Altamaha Riverkeeper, Inc. v. Rayonier Inc. et al
Filing
39
ORDER granting as to the Riverkeeper's Clean Water Act claims (Counts I, II, V (Injunctive Relief), and VII re 19 Motion for Summary Judgment. The Riverkeeper's state law claims (Counts III, IV, V (Public Nuisance) and VI) are dismissed without prejudice. The Clerk is directed to enter the appropriate judgment. Signed by Chief Judge Lisa G. Wood on 3/31/2015. (ca)
3n the Uniteb btatto 39hitritt Court
for the Ooutbern 38iotritt of 4eorgta
JOrunOt'd 1Dtbiion
ALTAMAHA RIVERKEEPER, INC.,
Plaintiff,
CV 214-44
V.
RAYONIER, INC, and RAYONIER
PERFORMANCE FIBERS, LLC.
Defendants.
ORDER
On its face, this case is about the Clean Water Act. But
the heart of the matter is strictly a question of contract law:
does Defendant Rayonier Inc.'s NPDES permit, which allows it to
discharge wastewater into the Altamaha River under certain
conditions, include Georgia's water quality standards for color,
odor, and turbidity as some of those conditions? This Court
finds that it does not, as a matter of law, and GRANTS
Defendants' motion for summary judgment (Dkt. no. 19) as to
Plaintiff Altamaha Rivkerkeeper's federal claims (Counts I, II,
V (Injunctive Relief), and VII). The Riverkeeper's state law
claims (Counts III, IV, V (Public Nuisance) and VI) are
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DISMISSED without prejudice for lack of supplemental
jurisdiction.
FACTUAL BACKGROUND
Defendants Rayonier Inc. and Rayonier Performance Fibers,
LLC (together, "Rayonier"), operate a pulp mill in Jesup,
Georgia that produces specialty cellulose products from wood
chips. As part of its operations, the Rayonier mill discharges
about 50 to 60 million gallons of wastewater into the Altamaha
River every day. See Dkt. no. 1, Pl.'s Compi. ¶ 30; Dkt. no. 10,
Rayonier Performance Fibers' Ans., ¶30. Rayonier has a permit,
issued by the Georgia Environmental Protection Division
("Georgia EPD") in accordance with the National Pollution
Discharge Elimination System ("NPDES"), to discharge wastewater
into the Altamaha River under certain conditions. Dkt. no. 20-2,
Permit No. GA0003620 ("Permit")
The Altamaha Riverkeeper ("Riverkeeper") is a 501(c) (3)
non-profit environmental organization that seeks to protect and
restore the habitat, water quality, and flow of the Altamaha
River from its headwaters in the Piedmont to its terminus at the
Atlantic Ocean near Darien, Georgia. Dkt. no. 29-1, Sheppard
Decl., ¶ 3. To achieve its mission, the Riverkeeper monitors
wastewater discharges to ensure compliance with permits and
water quality standards, comments on pending permits, and, as it
has done here, engages in litigation when it believes the
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Georgia EPD has failed to enforce state and federal water
quality standards against those who discharge wastewater or
pollutants into the Altamaha River.
This litigation stems from what the Riverkeeper believes to
be Georgia EPD's failure to enforce state and federal water
quality standards against Rayonier for the wastewater discharged
from its pulp mill. Specifically, the Riverkeeper complains that
Rayonier's wastewater discharge is so dirty and fetid that it
violates Georgia's water quality standards for color, odor, and
turbidity. Dkt. no. 29, P1's Response, p. 8. In fact, the
Riverkeeper alleges that Rayonier's wastewater is so much darker
than the Altamaha's waters that satellite images of the Altamaha
River show a distinctly dark plume originating at Rayonier's
discharge point and continuing far downstream. Id. at p. 5. The
wastewater discharge is so malodorous, according to the
Riverkeeper, that "[w]ords are not adequate to convey the
smell." Id. at 6.
The Riverkeeper claims that Rayonier's discharge has such a
negative impact on the Altamaha River's water quality that it
violates what are known as Georgia's narrative water quality
standards, which require that "[a]il waters shall be free from
material related to municipal, industrial or other discharges
which produce turbidity, color, odor or other objectionable
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conditions which interfere with legitimate water uses." Ga.
Camp. R. & Regs. 391-3-6-.03(5)(c).
Indeed, in a recent consent order, the Georgia EPD itself
concluded that
the aesthetic impact of the Facility's discharge has
the reasonable potential to violate the Narrative
Water Quality Standards because it has the reasonable
potential to produce turbidity or other objectionable
conditions that interfere with legitimate water
quality uses of the Altamaha River and it has the
reasonable potential to cause turbidity that results
in a substantial visual contrast in the Altamaha River
due to man-made activity.
Dkt. no. 21-27, Consent Order EPD-WQ-4837, at pp. 4-5.
"A 5 '!. 'Y'J
Summary judgment is required where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). A fact is "material" if it "might affect the outcome
of the suit under the governing law." FindWhat Investor Grp. v.
FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute over such a fact is "genuine" if the "evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Id. In making this determination, the court is to view
all of the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor.
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Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 507 (11th Cir. 2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
DISCUSSION
The Riverkeeper alleges that Rayonier is discharging its
wastewater into the Altamaha River in violation of its NPDES
Permit, and thus in violation of the Clean Water Act. For the
Riverkeeper to have a cause of action under the CWA, compliance
with the state effluent standards that the Riverkeeper alleges
Rayonier is violating must be a condition of its NPDES permit.
I. The Clean Water Act
The purpose of the CWA "is to restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters." 33 U.S.C. § 1251(a). The CWA makes it illegal to
introduce pollutants from any point source into the navigable
waters of the United States without a permit. Id. at §§ 1311(a),
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1342. Section 402 of the CWA establishes the NPDES system, which
issues the type of permit in question here. 33 U.S.C. § 1342.
The EPA Administrator has initial authority to issue NPDES
permits, but the act allows the EPA to delegate this permitting
authority to the states. Id. at § 1342(a), (b). In Georgia, the
Georgia Department of Natural Resources, Environmental
Protection Division has authority to issue NPDES permits.
Citizens may bring civil suits on their own behalf against
persons allegedly violating conditions of an NPDES permit. 33
U.S.C. § 1365(a), (f) (6). However, where a permittee discharges
pollutants in compliance with the terms of its NPDES permit, the
permit "shields" the permittee from liability under the CWA. 33
U.S.C. § 1342(k). Section 1342(k)'s permit shield "affords an
absolute defense to a permit holder that complies with the
conditions of its permit against citizen suits" seeking to
enforce certain provisions of the CWA. Black Warrior
Riverkeeper, Inc. v. Black Warrior Minerals, Inc., 734 F.3d
1297, 1303 (11th Cir. 2013)
Citizen plaintiffs who bring a suit under § 1365 are suing
as "private attorneys general seeking enforcement of a federal
law." Ati. States Legal Found., Inc. v. Tyson Foods, Inc., 897
F.2d 1128, 1131 n.5 (11th Cir. 1990) . These plaintiffs
"effectively stand in the shoes of the EPA." Pub. Interest
Research Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc.,
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913 F.2d 64, 74 (3rd Cir. 1990) (quoting Sierra Club v. Chevron
U.S.A., Inc., 834 F.2d 1517, 1522 (9th Cir. 1987)). Likewise,
for purposes of this civil action, the Riverkeeper stands in the
shoes of Georgia EPD.
Thus, to resolve the parties' contentions, the Court must
interpret the language of the Permit Georgia EPD issued to
Rayonier. While NPDES permits themselves are not contracts, they
are interpreted as if they were. Natural Res. Def. Council, Inc.
v. Cnty. of Los Angeles, 725 F.3d 1194, 1204 (9th Cir. 2013)
"If the language of the permit, considered in light of the
structure of the permit as a whole, is plain and capable of
legal construction, the language alone must determine the
permit's meaning." Id. at 1204-05 (quoting Piney Run Pres. Ass'n
v. Cornrn'rs of Carrol Cnty., 268 F.3d 255, 270 (4th Cir. 2001)).
If the language of the permit is ambiguous, courts may consider
extrinsic evidence to interpret its terms. Id. at 1205. However,
under Georgia law and Eleventh Circuit precedent, courts turn to
extrinsic evidence to explain ambiguity in a contract "only when
a contract remains ambiguous after the pertinent rules of
construction have been applied." Claussen v. Aetna Cas. & Sur.
Co., 888 F.2d 747, 749 (11th Cir. 1989) (citing Holcomb v. Word,
238 S.E.2d 915, 916 (Ga. 1977)).
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II. Applicable Principles of Contract Interpretation
"Federal courts use federal common law to evaluate
government contracts. When determining what particular doctrine
to apply in a suit, however, the court will often select a rule
of state law." Begner v. United States, 428 F.3d 998, 1004-05
(11th Cir. 2005) (citations, quotations, and editorial marks
omitted). Here, the Court will rely in part on Georgia contract
law because the events in question occurred in Georgia, see Id.
at 1005, and both parties agree that application of Georgia law
is appropriate. See Dkt. no. 20 (Defs.' Mot. Summ. J.), pp. 1819; Dkt. no. 34 (Pl.'s Suppi. Br.), p. 3 n.l.
In Georgia, courts follow a three-step process in examining
contracts:
At least initially, construction is a matter of law
for the court. First, the trial court must decide
whether the language is clear and unambiguous. If it
is, the court simply enforces the contract according
to its clear terms; the contract alone is looked to
for its meaning. Next, if the contract is ambiguous in
some respect, the court must apply the rules of
contract construction to resolve the ambiguity.
Finally, if the ambiguity remains after applying the
rules of construction, the issue of what the ambiguous
language means and what the parties intended must be
resolved by [the trier of fact].
Eudy v. Universal Wrestling Corp., 611 S.E.2d 770, 773 (Ga. Ct.
App. 2005) (quoting Schwartz v. Harris Waste Mgmt. Group, 516
S.E.2d 371, 375 (Ga. Ct. App. 1999)).
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a. The Initial Inquiry: Ambiguity
Whether or not a contract is ambiguous is a question of law
for the court. See Ga. Code Ann. § 13-2-1. A contract is
ambiguous if it contains a "duplicity, indistinctness, [or] an
uncertainty of meaning or expression" that makes it susceptible
to several reasonable interpretations. Begner, 428 F.3d at 1005
(quoting Holcim (US), Inc. v. ANDG, Inc., 596 S.E.2d 197, 200
(Ga. Ct. App. 2004)).
Here, there are two occurrences in Rayonier's NPDES Permit
that the Riverkeeper alleges incorporate Georgia's water quality
standards enumerated in Rule 39l-3-6-.03(5) (c) . The first, which
occurs on page one of the Permit, generally references Georgia's
water quality control regulations, which include Rule 391-3-6.03(5). Dkt. no. 20-2, p. 1. The second reference, on page 15 of
the permit, mentions Rule 391-3-6-.03(5) generally in the
context of "Biomonitoring and Toxicity Reduction Requirements."
Id. at Part III, p. 15.
The reference to Georgia's water quality control standards
on the first page of the Permit reads:
In compliance with the provisions of the Georgia Water
Quality Control Act (Georgia Laws 1964, p. 416, as
amended), hereinafter called the "State Act," the
Federal Water Pollution Act, as amended (33 U.S.C.
1251 et seq.), hereinafter called the "Federal Act,"
and the Rules and Regulations promulgated pursuant to
each of these Acts, Rayonier Jesup Mill . . . is
authorized to discharge from a facility located at
[the Mill's address] to the receiving waters Altamaha
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River in accordance with the effluent limitations,
monitoring requirements and other conditions set forth
in Parts I, II and III hereof.
Dkt. no. 20-2, P. 1. Stripped down to its necessary and relevant
elements, this sentence says: (1) "In compliance with" the CWA,
the State Act, and their respective rules and regulations, (2)
Rayonier "is authorized" to discharge into the Altamaha River
"in accordance with" the conditions set forth in Parts I, II and
III of the Permit. This plainly means that Georgia EPD
authorized Rayonier's Permit "in compliance" with the Federal
and State Acts and their rules, and that Rayonier is authorized
to discharge in accordance with the conditions of the Permit.
It does not mean that Rayonier may only discharge in
compliance with the Federal and State acts and their attendant
rules and regulations. The first clause merely asserts the
authority by which the Georgia EPD issues the permit; the second
clause asserts that Rayonier is authorized to discharge only in
accordance with the conditions enumerated in the Permit. If the
Georgia EPD intended the conditions of Rayonier's permit to be
coextensive with the water quality standards set forth in the
CWA, the State Act, and their rules and regulations, it could
have said so by stating "Rayonier is authorized to discharge
wastewater into the Altamaha River in accordance with the
conditions set forth in Parts I, II and III hereof and with the
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water quality standards enumerated in the Federal and State Acts
and their attendant regulations."
The Riverkeeper argues that long-standing precedent from
the Northern District of Georgia holds that this language in a
NPDES permit does, in fact, incorporate Georgia's water quality
standards as conditions of the Permit. True, the court in
Culbertson v. Coats American, Inc., 913 F. Supp. 1572
(N.D. Ga.
1995) held that this exact same language made compliance with
the Georgia water quality standards a NPDES permit requirement
in that case. Id. at 1581. However, Culbertson offers little
guidance to this Court in consideration of this Permit for
several important reasons. First, the defendants in Culbertson
conceded that the provision was intended to make compliance with
the Georgia Rules a permit requirement. Id. Second, by
considering deposition evidence regarding this provision's
intended meaning before applying the applicable rules of
contract construction, Culbertson did not follow the same
procedures for interpreting the permit that the Court will
follow here, which allows the Court to consider extrinsic
evidence only after determining that the Permit is ambiguous
even in light of the appropriate rules of construction.' See
Claussen, 888 F.2d at 749. Third, this decision was never
1
Perhaps because this point was conceded, the court in Culbertson mentioned
this extrinsic evidence to bolster its conclusion. The Court did not discuss
at all the applicable rules of contract construction. See Culbertson, 913 F.
Supp. at 1581.
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appealed. Thus, while the Court in Culbertson accepted the
interpretation that the Riverkeeper urges here, that
interpretation has never actually been challenged in court,
either in Culbertson or since.
Here, unlike Culbertson, there is no concession before the
Court as to what Georgia EPD intended the first page of the
permit to mean. Without such a concession, there is no reason
for the Court to forego the interpretive process required by
statute and common law and skip straight to the Riverkeeper's
proffered extrinsic evidence of the Permit's intended meaning.
Thus, the clear language on the first page of the Permit is
unambiguous, and does not incorporate Georgia's water quality
standards as conditions of Rayonier's NPDES Permit.
However, the Permit's second reference to Georgia's water
quality standards is ambiguous. Under the heading "Biomonitoring
and Toxicity Reduction Requirements," Part III of the Permit
states: "The Permittee shall comply with effluent standards or
prohibitions established by section 307(a) of the Federal Act
and with chapter 391-3-6-.03(5) of the State Rules and may not
discharge toxic pollutants in concentrations or combinations
that are harmful to humans, animals, or aquatic life." This
reference to 391-3-6-.03(5) is ambiguous because its context
suggests it is strictly concerned with toxic pollutants, but
Rule 391-3-6-.03(5) lists a host of water quality standards that
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have nothing to do with toxicity. On one hand, a broad reference
to Rule 391-3-6-.03(5) would seem to incorporate into the Permit
all of the water quality standards throughout that rule. On the
other hand, though, the context of that reference suggests that
Georgia EPD intended only to incorporate those water quality
standards within Rule 391-3-6-.03(5) that concern toxicity.
Because this reference to Rule 391-3-6-.03(5) on page 15 of the
Permit is open to multiple interpretations, it is inherently
ambiguous, and the Court must turn to the applicable rules of
contract construction to ascertain its meaning.
b. Balancing the Applicable Rules of Contract
Construction
In addition to the common law rules of construction,
Georgia has statutory rules that courts may apply. First and
foremost, "[t]he cardinal rule of construction is to ascertain
the intention of the parties. If that intention is clear and it
contravenes no rule of law and sufficient words are used to
arrive at the intention, it shall be enforced irrespective of
all technical or arbitrary rules of construction." Ga. Code Ann.
§ 13-2-3. After this primary statutory consideration, Georgia
statutory and common law provide several other canons that are
helpful in this case. However, "[n] canon of interpretation is
absolute. Each may be overcome by the strength of differing
principles that point in other directions." Estate of Pitts v.
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City of Atlanta, 746 S.E.2d 698, 702 (Ga. Ct. App. 2013) (citing
ANTONIN ScALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 59 (2012))
i. The Primary Rule: Intent of the Parties
Here, the Court cannot clearly ascertain, from the four
corners of the Permit, the parties' intent regarding Georgia's
water quality standards. The Riverkeeper argues that the Georgia
EPD's intent in writing Rayonier's Permit (along with all other
NPDES permits in Georgia) "necessarily was to meet the
requirements of the Clean Water Act." Dkt. no. 34, p. 5; see
also 33 U.S.C. § 1251(a) (the purpose of the CWA "is to restore
and maintain the chemical, physical, and biological integrity of
the Nation's waters"); 40 C.F.R. § 122.44(d) (1) (requiring NPDES
permits to include requirements designed to achieve "water
quality standards established under section 303 of the CWA,
including State narrative criteria for water quality"). However,
this supposed intent is undermined by another provision in the
Permit. Looking solely to the Permit itself, it is apparent that
the Georgia EPD did not believe that the Permit, as written,
would necessarily include conditions designed to achieve water
quality standards established under the CWA and Georgia
Regulations. If it had, it would not have included a clause
stating: "Nothing in this permit shall be construed to preclude
the modification of any condition of this permit when it is
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determined that the effluent limitations specified herein fail
to achieve the applicable State water quality standards." Dkt.
no. 20-2, Permit Part II.B.8, p. 14. This provision means
nothing if it does not contemplate the possibility that the
Permit's conditions do not, in fact, incorporate all of
Georgia's water quality standards as conditions of the permit.
The Riverkeeper encourages this Court to look beyond the
Permit itself and focus on the CWA's purpose and statutory
scheme to determine Georgia EPD's intent under Georgia Code
section 13-2-3 1 s intent analysis. This suggested approach will
not align the Court's interpretation of the Permit with the
Riverkeeper's for three reasons. First, it requires the Court to
look outside of the Permit to determine Georgia EPD's intent.
Even if statutory purposes and permitting schemes are not
"extrinsic evidence" in the traditional sense, Georgia's rules
of construction plainly favor evidence from within a document
itself over outside evidence. See, e.g., Eudy, 611 S.E.2d at 773
(noting that, at least initially, "the contract alone is looked
to for its meaning.").
Second, even if the Court were to consider the CWA's
statutory purpose and permitting schemes, other aspects of the
CWA militate against a finding that a permitting authority
necessarily intended a permit to effectuate all of the standards
found in the CWA and state regulations. Such a holding would
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eviscerate the "permit shield" contemplated under 33 U.S.C.
§ 1342(k) ("Compliance with a permit issued pursuant to this
section 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 . . .") . See also Black Warrior,
734 F.3d at 1301 (§ 1342(k)'s permit shield "affords an absolute
defense to a permit holder that complies with the conditions of
its permit against citizen suits" seeking to enforce certain
provisions of the CWA).
Finally, even if the court were to find that Georgia EPD
intended to make Rayonier's permit conditions coextensive with
the water quality standards found in the CWA and Georgia's
Rules, Georgia Code section 13-2-3 requires Georgia EPD to use
"sufficient words . . . to arrive at the intention" in the
Permit itself. Ga. Code Ann. § 13-2-3. As discussed above,
neither reference to Rule 391-3-6-.03(5) clearly indicates that
the permit intends to incorporate the narrative water quality
standards found in that rule.
ii. Georgia's Statutory Rules of Construction
Having looked first to evidence of Georgia EPD's intent
within the Permit itself, the Court now turns to Georgia's
statutory rules of construction found in Georgia Code section
13-2-2. While many of these canons are not helpful in this case,
a few are.
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Georgia Code section 13-2-2(4) provides that "the
construction which will uphold a contract in whole and in every
part is to be preferred, and the whole contract should be looked
to in arriving at the construction of any part." As discussed
above, the Riverkeeper's proffered interpretation of the Permit
would render the "Permit Modification" provision found in Part
II.B.8 of the permit meaningless. This statutory rule of
construction, then, tilts in Rayonier's favor.
Additionally, Georgia Code § 13-2-2(5) provides that "[i]f
the construction is doubtful, that which goes most strongly
against the party executing the instrument or undertaking the
obligation is generally to be preferred." The Georgia Supreme
Court has interpreted this provision to mean that a contract
should "be construed against the preparer and in favor of the
non-preparer." Hertz Equip. Rental Corp. v. Evans, 397 S.E.2d
692, 694 (Ga. 1990); see also Reichman v. S. Ear, Nose & Throat
Surgeons, P.C., 598 S.E.2d 12, 16 (Ga. Ct. App. 2004) ("Pursuant
to [Ga. Code Ann.] § 13-2-2(5) as judicially interpreted, where
the construction of a contract is doubtful, the construction
that goes most strongly against the drafter of the agreement is
to be preferred.") . Here, the Riverkeeper "stands in the shoes"
of Georgia EPD, who drafted the Permit. Pub. Interest Research
Grp. of N.J., 913 F.2d at 74. As such, it will be considered the
drafter for purposes of applying this statutory rule of
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construction, as judicially interpreted. Because Georgia EPD
drafted the relevant provisions and issued the permit, any
ambiguity as to whether the Georgia water quality standards are
incorporated should be construed against the Riverkeeper. This
rule of construction also tilts in Rayonier's favor.
Finally, while many of the canons of construction the Court
has discussed thus far lean in Rayonier's favor, the Court is
nevertheless concerned with the fact that ruling in Rayonier's
favor will necessarily require the Court to interpret Part III's
reference to Rule 391-3-6-.03(5) as referring specifically—and
only—to Rule 391-3-6.03(5) (e). To that end, the Riverkeeper
urges that the Court should not "add terms or provisions to the
contract. In construing a contract, 'courts cannot insert what
has been omitted or rewrite a contract made by the parties."
Pl.'s Supp. Br. pp. 7-8 (quoting Seitzinger v. Comm. Health
Network, 676 N.W.2d 426, 441 (Wis. 2004)). However, despite its
intuitive appeal, this rule of interpretation (which is
presented here from the dissenting opinion of another state's
supreme court) contradicts, at least partly, one of Georgia's
statutory rules of interpretation: "The rules of grammatical
construction usually govern, but to effectuate the intention
they may be disregarded; sentences and words may be transposed,
and conjunctions substituted for each other. In extreme cases of
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ambiguity, where the instrument as it stands is without meaning,
words may be supplied." Ga. Code Ann. § 13-2-2(6).
This provision appears to be concerned primarily with
grammatical errors and omitted terms. The Court is not convinced
that Part III's "Biomonitoring and Toxicity Reduction
Requirements" section, or the Permit as a whole, "stands without
meaning" if "(e)" is not supplied after the reference to Rule
391-3-6-.03(5). However, the Court need not actually supply an
"(e)" to interpret the reference to Rule 391-3-6-.03(5) narrowly
in light of its section heading. Furthermore, by Rayonier's own
admission, Georgia Code section 13-2-2(6) is not a rule that can
properly be applied in this case. Thus, on balance, the
Riverkeeper's proffered rule against inserting terms does not
appear to be binding or instructive to this Court, but at the
same time Georgia Code section 13-2-2(6) also appears to be a
poor fit. Despite the parties' briefing on this matter, the
Court does not find that Georgia Code section 13-2-2(6) or
related rules of construction help clarify the Permit's terms.
iii. Non-Statutory Rules of Construction
The rules of construction found in Georgia Code section 132-2 are not exhaustive. See Ga. Code Ann. § 13-2-2 ("The
following rules, among others, shall be used in arriving at the
true interpretation of contracts") (emphasis added) . Here, the
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Court finds that the common law rule that courts interpret
contract provisions in light of their headings is instructive.
Rayonier argues that the reference to Georgia Rule 391-3-6.03(5) in the Permit's "Biomonitoring and Toxicity Reduction
Requirements" section must be construed in light of that
heading. Dkt. no. 35, p. 17. The Riverkeeper urges that
Rayonier's argument has been "flatly rejected by Georgia
courts." Georgia courts' position on this matter is not as clear
as the Riverkeeper suggests. The Riverkeeper cites Suggs v.
Brotherhood of Locomotive Firemen & Enginemen, 127 S.E.2d 827
(Ga. Ct. App. 1962), in support of its argument that the court
should disregard the heading in Part III of the Permit. See id.
at 829 ("The title, not being in truth a part of the article,
cannot be used to throw light on or to vary the unambiguous
language of the body of the contract.").
The Southern District of Georgia has had occasion to
examine Suggs once before in Chatham Area Transit Authority v.
First Transit, Inc., No. CV 406-282, 2009 WL 2135809 (S.D. Ga.
July 15, 2009), which held that "Suggs holds only that the title
of a provision cannot override the text in its body." Id. at *2.
Furthermore, Chatham Area Trans. Auth. concluded that "a limited
application of Suggs is consistent with Georgia courts' repeated
use of titles when construing contracts since Suggs." Id.
(citing Donchi, Inc. v. Robdol, LLC, 640 S.E.2d 719, 722 (Ga.
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Ct. App. 2007) ("[TJhe language of paragraph 16, as well as its
heading, evidences the intent of the parties involved.");
Authentic Architectural Millworks, Inc. v. SCM Grp. USA, Inc.,
586 S.E.2d 726, 730 (Ga. Ct. App. 2003) (finding that a clause
textually dissimilar to a merger clause and titled "limited
warranty" was not a merger clause); Giles v. Nationwide Mut.
Fire Ins. Co., 405 S.E.2d 112, 114 (Ga. Ct. App. 1991) ("[T]he
word 'action' must be read together with the clause heading.")).
The Court in Chatham Area Transit then read a contract provision
in that case along with its title to find the parties'
intention. Chatham Area Transit, 2009 WL 2135809 at *2.
And in this case, the Court will follow suit with Chatham
Area Transit and the several Georgia Courts of Appeals decisions
since Suggs and interpret the reference in Part III to Georgia's
water quality standards in light of its heading. The first
paragraph under the "Biomonitoring and Toxicity Reduction
Requirements" heading reads: "The Permittee shall comply with
effluent standards or prohibitions established by section 307(a)
of the Federal Act and with chapter 391-3-6-.03(5) of the State
Rules and may not discharge toxic pollutants in concentrations
or combinations that are harmful to humans, animals, or aquatic
life."
While a reference to Rule 391-3-6-.03(5) would appear to
include Rule 391-3-6-.03(5)(c) (as well as subsections (a), (b),
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(d), (e), (f), and (g)), only subsection (e) actually concerns
toxicity. Furthermore, subsection (e)'s language tracks that of
Part III.C's opening paragraph: "All waters shall be free from
toxic, corrosive, acidic and caustic substances discharged from
municipalities, industries, and other sources, such as nonpoiont
sources, in amounts, concentrations or combinations which are
harmful to humans, animals or aquatic life." Ga. Comp. R. &
Regs. 391-3-6-.03(5) (e) (emphasis added) . In light of such
strong indications that Part III.0 is singularly concerned with
enforcing toxicity standards, this Court has little difficulty
in looking to that Part's heading and the subsequent language to
determine that Georgia EPD intended to refer to Rule 391-3-6.03(5) (e) when it referred to Rule 391-3-6-.03(5) generally.
The Riverkeeper has provided two other non-statutory rules
of construction in support of its interpretation of the Permit.
First, the Riverkeeper argues that contracts should not be
interpreted in such a way as to render them illegal. The Supreme
Court has held that "[s]ince a general rule of construction
presumes the legality and enforceability of contracts .
ambiguously worded contracts should not be interpreted to render
them illegal and unenforceable where the wording lends itself to
a logically acceptable construction that renders them legal and
enforceable." Walsh v. Schlecht, 429 U.S. 401, 408 (1977)
However, adopting Rayonier's preferred interpretation will not
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render the Permit illegal or unenforceable. The Permit may still
be enforced up to its enumerated terms. True, the Permit does
not live up to the requirements of the CWA as written, but this
fault of Georgia EPD's does not render the permit as written
illegal or unenforceable. In fact, the Permit itself provides a
way to rectify this shortcoming in its "Modification Clause,"
which allows the Georgia EPD to modify the Permit's conditions
if they fail to achieve the applicable Georgia water quality
standards. Dkt. no. 20-2, Permit Part II.B.8,
p. 14.
Second, the Riverkeeper suggests that courts should favor a
construction in the public interest where a contract dispute is
of public concern. This is a "rule of construction rather than
one of interpretation, one that for reasons of public policy
requires the court to give to a contract that legal operation
that is of public advantage, when a choice between that and a
less advantageous operation is reasonably open." Nw. Envtl.
Advocates v. City of Portland, 56 F.3d 979, 985 (9th Cir. 1995)
(quoting Corbin, Contracts, § 550 at 196 (1960)). Here, taking
Plaintiff's allegations as to the effects of Rayonier's
wastewater discharge as true, it would certainly appear that the
public does have an interest in protecting the integrity of the
Altamaha River. However, the public may also have an interest in
ensuring that businesses and industries are given explicit
notice of what kinds of discharges will violate their NPDES
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permits before subjecting them to onerous civil penalties. The
Court could delve further into this question of public policy,
but that is not necessary here. As stated in Northwest
Environmental, this rule of construction is operative only when
"a choice between" the public's preferred interpretation and an
alternative interpretation "is reasonably open." Id. As the
preceding portions of this Order have shown, though, the
available rules of interpretation do not present two equally
plausible interpretations. To the contrary, they have strongly
favored Rayonier's interpretation. If the Court were in need of
a tie-breaker, this rule of construction may have been helpful,
but it does not outweigh the bulk of the others discussed above.
Thus, the majority of the rules of construction discussed
in this Order weigh in favor of Rayonier's interpretation of the
Permit. In light of these rules, the Court finds that the
ambiguity in the Permit's meaning is now sufficiently clarified,
and the Court need not turn to the Riverkeeper's proffered
extrinsic evidence of Georgia EPD's intended meaning. See
Claussen, 888 F.2d at 749 (citing Holcomb, 238 S.E.2d at 916
(Ga. 1977)) (noting that courts turn to extrinsic evidence to
explain ambiguity in a contract "only when a contract remains
ambiguous after the pertinent rules of construction have been
applied.") . As a matter of law, then, the Permit does not
incorporate Georgia's water quality standards enumerated in Rule
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391-3-6-.03(5)(c) as conditions of the Permit. Without an
alleged violation of a condition of Rayonier's permit, the
Riverkeeper no longer has a basis for its CWA citizen suit, and
the Court must GRANT Rayonier's motion for summary judgment
(Dkt. no. 19) as to the Riverkeeper's CWA claims (Counts I, II,
V (Injunctive Relief), and VII).
The Court does not intend this holding to suggest that
Rayonier's discharges do not have a harmful effect on the
Altamaha River, or that the Riverkeeper's alleged injuries are
trivial. To the contrary, those effects may be deleterious, and
Rayonier's discharges may, in fact, violate Georgia's narrative
water quality standards. The Court's holding is simply that the
Riverkeeper must show a violation of Rayonier's NPDES Permit to
bring its CWA citizen suit, and here it failed to show that
compliance with the relevant water quality standards is a
condition of Rayonier's NPDES Permit.
Furthermore, while the Riverkeeper's CWA claim will not go
forward, the Riverkeeper is not without recourse. Under the
Permit's "Modification Clause," the Riverkeeper may ask Georgia
EPD to modify the Permit so that it explicitly incorporates Rule
391-3-6-.03(5) (c)'s narrative water quality standards as
conditions of the permit. If it is now, in fact, Georgia EPD's
intent for these water quality standards to be incorporated as
conditions of Rayonier's Permit, then this Order likely
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satisfies any precondition required for such a modification. See
Dkt. no. 20-2, Permit Part II.B.8, p. 14 ("Nothing in this
permit shall be construed to preclude the modification of any
condition of this permit when it is determined that the effluent
limitations specified herein fail to achieve the applicable
State water quality standards.")
(emphasis added)
111. The Riverkeeper' $ State Law Claims
In addition to its CWA claims, the Riverkeeper brings state
law claims for negligence (Count III), negligence per se (Count
IV), public nuisance (Count V), and attorney's fees under
Georgia Code section 13-2-11 (Count VI) . Because both parties
have requested that the state law claims be dismissed or
remanded to state court if the Court grants summary judgment on
the CWA claims, the Riverkeeper's state law claims are dismissed
without prejudice pursuant to 28 U.S.C. § 1367(c) (3). See Def.'s
Mot. Summ. J. P. 35; Dkt. no. 29 (Pl.'s Resp.), p. 30; see also
Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 ("We have
encouraged district courts to dismiss any remaining state claims
when, as here, the federal claims have been dismissed prior to
trial.")
CONCLUSION
Compliance with Georgia's narrative water quality standards
found in Rule 391-3-6.03(5) (c) is not a condition of Rayonier's
NPDES permit. As such, failure to comply with those standards
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cannot be the basis for a citizen suit against Rayonier under 33
U.S.C. § 1356. Defendant Rayonier's motion for summary judgment
(Dkt. no. 19) is GRANTED as to the Riverkeeper's Clean Water Act
claims (Counts I, II, V (Injunctive Relief), and VII) . The
Riverkeeper's state law claims (Counts III, IV, V (Public
Nuisance) and VI) are DISMISSED without prejudice. The Clerk of
Court is directed to enter the appropriate judgment.
SO ORDERED, this 31ST day of March, 2015.
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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