Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc. , 734 F.3d 1297 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15409
________________________
D.C. Docket No. 7:11-cv-03307-SLB
BLACK WARRIOR RIVERKEEPER, INC.,
FRIENDS OF HURRICANE CREEK,
NELSON BROOKE,
JOHN WATHEN,
Plaintiffs - Appellants,
versus
BLACK WARRIOR MINERALS, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 13, 2013)
Before PRYOR, ANDERSON, Circuit Judges, and RESTANI, ∗ Judge.
PRYOR, Circuit Judge:
∗
Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by
designation.
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This appeal presents the issue whether an exception can swallow the general
rule about the limited role of citizen suits under the Clean Water Act: that is,
whether a citizen can evade the requirements of notice and a 60-day waiting
period, 33 U.S.C. § 1365(b), by suing a discharger of pollutants for violations of
the “new source” standards of the Act, id. § 1316, instead of violations of that
discharger’s state-issued permit, even when that permit incorporates those
standards. Congress has provided citizens a limited role in the enforcement of the
Act, and ordinarily a citizen must provide notice of alleged violations to a
discharger and federal and state authorities and wait 60 days before filing suit
against a discharger. The 60-day waiting period serves as a “mandatory condition
precedent to the filing of a citizen suit under the Clean Water Act.” Nat’l Envtl.
Found. v. ABC Rail Corp., 926 F.2d 1096, 1097 (11th Cir. 1991). If a federal or
state authority files suit to remedy the alleged violations before a citizen files suit,
the Act bars a citizen from filing suit, 33 U.S.C. § 1365(b), because Congress
intended for citizen suits “to supplement rather than to supplant governmental
action,” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.
49, 60, 108 S. Ct. 376, 383 (1987). But the Act provides an exception to this
general rule when a citizen complains about at least some violations of new source
performance standards. See 33 U.S.C. § 1365(b). The wrinkle in this appeal
concerns whether that exception applies when a discharger has a permit that
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incorporates the standards for new sources, but a citizen refrains from alleging any
violation of that permit. We have described the national permitting system as the
“centerpiece” of the Clean Water Act, Friends of the Everglades v. S. Fla. Water
Mgmt. Dist., 570 F.3d 1210, 1225 (11th Cir. 2009), and the Supreme Court has
explained that a citizen suit against a permit holder “will necessarily” be for
violations of a permit, EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S.
200, 223, 96 S. Ct. 2022, 2033 (1976). A citizen suit that alleges that a discharger
violated its permit is subject to the general rule of notice and a 60-day waiting
period.
Several citizens of Alabama—Black Warrior Riverkeeper, Inc., Friends of
Hurricane Creek, John Wathen, and Nelson Brooke—sued Black Warrior
Minerals, Inc., which operates a coal mine in Alabama, for violations of the new
source performance standards, but the citizens refrained from alleging that Black
Warrior Minerals had violated its permit. The citizens filed their suit before the
60-day waiting period expired. Alabama later sued Black Warrior Minerals for the
violations of its permit. In the citizens’ suit, the district court granted summary
judgment in favor of Black Warrior Minerals. Because the Act requires a citizen
who sues a permit holder to sue for a violation of that permit and wait 60 days after
giving notice of that violation before filing suit, we affirm.
I. BACKGROUND
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With the approval of the Environmental Protection Agency, the Alabama
Department of Environmental Management administers a program that issues
permits for dischargers of pollutants, as part of the National Pollutant Discharge
Elimination System, under the Clean Water Act. Approval of Alabama’s NPDES
Program, 44 Fed. Reg. 61,452 (Oct. 25, 1979). The Department issues permits that
satisfy the new source performance standards promulgated by the Environmental
Protection Agency under the Act. Ala. Admin. Code r. 335-6-6-.14(3)(a); see 33
U.S.C. § 1342(b) (Oct. 9, 1985). In 2008, the Department issued Black Warrior
Minerals permit No. AL0071358 for its Fleetwood coal mine to discharge into
Hurricane Creek and an unnamed tributary to that creek. The permit incorporates
the performance standards for “new source coal mines” and requires Black Warrior
Minerals to submit monitoring reports to the Department on a quarterly basis that
are available for inspection by the public on the website of the Department. See
Coal Mining Point Source Category; Effluent Limitations Guidelines & New
Source Performance Standards, 50 Fed. Reg. 41,296-01 (Oct. 9, 1985).
On September 2, 2011, several citizens—Black Warrior Riverkeeper, Inc.,
Friends of Hurricane Creek, John Wathen, and Nelson Brooke—served Black
Warrior Minerals and federal and state authorities with notice of alleged violations
of the Clean Water Act and other statutes. The notice listed violations of both the
new source performance standards and the permit for the Fleetwood mine. The
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allegations about the violations of the new source performance standards and the
violations of the permit were identical, except where the conditions of the permit
were more stringent than the new source performance standards.
Eleven days after the citizens provided Black Warrior Minerals and the
federal and state authorities with notice of the alleged violations, they filed a
citizen suit against Black Warrior Minerals. The complaint alleged violations of
only the new source performance standards. See 33 U.S.C. § 1316. The complaint
made no mention of any violation of the permit that regulated Fleetwood mine.
Black Warrior Minerals moved to dismiss the complaint because the citizens had
failed to wait 60 days after providing notice of the alleged violations, id. § 1365(b),
and because the citizens had failed to allege a violation of the permit issued to
Black Warrior Minerals for the Fleetwood mine.
The district court granted summary judgment in favor of Black Warrior
Minerals on the ground that the liability of a discharger that holds a permit must be
determined in the light of the conditions of its permit. The district court relied on
EPA v. California ex rel. State Water Resources Control Board, for the proposition
that “a suit against a permit holder will necessarily be brought under the definition
[found in section 1365(f)(6) for violations of a discharger’s permit].” 426 U.S. at
223, 96 S. Ct. at 2033. Because the permit controls the discharger’s liability, the
district court held that the “plaintiffs cannot proceed under the exception to
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§ 1365(b) for violations of [the new source performance standards] when the
discharger has a [state-issued] permit.” The district court then concluded that the
failure of the citizens to comply with the 60-day waiting period barred their
complaint. After the citizens filed their suit based on violations of the new source
performance standards, the Department sued Black Warrior Minerals in an
Alabama court based on violations of its permit.
II. STANDARD OF REVIEW
We review the “grant of summary judgment de novo, applying the same
legal standards as the district court.” Sierra Club, Inc. v. Leavitt, 488 F.3d 904,
911 (11th Cir. 2007). We review questions of “pure statutory interpretation” de
novo. Burlison v. McDonald’s Corp., 455 F.3d 1242, 1245 (11th Cir. 2006).
III. DISCUSSION
Whether a citizen may evade the 60-day waiting period and sue a permit
holder for violations of the new source performance standards when those
standards are incorporated in the permit is an issue of first impression before this
Court. The citizens argue that the plain language of the citizen suit provision, 33
U.S.C. § 1365, allows them to elect to sue a permit holder for violations of the new
source performance standards, for violations of the permit conditions, or for both
kinds of violations, see id. § 1365(f)(3), (f)(6). Black Warrior Minerals responds
that a permit defines a discharger’s obligations under the Clean Water Act, and a
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citizen must sue a permit holder for violations of the conditions of the permit. See
id. § 1365(f)(6).
We agree with Black Warrior Minerals. When read in the context of the
entire Clean Water Act, the citizen suit provision requires a citizen to sue a permit
holder for violations of its permit if the permit covers the alleged effluent
discharges. In this circumstance, a citizen complainant cannot evade the 60-day
waiting period.
The National Pollutant Discharge Elimination System provides the primary
means of enforcing the effluent limitations of the Clean Water Act, and every
discharger of pollutants must obtain a permit as part of that system. EPA v. Nat’l
Crushed Stone Ass’n, 449 U.S. 64, 71, 101 S. Ct. 295, 301 (1980); State Water
Res. Control Bd., 426 U.S. at 205, 96 S. Ct. at 2025. The Act empowers the
Administrator of the Environmental Protection Agency either to issue permits or to
approve a permit program established by a state so long as the program conforms
to federal guidelines. 33 U.S.C. § 1342(a)(1), (b). All permits, whether issued
directly by the Administrator or through a state system, must meet all “applicable
requirements of sections 1311, 1312, 1316, 1317, [1318,] and 1343.” Id. §
1342(b)(1)(A), (b)(2); see id. § 1343(a)(3) (“The permit program of the
Administrator under paragraph (1) of this subsection, and permits issued
thereunder, shall be subject to the same terms, conditions, and requirements as
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apply to a State permit program and permits issued thereunder under subsection (b)
of this section.”). Permits “serve[] to transform generally applicable effluent
limitations and other standards . . . into the obligations . . . of the individual
discharger.” State Water Res. Control Bd., 426 U.S. at 205, 96 S. Ct. at 2025.
“[Section 1342] itself does not mandate either the Administrator or the States to
use permits as the method of prescribing effluent limitations,” E.I. du Pont de
Nemours & Co. v. Train, 430 U.S. 112, 120, 97 S. Ct. 965, 971 (1977) (emphasis
added), but the Act provides that “[c]ompliance with a permit issued pursuant to
[section 1342] shall be deemed compliance, for purposes of sections 1319 and
1365 of this title, with sections 1311, 1312, 1316, 1317, and 1343 of this title,
except any standard imposed under section 1317 of this title for a toxic pollutant
injurious to human health.” 33 U.S.C. § 1342(k). Because compliance with a
permit affords dischargers an “absolute defense” to most enforcement actions
under the Clean Water Act, Inland Steel Co. v. EPA, 574 F.2d 367, 370 (7th Cir.
1978), permit holders are not governed by intervening changes in regulations for
the duration of their permits and need not relitigate whether their permits are strict
enough, E.I. du Pont de Nemours & Co., 430 U.S. at 138 n.28, 97 S. Ct. at 980
n.28.
The Clean Water Act enables citizens to commence a civil action against
“any person . . . who is alleged to be in violation of . . . an effluent standard or
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limitation under this chapter.” 33 U.S.C. § 1365(a)(1). For citizen suits, the Act
defines “effluent standard or limitation” in the following seven ways:
(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 standards 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 applicable by reason of section
1323 of this title); or (7) a regulation under section 1345(d) of this
title.
Id. § 1365(f). For our purposes, the most relevant subsections are subsection (3),
which concerns the new source performance standards, and subsection (6), which
concerns conditions of a permit.
Although the Act provides for citizen suits, it erects two hurdles for citizens
to overcome before they commence a civil action against a discharger. First, a
citizen must provide notice of the alleged violation to the discharger and federal
and state authorities and then wait 60 days before filing suit:
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff 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, limitation, or order[.]
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Id. § 1365(b). Second, the Act bars a citizen from filing suit against a discharger if
a federal or state authority sues the discharger first, although the citizen may
intervene in that suit:
No action may be commenced . . . 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 compliance 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.
Id. “[T]he purpose of § 1365(b) is to give the alleged violator an opportunity to
bring itself into compliance with the Act, and thus make the citizen suit
unnecessary[,]” and “to effectuate Congress’s preference that the Act be enforced
by governmental prosecution.” ABC Rail Corp., 926 F.2d at 1099.
Congress created two exceptions to the 60-day waiting period for citizen
suits against a discharger for violations of the new source performance standards
and for citizen suits against the Administrator for failure to establish a list of toxic
pollutants and effluent limitations:
No action may be commenced . . . prior to sixty days after the plaintiff
has given notice of the alleged violation . . . except that such action
may be brought immediately after such notification in the case of an
action under this section respecting a violation of sections 1316 and
1317(a) of this title.
33 U.S.C. § 1365(b); see also ABC Rail Corp., 926 F.2d at 1098. But Congress
provided no exception to the 60-day waiting period for citizen suits about
violations of permit conditions. See 33 U.S.C. § 1365(f)(6).
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Because statutory construction is a “holistic endeavor,” United Sav. Ass’n of
Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S. Ct. 626,
630 (1988), we must interpret the citizen suit provision in the context of the entire
Act to determine whether a citizen may avoid the 60-day waiting period by suing a
permit holder for violations of the new source performance standards when those
standards are incorporated into the permit. See Wachovia Bank, N.A. v. United
States, 455 F.3d 1261, 1266–67 (11th Cir. 2006); In re Int’l Admin. Servs., Inc.,
408 F.3d 689, 707 n.7 (11th Cir. 2005); United States v. Rigel Ships Agencies,
Inc., 432 F.3d 1282, 1288 (11th Cir. 2005) (“In any question of statutory
interpretation, ‘[w]e do not look at one word or term in isolation, but instead we
look to the entire statutory context.’” (quoting United States v. DBB, Inc., 180 F.3d
1277, 1281 (11th Cir. 1999) (alteration in original))). The Supreme Court has
instructed that the “fundamental canon of statutory construction [is] that the words
of a statute must be read in their context and with a view to their place in the
overall statutory scheme” and that a court should “fit, if possible, all parts into a
harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132–33, 120 S. Ct. 1291, 1301 (2000) (internal quotation marks omitted). As Sir
Edward Coke explained, “If any section [of a law] be intricate, obscure, or
doubtful, the proper mode of discovering its true meaning is by comparing it with
the other sections, and finding out the sense of one clause by the words or obvious
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intent of the other.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167 (2012) (alteration in original) (quoting 1 Edward
Coke, The First Part of the Institutes of the Laws of England, or a Commentary
upon Littleton § 728, at 381a (14th ed. 1791) (1628)).
A related principle of statutory interpretation is that a court should also
avoid interpreting a provision in a way that would render other provisions of the
statute superfluous. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105,
114–15, 121 S. Ct. 1302, 1308–09 (2001); Lowe v. SEC, 472 U.S. 181, 208 n.53,
105 S. Ct. 2557, 2572 n.53 (1985) (“[W]e must give effect to every word that
Congress used in the statute.”). If two possible meanings exist for a provision, we
should interpret the statute in a manner that gives all provisions independent
operation. See Scalia & Garner, supra, 176. Yet, if the text surrounding the
provisions could lend support for two independent meanings, but that interpretation
would lead to a strained reading of at least one provision, we need not force
independent meanings. See Gutierrez v. Ada, 528 U.S. 250, 254–55, 120 S. Ct.
740, 744 (2000).
Standing alone, the citizen suit provision, 33 U.S.C. § 1365, “is not a
provision of which Congress’ limpid prose puts an end to all dispute,” see
Gwaltney, 484 U.S. at 57, 108 S. Ct. at 381, about whether a citizen may proceed
against a permit-holding discharger for violations of the new source performance
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standards, 33 U.S.C. § 1316. The provision exempts a citizen from the 60-day
waiting period for suits based on violations of the new source performance
standards, but it does not exempt suits based on violations of permit conditions. Id.
§ 1365(b). The section defining an “effluent standard or limitation,” id. § 1365(f),
provides seven alternative definitions, including both a “standard of performance
under section 1316” and “a permit or condition thereof issued under section 1342,”
id. § 1365(f)(3), (6). The citizen suit provision does not delineate whether a citizen
may file a suit for violations of the new source performance standards when the
discharger holds a permit that incorporates those standards. See id. § 1342. But
section 1365(b) does prefer governmental enforcement of permit conditions to
citizen suits.
When we read sections 1365 and 1342 together, the correct reading of the
Act becomes clear. Section 1342 establishes that the permitting scheme controls
the vast majority of enforcement proceedings against a permit holder. Section
1342(k) affords an absolute defense to a permit holder that complies with the
conditions of its permit against citizen suits based on violations of sections 1311,
1312, 1316, 1317, and 1343. This absolute defense evidences the central role of
the permitting system under the Act. See Inland Steel Co., 574 F.2d at 370–71,
373 (“The entire function of paragraph (k), as we read it, is to qualify the
enforcement rights and authority granted by [the citizen suit provision] of the Act
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. . . .”). And permits, whether issued by the Administrator directly or by an
approved state program, must incorporate all of the new source performance
standards. 33 U.S.C. § 1342(a), (b); State Water Res. Control Bd., 426 U.S. at 224
n.38, 96 S. Ct. at 2033–34 n.38. “Thus, the principle means of enforcing the
pollution control and abatement provision of the [Clean Water Act] is to enforce
compliance with a permit” because a permit is tailored to the specific discharger.
See id. at 223, 96 S. Ct. at 2033.
This citizen suit against a permit holder, if allowed, would disrupt the
statutory scheme for the enforcement of permits. To allow a citizen to evade the
60-day waiting period by suing a permit holder for alleged violations of the new
source performance standards without regard to the conditions of the discharger’s
permit would both undermine the overarching permitting scheme and nullify the
statutory preference for governmental enforcement. The novel complaint filed in
this case is a thinly veiled attempt to beat the State of Alabama to the courthouse.
The Department has sued Black Warrior Minerals for violations of its permit, and
the citizens are now barred from bringing suit based on those violations. See 33
U.S.C. § 1365(b)(1)(B).
The citizens argue that requiring a citizen to sue a permit holder based only
on section 1365(f)(6), which governs violations of permits, renders section
1365(f)(3) superfluous because the broad prohibition in section 1365(f)(1) covers
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all non-permitted dischargers, but section 1365(f)(3) remains operative in at least
two situations. First, a citizen may sue for violations of section 1316 when the
alleged violator, although a permit holder, discharges pollutants that were not
disclosed to the permit-issuing authority. Those discharges would not be
contemplated by the permit and would not come within the absolute defense
provided by section 1342(k). Cf. Piney Run Pres. Ass’n v. Cnty. Comm’rs of
Carroll Cnty., Md., 268 F.3d 255, 269 (4th Cir. 2001) (stating that the permit shield
not only protects against liability for compliance, but also prevents liability from
attaching to “all discharges adequately disclosed to the permitting authority”).
Second, a citizen may sue for violations of section 1316 when the discharger does
not have a permit. In that case, the discharger would be subject to the otherwise
governing new source performance standards. Our interpretation also does not
render superfluous the definition contained in section 1365(f)(1), which allows
citizens to sue for “an unlawful act under subsection (a) of section 1311,” because
section 1316 applies only to new sources and section 1311(a) applies to all
dischargers.
The decision of the Supreme Court in State Water Resources Control Board
confirms our interpretation of the citizen suit provision: citizen suits against
permit holders must proceed under section 1365(f)(6) instead of under section
1365(f)(3) when the discharges are covered by the permit. In that decision, the
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Supreme Court explained in unequivocal terms that a citizen suit against a permit
holder must be filed under section 1365(f)(6) and allege a violation of the
discharger’s permit:
Of the six subdivisions of [section 1365(f)] defining “effluent
standard or limitation,” only [section 1365(f)(6)] refers to any of the
standards or limitations as translated into the conditions of an NPDES
permit. Thus, while [sections 1365(f)(2)–(4)] permit suits for
violation of effluent standards or limitations promulgated under
[sections 1311, 1312, 1316, and 1317], a suit against a permit holder
will necessarily be brought under the definition in [section
1365(f)(6)]; unless the plaintiff can show violation of the permit
condition, violation of the [Act] cannot be established.
426 U.S. at 223, 96 S. Ct. at 2033. Because Black Warrior Minerals is a permit
holder, any suit against it for violations of the conditions of its permit must
“necessarily be brought under” section 1365(f)(6). Id.
The parties dispute whether the above-quoted explanation of how a citizen
suit against a permit holder must proceed under section 1365(f)(6) is part of the
holding of that decision or only dicta. The holding of a decision includes both the
result and “those portions of the opinion necessary to that result by which we are
bound.” United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009)
(internal quotation marks omitted). Dicta, on the other hand, includes the portions
of an opinion that are not necessary to deciding the case. Id. Either way, the result
is the same here.
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We are persuaded that the relevant discussion is part of the holding. In State
Water Resources Control Board, the Supreme Court reversed the decision of the
Ninth Circuit that had incorrectly held that federal dischargers must obtain state-
issued permits under the Clean Water Act. 426 U.S. at 210–11, 96 S. Ct. at 2027–
28. The Supreme Court rejected each of the grounds relied upon by the Ninth
Circuit, and the dismantling of each ground was necessary to the result the Court
reached. The discussion of the citizen suit provision arose in the context of
refuting the assertion of the Ninth Circuit that the term “requirement” in section
1365(f)(6) means “any permit or condition thereof” of a federal discharger
imposed by a state. Id. at 222–23, 96 S. Ct. at 2033. The Ninth Circuit interpreted
the term “requirement” in section 1365(f)(6) to mean something different from the
terms “standard” and “limitation” in sections 1365(f)(2)–(4), which would
arguably give independent support for a holding that federal dischargers must
obtain a state-issued permit. The Supreme Court ruled that the correct meaning of
the term “requirement” was any condition imposed, whether “from standards and
limitations promulgated by the Administrator or from stricter standards established
by the State.” Id. at 224, 96 S. Ct. at 2033. The Court explained that the “salient
feature [of section 1365(f)(6)] is not distinguishing standards from requirements,
but distinguishing standards and limitations, on the one hand, from the permit
conditions embodying those standards on the other.” Id. at 224 n.38, 96 S. Ct. at
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2034 n.38. And, to make sense of these terms, the Supreme Court concluded that
section 1365(f)(6) means that a suit against a permit holder must necessarily be for
a violation of its permit.
The citizens contend that a footnote in Parker v. Scrap Metal Processors,
Inc., suggests that we have read this language as dicta, but we disagree. 386 F.3d
993, 1006–07 n.15 (11th Cir. 2004). In Parker, we concluded that the Act grants
subject-matter jurisdiction over citizen suits for violations of state or federal
standards incorporated into a permit. Id. at 1019. We stated, “On this question,
the Supreme Court, although in dicta, has appeared to say yes, suggesting that
citizens can sue under § 1365 regardless of whether the suit is based on standards
promulgated by the EPA, or more stringent state standards that have received EPA
approval.” Id. at 1007 n.15 (citing State Water Res. Control Bd., 426 U.S. at 224,
96 S. Ct. at 2022). We did not address the reasoning of the Supreme Court that a
citizen suit against a permit holder must necessarily proceed under section
1365(f)(6).
But, even if the relevant portion of the opinion in State Water Resources
Control Board is dicta, it is “well thought out, thoroughly reasoned, and carefully
articulated analysis by the Supreme Court” and “is not something to be lightly cast
aside.” See Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (internal
quotation marks omitted). As we have stated, “[T]here is dicta and then there is
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dicta, and then there is Supreme Court dicta.” Id. The Supreme Court carefully
considered the structure and meaning of the definitions contained in section
1365(f) of the citizen suit provision, and it concluded that suits against permit
holders to enforce regulations incorporated into a permit must proceed under
section 1365(f)(6).
IV. CONCLUSION
Because the citizens failed to wait the required 60 days before they filed suit
against Black Warrior Minerals, we AFFIRM the summary judgment in favor of
Black Warrior Minerals.
AFFIRMED.
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