is instructed to brief the following questions:

1. Is the addition of a pollutant to groundwater which is tributary to, but not in close proximity with, traditionally navigable surface water a violation of 33 U.S.C. §1311(a)? FOR and New Union assert that it is a violation; XXX asserts it is not.

2. In a 33 U.S.C. §1365 enforcement action alleging violation of a permit provision prohibiting discharges that "violate water quality standards," is the permittee/defendant barred by 33 U.S.C. §1369 from seeking dismissal of the action on the basis that the provision is not specific enough to be an enforceable permit provision? FOR and New Union assert that it is barred; XXX asserts that it is not.

3. Is the interpretation of a provision prohibiting discharges that "violate water quality standards" in a permit issued by the federal government pursuant to 33 U.S.C. §1342 governed by federal or state law when the provision is included routinely in federally issued permits and is also required to be in the permit by a certification condition imposed by New Union pursuant to 33 U.S.C. §1341? FOR asserts that the interpretation is governed by federal law; XXX and New Union argue it governed by state law.

4. If the interpretation of a CWA permit provision prohibiting discharges that "violate water quality standards" is governed by federal law, is the addition of a pollutant to navigable water causing, by itself or together with other such additions, the water to be unfit for its water quality standard designated use, a violation of the provision without further administrative action to establish effluent limitations on the pollutant in the permit? FOR argues that it is, XXX and New Union argue that it is not.

The parties are limited in their briefs to the above issues, but are not limited to the arguments for their positions raised in the district court below.

For purposes of briefing and argument, legal authorities may be cited that date until September 1, 1998. More recent legal authorities may not be cited or otherwise referred to.

Entered September 1, 1998. 

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW UNION

Friends of the Roaritan, Inc. (FOR), a not-for-profit corporation, is organized for the purpose of protecting the Roaritan River, a historically navigable river in the State of New Union. FOR has brought a "citizen suit" pursuant to §505 of the Clean Water Act (CWA), 33 U.S.C. §§1251, 1365, against XXX Corp. for two sets of alleged violations of §301(a) of the CWA, 33 U.S.C. §1311(a). The first set of violations is the discharge without a CWA permit of pollutants from a waste pile to groundwater, which eventually reach the Roaritan. FOR alleged this discharge also violates the Recourse Conservation and Recovery Act, 42 U.S.C. §§6901 et seq., but those alleged violations are beyond the scope of this opinion. The second set of violations is the discharge of pollutants in violation of a generic prohibition of discharges that "violate water quality standards" in a permit issued by the United States Environmental Protection Agency (EPA), pursuant to §402 of the CWA, 33 U.S.C. §1342. The State of New Union made an unopposed motion to intervene in the action pursuant to Rule 24 of the Federal Rules of Civil Procedure and this court granted the motion.

XXX has filed a motion to dismiss the complaint as to both sets of violations. This motion is opposed by both FOR and the State of New Union as to the first set of violations. As to the second set of violations, New Union joins FOR in opposing the motion on the basis that XXX is barred by CWA §509(b)(2), 33 U.S.C. §1369(b)(2), from now challenging a permit provision that it did not challenge when the permit was issued. On the other hand, if the court reaches the merits of the dispute, New Union joins XXX in arguing that state law governs the interpretation of the contested provision and that it is insufficiently specific to be enforceable.

The facts are set forth in FOR's complaint, and repeated in part in the complaint of intervenor New Union.

I. The Facts

XXX occupies a forty acre site situated one mile from the Roaritan River. It manufactures a variety of poisons for controlling pests and vectors.

The first set of alleged violations relates to a waste pile on the XXX property. The pile was a result of the activities of XXX's predecessors, XXX having purchased the property in 1985. XXX's predecessors recycled automobile batteries and placed all unrecycled material on the waste pile. FOR alleges the pile contains significant concentrations of lead, evidenced by the results of sampling of the pile by the New Union Department of Environmental Protection (DEP). FOR also alleges that precipitation falling on the waste pile seeps through the pile, leaching lead from it, and then seeps into groundwater, polluting the groundwater with lead. FOR further alleges that the polluted groundwater flows into the Roaritan, contaminating it with lead. Again, this is evidenced by sampling and analysis of the river by the DEP. Its data show that there is no lead discharged from XXX's pipe, discussed below, but the concentration of lead in the river increases gradually over the half mile stretch immediately downriver from that discharge pipe. Further, groundwater movement mapping done by the DEP shows that groundwater in the vicinity of the XXX property moves generally in the direction of the River. Finally, FOR and the DEP allege that there are no other known sources of lead in the area.

The second set of alleged violations relate to the discharge by XXX of wastewater, after treatment, to the Roaritan through a mile long pipe situated on a right of way between its property and the River. The discharge is authorized by a permit issued by the Region XI office of EPA. FOR alleges that XXX violates this permit by discharging selenium into the Roaritan. The permit contains no limitation on selenium. But §IIA3 of the permit prohibits any discharge that "violates water quality standards." This provision is part of the standard "boilerplate" contained in all permits issued by Region XI of EPA. The certification required by CWA §401, 33 U.S.C. §1341, was given by the DEP on the specific condition that the permit contain identical language. New Union has classified the Roaritan as a Class AAA water. One of the uses assigned to Class AAA waters is for human consumption without treatment. EPA approved that classification as part of New Union's submission of water quality standards pursuant to §303 of the CWA, 33 U.S.C. §1313. New Union has not adopted a water quality criterion for selenium, but EPA has promulgated a maximum contaminant level (MCL) for selenium under the Safe Drinking Water Act, 42 U.S.C. §§300f et seq., 40 CFR §141.62(b). The MCL, 0.005 mgl, is established as the maximum safe concentration of selenium in water for human consumption. FOR alleges that the DEP has recently taken samples of the Roaritan and analyzed them for selenium. FOR further alleges that the results of the analysis showed that the concentration of selenium immediately upstream from the XXX discharge pipe was 0.004 mgl, whereas immediately downstream from the XXX discharge pipe it was 0.006 mgl. FOR further alleges that XXX admitted in its application for a Clean Water Act permit that it discharges selenium. FOR further alleges the Roaritan downstream from the XXX discharge pipe cannot be used for its designated water quality purpose as a direct result of XXX's discharge of selenium. Thus, FOR charges, XXX is violating water quality standards for the Roaritan and therefore is violating §IIA3 of its permit.

This being a motion to dismiss, all allegations are assumed to be true for the purposes of this ruling. The only question is whether, if true, they state a cause of action.

II. The Unpermitted Groundwater Discharges

It is commonplace that when CWA §§301(a) and 502, 33 U.S.C. §§1311(a) and 1362, are considered together, the elements of a violation of §301(a) are: 1) the addition of 2) a pollutant 3) to navigable water 4) from a point source. There is little doubt that a waste pile can be a point source or that lead is a pollutant. No doubt the leaching of lead from the waste pile to the groundwater could be considered an addition of the lead to the groundwater from the point source. The only question remaining is whether groundwater is "navigable water." While groundwater lacks the plain English meaning of "navigable," the statute's definition of "navigable water" in §502(7), "waters of the United States," indicates that Congress intended an expansive reading of that term. Indeed, when coupled with its legislative history, it has a very expansive meaning. That history shows the definition was an attempt to expand the reach of the statute to the fullest extent of its commerce clause jurisdiction. Groundwater is certainly water. And groundwater is surely within the reach of commerce clause jurisdiction. Groundwater is an item of interstate commerce. It is pumped and used for all manner of interstate commerce, from sustaining interstate travelers, to watering interstate agricultural produce, to assisting in the manufacture of goods moving in interstate commerce. Moreover, most of it is tributary to traditionally navigable surface waters, as is the groundwater in question here. If controlling pollution of traditionally navigable waters is within the commerce clause authority of Congress, then controlling pollution of their tributaries, wither above or below ground, is similarly within its authority. Indeed, EPA's definition of "navigable waters" includes "tributaries" of such waters, not distinguishing between whether the tributaries are above or below ground, 40 CFR §122.2(e).

XXX points to precedent that groundwater has been held in the past not to constitute navigable water. See, Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir. 1977); Umatilla Waterquality Protection Ass'n v. Smith Frozen Foods, Inc., 962 F.Supp. 1312 (D. Or. 1997). While that is true, those opinions do not deal with tributary groundwater. Indeed, the only opinion to consider tributary groundwater in this context held that it was navigable. See, Sierra Club v. Colorado Refining Company, 838 F. Supp. 1428 (D. Colo. 1993). XXX argues that case in inapposite in that the groundwater contamination there was immediately adjacent to surface navigable water, whereas here it was a mile away. XXX's argument suggests that groundwater tributaries cannot be very long. That suggestion misses the point. A tributary is a tributary, whether on the surface or below the surface, whether a few yards long or a few hundred miles long.

XXX's motion to dismiss the first set of violations is denied.

III. The Permit Violations

XXX and New Union join in urging dismissal of the permit violation allegations as stating no cause of action under §301(a) of the CWA. Their basic argument is that the water quality standards governing the Roaritan were promulgated by the DEP under authority of state law and their meaning is accordingly governed by state law. They point out that the Supreme Court of New Union has held that water quality standard designated uses are aspirational goals, enforceable only through criteria adopted by the DEP and reduced to numerical or other specific limitations in a permit. Since New Union has no water criteria for selenium and there are no effluent or other limitations on selenium in the permit, they argue that XXX has not violated its permit. FOR argues, however, that CWA §509(b)(2) bars XXX from making that argument at this time because it failed to challenge §IIA3 when the permit was issued.

New Union joins FOR in this procedural argument, while opposing FOR on the merits of the argument.

A.

XXX argues that §IIA3 of the permit cannot make water quality standards enforceable provisions without reducing them to numerical or other specific requirements. FOE counters that XXX's argument is in essence challenging the provision itself. Because XXX could have sought judicial review of the validity of that provision when the permit was issued and did not, FOR argues, XXX is forbidden to do so now by CWA §509(b)(2), 33 U.S.C. §1369(b)(2). Indeed, §509(b)(1)(F) authorized XXX to seek judicial review of its permit, including §IIA3, when it was issued. XXX did not avail itself of that opportunity. Section 509(b)(2) forbids review of EPA actions in enforcement proceedings, such as this, when §509(b)(1) authorized review of the actions but such review was not obtained. While this would appear to stymie XXX, §509(b)(1) review of the permit condition was not available at the time the permit was issued because of the doctrine of ripeness for review. That doctrine holds that judicial review of vague and general administrative actions, such as §IIA3, is better accomplished on a record clothed with concrete facts to provide a real context. Indeed, courts often hold that EPA actions with regard to water quality standards are not ripe for review. See, NRDC v. EPA, 16 F.3d 1395 (4th Cir. 1993); Commonwealth Edison Co. v. Train, 649 F.2d 481 (7th Cir. 1980). Section IIA3 was not ripe for review when the permit was issued. It is ripe for review now, and the court will proceed to with that review in the factual context now before it.

B.

XXX and New Union contend that it is a matter of state law whether the use designation of water quality standards can be enforced without first: promulgating criteria to support the use; allocating necessary reductions in a pollutant among dischargers of that pollutant to meet the criterion for the pollutant; and placing specific effluent limitations in permits to those dischargers based on that allocation. They argue it is a question of state law because water quality standards are promulgated by state agencies under the authority of state statutes. If the state statutes provide that water quality use designations cannot be enforced without going through all these steps, that is the end of the question. They argue New Union's statute so provides. They argue this is all the more so in this case because the permit condition allegedly violated was imposed by the DEP as a requirement of state law to be included in the permit under CWA §401.

They cite N.U.R.C. §243.19(a), which authorizes and directs the DEP

...[T]o promulgate water quality standards for all of the waters of the state, consisting of uses and criteria. The DEP shall designate a use for each water body at least as protective as the current dominant use of that water body and may designatee use which is more protective than present uses. The DEP shall develop for each type of use a set of criteria for pollutants and other factors limiting water uses, whereby the attainment of criteria will assure the viability of the use. These water quality standards shall be enforced through effluent limitations developed in individual discharge permits developed to achieve the relevant criteria.

They argue the plain language of the last sentence of the quoted state statute clearly indicates that water quality uses cannot be enforced in and of themselves. While one may quibble by responding that is but one possible interpretation of the sentence, it is the interpretation chosen by the state. In 1985 the DEP promulgated revisions to its water quality standards regulations which, among other things, provided that

Water quality standards are not enforceable except by the development of numerical or other specific limitations for individual permitted discharges, derived from determining environmental improvements needed to attain or maintain water quality criteria applicable to the particular water body. 40 N.U.A.C §2346.2(a).

That regulation was immediately challenged by environmental groups, but was upheld by the Supreme Court of New Union. In Prentice v. DEP, 435 N.U. 875, 883 (1989), that Court commented,

Designated uses are merely goals, to be implemented and given meaning by subsequent administrative actions. As goals, the uses themselves are not enforceable. Not only must we defer to the DEP's interpretation in this regard as a reasonable one, we would adopt this interpretation as the most reasonable of the possible interpretations of the statute if we were considering the question without the benefit of the DEP's interpretation.

If the enforceability of water quality uses is a question of state law, XXX and New Union would win on this issue. They argue it is a matter of state law because the standards here in question are state regulations, based on a state statute. Thus EPA and the plaintiff citizens also would be bound by the state court's interpretation of the statute. Indeed, this is consistent with CWA §303, which leaves the development of water quality standards to state action.

XXX and New Union ignore the fact that to be recognized as water quality standards under the CWA, the state regulations must be approved by EPA as meeting the requirements of the CWA, §303. Upon approval by EPA, the state's water quality standards become "federalized" and EPA's interpretation of them trumps the state's interpretation. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). This, of course, in consistent with the savings provision of the CWA, §510, 33 U.S.C. §1370, which preserves state law from pre-emption only when it is more protective of the environment than federal law.

C.

The parties frame their arguments around the question of whether water quality uses can be "effluent limitations," as defined in 505(f). XXX and New Union argue that the legislative history of the CWA, taken as a whole, evidences a grand compromise between environmental and economic interests, under which industry and municipalities would be required to make major investments in pollution control technologies but would benefit from certainty by knowing from the effluent limitations in their permits exactly what was required from them. They argue that this case is a perfect example of why a simple permit requirement to meet water quality standards does not provide such certainty. To be sure, New Union's sampling and analysis shows that XXX's discharge of selenium causes the selenium concentration in the Roaritan to rise from 0.004 mgl in the River, before entry of the XXX effluent, to 0.006 mgl, after its discharge. That, in turn causes the concentration of selenium to exceed the MCL for selenium and to become not safe for drinking. But XXX and New Union assert that New Union's sampling and analysis also shows that there is no measurable natural concentration of selenium in the River, and that one mile upstream of the XXX discharge, a discharge by Sigma Chemical creates a 0.004 mgl concentration of selenium in the river. Thus the Sigma Chemical discharge alone or the Sigma and XXX discharges together, not the XXX discharge alone, should be viewed as causing the MCL exceedence.

Of course, this is a motion to dismiss, so we are not to engage in fact finding, but are to assume the facts as plaintiff states them. Nonetheless, in addressing the legal question of whether a permit prohibition of discharges which exceed water quality standards is violated by a discharge that violates a use designation, it is relevant to consider that water quality violations are commonly caused by multiple discharges. Because of this, a multi-step process has been developed for implementing water quality standards: designating uses; establishing criteria for pollutants to support those uses; determining how much of a pollutant can be carried in a water body without exceeding the criterion for that pollutant (the waste load); allocating the waste load for the pollutant among the sources discharging it; and including an effluent limitation based on the waste load allocation in the permit for the source. Only the first step in that process has been completed in this case. Without going through that process, neither XXX nor Sigma knows how much it must curtail its discharge of selenium. As a result, XXX and New Union argue, there is no effluent limitation on selenium in XXX's permit and no way to enforce a water quality based limitation against XXX. See, Atlantic States Legal Foundation, Inc. v. Eastman Kodak Company, 12 F.3d 353 (1994).

FOR counters that the five step route to implementing water quality standards may be one route to do so, indeed, it may even be the preferred route. But it is not the only route and is not the route chosen by New Union and EPA. Instead, they implemented water quality standards by the general condition they inserted in the permit and it is enforceable. See, Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (1995). As the Ninth Circuit pointed out in that opinion, any doubt that as a matter of federal law water quality use designations are enforceable without going through the several step process was put to rest once and for all by the Supreme Court in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 571 U.S. 700 (1994).

ORDERED, XXX's motion to dismiss the CWA violations, joined in part by New Union, is denied.

CERTIFICATION. The factual issues involved in the remaining RCRA counts are intertwined with the factual issues involved in the dismissed CWA counts. Accordingly, I certify, pursuant to 28 U.S.C. §1292(b), that the dismissal of these CWA counts involves controlling questions of law as to which there is substantial grounds for differences of opinion and immediate appeal from my order dismissing them may materially advance the ultimate termination of this litigation.

/s/

Romulus N. Remus
District Court Judge 

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