E. Ron Pickard v. Tennessee Water Quality Control Board - REHEAR

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 31, 2013 Session
E. RON PICKARD ET AL. v. TENNESSEE WATER QUALITY CONTROL
BOARD ET AL.
Appeal by Permission from the Court of Appeals
Chancery Court for Davidson County
No. 09-2298-III Ellen Hobbs Lyle, Chancellor
No. M2011-02600-SC-R11-CV - Filed January 6, 2014
W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
J ANICE M. H OLDER, C ORNELIA A. C LARK, and S HARON G. L EE, JJ., joined.
OPINION DENYING PETITION FOR REHEARING
E. Ron Pickard and Linda Pickard have filed a timely Tenn. R. App. P. 39 petition
requesting this Court to revisit its opinion filed in this case on December 17, 2013. This
petition is premised on the Pickards’ erroneous conclusion that the focal point of the Court’s
analysis was their April 6, 2009 petition for a declaratory order, to the exclusion of their
January 16, 2009 petition for a declaratory order.
As this Court pointed out in its December 17, 2013 opinion, this appeal concerns only
the Pickards’ petition for declaratory judgment filed on December 4, 2009.1 In accordance
with Tenn. Code Ann. § 4-5-225(b) (2011), this petition could be filed in the trial court only
after the Pickards petitioned the Tennessee Water Quality Control Board for a declaratory
order, and the Board refused to issue a declaratory order.2
1
Pickard v. Tennessee Water Quality Control Bd., ___ S.W.3d ___, ___, 2013 WL 6623553, at *3
(Tenn. Dec. 17, 2013).
2
Pickard, ___ S.W.3d at ___, 2013 WL 6623553, at *3 n.6.
In their December 4, 2009 petition, the Pickards alleged that the Board had declined
to issue a declaratory order on two occasions – the first in response to their January 16, 2009
petition for a declaratory order3 and the second in response to their April 6, 2009 petition for
declaratory order.4 Based on these allegations, the most reasonable interpretation of the
Pickards’ December 4, 2009 petition for a declaratory judgment is that they were relying on
both the Board’s February 18, 2009 order declining to convene a contested case hearing in
response to their January 16, 2009 petition and the administrative law judge’s October 6,
2009 order dismissing their April 6, 2009 petition to support their request for a declaratory
judgment under Tenn. Code Ann. § 4-5-225.
We also framed the issue in this case broadly enough to cover the issuance of
preliminary discharge permits and the issuance or denial of final discharge permits. Our
December 17, 2013 opinion states that
the issue we must address is whether Tenn. Code Ann. § 69-3-
105(i) prevents third parties such as the Pickards from obtaining
administrative and judicial review of the Commissioner’s
application of the Antidegradation Rule in a particular
permitting decision using either a petition for declaratory order
under Tenn. Code Ann. § 4-5-223 or a petition for declaratory
judgment under Tenn. Code Ann. § 4-5-225 (emphasis added).5
Our analysis of this issue is not confined to the Commissioner’s issuance of a final
discharge permit or to the dismissal of the Pickards’ April 6, 2009 petition. To the contrary,
we emphasized the language in Tenn. Code Ann. § 69-3-105(i) that “[t]he permit appeal to
the Board authorized by Tenn. Code Ann. § 69-3-105(i) is the ‘exclusive means for obtaining
administrative review of the commissioner’s issuance or denial of a permit.’” 6 Based on this
language, we held that “it is indubitable that the permit appeals authorized by Tenn. Code
Ann. § 69-3-105(i) have displaced the petitions for declaratory orders under Tenn. Code Ann.
3
Petition for Declaratory Judgment ¶ 10 (alleging that “[t]he Petition for Declaratory Order was
therefore refused.”).
4
Petition for Declaratory Judgment ¶ 14 (alleging that “[p]etitioners have therefore exhausted all
available administrative remedies having been twice dismissed from the Water Board. Petitioners contend
that the Water Board has refused to render a declaratory order and this action lies now within the jurisdiction
of the Chancery Court.”).
5
Pickard, ___ S.W.3d at ___, 2013 WL 6623553, at *7.
6
Pickard, ___ S.W.3d at ___, 2013 WL 6623553, at *8.
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§ 4-5-223 . . . as the procedure for seeking administrative and judicial review of the
Commissioner’s permitting decisions.” 7
Thus, this Court’s interpretation of Tenn. Code Ann. § 69-3-105(i) undermines not
only the viability of the Pickards’ April 6, 2009 petition, but also the viability of their January
16, 2009 petition. The purpose of enacting Tenn. Code Ann. § 69-3-105(i) was to “simplify
the administrative and judicial review of the Commissioner’s permitting decisions” 8 and to
“establish a single, straightforward process by which any aggrieved person . . . would be able
to obtain both administrative and, if necessary, judicial review of a decision by the
Commissioner regarding a discharge permit.”9 Accordingly, Tenn. Code Ann. § 69-3-105(i)
prevents parties such as the Pickards from using the procedures in Tenn. Code Ann. §§ 4-5-
223, -225 to seek administrative or judicial review of the Commissioner’s interpretation and
application of the Antidegradation Rule in the context of granting or denying a final
discharge permit.
Similarly, Tenn. Code Ann. § 69-3-105(i) prevents using Tenn. Code Ann. §§ 4-5-
223, -225 to seek premature administrative or judicial review of the Commissioner’s
interpretation and application of the Antidegradation Rule in the context of issuing a draft
permit. Any other interpretation of Tenn. Code Ann. § 69-3-105(i) would only perpetuate
the delays and complexity that the General Assembly desired to eliminate when it enacted
the statute.10
The petition for rehearing is respectfully denied with costs taxed to E. Ron Pickard
and Linda Pickard as trustees of the Sharon Charitable Trust and as individuals, from which
execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUSTICE
7
Pickard, ___ S.W.3d at ___, 2013 WL 6623553, at *8.
8
Pickard, ___ S.W.3d at ___, 2013 WL 6623663, at *8.
9
Pickard, ___ S.W.3d at ___, 2013 WL 6623663, at *8.
10
Our interpretation of Tenn. Code Ann. § 69-3-105(i) affords parties such as the Pickards the
opportunity to obtain the Board’s review of the Commissioner’s interpretation and application of the
Antidegradation Rule in the context of the issuance of a final discharge permit, as well as the opportunity
to seek judicial review of the Board’s decision in accordance with Tenn. Code Ann. § 4-5-322 (Supp. 2013).
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