Posted on October 24, 2022 by Allan Gates
On October 15th a large mob engaged in a public and ritualistic violation of the Clean Water Act in Knoxville, Tennessee. The mob had originally assembled at a location on the University of Tennessee campus to observe a demolition project being conducted by UT staff and students. Upon completion of the demolition project, the mob seized debris torn down at the project site, transported the debris to the banks of the Tennessee River, and unceremoniously dumped the debris into the river. Although it has not been confirmed, there are rumors that individual members of the mob may have discharged additional pollutants into the river as well.
There can be no doubt the mob’s actions violated the Clean Water Act. The Tennessee River at the location in question is navigable in fact and therefore constitutes a water of the United States within the meaning of Section 502(7) of the Clean Water Act. The mob’s actions in dumping the debris into the river unquestionably constituted a “discharge” as that term is defined in the Clean Water Act. And the metallic debris the mob transported from the demolition site to the river clearly constituted a “pollutant” as defined by the statute.
It is unclear at this point what enforcement action will be taken to remedy the gross violation of federal environmental law. The Southeastern Conference, shocked by the flagrant illegality of the mob’s conduct, immediately fined the University of Tennessee $100,000. Thus far, however, EPA has shown no signs of taking any enforcement action. If EPA does initiate some form of enforcement action, it is believed the University will argue that SEC rules preempt federal law in this situation, and that the league’s prompt enforcement action supersedes any enforcement authority EPA might otherwise have. In this regard, it is rumored that additional SEC punishment may be imposed on the University of Tennessee at proceedings scheduled for November 5th in Athens, Georgia and December 3rd in Atlanta.
In addition to government enforcement proceedings, the threat of a citizen suit cannot be overlooked. The Tennessee River flows downstream from Knoxville into Alabama in the vicinity of Huntsville and Muscle Shoals. There are reports that a large number of Alabama residents are aggrieved by the UT demolition project and the actions of the mob. One would expect that such emotions could easily lead to the filing of a citizen suit, but it appears the likelihood of a citizen suit is relatively small. Although the mob was photographed in the act of discharging debris into the river, it is difficult to identify from the photographs and video any specific individuals who were directly involved in causing the discharge. The University of Tennessee clearly has some culpability in the events, but legal scholars in Alabama caution that UT likely has a strong defense under Gwaltney of Smithfield v. Chesapeake Bay Foundation because the demolition project in Knoxville was a one-time event that is wholly past and unlikely ever to occur again.
Rocky Top, you’ll always be
Home sweet home to me
Good ol’ Rocky Top
Rocky Top, Tennessee
Rocky Top, Tennessee