Petition for Writ of Certiorari — Hughey v. JMS Development Corp.
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Supreme Court, U.S.
FILED
96 420 SEP 16 19%
Ok far PF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
TERENCE D. HUGHEY,
Petitioner,
V.
JMS DEVELOPMENT CORPORATION,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Stephen E. O’Day, Esq.
Counsel of record
Mark W. Kinzer, Esq.
Michelle R. Craig, Esq.
Smith, Gambrell & Russell
Suite 3100, Promenade II
1230 Peachtree Street, NE
Atlanta, Georgia 30309-3592
(404) 815-3500
Counsel for Petitioner
Terence D. Hughey
POLE LEMS LSE AA AT
QUESTIONS PRESENTED
1. Whether § 301 of the Clean Water Act prohibits the
discharge of pollutants without a permit.
2. Whether there is an exception to § 301's absolute
prohibition against the discharge of pollutants without a permit
when, as the Eleventh Circuit held in this case, the following
four factors are met: (1) compliance with the no discharge
standard is allegedly factually impossible; (2) no permit for the
discharge allegedly exists; (3) the discharger allegedly was in
good faith compliance with local pollution control
requirements that substantially mirrored a proposed NPDES
discharge standard; and (4) the discharges allegedly were
minimal.
3. Whether the permanent injunction issued against JMS
Development Corp. by the district court in this case complies
with Fed. R. Civ. P. 65(d).
LIST OF ALL PARTIES
Terence D. Hughey
JMS Development Corp.
~iti-
TABLE OF CONTENTS
QUESTIONS PRESENTED .... 1... ccc cece eee eees li
EE | ES Pe eee eee eee iii
po es I ere ee eee iv
py SF tl 8 fe SE are vii
a a abs 5 <4 ba ois 8's e's ae RK ca
STATEMENT OF JURISDICTION ................. 2
RELEVANT STATUTES/REGULATIONS ........... 3
py Se Ce 0 de. fle’: GaSe 3
ED in SICA e's aka be Wa eie sb 3
E's Warne sch s Ua eke CRRA OS ove es 7
RES Sa I a a 12
I. TheEleventh Circuit Opinion Conf it]
ee OR ES € 8”, 12
Il. Vv ircuit’ ini 1
ith Decisi Other United S :
-[V-
Should Also Be Reviewed by this Court. ......... 20
CR AMEE, . 00's 2c UR aan eR TELS ee 21
APPENDIX
1. Relevant Statutes/Regulations Relied Upon ...... 1-A
2. Hughey v. JMS Development Corp., 78 F.3d 1523
(11th Cir. 1996), reh’g denied, 89 F.3d 857 (11th Cir.
PORE F4. EO. iv ve.utavivee ea cients 4-A
3. Hughey v. JMS Development Corp., 89 F.2d 857
(11th Cir. June 17, 1996) - Denial of Rehearing ..... 29-A
4. Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N.D. Ga. August 31, 1992) ........... 31-A
5. Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N.D. Ga. September 11, 1992) ........ 33-A
6. Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N.D. Ga. November 9, 1992) ......... 34-A
7. Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N.D. Ga. March 29, 1993) ........... 61-A
8. Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N._D. Ga. December 15, 1993) ......... 80-A
a
9. Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N.D. Ga. February 24, 1994) ......... 102-A
10. Hughey v, JMS Development Corp., No. 1:92-CV-
2051-RHH (N.D. Ga. May 19, 1994) ............ 115-A
11. Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N_D. Ga. June 24, 1994) ............ 125-A
12 Hughey v. JMS Development Corp., No. 1:92-CV-
2051-RHH (N_D. Ga. July 7, 1994) ............. 127-A
13. City Investigating Cause of River Fire,
THE PLAIN DEALER, June 24,1969 .......... 129-A
14. Motion of the Environmental Protection
Division, Georgia I - Natural
R ihe 2 Diclel on Amicon Cl
(relevant portion only) .. 2... 2. eee 131-A
15. EPA RELEASES FINAL STORMWATER
DISCHARGE PERMIT, ENVIRONMENTAL NEWS,
PO A SUE Sa cb cw eee ccamese 133-A
1G. 35 Fed. Ree S70 (IMO) «2. ee, 135-A
17. GO Fed. Rom GESAG CIES) .w ck ccccs 136-A
1S. GO Fed. Bae SOR) sk wes cs ic deen 137-A
SD. Ol Pek. RO FramQeeees 2.66 a a ee 138-A
Cases
Anderson v. City of Bessemer, 470 U.S. 564, 576-78, 105
S. Gh. Te, SIRae Ce a eakkccoa ventless tas 7
Arkansas v. Oklahoma, 503 U.S. 91, 108, 112 S. Ct. 1046,
NG NN SS eee 11, 12,17
Chemical Manufacturers Ass’n v. Natura! Resources
Defense Council, Inc., 470 U.S. 116, 125, 105
S412. 16 ae a aaa 15, 16, 17
Chevron U.S.A., Inc. v. Natural Resource Defense Coun-
cil, Inc., 467 U.S. 837, 842-945, 104 S. Ct. 2778,
2701-2783 (NG: es 15, 16
City of Burlington v. Dague, 112 S. Ct. 2638 (1992) .... 17
City of Milwaukee v. Illinois and Michigan, 451 U.S. 304,
311, 101 S. Ct. 1784, 1789 (1981) ........ 12, 14, 16
Combs v. Ryan’s Coal Co., 785 F.2d 970, 978 (11th
Cir. 1986), cert. denied, 479 U.S. 853, 107 S. Ct.
DUE CEO ken kc hs RP Oe 20, 21
Commonwealth of Massachusetts v. United States
Veterans Administration, 541 F.2d 119, 121 (Ist
Coy BSED bc 58 eck aoe AN Oe ee ees Ee eeees 5
-Vil-
Concerned Area Residents for the Environment v.
Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994),
cert. denied, 115 S. Ct. 1793 (1995) ......... 2, 6, 17
E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112,
Sa rE We Ges POINTED é onk o cwceawe vos 12, 16
EPA v. California, ex re/. State Water Resources Control
Board, 426 U.S. 200, 205, 96 S. Ct. 2022, 2025
PRUE, oslecwee see Oke pete e es aw ee 12, 13, 16
EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 72,
og Se F). | Seer 12, 14, 16
Friends of the Earth v. Carey, 535 F.2d 165, 173 (2d Cir.
a ee eens ane 5
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 60, 108 S. Ct. 376, 383
SEES Wo Gusts uted tec sabe wea es oe ee
Hughey v. JMS Development Corp., No. 1:92-CV-2051-RHH
(N.D. Ga November 9, 1992). ................ 1,9
Hughey v. JMS Development Corp., No. 1:92-CV-2051-RHH
(N.D. Ga. December 15, 1993) ............... 1,14
Hughey v. JMS Development Corp., No. 1:92-CV-2051-RHH
(N.D. Ga. February 24, 1994) .............. 1, 7, 14
Hughey v. JMS Development Corp.,
78 F.3d 1523 (11th Cir. April 1, 1996),
-Vill-
reh’g denied, 89 F.3d 857 (11th Cir. June 17, 1996)
OW a olathe 3 oat ere eee 1, 2, 4, 14, 21
International Paper Co. v. Ouellette, 479 U.S. 481,
489, 107 S. Ce. 805, $10 (1987) ............. 13, 17
Keyes v. School District No. 1, 895 F.2d 659, 668-69
(10th Cir. 1990), cert. denied, 498 U.S. 1082, 111 S.
GE SS theese) 62k i ek. SE eee 21
Menzel v. County Utilities Corp., 712 F.2d 91, 94 (4th Cir
WON Ss Bo ot eat eeg tegen 2, 6,17
Middlesex County Sewerage Auth. v. National Sea
Clammers Ass’n, 453 U.S. 1, 11, 101 S. Ct. 2615,
RRA SOUEE hoo es oo es a 12, 13, 16
National Labor Relations Board v. Express Pub. Co., 312
U.S. 426, 435-438, 61 S. Ct. 693, 699-701 (1941) .. 20
National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C.
Cle WRI i caer eee, 2, 6, 17
Natural Resources Defense Council, Inc. v. Costle, 568
F.2d 1369, 1374-76 (D.C. Cir. 1977) ........ 2, 6,17
PUD No. | v. Washington Dept. of Ecology, 511 U.S.
Fou, 204 DS. Ch CCI) oo i aR 17
Sierra Club, Lone Star Chapter v. Cedar Point Oil
Co.,73F.3d 546 (Sth Cir. 1996), petition for cert. filed,
64 U.S.L.W. 3780 (U.S. May 10, 1996) (No. 95-1831)
Ree yh een eae 2, 5, 17, 18, 19, 20
Steelcase, Inc. v. Delwood Furniture Co., 578 F.2d 74, 78
(Sth Cir. 1978), cert. denied, 440 U.S. 960, 99 S. Ct.
RE cs ode bs bates be Ok OTR 7
U.S. v. Holtzman, 762 F.2d 720, 766 (9th Cir. 1985).... 21
United States v. Frezzo Bros., Inc., 602 F.2d 1123,
1127-38 (3d Cir. 1979), cert. denied, 444 U.S. 1074,
op Bk mo lt, | Benen tunis 2, 6, 17
United States v. Riverside Bayview Homes, Inc., 474 U.S.
B3i, 131, 106 S. Ce. 455, 461 C2965). os 15, 16
U.S. Dept. of Energy v. Ohio, 503 U.S. 607, 112. S. Ct.
Ee SR oes ee ee ae oe wer eee 17
Weinberger v. Romero-Barcelo, 465 U.S. 305, 308,
102 S. Ct. 1798, 1801 (1982) ....... 2, 13, 14, 15, 17
Statutes
Ee ARE os oa swt Rao LG KA pa 2
ee aay ee MRO, oo be does 6 n9 6 ws bls BRS 3,4
SLA. BP ROUEE | 5 os kta x4 cep ees 3, 13, 16
Po USD BE RMD 60s 5 av eS sae be eed ee 21
SS UL. BS BSS oa cook ii AR ie passim
iUOe 6 INE eee 3, 12, 19
[99 USS. OME: ii cs heer hee 7, 8, 18
USL OIE oo. 66 isch eee 3
USC. CHR LS cote ee 3,11
DULL: CIMNOND Sis ie toe haa cre
USC 6 OEE... cc. kiscereee ee. a
33 U.S.C. § 1362(14) .......... ‘aie oe he 3,9
33 U.S.C. § 1365... eT re a 3, 5, 19
USC CE so eee 7
33 U.S.C. § 1365(f(1) ... 2... 5... Peer ce 19
OCGA. CIBGDMD 2.5.0 ds cccdecceccse ah
O.C.G.A. § 12-7-6(18) (1992) .... 2.2... Pa a 10
Regulations
COM SIRI |. oivcdccccccxiance 3,9
55 Fed. Reg. 47990, 47990 (1990) ... 2... 2... cece. 15
GB Ped. Raw. SBSRD, SISSP CAPS) «wow ie ew ccnis.. 15
60 Fed. Reg. 62546, 62547 (1995) ................. 15
Gi Ped. Ram. U7IR, TIDE CHBOS) coon ccc eevee: 15
Rules
Federal:
ee cn oe wc Wad So bis bene a> ii, 20
yk eee Teeree reer cree 6, 16
State:
ER UPAR ceacccceaceuduaccadesdas 3, 14
Legislative Hist
118 Cong. Rec 36871 and 37054 (1972) ............. 3
S. REP. No. 414, 92ND CONG., 1ST SESS. 81 (1971) ..... 19
S. REP. No. 414, 92ND CONG., 2ND SESS. (1972), reprinted
pug Rib fod ee 8 | OR; ere 5
Miscellaneous
City Investigating Cause of River Fire, THE PLAIN DEALER, June 24,
eee PETS CTT OCTET TORRE OP 3
EPA RELEASES FINAL STORMWATER DISCHARGE
GENERAL PERMIT, “EPA’s Environmental News”
cpepeemines 3, BOma? ous see RAS a ee 10
-xiii-
No. 95-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
TERENCE D. HUGHEY,
Petitioner,
v.
JMS DEVELOPMENT CORPORATION,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Eleventh Circuit (“Eleventh Circuit”) is reported at 78 F.3d
1523 (ith Cir. 1996), reh’g denied, 89 F.3d 857 (11th Cir.
June 17, 1996), and is reprinted in the Appendix at p. 4-A. The
orders of the United States District Court for the Northern
District of Georgia in this case, No. 1:92-CV-2051-RHH, are
unreported. The relevant opinions of the District Court are
reprinted in the Appendix at pp. 31-A through 127-A.
STATEMENT OF JURISDICTION
The Court has jurisdiction in this case, pursuant to 28
U.S.C. § 1254(1), to review by writ of certiorari the final
decision of the United States Court of Appeals for the Eleventh
Circuit in Hughey v. JMS Development Corp., 78 F.3d 1523
(11th Cir. April 1, 1996), reh’g denied, 89 F.3d 857 (11th Cir.
June 17, 1996), which conflicts with the decision of this Court
in Weinberger v. Romero-Barcelo, 465 U.S. 305, 308, 102
S. Ct. 1798, 1801 (1982), and directly conflicts with the
following decisions of other Circuit Courts: Sierra Club, Lone
Star Chapter v. Cedar Point Oil Co., 73 F.3d 546 (Sth Cir.
1996), petition for cert. filed, 64 U.S.L.W. 3780 (U.S. May 10,
1996) (No. 95-1831); National Wildlife Federation v. Gorsuch,
693 F.2d 156 (D.C. Cir. 1982); Natural Resources Defense
Council, Inc. v. Costle, 568 F.2d 1369, 1374-76 (D.C. Cir.
1977); Concerned Area Residents for the Environment v.
Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994), cert. denied,
115 S. Ct. 1793 (1995); United States v. Frezzo Bros., Inc., 602
F.2d 1123, 1127-28 (3rd Cir. 1979)), cert. denied, 444 U.S.
1074, 100 S. Ct. 1020 (1980); Menzel _v. County Utilities
Corp., 712 F.2d 91, 94 (4th Cir. 1983), and which presents
issues of national importance.
RELEVANT STATUTES/REGULATIONS'
Petitioner relies primarily on the following statutes and
regulations: 33 U.S.C. § 1251(a); 33 U.S.C. § 1311(a); 33
U.S.C. § 1342(a); 33 U.S.C. § 1342(b); 33 U.S.C. § 1342(k);
33 U.S.C. § 1362(6); 33 U.S.C. § 1362(14); 33 U.S.C. § 1365;
33 C.F.R. § 328.3(a); O.C.G.A. § 12-5-30(a); DNR Rule
391-3-6-.15.
STATEMENT OF THE CASE
I. Introduction
In 1972, Congress reacted to water pollution so severe that
the Cuyahoga River in Cleveland, Ohio actually caught fire,”
and passed the Federal Water Pollution Control Act
Amendments, 33 U.S.C. §§ 1251, et seq. (the “Clean Water
Act”, “CWA” or the “Act”). The CWA passed Congress
overwhelmingly’ and became law on October 18, 1972. In
language as mandatory and absolute as any Congress has ever
enacted, Congress sought to control continued pollution of the
country’s rivers, streams and lakes, by stating: “except as in
compliance with [specified sections of the Act], the discharge
"The relevant text for these citations is contained in the Appendix at
p. 1-A.
°C ity Investigating Cause of River Fire, THE PLAIN DEALER, June 24,
1969. (Reprinted in Appendix at p. 129-A).
*The Senate approved the amendments, 52 yeas to 12 nays and the
House approved the amendments, 247 yeas to 23 nays. 118 Cong. Rec
36871 and 37054 (1972).
-%
of any pollutant by any person is illegal.” 33 U.S.C. § 1311.
Congress’ absolute prohibition has remained unchanged and
intact through several amendments to the Clean Water Act, and
until the Eleventh Circuit’s opinion‘ in this case, has been fully
supported by strong language from this Court, and other federal
courts that have interpreted the law since 1972. Now, for the
first time, contrary to express language in this Court’s
opinions, and in direct conflict with rulings from other Circuit
Courts of Appeal, the Eleventh Circuit, Hughey v. JMS
Development Corp., 78 F.3d 1523 (11th Cir. 1996), reh’g
denied, 89 F.3d 857 (11th Cir. June 17, 1996), (“JMS”), has
created a judicial exception to Congress’ absolute prohibition,
an exception which is unsupported by any language in the
Clean Water Act, and which finds no support in the legislative
history of the Act. Petitioner seeks a writ of certiorari from this
Court to correct the travesty of justice thus visited by the
Eleventh Circuit upon the citizens and waters of this country.’
The Eleventh Circuit’s judicial exception to Congress’
absolute prohibition of the discharge of pollutants into waters
of the United States without a permit allows the continuation
of pollution which the U.S. Environmental Protection Agency
(“EPA”) has called “the leading [and the] largest remaining,
virtually unaddressed source of water pollution” in the country,
(R3-26-7), “causing an estimated one-third of impaired water
*The Eleventh Circuit’s opinion in this case was written by U.S.
District Court Judge Wilbur Owens, sitting by designation.
*The case originated in the United States District Court for the
Northern District of Georgia. The district court had federal question
jurisdiction over the case to review Mr. Hughey’s claims under the federal
Clean Water Act, 33 U.S.C. § 1251 et seq.
4.
|
quality nationwide” (R2-19-18), when “slumbering [state]
agencies” like the State of Georgia in this case fail or refuse to
enforce the law’s requirements. See Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60, 108
S. Ct. 376, 383 (1987) (citizen suits are designed for when
federal, state or local agencies fail to exercise enforcement
authority); Friends of the Earth v. Carey, 535 F.2d 165, 173 (2d
Cir. 1976) (the purpose of the citizen’s liberal right of action is
to stir slumbering agencies and to circumvent bureaucratic
inaction); S. REP. No. 414, 92ND CONG., 2ND SEss. (1972),
reprinted in 1972 U.S.C.C.A.N. 3668, 3747 (citizens perform
a public service by bringing citizen suits under the CWA). In
doing so, the Eleventh Circuit nullified another crucial
provision of the Clean Water Act, the citizens suit provision
contained in 33 U.S.C. § 1365, which the courts have
acknowledged was established by Congress to supplement the
enforcement of the Act by federal and state agencies.
Gwaltney, 484 U.S. at 60, 108 S. Ct. at 383 (a citizen suit is
meant to supplement governmental action); Commonwealth of
Massachusetts v. United States Veterans Administration, 541
F.2d 119, 121 (Ist Cir. 1976) (the Clean Water Act’s citizen
Suit provision was designed to supplement and expedite
administrative action to abate violations of the Act).
Because the opinion written by Judge Owens is contrary
to express language contained in this Court’s opinion, because
the opinion directly conflicts with the opinion of the Fifth
Circuit Court of Appeals in Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co., 73 F.3d 546 (Sth Cir. 1996), petition for
cert. filed, 64 U.S.L.W. 3780 (U.S. May 10, 1996) (No.
95-1831) and previous holdings of the District of Columbia,
Second, Third and Fourth Circuit Courts of Appeals,® and
because the opinion judicially creates a gaping hole in the
foundation of Congress’ structure for controlling pollution of
this country’s waters, and allows massive pollution of the
waters to continue unchecked, Petitioner submits that, in
satisfaction of all this Court’s factors for the issuance of a writ
of certiorari, Sup. Ct. R. i0, this case begs for the Court’s
attention.
In reaching its opinion, the Eleventh Circuit ignored,
without reversing, crucial holdings by the trial court which
state a clearer picture of the facts than is contained in the
*National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir.
1982) (the a of a — by any aes without a permit is
unlawful); Ne >, 568 F.2d
1369, 1374-76 @. C. Cir. 1977) (Congress ieleeial the NPDES permit to
be the only means by which a point source may escape the total prohibition
of § 301 of the Act), Concerned Area Residents for the Environment v.
Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994), cert. denied, 115 S. Ct.
1793 (1995) (the Act provides that absent a permit, the discharge of any
pollutant by any person shall be unlawful), United States v. Frezzo Bros.,
Inc., 602 F.2d 1123, 1127-28 (3rd Cir. 1979)), cert. denied, 444 U.S. 1074,
100 S. Ct. 1020 (1980) (the Act flatly prohibits any discharge of pollutants
even where EPA has failed to promulgate applicable effluent limitations,
and the discharger has not applied for a permit; Menzel_v. County Utilities
Corp., 712 F.2d 91, 94 (4th Cir. 1983) (the Act forbids any pollutant
discharge into waters of the U.S. except in accordance with a valid NPDES
permit).
i“.
‘Ra a ii
Eleventh Circuit opinion.’ A brief rendering of those facts
therefore is necessary here.
II. Facts.
On August 28, 1992, Petitioner Terence D. Hughey
(“Hughey”) began this litigation in the United States District
Court for the Northern District of Georgia by filing a complaint
against JMS Development Corporation (“JMS”) seeking
injunctive relief, civil penalties and attorneys’ fees, pursuant to
the citizen suit provision of the Clean Water Act, 33 U.S.C.
§ 1365(a). For a period of at least six months prior to that date,
and continuing thereafter, JMS knowingly discharged polluted
water from its residential subdivision development in Gwinnett
County, Georgia without a permit issued pursuant to Section
402 of the CWA, 33 U.S.C. § 1342, in direct violation of
Section 301 of the CWA, 33 U.S.C. § 1311. Hughey v. JMS
Development Corp., No. 1:92-CV-2051-RHH (N.D. Ga.
February 24, 1994), pp. 9-12, (R6-58-9-12) (reprinted in
Appendix at p. 102-A); R11-6-8, 79-85; R12-15-23; P. Exh.
25, 29, 31 (photos, videotape and sample results). Appellant’s
discharges exceeded limits established in state and local law by
more than 2,000 times those limits. R3-26-3; P. Exh. 28, 31
(sample results). JMS’ polluted discharges converted a
’The Eleventh Circuit did not find any of the district court’s factual
findings “clearly erroneous” and, therefore, those factual decisions still
stand and are still controlling. See Anderson v. City of Bessemer, 470 U.S.
564, 576-78, 105 S. Ct. 1504, 1512-13 (1985) (a reviewing court is bound
by the lower court’s factual findings, unless those findings are found to be
clearly erroneous); Stee c. v. Delwood o., 578 F.2d 74,
78 (Sth Cir. 1978) (a trial court’s factual findings are controlling unless
clearly erroneous), cert. denied, 440 U.S. 960, 99 S. Ct. 1503 (1979).
3.
formerly clear running stream containing organic material and
stream life into a dead stream covered by six to nine inches of
sediment. R3-26-27; R9-9-10; R11-6-8, 79 to 85; P. Exh. 9
through 24, 29 (photographs). The discharges polluted and
choked downstream wetlands, and polluted the Yellow River,
into which the stream flowed. Id. The polluted water
thereafter flowed through Mr. Hughey’s property.
On August 31, 1992, after a hearing at which both parties
were represented, the district court entered a temporary
restraining order prohibiting further discharges. On October
16, 1992, the court held an evidentiary hearing on Hughey’s
motion for contempt of the TRO, and on JMS’ motion to
dissolve the TRO. R8 through R11. On November 4, 1992,
the court held an evidentiary hearing on Hughey’s motion for
preliminary injunction. R11. On November 9, 1992, the
district court denied JMS’ motions and granted a preliminary
injunction, prohibiting further discharges of pollutants into
waters of the U.S. without a National Pollutant Discharge
Elimination System (“NPDES”) permit.* R3-26.
After an additional evidentiary hearing on standing, the
district court entered final judgment on February 24, 1994
finding that JMS had violated the CWA on seventeen (17)
separate occasions by discharging polluted stormwater through
point sources constructed by JMS into the waters of the United
States without a permit. R6-58-10. The district court assessed
civil penalties in the amount of $8,500.00, and ordered JMS to
reimburse Hughey for his costs of litigation and attorneys’ fees.
®NPDES permits are authorized by § 402 of the CWA, 33 U.S.C.
§ 1342.
-8-
R6-58. The court also entered a permanent injunction
prohibiting JMS from discharging “stormwater” into waters of
the United States if such discharges would be in violation of
the Act. R6-58-14. Ina later order, the district court awarded
Hughey his attorneys’ fees and expenses of litigation. R7-72.
It was undisputed in the district court that soil and
sediment from JMS’ construction activities constituted
“pollutants” within the meaning of the CWA, 33 U.S.C.
§ 1362(6). It was also undisputed that JMS constructed and
operated the pipes through which stormwater containing those
pollutants was discharged from the residential development,
and that those pipes were “point sources” within the meaning
of the CWA, 33 U.S.C. § 1362(14). It was also undisputed that
the pollutants were discharged into “waters of the United
States”, within the meaning of 33 C.F.R. § 328.3(a).
In seeking and obtaining the permanent injunction and
penalties assessed by the district court on the basis of such
undisputed facts, Mr. Hughey epitomized the private attorney
general envisioned by Congress when it enacted the citizen suit
provision of the Act. Having noticed in his daily walks
through his subdivision that JMS’ new development was
discharging massive quantities of silt and sediment into a
stream, which in turn fed the Yellow River above Mr.
Hughey’s home, R12-21, 102-103; P. Exh. 9 through 25, 29, 36
(photographs and videotape), Mr. Hughey documented the
*The district court defined “stormwater” as “water that contains
sedimentation from land disturbing activities.” Hughey v. JMS Develop-
ment _Corp., No. 1:92-cv-2051-RHH (N.D. Ga. November 9, 1992)
(R3-27-3) (reprinted in Appendix at p. 34-A).
-9-
polluted discharges in videotapes and photographs submitted
to the district court. P. Exh. 25, 36 (videotapes); R12-20-24.
He also sampled the discharges, documenting levels of
pollution over 2,000 times the level allowed under state law.
P. Exh. 31 (sample results); R9-29-32; R11-8-13, 15-29, 77-97;
see O.C.G.A. § 12-7-6(18) (1992) (setting a limit on turbidity
of discharges from construction activities of 50 nephelometric
turbidity units (““NTUs”) above the level of the receiving
stream). He also retained an expert to investigate the pollution
and analyze its impact on the stream. The expert, a professor
of hydrology and soil science at the University of Georgia,
testified that the pollution literally smothered the streambed,
and caused polluted water to flow from the subdivision all the
way into the Yellow River. R9-9-10.
Mr. Hughey thus sought to address, in a citizen suit filed
under the CWA, pollution which the EPA has declared to be
“the leading [and the] largest remaining, virtually unaddressed
source of water pollution” in the country, EPA RELEASES
FINAL STORMWATER DISCHARGE GENERAL PERMIT
in “EPA’s Environmental News” (September 3, 1992)
(R2-19-18) (relevant portions reprinted in Appendix at p.
133-A), which causes “an estimated one-third of impaired
water quality nationwide,” Environmental Protection Division,
Brief as Amicus Curiae, Hughey v. JMS Development Corp.
No. 1:92-CV-2051-RHH (N.D.Ga. 1992) (R2-19-18) (reprinted
in Appendix at 131-A). The State of Georgia Environmental
Protection Division also has recognized that runoff from
construction sites is now a significant cause of water quality
degradation. Id. at 10.
-10-
Contributing to the nationwide trend of uncontrolled
discharges of water pollution from construction sites, JMS
neither sought nor obtained a permit for its discharges until
after the district court entered a temporary restraining order.
Although its discharges continued after the TRO was entered,
JMS never obtained a permit for the discharges. Finding that
the State of Georgia Environmental Protection Division
(“EPD”), which had been delegated permit issuing authority
pursuant to the CWA, 33 U.S.C. § 1342(b), had not made such
a permit available, and ignoring the absolute prohibition under
the CWA against discharges of pollutants without a permit,
33 U.S.C. § 1311, the Eleventh Circuit Court of Appeals, in an
“nterpretation of the statute [which] had not been advanced by
any party during the [appeal]”, Arkansas v. Oklahoma, 503
U.S. 91, 108, 112 S. Ct. 1046, 1058 (1992), “made a policy
choice that it was not authorized to make”, Id. at 113, 112
S. Ct. at 1061, and reversed the district court. In order to do so,
the Eleventh Circuit created a new exception to § 301 under
which any person may discharge pollutants into waters of the
United States without a permit if: (1) compliance with the no
discharge standard is factually impossible; (2) no permit for the
discharge exists; (3) the discharger was in good faith
compliance with local pollution control requirements that
substantially mirrored a proposed NPDES discharge standard;
and (4) the discharges were minimal. For the reasons set forth
hereinafter, Petitioner urges the Court to issue a writ of
certiorari to review the Eleventh Circuit’s opinion, and to
reverse the judgment of the Eleventh Circuit, and reinstate the
district court’s judgment.
ike
ARGUMENT
l. The Eleventh Circuit Opinion Conf th Pri
Decisions of thie Court
In the almost 25-year history of its interpretations of the
CWA, this Court has consistently and unequivocally stated that
§ 301(a) of the CWA, 33 U.S.C. § 1311, absolutely prohibits
discharges of pollutants into waters of the United States unless
a permit authorizes such discharges. As Chief Justice
Rehnquist stated in one of the earliest cases, the CWA
“established a new system of regulation under which it is
illegal for anyone to discharge pomutents into the Nation’s
waters except pursuant to a permit.” City of Milwaukee v.
Illinois and Michigan, 451 U.S. 304, 311, 101 S. Ct. 1784,
1789 (1981) (“City of Milwaukee”). Most recently, this Court
unanimously reaffirmed that discharges of pollutants without
a permit are absolutely prohibited: “[sJection 301(a) of the
Act, 33 U.S.C. § 1311(a), generally prohibits the discharge of
any effluent into a navigable body of water unless the point
source has obtained an NPDES permit.” Arkansas, 503 U.S. at
102, 112 S. Ct. at 1054. In between, this Court has mirrored in
its opinions the absolute language of § 301, stating on
numerous occasions that “under the NPDES, it is unlawful for
any person to discharge a pollutant without obtaining a permit
and complying with its terms.” EPA v. California, ex re/. State
Water Resources Control Board, 426 U.S. 200, 205, 96 S. Ct.
2022, 2025 (1976) (State Water Resources Control Board); see
also E.1. duPont de Nemours & Co, v. Train, 430 U.S. 112,
118, 97 S. Ct. 965, 970 (1977) (“duPont”); EPA v. National
Crushed Stone Ass’n, 449 U.S. 64, 72, 101 S. Ct. 295, 301
(1980) (“National Crushed Stone”); Middlesex County
-]2-
|
Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1,
11, 101 S. Ct. 2615, 2622 (1981) (“National Sea Clammers”);
Weinberger v. Romero-Barcelo, 456 U.S. 305, 308, 102 S. Ct.
1798, 1801 (1982) (“Romero-Barcelo”); International Paper
Co. v, Ouellette, 479 U.S. 481, 489, 107 S. Ct. 805, 810 (1987)
(“Quellette”); Gwaltney of Smithfield, Ltd, v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 53, 108 S. Ct. 376, 379 (1987)
(“Gwaltney”).
Ignoring these statements, the Eleventh Circuit has
smashed a gaping hole in the prohibition of discharges without
a permit, which this Court nas acknowledged as the foundation
of Congress’ effort “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.”'° 33
U.S.C. § 1251 (a). See State Water Resources Control Board,
426 U.S. at 205, 96 S. Ct. at 2025 (the NPDES permit program
was one of the major changes to the CWA in the 1972
amendments); National Sea Clammers, 453 U.S. at 11, 101
S. Ct. at 2622 (the 1972 amendments shifted the emphasis of
the CWA to direct restrictions of discharges); Romero-Barcelo,
456 U.S. at 319, 102 S. Ct. at 1807 (the permit system is the
key to accomplishing the purpose of the CWA--the elimination
of water pollution); Quellette, 479 U.S. at 489, 107 S. Ct. at
810 (the NPDES permit system is one of the primary features
‘The four factors articulated by the Eleventh Circuit as considerations
for determining CWA liability are appropriate only in the penalty phase, and
in fact were taken into account by the district court in reducing the penalty
award against JMS to $8,500. (R6-58). The Eleventh Circuit has subverted
Congress's careful scheme of establishing absolute liability for the
discharge of pollutants without a permit, while allowing special mitigating
circumstances (such as those illustrated by the four factors) to reduce the
civil penalty imposed against the discharger.
-13-
of the 1972 Amendments to the CWA). In creating an
exception which contradicts numerous opinions of this Court,
and which “[t}he plain language of the statute does not
support”, National Crushed Stone, 449 U.S. 64, 73, 101 S. Ct.
295, 302, the Eleventh Circuit reacted to what it perceived to
be an injustice created by the asserted unavailability of a permit
for JMS’ discharges, coupled with what it perceived to be the
minimal level of those discharges." Making a judgment that
the law as enacted by Congress would “compel an odd result,”
JMS, 78 F.3d at 1523, the Eleventh Circuit substituted its own
judgment for that of Congress. However, “it is for Congress,
not federal courts, to articulate the appropriate standards to be
applied as a matter of federal law.” City of Milwaukee, 451
U.S. 304, 305, 101 S. Ct. 1784, 1786. In doing so, the
Eleventh Circuit also ignored this Court’s holding in Romero-
“As stated above, the Eleventh Circuit's perception of the case
directly contravened the facts as found by the district court from undisputed
evidence in the case: (1) that prevention of the discharges was possible and
in fact easy enough to allow reduction of the assessed penalty due to the
district court’s finding that JMS did not gain economic benefit from failing
to install the necessary pollution control mechanisms, Hughey v. JMS
Development Corp., No. 1:92-CV-2051-RHH (N.D. Ga. February 24,
1994), p. 12 (R6-58-12) (reprinted in Appendix at p. 102-A); and (2) that
JMS violated state effluent limitations on the 17 occasions on which it
discharged pollutants without a permit, Hughey v. JMS Development Corp.,
No. 1:92-CV-2051-RHH (N.D. Ga. December 15, 1993), pp. 9-10, 13, 15,
22, 27 (R6-52-9-10, 13, 15, 22, 27) (reprinted in Appendix at p. 80-A). The
Eleventh Circuit also ignored EPA-approved state regulations which
provided for the availability of a permit covering JMS’ discharges of
stormwater containing soil and sediment from JMS’ construction activities,
which JMS did not even attempt to obtain. O.C.G.A. § 12-5-30(a); DNR
Rule 391-3-6-.15. Finally, the Eleventh Circuit ignored undisputed facts in
the record that JMS’ discharges had smothered the life of the receiving
stream, R9-9-10, and therefore were not “minimal.”
-14-
Barcelo, which should have compelled affirmance of the
district court’s order.
In Romero-Barcelo, this Court affirmed a district court
order finding that discharges of ordnance by the United States
Navy through accidental bombings of navigable waters,
without a permit, were unlawful under § 301(a) of the CWA.
This Court affirmed the district court’s holding that such
discharges were unlawful, even though EPA had not made a
permit available for such discharges, and even though the
discharges were minimal and “have not harmed the quality of
the water.” Romero-Barcelo, 456 U.S. at 307, 102 S. Ct. at
1801. Those holdings were affirmed by this Court without
discussion, on its way to ruling that the district court properly
exercised its equitable discretion in failing to enjoin the
discharges, and instead ordering the Navy to obtain a permit
from EPA for its discharges.
The Eleventh Circuit’s opinion below therefore contradicts
not only numerous statements in this Court’s opinions that the
CWA prohibits all discharges of pollutants into waters of the
United States without a permit, but also directly contradicts this
Court’s affirmance of the district court order in Romero-
Barcelo, that even minimal, nonharmful discharges of
pollutants into waters of the U.S. are illegal without a permit,
even though permits for such discharges have not been made
available by EPA."* Because the Eleventh Circuit’s opinion
The Eleventh Circuit’s opinion also conflicts with the Court’s finding
that an agency’s interpretation of a statute is entitled to deference. United
States v. Riverside Bayview Homes, Inc., 476U.S. 121, 131, 106 S. “a 455,
461 (1985); ics .
Council, Inc., 470 U.S. 116, 125, 108 $c 1102, 1107: re.
-15-
“has decided an important federal question in a way that
conflicts with relevant decisions of this Court”, Sup. Ct. R.
10(c), this Court shouid grant certiorari and reverse the
Eleventh Circuit.
I. The El h Circuit’s Opinion Conf ith Decisi
of Other United States Courts of Appeals on the Same
Matter.
It cannot be argued that the “chemical, physical, and
biological integrity of the Nation’s waters”, 33 U.S.C.
§ 1251(a), is a matter of utmost national importance. This
Court has acknowledged the importance of a correct interpreta-
tion of the CWA by granting certiorari on at least fourteen (14)
separate occasions in the last 20 years to correct erroneous
interpretations of the CWA.” This Court has not hesitated to
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 842-945, 104
S. Ct. 2778, 2781-2783 (1984). The EPA consistently interprets § 301 of
the CWA as an absolute prohibition against the discharge of pollutants into
waters of the U.S. without a permit. See 55 Fed. Reg. 47990, 47990 (1990);
60 Fed. Reg. 53529, 53529 (1995); 60 Fed. Reg. 62546, 62547 (1995); 61
Fed. Reg. 1730, 1731 (1996) (reprinted in Appendix at pp. 135-A through
138-A). The Eleventh Circuit’s opinion, creating an exception to the
absolute language of § 301, further conflicts with the precedent of this Court
because it fails to give deference to the EPA’s interpretation of § 301.
Riverside Bayview Homes, 474 U.S. at 131, 106 S. Ct. at 46; Chemical
Manufacturers, 470 U.S. at 125, 105 S. Ct. at 1107; Chevron, 467 U.S. at
842-845, 104 S. Ct. at 2781-2783.
US. 200, 96 S. Ct 2022 (1976): DuPont, 430 US. 112, 97 S. Ct 965
(1977), National Crushed Stone, 449 U.S. 64, 101 S. Ct. 295 (1980); City
of Milwaukee v. Illinois and Michigan, 451 U.S. 304,101 S. Ct. 1784
(1981); National Sea Clammers Assoc.,453 U.S. 1, 101 S. Ct. 2615 (1981);
-16-
grant certiorari to resolve conflicts among the Circuit Courts of
Appeal on interpretations of the CWA.
The Eleventh Circuit opinion in this case directly
contradicts, without even citing, the holding of the United
States Court of Appeals for the Fifth Circuit in Cedar Point Oil
Co., 73 F.3d at 561, and holdings of the District of Columbia
(National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C. Cir.
1982); Natural Resources Defense Council, Inc. v. Costle, 568
F.2d 1369, 1374-76 (D.C. Cir. 1977)), Second (Concerned
Area Residents for the Environment v. Southview Farm, 34
F.3d 114, 117 (2d Cir. 1994), cert. denied, 115 S. Ct. 1793
(1995)), Third (United States v. Frezzo Bros., Inc., 602 F.2d
1123, 1127-38 (3d Cir. 1979), cert: denied, 444 U.S. 1074, 100
S. Ct. 1020 (1980)), and Fourth (Menzel v. County Utilities
Corp., 712 F.2d 91, 94 (4th Cir. 1983)), Circuit Courts of
Appeal. The cited cases from the District of Columbia,
Second, Third and Fourth Circuits all follow the above quoted
statements from this Court’s opinions, and hold, e.g., that
Congress intended the NPDES permit to be the only means by
which a point source may escape the total prohibition against
discharges of pollution under § 301(a) of the CWA. Costle,
Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798 (1982); United States v.
area ry eer cm ga 474 US. iat, 106 S. Ct. 455 —
Inc, 470 US. 116, 105 S. Ct. 1102 (1985): Ouellette, 479 U.S. 481, 107
S. Ct 805 (1987); Gwaltney, 484 U.S. 49, 108 S. Ct. 376 (1987); U.S. Dept.
of Energy v. Ohio, 503 U.S. 607, 112. S. Ct 1627 (1992); City of
Burlington v. Dague, 112 S. Ct. 2638 (1992); Arkansas v. Oklahoma, 503
U.S. 91, 112 S. Ct. 1046 (1992); PUD No. 1 v. Washington Dept. of
Ecology, 511 U.S. 700, 114 S. Ct. 1900 (1994).
=}7-
supra. The Eleventh Circuit’s creation of an exception to that
absolute prohibition contradicts those holdings.
The Eleventh Circuit decision most directly conflicts with
the recent decision of the Fifth Circuit in Cedar Point Oil. In
that case, the plaintiff filed a citizen suit alleging that Cedar
Point Oil “was violating the CWA by Gacheryng produced
water into Galveston Bay without a permit ... .” Cedar Point
Oil, 73 F.3d at 550. Like the defendant in this case, Cedar
Point Oil argued that the Sierra Club had “failed to state a
claim with respect to the discharges ... because EPA has not
established an applicable effluent limitation or permit for those
discharges.” Id. at 559. Rejecting the contention adopted by
the Eleventh Circuit in this case, the Fifth Circuit held that “a
citizen may bring an action against a person allegedly
discharging a pollutant without a permit, even if the
discharger’s illegal behavior results from EPA’s failure or
refusal to issue the necessary permit.” Id. at 561. Without
citing or mentioning the Cedar Point Oil decision, the Eleventh
Circuit reached a directly contrary result in this case, holding
that the failure by the Georgia EPD (which had been delegated
permit issuing authority from the EPA pursuant to 33 U.S.C.
§ 1342) to make a permit available, justified JMS’ discharges
in this case, and, together with the other factors established by
the Eleventh Circuit, made those discharges lawful.
The Fifth Circuit’s decision in Cedar Point Oil was based
on a careful review of the language utilized by Congress in the
CWA, and the legislative history of the CWA. For example,
the Fifth Circuit noted that when Congress initially passed the
CWA in 1972, Congress recognized that there would be a time
period during which dischargers would be discharging
-18-
a ee ae ae
5 SDM
3
pollutants without a permit because a permit was not yet
available under the Act. Congress protected such dischargers
from citizen suits for a specified time period, by providing that
33 U.S.C. § 1365 did not allow a citizen to bring an action
against a person allegedly committing an unlawful act under
§ 301(a), 33 U.S.C. § 1311(a), (discharging without a permit)
until July 1, 1973. 33 U.S.C. § 1365(f)(1). The legislative
history states that Congress delayed the availability of a citizen
suit based on an unlawful act under § 301(a) in order to give
EPA and states time to issue all the permits required by the
CWA. S. REP. NO. 414, 92ND CONG., 1ST SESS. (1971).
The Fifth Circuit also noted that EPA and the states have
yet to achieve the goal of making all of the necessary permits
available under the CWA. “Nevertheless, Congress has not
amended the statute to account for the fact that, since July 1,
1973, numerous entities have violated § 1311(a) by discharging
pollutants without a permit because EPA and the states have
not issued the necessary permits.” Cedar Point Oil, 73 F.3d at
560.
Congress provided a similar temporary reprieve in 33
U.S.C. § 1342(k), under which until December 31, 1974,
discharges without a permit for which an application had been
filed but the permit not issued, would not violate § 301. Again,
the legislative history indicated that the provision was intended
to provide a “liability shield” to dischargers for a limited time.
Id. (citing A Legislative History of the Water Pollution Control
Act Amendments of 1972, p. 274 (Environmental Policy Div.,
Congressional Research Serv. ed. 1973)). Again, “Congress
has not extended the availability of this liability shield beyond
its original expiration date, despite the fact that application for
-19-
permits are continually filed and many remain pending.”
Cedar Point Oil, 73 F.3d at 560.
The Eleventh Circuit’s decision in this case directly
conflicts with the Fifth Circuit’s opinion in Cedar Point Oil.
Because § 301(a) has previously been found by this Court to be
the cornerstone of the CWA, the gaping hole created by the
Eleventh Circuit in that cornerstone is an important matter of
federal law. Petitioner therefore urges this Court to grant a writ
of certiorari to review the Eleventh Circuit’s erroneous
interpretation of the CWA, and reverse its judgment.
Il. T leven ircuit’ iV i houl
In an alternative ruling, the Eleventh Circuit also reversed
the district court’s injunction as invalid under Fed. R. Civ. P.
65(d), because it was not sufficiently specific. In successive
rulings in the TRO, the preliminary injunction and the
permanent injunction, the district court prohibited JMS from
discharging any pollutants into the waters of the United States
without a permit. The permanent injunction prohibited JMS
from discharging polluted stormwater into waters of the United
States if such discharges would be in violation of the CWA.
Having held that it was the failure to have a permit for such
discharges that caused the discharges to be in violation of the
CWA, the district court had made it clear that JMS could
comply with the injunction either by ceasing its discharges, or
obtaining a permit for those discharges. JMS could clearly
understand its obligations under the injunction. Combs v.
Ryan’s Coal Co., 785 F.2d 970, 978 (11th Cir. 1986), cert.
denied, 479 U.S. 853, 107 S. Ct. 187 (1986). See also National
-20-
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Labor Relations Board v. Express Pub. Co., 312 U.S. 426,
435-438, 61 S. Ct. 693, 699-701 (1941). The Eleventh Circuit
apparently wanted the district court to go further and
mandatorily enjoin JMS to take specific acts. JMS, 78 F.3d at
1531. However, it is JMS’s duty under the Act to take the
necessary steps to cease its discharges of pollution, not the
court’s duty to tell it how to do so.
In any event, an injunction failing to meet Rule 65(d)’s
specificity requirement should not necessarily be voided.
Combs, 785 F.2d at 978. Instead, the Eleventh Circuit should
have remanded the case to the district court to revise the
wording of the injunction, or should have corrected the
injunction. Id. See also Keyes v. School District No. 1, 895
F.2d 659, 668-69 (10th Cir. 1990), cert. denied, 498 U.S. 1082,
111 S. Ct. 951 (1991); U.S. v. Holtzman, 762 F.2d 720, 766
(9th Cir. 1985). This Court should review the Eleventh
Circuit’s alternative reason for reversing the district court, and
remand the case to the Eleventh Circuit for proceedings not
inconsistent with this Court’s rulings.
CONCLUSION
The Eleventh Circuit’s decision is nothing short of
revolutionary. It disregards clear statutory language and
substitutes its own judgment for that of Congress. It ignores
opinions from this Court, and from all other Circuit Courts of
Appeal which have addressed the issue, all of which have
found § 301(a) of the CWA to be an absolute prohibition of any
discharge of any pollutants into any waters of the United States
without a permit. This extreme example of judicial activism by
the Eleventh Circuit in contravention of this Court’s opinions
21.
should be reviewed by this Court in order to ensure the
continued integrity of the water pollution control program
enacted by Congress in 1972 and enforced by all courts which
have interpreted it ever since. Even limited to its facts, the
panel decision contravenes the express purpose of the Act to
eliminate the discharge of pollutants into the waters of the U.S.
in order to make the waters safe for wildlife and recreation. 33
U.S.C. § 1251(a)(1)(2). Petitioner urges this Court to grant a
writ of certiorari in order to restore the law to the state
previously recognized by this Court: that there shall be no
discharge of water pollution into U.S. waters except in
compliance with a CWA permit.
Respectfully submitted,
Stephen E. O’Day
Counsel of Record
Mark W. Kinzer
Michelle R. Craig
Smith, Gambrell & Russell
Suite 3100, Promenade II
1230 Peachtree Street, NE
Atlanta, Georgia 30309-3592
(404/815-3500 - Telephone)
(404/815-3509 - Facsimile)
Counsel for Petitioner
my a
No. 95-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
TERENCE D. HUGHEY,
Petitioner,
v.
JMS DEVELOPMENT CORPORATION,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
APPENDIX
RELEVANT STATUTES/REGULATIONS
RELIED UPON’
33 U.S.C. § 1251(a) -- “The objective of this chapter is
to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.”
33 U.S.C. § 1311(a) -- “Except as in compliance with
this section and sections ... 1342 ... of this Title, the
discharge of any pollutant by any person shall be
unlawful.”
33 U.S.C. § 1342(a) -- “Except as provided in sections
1328 and 1344 of this Title, the administrator may,
after opportunity for public hearing, issue a permit for
the discharge of any pollutant, or combination of
pollutants, notwithstanding section 1311(a) of this
Title, upon condition that such discharge will meet
either (A) all applicable requirements under sections
1311, 1312, 1316, 1317, 1318, and 1343 of this Title,
or (B) prior to the taking of necessary implementing
actions relating to all such requirements, such
conditions as the administrator determines are
necessary to carry out the provisions of this chapter.”
33 U.S.C. § 1342(d) -- “At any time after the
promulgation of the guidelines required by subsection
(i(2) of section 1314 of this Title, the governor of each
state desiring to administer its own permit program for
discharges into navigable waters within its jurisdiction
Only relevant portions included.
1-A
may submit to the administrator a full and complete
description of the program it proposes to establish and
administer under state law or under an interstate
compact ... . The administrator shall approve each
such submitted program unless he determines that
adequate authority does not exist ...”
33 U.S.C. § 1342(k) -- “Compliance with a permit
issued pursuant to this section shall be deemed
compliance, ..., with section 1311, ... of this Title, ...”
33 U.S.C. § 1362(6) -- “The term ‘pollutant’ means
dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical waste,
biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste
discharged into water.”
33 U.S.C. § 1362(14) -- “The term ‘point source’
means any discernible, confined and _ discrete
conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding
operation or vessel or other floating craft, from which
pollutants are or may be discharged.”
33 C.F.R. § 328.3(a) -- “(1) All waters which are
currently used, or were used in the past, or may be
susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and
flow of the tide; (2) All interstate waters including
2-A
interstate wetlands; (3) All other waters such as
intrastate lakes, rivers, streams (including intermittent
streams), mudslides, sandslides, wetlands, sloughs,
prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation or destruction of which
could affect interstate or foreign commerce ...”
4
5
&
q
H
;
i
9. O.C.G.A., § 12-5-30(a) -- “Any person who owns or
operates a facility of any type or who desires to erect,
modify, alter, or commence operation of a facility of
any type which results or will result in the discharge of
pollutants from a point source into the waters of the
state shall obtain from the director a permit to make
such discharge.”
eS ee ae ee ee
10 DNR Rule 391-3-6-.15(a)2 -- “General Permit
Requirements” -- “The director may issue a general
permit...”
11. DNR Rule 391-3-6-.15(b)2 -- “Requiring an Individual
Permit” -- “The director may require any person
authorized by a general permit to apply for and obtain
an individual NPDES permit. Any interested person
may petition the director to take action under this
paragraph.”
12. DNR Rule 391-3-6-.15(c) -- .... “All discharges into a
storm water point source must either be covered by an
individual permit or a permit issued to the owner or
operator of that portion of the system that directly
discharges into waters of the state.”
I ee ee ae
3-A
TERENCE D. HUGHEY,
Plaintiff- Appellee,
V.
JMS DEVELOPMENT CORPORATION,
Defendant-Appellant.
TERENCE D. HUGHEY,
Plaintiff-Appellee,
Cross-Appellant,
Vs
JMS DEVELOPMENT CORPORATION,
Defendant-Appellant,
Cross-Appellee.
Nos. 94-8402, 8855
United States Court of Appeals
Eleventh Circuit
[78 F.3d 1523]
April 1, 1996.
Landowner filed citizens suit under Clean Water Act
(CWA) seeking to enjoin developer from discharging storm
water run-off. The United States District Court for the
Northern District of Georgia, No. 1:92-CV-2051-RHH, Robert
H. Hall, Jr., issued permanent injunction, imposed fine, and
4-A
. phd Cadi PMC Maat cs! ahs oe Mtge S Fite Secaileoole
awarded landowner attomey fees and costs. Appeal was taken.
The Court of Appeals, Owens, District Judge, sitting by
designation, held that: (1) CWA’s zero discharge standard for
storm water runoff from construction activities in absence of
National Pollutant Discharge Elimination System (NPDES)
permit did not apply to developer when compliance was
factually impossible, and (2) injunction prohibiting developer
from discharging any storm water runoff was unenforceable
“obey the law” injunction in absence of operative command
capable of enforcement.
Orders vacated and injunction dissolved.
Carnes, Circuit Judge, filed opinion concurring in part.
Appeals from the United States District Court for the Northern
District of Georgia.
Before ANDERSON and CARNES, Circuit Judges, and
OWENS", District Judge.
OWENS, District Judge:
I. INTRODUCTION
Appellant JMS Development Corporation (“JMS”) is
the developer of a 19.2-acre residential subdivision in Gwinnett
County, Georgia. Appellee Terence D. Hughey (“Hughey”) is
a Gwinnett County homeowner admittedly opposed to all
development in Gwinnett County, one of metropolitan Atlan-
ta’s fastest growing areas. Hughey’s first effort to prevent
development of JMS’s residential subdivision was an
unsuccessful suit in state court filed during the course of
construction. After the subdivision had been completed,
Hughey sued JMS in United States District Court alleging that
JMS’s completed subdivision was continuing to violate the
Clean Water Act by allowing storm (rain) water runoff without
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possessing a National Pollutant Discharge Elimination System
(“NPDES”) permit setting forth the conditions under which
storm (rain) water could be discharged.
The undisputed evidence showed that JMS submitted its
subdivision plans and specifications to Gwinnett County for
approval and on March 31, 1992, obtained a county permit to
begin construction. The undisputed evidence further showed
that a Clean Water Act NPDES permit was not then available
in the State of Georgia from the only agency authorized to
issue such permits--Georgia’s Environmental Protection
Division. The district court nevertheless found that the Clean
Water Act absolutely prohibited the discharge of any storm
(rain) water from JMS’s completed subdivision in the absence
of an NPDES permit. Relying on this finding and rejecting the
uncontroverted testimony that some storm (rain) water
discharge beyond the control of JMS would naturally occur
whenever it rained, the district court issued permanent
injunctive relief pursuant to Federal Rule of Civil Procedure
65(d). The injunction ordered that JMS “not discharge storm
water into the waters of the United States from its development
property in Gwinnett County, Georgia, known as Rivercliff
Place if such discharge would be in violation of the Clean
Water Act.”
The district court also fined JMS $8,500 for continuing
violations of the Clean Water Act and awarded Hughey more
than $115,000 in attorney fees and costs under 33 U.S.C. §
1365(d). From those orders and judgment of the district court,
JMS appeals.
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Weise Pe cetnahitceel. She re
Il. BACKGROUND
A. The Clean Water Act
In 1972 Congress passed the Clean Water Act (“CWA”)
amendments, 33 U.S.C. §§ 1251-1387, to remedy the federal
water pollution control program which had “been inadequate
in every vital aspect” since its inception in 1948. EPA v. State
Water Res. Control Bd., 426 U.S. 200, 203, 96 S. Ct. 2022,
2024, 48 L.Ed.2d 578 (1976). The amended CWA absolutely
prohibits the discharge of any pollutant by any person, unless
the discharge is made according to the terms of a National
Pollutant Discharge Elimination System (“NPDES”) permit. 33
U.S.C. § 1311(a). This “zero discharge” standard presupposes
the availability of an NPDES permit, allowing for the discharge
of pollutants under the conditions set forth in the permit. Jd. §
1342(a)(1). NPDES permits are usually available from the
Environmental Protection Agency (“EPA”); however, 33
U.S.C. § 1342(c)(1) suspends the availability of federal
NPDES permits once a state permitting program has been
submitted and approved by the EPA. Thus, if a state admin-
isters its own NPDES permitting program under the auspices
of the EPA, applicants must seek an NPDES permit from the
state agency. See 33 U.S.C. § 1342(c)(1); Gwaltney v.
Chesapeake Bay Foundation, 484 U.S. 49, 108 S. Ct. 376, 98
L.Ed.2d 306 (1987).
On June 28, 1974, the State of Georgia was authorized
by EPA to administer an NPDES program within its borders.
The Georgia agency responsible for administration of that
program is the Environmental Protection Division (“EPD”) of
the Georgia Department of Natural Resources. EPA-issued
NPDES permits are thus not available in Georgia.
Even though the absolute prohibition in Section 1311(a)
applied to storm water discharges, for many years the discharge
T-A
of storm (rain) water was a problem that the EPA did not want
to address.’ The EPA complained that administrative concerns
precluded a literal application of the CWA’s absolute
prohibition--if the CWA applied to storm (rain) water
discharges, the EPA would be required to issue potentially mil-
lions of NPDES permits. Years of litigation ensued when the
EPA promulgated NPDES permit regulations exempting
uncontaminated storm water discharges from the CWA. See,
e.g., Costle, supra note 1.
The congressional response to this baffling situation
was the Water Quality Act, Pub.L. No. 100-4, 101 Stat. 7
(1987) (codified as amended in scattered sections of Title 33
U.S.C.), which amended the CWA to provide specifically that
“storm water” discharges were within the CWA’s proscription.
See 33 U.S.C. § 1342(p). Because of the administrative
nightmare presented by the inclusion of storm (rain) water
discharges, Congress chose a phased-in approach. “The
purpose of this approach was to allow EPA and the states to
focus their attention on the most serious problems first.” NRDC
v. EPA, 966 F.2d 1292, 1296 (9th Cir. 1992).
The phased-in approach established a moratorium until
October 1, 1992, on requiring permits for most storm water
discharges. Jd.; Water Quality Act, § 402(p), 33 U.S.C. §
1342(p). However, “discharge[s] associated with industrial
"Under the CWA, the term “pollutant” is inclusive of “rock,
sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water.” Jd. § 1362(6). When rain water flows from a site
where land disturbing activities have been conducted, such as grading
and clearing, it falls within this description. See, e.g., National
Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377
(D.C.Cir 1977); 40 C_F_R. § 122.2 (defining pollutant).
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activity”? were excepted from this moratorium. Water Quality
Act, § 402(p)(2)(B), 33 U.S.C. § 1342(p)(2)(B). Section
402(p)(2)(B) required the EPA no later than February 4, 1989,
to establish regulations setting forth permit application
requirements for industrial storm water discharges. Those
seeking such permits were to file an application no later than
February 4, 1990, and permit applications were to be rejected
or accepted by February 4, 1991. Jd.
EPA failed to meet the statutory timetable, so it
extended the deadline for submitting a permit application until
October 1, 1992. The Natural Resources Defense Council
(“NRDC”) sued the EPA for granting this extension. The
Ninth Circuit Court of Appeals granted NRDC’s request for
declaratory relief, but denied injunctive relief, stating the “EPA
will duly perform its statutory duties.” NRDC v. EPA, 966 F.2d
at 1300. On September 3, 1992, the EPA confirmed the Ninth
Circuit’s faith by issuing its final general permits for storm
water discharges associated with industrial activity; applicants
were to submit their request for a permit by no later than
October 1, 1992.
"Under EPA guidelines, “storm water discharge associated with
industrial activity” is inclusive of construction activity, which is in tum
defined as “clearing, grading and excavation activities except: operations
that result in the disturbance of less than five acres of total land area
which are not part of a larger common plan of development or sale.” 40
C.F.R. § 122.26(b)(14)(x). This regulation, to the extent it sought to
exempt from the definition of “industrial activity” construction sites of
less than five acres, was invalidated on the grounds that it was arbitrary
and capricious. NRDC v. EPA, 966 F.2d 1292, 1305-06 (9th Cir. 1992).
Even so, the regulation still provides that industrial activity is inclusive of
construction.
Since a state agency’s action in advance of that taken
by the EPA might be disapproved as inconsistent with the
EPA’s eventual position, Georgia EPD has always followed the
EPA’s lead in the promulgation of NPDES permits. See
generally Georgia EPD’s Amicus Brief, at 5. Consistent with
this approach, Georgia EPD began the public notice portion of
the storm (rain) water discharge permit promulgation process
only after the EPA had acted. On September 23, 1992, less
than one month after the EPA had issued its general permits,
Georgia EPD issued public notice of its intent to issue two
general permits, one of which would cover storm water
discharges from construction activities involving. land-
disturbing activities of five acres or more. An affidavit from
the section chief of Georgia EPD’s Water Protection Branch
summarized the state of the law in Georgia up to that time:
“[N]jo NPDES program for issuing NPDES permits has been in
place [in Georgia] for storm water runoff from construction
activities.”
B. The JMS Residential Subdivision
In early 1992-when NPDES permits covering storm
(rain) water were not available in Georgia--JMS planned to
develop its 19.2 acre residential subdivision and for that
purpose submitted its plans and specifications to Gwinnett
County. In developing these plans and specifications, JMS
hired a firm of consulting engineers, who were to supervise the
design and control of sedimentation control measures and help
ensure that JMS remained in compliance with relevant
pollution control requirements.
On March 31, 1992, JMS received a permit from
Gwinnett County authorizing it to conduct land-disturbing
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activities.* In accordance with requests from state and county
officials, JMS spent more than $30,000 installing state of the
art sedimentation control devices, including silt fences, check
dams, vegetation, sloping, and a sedimentation retention basin.
The erosion and sedimentation control measures met or
exceeded Gwinnett County’s requirements.
Prior to beginning construction, JMS had done
everything possible to comply with the legal requirements of
building a small residential subdivision. On the county level,
County Inspector George Michael Fritcher deposed that JMS
was in compliance; at the state level, David Word, Chief of
EPD’s Water Protection Branch, stated that EPD would not
(could not) have done anything with respect to an NPDES
permit for storm water discharges even if JMS had applied for
one prior to beginning the development; and at the federal level
resort to the EPA was foreclosed to JMS because, as noted,
Georgia’s NPDES program exists in lieu of the federal NPDES
program.
With Gwinnett County’s blessing, JMS began to clear,
grade, and grub the property for the construction of streets,
gutters, and storm sewers. JMS channeled its discharge of rain
water as dictated by the county permit requirements. The
discharges that occurred, as noted by the district court, were
* According to David Tucker, Development Review Manager for
Gwinnett County, this permit served as “authorization for land-disturbing
activity as required by the Development Regulations of Gwinnett County
[, which] has the authority to administer [Georgia’s] Soil Erosion and
Sedimentation Control Act of 1975 in Gwinnett County. As part of this
permitting procedure, JMS Development Corporation submitted a soil
erosion and sedimentation control plan which was approved by the
Gwinnett County Planning and Development.” See also Billew Affidavit;
Ballard Affidavit (exh. A).
CRC .
PPA Dh
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minimal and posed “no threat to human health.” Further, much
of the damage caused by the discharges would have been
“reversed with the passage of a relatively short amount of
time.” Within this 19.2-acre subdivision, approximately 4.64
acres were disturbed by actual construction of storm sewers,
curb, guttering, and streets.
Once all subdivision construction had been completed
and the storm sewers, curbing, gutting, and streets had been
dedicated or conveyed to Gwinnett County, a plat of the
completed subdivision showing approval by Gwinnett
County’s various agencies was recorded in the land records of
Gwinnett County on August 6, 1992. JMS was from this point
forward engaged in no further construction or land disturbing
activities.
&. Hughey’s Clean Water Act Civil Action
On August 28, 1992, Hughey sued JMS under the
citizen’s suit provision of the Clean Water Act, 33 U.S.C. §
1365,* alleging that JMS had violated the CWA by discharging
storm (rain) water from a “point source” on its property into
“the waters of the United States” without an NPDES permit.
See 33 U.S.C. §§ 1311, 1342. Hughey alleged that JMS’s
discharges of storm (rain) water were in association with
industrial activity. See 40 C.F.R. § 122.26(b)(14)(x) (industrial
activity includes construction, which in turn encompasses
*Section 1365(a) authorizes any citizen to “commence a civil
action on his own behalf--(1) against any person . . . who is alleged to be
in violation of (A) an effluent standard or limitation under this chapter. . .
. “ The section further provides that “effluent standard or limitation” is
inclusive of “an unlawful act under subsection (a) of section 1311 of this
ttle.” Section 1311(a) makes it unlawful to discharge any pollutant
without an NPDES permit.
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REP OT OTR ren Se
nee LCE bias lias LEED ARLE IG BEA ST AOE RIEL A SY Gh halos
clearing, grading, and grubbing). Because JMS’s construction
activities were considered “industrial” by EPA regulations,
Hughey contended that JMS was required to have an NPDES
permit. See Water Quality Act, Section 402(p)(2)(B)
(establishing permit deadline for discharges associated with
industrial activities). To the extent JMS had discharged
without a permit, Hughey argued that JMS was subject to the
“zero discharge” standard imposed by Section 1311(a).
Hughey’s complaint sought a declaratory judgment that JMS
was liable under the CWA, as well as injunctive relief against
JMS in several forms. Contemporaneously with his complaint
Hughey filed a motion for a temporary restraining order
(“TRO”), which the court granted after hearing from both sides
on August 31, 1992.
Hughey’s factual allegations were that JMS’s activities
caused two watercourses to become muddied during rainfall
events.° The first of these watercourses is a small stream® that
originates on JMS’s property and traverses neighboring land
for close to nine hundred (900) feet before emptying into the
Yellow River, which is the second flow of water involved.
Twenty-eight hundred (2800) feet be’ow the stream’s
*The court notes as an aside that a question of fact existed
concerning the degree to which JMS was responsible for increased
turbidity levels in these two watercourses during rainfall events. This
pivotal question of fact was not decided by a jury as demanded by JMS,
but rather by the district judge. See infra note 13.
*At least one expert at trial described the stream as a wet
weather flow, and indeed, JMS’s consulting engineer stated in his
affidavit that United States Geological Survey Maps do not even delin-
eate this unnamed tributary as a stream at all. JMS described the stream
as ranging from three to seven feet in width.
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confluence with the Yellow River lives Mr. Hughey, who owns
and resides on land abutting the Yellow River.
JMS initially responded to the complaint with a motion
to dissolve the TRO and a motion for summary judgment. JMS
conceded that rain water had run off its property and that it did
not have an NPDES permit authorizing discharges under the
CWA. However, JMS showed that no such permit was
available from any government agency and that it had in fact
obtained every permit that was available prior to initiating
construction.’ JMS then answered the complaint denying
liability under the CWA and demanding a jury trial.
On November 9, 1992, the district court denied JMS’s
motions to dissolve the TRO, to dismiss the complaint, and for
summary judgment. The district court granted Hughey’s
motion for preliminary injunctive relief, finding that JMS was
’The consulting engineers hired by JMS, in addition to seeking
(and obtaining) county land disturbing permits, eventually applied for an
NPDES permit from Georgia EPD on September 28, 1992, after Hughey
had filed this action. Georgia EPD responded by saying no action would
(could) be taken with respect to the notice of intent. David Word, Chief
of the Water Protection Branch of Georgia EPD, commented on the effect
of JMS’s application:
EPD has received a notice of intent to comply with the general
permit from JMS Development Corporation for its subdivision in
Gwinnett County, Georgia. No action will be taken on this notice
of intent until a general permit becomes effective. Therefore, at this
time [10/8/92], no further action is required or necessary on the
part of JMS Development Corporation to be authorized lo
discharge storm water into waters of the State of Georgia from the
subject property.
Word Aff, at § 10 (emphasis supplied). Georgia EPD simply did
not have a permit to issue, either before, during, or after the
subdivision’s development. JMS presented this evidence to the dis-
trict court in its motion to dismiss.
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MeN en rn Cnr
Se ee ee ey
potentially liable for storm (rain) water discharges made sub-
sequent to October 1, 1992. The preliminary injunction
prohibited JMS from “discharg[ing] storm water into waters of
the United States from its development property in Gwinnett
County, Georgia, known as Rivercliff Place, without a National
Pollutant Discharge Elimination System permit permitting such
discharge.”
More than one year later, on December 15, 1993, the
district court found JMS liable under the CWA for storm (rain)
water discharges into the stream on thirteen dates in 1992-June
8, 14, 30; July 1, 2; August 13, 16; September 4, 5, 27, 28; and
October 4, 8. The court further found that JMS once, on June
8, 1992, discharged storm water into the Yellow River itself
These violations according to the district court were continuing
(albeit minimal), see Order of 2/24/94, at 4, 8, and became the
basis for the court’s permanent injunction several months later,
which issued on February 24, 1994.* Defendant in that order
‘Although Georgia EPD stated in its amicus brief to the district
court on October 27, 1992, that it expected to issue general NPDES
permits covering storm (rain) water discharges by December 1992, such a
permut was still not available as of the date on which the district court
granted permanent injunctive relief.
Georgia EPD did issue its general permit, however, Mr. Hughey appealed
the issuance of that permit in a separate action to the Board of Natural
Resources for the State of Georgia, alleging both procedural and
substantive defects in the general permit.
The administrative law judge remanded the permit to the Director of
Georgia EPD because of Georgia EPD’s failure to comply with
procedural rules. In addition, the ALJ noted that a remand was also
necessary for the Director to consider turbidity levels for storm (rain)
water discharges. Due to Mr. Hughey’s appeal, there was still no
NPDES permit available in Georgia for the discharge of storm (rain)
water when the district court entered the permanent injunction.
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was instructed not to discharge storm water into the waters of
the United States from its development property in Gwinnett
County, Georgia, known as Rivercliff Place if such discharge
would be in violation of the Clean Water Act. (emphasis
supplied). On account of JMS’s specific violations of the
CWA, the district court required JMS to pay $8,500 in civil
penalties to Hughey.’ Lastly, the court-ordered JMS to pay
Hughey more than $115,000 in attorney fees and costs pursuant
to 33 U.S.C. § 1365(d).
ll. ISSUES ON APPEAL
JMS argues that the broad generalized language of the
injunction, which in effect says nothing more than to “obey the
law,” is violative of the standard of specificity required by
Federal Rule of Civil Procedure 65(d). JMS’s second
contention is that it should not be punished for failing to secure
an NPDES permit when no such permit was available. Finally,
JMS objects to the award of attorney fees and costs." JMS has
not objected, however, to the fact that it did not receive a jury
trial on the question of liability.
*Hughey concedes that requiring payment of civil penalties to
him was clear error by the district court. Civil penalties under the Clean
Water Act can only be paid to the United States Treasury. Atlantic States
Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1131 n. 5 (11th Cir.
1990).
‘Hughey filed a cross appeal complaining that $115,000 was an
insufficient award. When JMS was forced into bankruptcy, the cross
appeal was automatically stayed under 11 U.S.C. § 362. See Appellee’s
Brief, at xiv n. 1. For the reasons that follow, we need not consider the
merits of that appeal.
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IV. STANDARD OF REVIEW
[1] Although the grant of permanent injunctive relief is
generally reviewed for an abuse of discretion, “if the trial court
misapplies the law we will review and correct the error without
deference to that court’s determination.” Wesch v. Folsom, 6
F.3d 1465, 1469 (11th Cir. 1993), cert. denied, -- U.S.--, 114
S.Ct. 696, 126 L.Ed.2d 663 (1994). See also Guaranty Fin.
Sves., Inc. v. Ryan, 928 F.2d 994, 998 (11th Cir. 1991) (“if the
court misapplied the law in making its decision [to grant the
preliminary injunction] we do not defer to its legal analysis”).
We review questions of law de novo. Bechtel Const. Co. v.
Secretary of Labor, 50 F.3d 926, 931 (11th Cir. 1995).
V. DISCUSSION
A. Liability Under the Clean Water Act
As noted, the CWA imposes a “zero discharge”
standard in the absence of an NPDES permit. 33 U.S.C. §
1311(a). The question is whether Congress intended for this
zero discharge standard to apply in the circumstances of this
case.
[2] In interpreting the liability provisions of the CWA
we realize that Congress is presumed not to have intended
absurd (impossible) results. United States v. X-Citement Video,
Inc, US.___,__, 115 S. Ct. 464, 468, 130 L.Ed.2d 372
(1994); Towers v. United States (In re Pacific-Atlantic Trading
Co.), 64 F.3d 1292, 1303 (9th Cir. 1995). Courts will not
foolishly bind themselves to the plain language of a statute
where doing so would “compel an odd result.” Green v. Bock
Laundry Mach. Co., 490 U.S. 504, 509, 109 S. Ct. 1981, 1984,
104 L.Ed.2d 557 (1989). For, “‘it is one of the surest indexes
of a mature and developed jurisprudence not to make a fortress
out of the dictionary; but to remember that statutes always have
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some purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.’”
Public Citizen v. United States Department of Justice, 491 U.S.
440, 454-55, 109 S. Ct. 2558, 2567, 105 L.Ed.2d 377 (1989)
(quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd,
326 U.S. 404, 66 S. Ct. 193, 90 L-Ed. 165 (1945)). Cf Green
v. Bock Laundry Mach. Co., 490 U.S. at 527-30, 109 S. Ct. at
1994-95 (Scalia, J., concurring) (“We are confronted here with
a statute which, if interpreted literally, produces an absurd, and
perhaps unconstitutional, result. Our task is to give some
alternative meaning to the [language] . . . that avoids this
consequence... “).
Our jurisprudence has eschewed the rigid application of
a law where doing so produces impossible, absurd, or unjust
results. “[I}f a literal construction of the words of a statute
would lead to an absurd, unjust, or unintended result, the
statute must be construed so as to avoid that result.” United
States v. Mendoza, 565 F.2d 1285, 1288 (5th Cir. 1978) (citing
Church of the Holy Trinity v. United States, 143 U.S. 457, 459,
12 S. Ct. 511, 512, 36 LEd. 226 (1892)); see also United
States v. Castro, 837 F.2d 441, 445 (11th Cir. 1988). “[E]ven
when the plain meaning did not produce absurd results but
merely an unreasonable one plainly at variance with the policy
of the legislation as a whole this Court has followed [the
purpose of the act], rather than the literal words.” Perry v.
Commerce Loan Co., 383 U.S. 392, 400, 86 S. Ct. 852, 857, 15
L.Ed.2d 827 (1966) (internal quotation marks omitted).
As is often the case, the legislature will use words of
general meaning in a statute,
words broad enough to include an act in
question, and yet a consideration of the whole
legislation, or of the circumstances surrounding
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its enactment, or of the absurd results which
follow from giving such broad meaning to the
words, makes it unreasonable to believe that the
legislator intended to include the particular act.
Public Citizen, 491 U.S. at 454, 109 S. Ct. at 2566-67 (quoting
Church of the Holy Trinity v. United States, 143 U.S. 457, 459,
12 S. Ct. 511, 512, 36 L.Ed. 226 (1892)) (emphasis supplied).
Thus, this court has found that
[g]eneral terms should be so limited in their
application as not to lead to _ injustice,
Oppression, or an absurd consequence. It will
always, therefore, be presumed that the
legislature intended exceptions to its language
which would avoid results of this character.
The reason of the law in such cases should
prevail over its letter.
Zwak v. United States, 848 F.2d 1179, 1183 (11th Cir. 1988)
(quoting Sorrells v. United States, 287 U.S. 435, 447, 53 S. Ct.
210, 214, 77 L_Ed. 413 (1932)). For instance, common sense
says that a law making it a felony for a prisoner to escape from
jail “does not extend to a prisoner who breaks out when the
prison is on fire--’for he is not to be hanged because he would
not stay to be burnt.” United States v. Kirby, 74 U.S. (7 Wall.)
482, 487, 19 L.Ed. 278, 280 (1869).
[3] In this case, once JMS began the development,
compliance with the zero discharge standard would have been
impossible. Congress could not have intended a strict
application of the zero discharge standard in section 1311(a)
when compliance is factually impossible. The evidence was
uncontroverted that whenever it rained in Gwinnett County
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some discharge was going to occur; nothing JMS could do
would prevent all rain water discharge. George Fritcher, the
county inspector charged with monitoring JMS’s compliance
with Gwinnett County’s development permit, deposed that it
was simply impossible to stop sediment from leaving the
subdivision when there was a rainfall event. “[Z]ero discharge
of storm water will never be achieved because rainfall must
find its way back into the streams and rivers of this state.”
Georgia EPD Amicus Brief, at 13 (emphasis supplied). Doug
Ballard, president of JMS, similarly testified on cross-
examination by Hughey’s counsel that he could not stop the
rain water that fell on his property from running downhill, and
that nobody could. The rain that fell on his property “is
designed to go down those curbs and designed to go down
those pipes and unless you go out there and collect it in your
hand some way or other it’s going to have to go somewhere.”
Moreover, JMS obtained from Gwinnett County a
development permit that was issued pursuant to the County’s
authority under Georgia’s Soil Erosion and Sedimentation
Control Act of 1975 (““SESCA”), 0.C.G.A. §§ 12-7-1 et seq.
That Georgia statute, like the CWA, limited storm water
discharges during the applicable period. See O.C.G.A. § 12-7-
6(18) (1992). Moreover, Georgia EPD’s proposed standards
for a general NPDES permit for storm water discharges are
similar to the standards for storm water discharges contained
in SESCA. David Word, the Chief of the Water Protection
Branch of Georgia EPD, testified by affidavit that “the general
NPDES permit proposed for storm water runoff from
construction activities . . . will require permittees to perform
certain erosion and sedimentation control practices, [which are]
currently required under authority of the Erosion and
Sedimentation Control Act of 1975.” Accordingly, the fact that
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JMS was issued a development permit by Gwinnett County
suggests that JMS would have been able to obtain an NPDES
permit from Georgia EPD, had such a permit been available.
The facts of this case necessarily limit our holding to
situations in which the storm water discharge is minimal, as it
was here. The district court found that JMS’s “discharges pose
no threat to human health, and that much of the damage
[caused by such discharges] will be reversed with the passage
of a relatively short amount of time.”
This was not a case of a manufacturing facility that
could abate the discharge of pollutants by ceasing operations.
Nor did the discharger come to court with unclean hands: JMS
made every good-faith effort to comply with the Clean Water
Act and all other relevant pollution control standards. The
discharges were minimal, and posed no risk to human health.
In sum, we hold that Congress did not intend (surely could not
have intended) for the zero discharge standard to apply when:
(1) compliance with such a standard is factually impossible; (2)
no NPDES permit covering such discharge exists; (3) the
discharger was in good-faith compliance with local pollution
control requirements that substantially mirrored the proposed
NPDES discharge standards; and (4) the discharges were
minimal. Lex non cogit ad impossibilia: The law does not
compel the doing of impossibilities. BLACK’s LAW
DICTIONARY 912 (6th ed. 1990).
Practically speaking, rain water will run downhill, and
not even a law passed by the Congress of the United States can
stop that. Under these circumstances, denying summary
judgment to JMS was an error of law. Cf Menzel v. County
Utilities Corp., 712 F.2d 91, 95 (4th Cir. 1983) (refusing to
impose CWA liability for discharges during period in which
effectiveness of NPDES permit was stayed by state court, since
21-A
subjecting discharger to liability would serve no statutory
purpose).
B. The Permanent Injunction-Federal Rule of Civil
Procedure 65
In addition to the fact that an injunction based upon an
erroneous conclusion of law is invalid, see United States v.
Jefferson County, 720 F.2d 1511, 1520 n. 21 (11th Cir. 1983),
Rule 65(d) of the Federal Rules of Civil Procedure mandates
dissolution of the injunction.
Rule 65(d) sets forth the standards of specificity that
every injunctive order must satisfy.
Every order granting an injunction shall set
forth the reasons for its issuance; shall be
specific in terms; [and] shall describe in
reasonable detail, and not by reference to the
complaint or other document, the act or acts
sought to be restrained... .
Rule 65 serves to protect those who are enjoined
by informing them of what they are called upon
to do or to refrain from doing in order to
comply with the injunction or restraining order.
As a result, one of the principal abuses of the
pre-federal rules practice--the entry of
injunctions that were so vague that defendant
was at a loss to determine what he had been
restrained from doing--is avoided. The drafting
standard established by Rule 65(d) is that an
ordinary person reading the court’s order
should be able to ascertain from the document
itself exactly what conduct is proscribed.
22-A
ope nae nee i et
ah Ae OR A aM Bia Nig ln a
Sirkieeasyoy
ERT PRGA, PRL Ej ne Ae,
Aa i a aie ie ar ipa Tee EN Kah iS pth Rte image ee es 4
ARE DENTE NINA ABM AG 0 EG ET
11A WRIGHT, MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 2D § 2955 (1995)
(footnotes omitted). In addition to giving those enjoined “fair
and precisely drawn notice of what the injunction actually
prohibits,” Epstein Family Partnership v. K-Mart Corp., i3
F.3d 762, 771 (3d Cir. 1994), the specificity requirement of
Rule 65(d) serves a second important function:
Unless the trial court carefully frames it orders
of injunctive relief, it is impossible for an
appellate tribunal to know precisely what it is
reviewing. We can hardly begin to assess the
correctness of the judgment entered by District
Court here without knowing its precise bounds.
‘In the absence of specific injunctive relief,
informed and intelligent appellate review is
greatly complicated, if not made impossible.
Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 443, 715, 38
L.Ed.2d 661, 664 (1974).
[4] Consistent with the two foregoing purposes,
appellate courts will not countenance injunctions that merely
require someone to “obey the law.” Payne v. Travenol
Laboratories, Inc., 565 F.2d 895, 897-98 (Sth Cir.), cert.
denied, 439 U.S. 835, 99 S. Ct. 118, 58 L_Ed.2d 131 (1974)."
“Broad, non-specific language that merely enjoins a party to
obey the law or comply with an agreement . . . does not give
the restrained party fair notice of what conduct will risk
contempt.” Epstein Family Partnership, supra. Because of the
"In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), the Eleventh Circuit adopted as precedent the decisions of the
Fifth Circuit rendered prior to October 1, 1981.
23-A
possibility of contempt, an injunction “must be tailored to
remedy the specific harms shown rather than to enjoin all
possible breaches of the law.” Jd. (internal quotation marks
omitted). An injunction must therefore contain “an operative
command capable of ‘enforcement.”” Longshoremen’s Ass'n.
v. Maine Trade Ass’n., 389 U.S. 64, 73-74, 88 S.Ct. 201, 206-
07, 19 LEd.2d 236, 244 (1967). See also United States Steel
Corp. v. United Mine Workers, 598 F.2d 363, 368 (Sth Cir.
1979) (party subject to contempt proceeding may defend on
basis that compliance was not possible).
Here, the district court’s order granting permanent
injunctive relief only stated:
Defendant shall not discharge storm water into
the waters of the United States from its
development property in Gwinnett County,
Georgia, known as Rivercliff Place if such
discharge would be in violation of the Clean
Water Act.
(emphasis supplied).
[5] Not only was this an “obey the law” injunction, it
was also incapable of enforcement as an operative command.
The court’s order merely required JMS to stop discharges, but
failed to specify how JMS was to do so. Discharges, though
not defined by the order, occurred only when it rained, and any
discharge was a violation of the order. Rain water ran into the
subdivision’s government approved streets and storm sewers;
then into the small stream that started on the subdivision
property; on into a tributary stream; and eventually into the
Yellow River. Was JMS supposed to stop the rain from falling?
Was JMS to build a retention pond to slow and control
24-A
Sethi nhc Mercamdlt ts A ice bh Oe bein eb
PH MBCA oon
Be Hii
discharges? Should JMS have constructed a treatment plant to
comply with the requirements of the CWA?
The injunction’s failure to specifically identify the acts
that JMS was required to do or refrain from doing indicates that
the district court--like the CWA, the EPA, Georgia EPD, and
Mr. Hughey--was incapable of fashioning an operative
command capable of enforcement. As such, we must vacate
this “obey the law” injunction.””
ie Award of Attorney Fees and Costs
[6] A court issuing any final order in a Clean Water Act
citizen’s suit “may award costs of litigation (including
reasonable attorney and expert witness fees) to any prevailing
party or substantially prevailing party, whenever the court
determines such award is appropriate.” 33 U.S.C. § 1365(d).
A prevailing or substantially prevailing party is one who
prevailed “in what the lawsuit originally sought to
accomplish.” Washington Public Interest Research Group v.
Pendleton Woolen Mills, 11 F.3d 883, 887 (9th Cir. 1993).
The district court here awarded Hughey more than
$115,000 in attorney fees and costs. However, for the reasons
stated above Hughey’s citizen suit has not accomplished its
original objective. Hughey is not a prevailing or substantially
"Hughey contends that the injunction contains the requisite
specificity by reference to the prior orders granting injunctive-type relief,
i.¢., that the permanent injunction merely continued in place what
previous orders had already done. See, e.g., Keyes v. School Dist. No. 1.,
Denver, Colo., 895 F.2d 659 (10th Cir. 1990), cert. denied, 498 U.S.
1082, 111 S. Ct. 951, 112 L-.Ed.2d 1040 (1991). We doubt that such an
exception exists, unless in very rare, exceptional cases. A person
enjoined by court order should only be required to look within the four
comers of the injunction to determine what he must do or refrain from
doing. That was not the case here.
25-A
prevailing party and is thus not entitled to an award of attorney
fees and costs. See Save Our Community v. United States EPA,
971 F.2d 1155, 1167 (Sth Cir. 1992) (where district court erred
in finding defendant liable under the CWA, the award of
attorney fees based thereon was also inappropriate).
VI. CONCLUSION
Imposing liability upon JMS under these circumstances
was a miscarriage of justice. It is inconceivable that Congress
intended, let alone foresaw, a result such as this under the
Clean Water Act. Environmentally safe waters are of vital
importance to this nation as is evident from the fact that
Congress enacted an entire statutory scheme to address the
problem. Nevertheless,
[t]he inability of [Georgia EPD] to meet its
statutory obligations has distorted the
regulatory scheme and imposed additional
burdens which must be equitably distributed.
This task is a difficult one because of the nature
of the available options. Either the affected
discharger must be compelled to risk potential
enforcement proceedings in spite of [the
complete unavailability of an NPDES permit],
or society must tolerate slippage of an interim
pollution abatement deadline.
Republic Steel Corp. v. Train, 557 F.2d 91, 94 (6th Cir. 1977).
Balancing these concerns on the basis of the record before us,
we refuse to place the burden on JMS.
The orders imposing statutory penalties and attorney
fees and costs were premised on the finding that JMS was
26-A
liable under the CWA. Because we REVERSE this finding of
liability, those orders are VACATED.
The injunctive relief issued by the district court on
February 24, 1994, was improper not only because it was
premised on an error of law, but also for the alternative reasons
that the injunction lacked the specificity required by Rule
§ 65(d), and compliance with its terms was impossible.
Accordingly, the permanent injunction is DISSOLVED.”
IT IS SO ORDERED.
CARNES, Circuit Judge, concurring:
I concur in all of the Court’s holdings and opinion
except for Part V.B. What the Court says there about Rule
"Because JMS has not raised the jury trial question, we will not
address it now for the first time, although it would appear to require
summary reversal on the issue of liability. See Tull v. United States, 481
U.S. 412, 107 S. Ct. 1831, 95 L_Ed.2d 365 (1987) (defendants under the
CWA have Seventh Amendment right to a jury trial on questions of
liability).
1S Se RS LE a ea iad era elas Dana ett POS ike ene TS tl oho etke itl GS te BSE Nei Man
Because we have determined that JMS cannot be liable no
matter who files the complaint, we do not discuss JMS’s challenge to the
propriety of the citizen’s suit. See, e.g., Gwaltney v. Chesapeake Bay
Foundation, 484 U.S. 49, 108 S. Ct. 376, 98 L.Ed.2d 306 (1987) (citizen
suits should be interstitial, not intrusive); Northwest Environmental
Advocates v. Portland, 11 F.3d 900, vacated, 56 F.3d 979 (9th Cir. 1995)
(initially deciding citizen suits were unauthorized when challenging
water quality standards in an NPDES permit, latter opinion found citizen
suits were not so limited); Proffitt v. Rohm & Haas, 850 F.2d 1007, 1014
n. 11 (3rd Cir. 1988) (refusing to decide whether scope of citizen suits
was limited).
Renee UN eg ot a Bante ce ae
rey
We also decline to address the issues of Hughey’s standing,
JMS’s substantive due process challenge, and the fee award’s lodestar
calculation, as they are rendered unnecessary by the holding herein.
27-A
}
;
|
3
i
i
65(d) and “obey the law” injunctions may be correct, or it may
be incorrect, but it is certainly dicta. Given our holding that the
plaintiff in this case is not entitled to any relief at all, it matters
not whether the relief he was given would have been in proper
form if he had been entitled to some relief.
Date: April 1, 1996.
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-8402
TERENCE D. HUGHEY,
Plaintiff-Appellee,
v.
JMS DEVELOPMENT CORPORATION,
Defendant-Appellant.
No. 94-8855
TERENCE D. HUGHEY,
Plaintiff-Appellee,
Cross-Appellant,
v
JMS DEVELOPMENT CORPORATION,
Defendant-Appellant,
Cross-Appellee.
On Appeal from the United States District Court for the
Northern District of Georgia
[89 F.3d 857]
ON ___PETITION(S)_ FOR ___ REHEARING __ AND
SUGGESTION(S) OF REHEARING EN BANC
(Opinion April 1, 11th Cir., 1996, F.2d).
29-A
Before: ANDERSON and CARNES, Circuit Judges, and
OWENS", District Judge.
PER CURIAM:
The Petition(s) for Rehearing are DENIED and no member of
this panel nor other Judge in regular active service on the Court
having requested that the Court be polled on rehearing en banc
(Rule 35, Federal Rules of Appellate Procedure; Eleventh
Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are
DENIED.
ENTERED FOR THE COURT:
[signed]
UNITED STATES CIRCUIT JUDGE
*Honorable Wilbur D. Owens, Jr., U.S. District Judge for the
Middle District of Georgia, sitting by designation.
Date: June 17, 1996
30-A
ee ee eee ee et ee See ee ol
ee ee ee oe
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERENCE D. HUGHEY, _)
)
Plaintiff, )
) CIVIL ACTION FILE
VS. )
) NO. [1:92-cv-2051-RHH]
JMS DEVELOPMENT )
CORPORATION, )
)
Defendant. )
)
TEMPORARY RESTRAINING ORDER
The above and foregoing Verified Complaint having
been read and considered, and the Plaintiffs Motion for
Temporary Restraining Order having been considered and
heard, and the Plaintiff having shown that immediate and
irrevocable injury will result to the Plaintiff if such a
restraining order is not issued, and it appearing to the Court
that a proper case has been made out for a temporary
restraining order, it is hereby ordered and adjudged:
1.
That a temporary restraining order is hereby issued to
defendant JMS Development Corporation and any of its
successors, assigns, successors in interest, subsidiaries or
affiliates, restraining them from discharging sand, silt, asphalt
31-A
runoff and other pollutants into any waters of the United States
without a permit. ... Said defendant is so restrained for a
period of ten (10) days after entry of this order.
2.
That the parties appear before the Court on the 31. day
of _ August , 1992 at_11:45_ o’clock _A.m. for a hearing on
the preliminary injunction to be held in Room n
the Richard B. Russell Federal Building.
SO ORDERED this _ 31 __ day of _ Aug __, 1992 at
12:05 o’clock P_.m.
[signed]
Judge, United States District
Court, Northern District of
- Georgia, Atlanta Division
Be ee Lm te
Vie) Se eee eee wetter Ieee Sie ee Eee ce ee ee ence ete ear ee) ening
9 Nays Ce LAM i pe nto!
; ee ee ee eae
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERENCE D. HUGHEY, ss)
) CIVIL ACTION NO.
Vs. ) 1:92-cv-205 1-RHH
)
JMS DEVELOPMENT )
CORPORATION, )
)
)
Defendant.
ORDER
Upon consideration by the court of the above-entitled
action,
IT IS HEREBY ORDERED that the court’s temporary
restraining order dated August 31, 1992, is continued for a
period of 60 days.
FURTHER, parties are to appear before this court on
November 5, 1992, at 9:30 a.m., for a hearing to be held in
Courtroom 2108 on the motion for preliminary injunction.
SO ORDERED this _llth day of September, 1992.
[signed]
ROBERT H. HALL
UNITED STATES DISTRICT
JUDGE
33-A
IN THE UNITED STATES DISTRICT COURT'
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERENCE D. HUGHEY, )
)
Plaintiff, )
)
VS. ) 1:92-cv-2051-RHH
)
JMS DEVELOPMENT )
CORPORATION, )
)
Defendant. )
ORDER
This case is before the Court on (1) Defendant's Motion
to Dissolve the TRO [14], (2) Defendant's Motion to Dismiss,
or in the alternative, Motion for Summary Judgment [16], (3)
Plaintiffs Motion for a Preliminary Injunction [1], and (4)
Plaintiffs Motion to Hold Defendant in Contempt of Court
[13]. The Court has jurisdiction over the case pursuant to 28
U.S.C. § 1331, 33 U.S.C. § 1365(a), and 28 U.S.C. § 1361.
The Court DENIES Defendant's Motion to Dissolve the TRO,
DENIES Defendant's Motion to Dismiss, GRANTS Plaintiff s
Motion for a Preliminary Injunction, and DENIES Plaintiff's
Motion to Hold Defendant in Contempt of Court.
BACKGROUND
A. Facts.
Defendant, JMS Development Corporation, is a
Georgia corporation engaged in the development of a 19.2 acre
34-A
aye Se ee eT
subdivision known as Rivercliff Place (“the subdivision” or
“the property”), in Gwinnett County Georgia. Plaintiff.
Terence Hughey, is a resident of Gwinnett County, and owns
property in the county, adjacent to the Yellow River, and
topographically downhill from the subdivision. Plaintiff claims
that Defendant is violating the Federal Clean Water Act, 33
U.S.C. §§ 1251 et seq, (“the CWA”), by discharging from the
subdivision, without a permit, sedimentation collected in rain-
water runoff, that travels off of the property, into a stream, and
into the Yellow River.
The subdivision contains 50 lots for the construction of
residential homes. Forty-six of these lots are currently owned
by Defendant. Defendant has sold the remaining four lots to
builders who have begun constructing homes on each. No
construction has begun on Defendant's forty-six lots. In the
Spring of 1992, Defendant began its development of the
subdivision by clearing, grubbing and grading an area of the
property for the construction of three streets, with related
curbing, gutters and storm sewers. Defendant alleges that its
street construction involved the disturbance of approximately
4.64 acres of land. Defendant's Motion to Dissolve, p. 2.
Plaintiff concedes this fact, but argues that Defendant's total
land disruption involved more than five acres. On August 6,
1992, Defendant dedicated the streets, curbing, gutters and
storm sewers to Gwinnett County, and the county accepted
same.
Defendant alleges that it has obtained all applicable
permits and approvals necessary from Gwinnett County. See
Affidavit of David Tucker, § 3. on March 31, 1992, prior to
commencing its clearing, grubbing and grading activities,
Defendant obtained a Gwinnett County development permit
(“Gwinnett permit”), authorizing it to engage in land-disturbing
35-A
activity in the subdivision, and permitting it, under state law,
to discharge certain amounts of stormwater’. Gwinnett County
issued the Gwinnett permit pursuant to its authority to
administer Georgia’s Soil Erosion and Sedimentation Control
Act of 1975 (“the SESCA”) within the physical confines of
Gwinnett County. See 0.C.G.A. § 12-7-8.
The SESCA restricts the concentration of silt that can
be discharged in stormwater in Georgia. The Act prohibits
stormwater discharges that are more than “50 nephelometric
turbidity units [“NTUs”] higher than the turbidity level of the
receiving stream immediately upstream from the stormwater
runoff discharge at the time of such discharge .. . . of O.C.G.A.
§ 12-7-6(18). Plaintiff presented evidence at the October 16,
1992 hearing that Defendant had violated the SESCA's fifty
NTU limitation. See Testimony of Dr. Wade Nutter. The
record regarding Defendant's compliance with the CWA is
sufficient for the Court to rule on the parties' motions, and any
possible findings as to Defendant's compliance with the
SESCA would not warrant a different outcome. Nor is it
necessary at this stage in the litigation to rule on Defendant's
compliance with the SESCA. The Court's discussion,
therefore, will focus primarily on Defendant's compliance with
the CWA.
Defendant, however, does not have a National Pollutant
Discharge Elimination System (“NPDES”) stormwater permit,
which is required in order to exempt oneself from the CWA's
federal prohibition on discharging stormwater. Defendant's
failure to obtain an NPDES permit is due, at least in part, to the
‘Under both federal and state law, the term “stormwater” is used
for water that contains sedimentation from land disturbing activities
36-A
o
M4
*
3
h
7
3
a
State of Georgia’s failure to make NPDES stormwater permits
available to potential applicants (see infra).
On August 28, 1992, Plaintiff filed a Complaint with
this Court, alleging that Defendant had violated the CWA by
allowing stormwater to run off of its property, and into the
Yellow River, without possessing an NPDES stormwater
permit. [1]. Plaintiff requested that the Court enjoin
Defendant, and award damages. Defendant alleges that it
ceased all land-disturbing activities on the property prior to
Plaintiff's complaint. Defendant’s Motion to Dissolve, p. 5.
Defendant asserts also that it has expended over $30,000
installing “state of the art” erosion and sediment control
structures pursuant to instruction of Gwinnett County and
Georgia state officials. Defendant's Motion to Dissolve, pp. 4,
5. The structures include: siltation fencing, check dams,
grassing, sloping, and a sediment retention structure. Id.;
Woodall Affidavit, § 3. These structures, however, are
designed only to minimize release of stormwater, and,
accordingly, stormwater continues to leave the subdivision
during rainfall and enter the Yellow River.
On August 31, 1992, the Court issued a Temporary
Restraining Order, restraining Defendant from “discharging
sand, silt, asphalt runoff and other pollutants into any waters of
the United States without a permit.” [5-1]. On September 11,
1992, the Court extended the TRO for 60 days. [11-1].
On October 13, 1992, Plaintiff filed a Motion to Hold
Defendant in Contempt of Court for having discharged
stormwater, in violation of the TRO, on September 4, 5, 27, 28,
and October 4, and 8, 1992. Plaintiff's Contempt Motion, pp.
1-2. [13]. In its motion, Plaintiff requests the Court to fine
Defendant $25,000 for each day of violation. Id. at p. 2. On
October 15, 1992, Defendant filed a Motion to Dissolve the
37-A
TRO. [14]. The Court heard oral arguments on both motions
on October 16, 1992. Also on October 16, 1992, Defendant
filed a Motion to Dismiss Plaintiffs complaint, or in the
alternative, to grant Defendant Summary Judgment. [16].
B. The Clean Water Act, and the NPDES
Permitting Program.
In 1972, Congress amended the Clean Water Act “to
restore and maintain the chemical, physical, and biological
integrity of the nation's waters.” 33 U.S.C. § 1251(a). Pursuant
to this objective, the Act prohibits the discharge of any
pollutants from a “point source’,” except in accordance with
standards promulgated in permits issued under other sections
of the Clean Water Act. 33 U.S.C. § 1311(a). The permitting
scheme requires that persons seeking to so discharge pollutants
must obtain an NPDES permit, either from the Environmental
Protection Agency (“the EPA”), or from their respective state
environmental agency if the EPA has delegated authority to the
state to issue the permits. 33 U.S.C. § 1342.
The Act also authorizes individuals to commence suits
on their own behalf (“citizen suits”). 33 U.S.C. § 1365(a). A
person may bring a citizen suit against “any person . . . who is
alleged to be in violation of ... an effluent standard or
limitation under [ the Act ].” Id. The term “effluent standard
or limitation” includes “any restriction established by a State
or the Administrator on quantities, rates, and concentrations of
[covered discharges].” Id. § 1362(11). Thus, Plaintiff is
The CWA defines “point source” as “any discernable, confined
and discreet conveyance, including but not limited to any pipe, ditch,
channel . . . from which pollutants are or may be discharged. 33 U.S.C.
§ 1362 (14).
38-A
|
j
|
oe
ae Res
authorized to bring a citizen suit against Defendant for
violating either the CWA zero-discharge-without-a-permit
limitation, or the SESCA's fifty NTU limitation.
On June 28, 1974, the State of Georgia received
authority to administer the NPDES program within its borders.
Pursuant to this grant of authority, the CWA is now
implemented in Georgia by the Georgia Water Quality Control
Act (“the GWQCA”), 0.C.G.A. § 12-5-20 et seq. Georgia, in
turn, has delegated the authority to issue NPDES permits to the
Environmental Protection Division of the Georgia Department
of Natural Resources (“the EPD”). O.C.G.A. § 12-5-20.
The United States Environmental Protection Agency
has declared stormwater runoff to be “the leading [and the]
largest remaining, virtually unaddressed source of water
pollution [in the United Siates].” EPA RELEASES FINAL
STORM WATER DISCHARGE GENERAL PERMIT in EPA
Environmental News (September 3, 1992). See also 55 Fed.
Reg. 47,991; Natural Resources Defense Council v. U.S. EPA,
966 F.2d 1292, 1295 n. 3 (9th Cir. 1992). The Clean Water Acct,
however, did not explicitly address stormwater discharges until
it was amended in 1987. In that year, Congress enacted the
Water Quality Act, Pub. L. No. 100-4, 101 Stat. 7 (1987)
(codified as amended in scattered sections of 33 U.S.C.), and
created a new regulatory scheme for stormwater discharges.
See 33 U.S.C. § 1342(p). Congress amended the regulatory
scheme, in 1991, to its present form. Pub. L. No. 102-240, §
1068, 105 Stat. 2007.
Section 1342 (p) prohibited the EPA, or states to which
NPDES permitting authority had been delegated, - from
requiring NPDES permits prior to October 1, 1992 for
stormwater discharges. 33 U.S.C. § 1342 (p)(1). The section
also excepted from the moratorium discharges “associated with
39-A
industrial activities.” Id. § 1342(p)(2)(B). Federal regulations
define “industrial activities” as construction involving five or
more acres. 40 CFR 122.26(b)(14)(x). Thus, prior to October
1, 1992, a person did not violate the CWA by discharging
stormwater without an NPDES permit, so long as the discharge
was not associated with construction involving five or more
acres of land. Subsequent to October 1, 1992, and continuing
today, a person does violate the CWA by discharging
stormwater without an NPDES permit, regardless of with what
size or type of land the discharge is associated.
The Water Quality Act also imposed deadlines prior to
October 1, 1992 for the EPA, or states with delegated authority,
to establish NPDES permit application requirements, and to
accept and respond to applications. 33 U.S.C. § 1342(p)(4).
The EPA, however, failed to comply with these deadlines. Not
until September 9, 1992 did the EPA make available a “general
NPDES permit” to cover stormwater discharges falling under
§ 1342(p)(2)(B). 57 Fed. Reg. 41,176 - 41,233 (September 9,
1992). The EPD, apparently in an effort “to be consistent
with the federal program,” has consistently waited until after
the EPA has acted before implementing each step of its permit
authorization process. See EPD's Amicus Curiae Brief, p. 8.
On September 23, 1992, eight days before 33 U.S.C. §
1342(p)’s moratorium expired, the EPD issued a public notice
of its proposal to issue two general NPDES permits for
stormwater discharges. Georgia Department of Natural
Resources, Public Notice No. 92-16 (appended to EPD's
Amicus Curiae Brief at Exhibit 5). The first proposed permit
-General Permit No. GAR100000- will authorize stormwater
discharges “associated with industrial activity.” See EPD's
Amicus Curiae Brief, Exhibit 6. The second proposed permit
-General Permit No. GAR100000- will authorize stormwater
40-A
discharges associated with “construction activities involving
; land disturbing activities of five or more acres.” See Id.
The EPD testified at the October 16, 1992 hearing on Plaintiff's
Motion to Hold Defendant in Contempt of Court that it
anticipated the permits would be available by the end of 1992.
. It is important to note, however, that neither proposed permit
| 7 will cover stormwater discharges from construction activities
| involving land disruption of less than five acres. See Id.
. DISCUSSION
| A. Defendant's Motion to Dismiss Plaintiffs Claim,
14 and Motion for Summary Judgment.
| In consideration of a Rule 12 (b)(6) motion, the Court,
| generally, may look only at the pleadings. See Fed. R. Civ. P.
12(b). However, when matters outside the pleadings have been
presented to, and not excluded by the Court, the Court will
treat Defendant's motion as one for summary judgment, and
will consider the parties' evidence. Id. The motion is then
disposed of as provided in Fed. R. Civ. P. 56. Id.
In accordance with Fed. R. Civ. P. 56, this Court will
grant summary judgment when “there is no genuine issue as to
any material fact . . . and the moving party is entitled to
judgment as a mater of law.” In cases such as this where the
movant is the defendant, that party must demonstrate that the
nonmoving party, the plaintiff, lacks evidence to support an
essential element of her or his claim. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986), cert. denied, 484 U.S. 1066 (1988).
The movant's burden is “discharged by showing -- that is,
*In contrast, where the movant is the plaintiff, that party must
demonstrate the absence of an issue of material fact with regard to every
element essential to his or her claim. See Id.
41-A
pointing out to the district court -- that there is an absence of
evidence to support the nonmoving party's case.” Id. However,
it is not enough in most situations for the movant merely to
point out to the court this absence of evidence. Id, at 323;
Clark v, Coats & Clark, Inc, 929 F.2d 604, 608 (11th Cir.
1991). Rather, “a party seeking summary judgment always
bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).
Only after the movant meets its initial burden does any
obligation on the part of the nonmovant arise. Id.; Adickes v.
S.H. Kress & Co., 398 U.S. 144, 160 (1970); Clark, 929 F.2d
at 608. Nevertheless, once the movant has met this initial
burden, the opposing party must present evidence establishing
a material issue of fact. Celotex, 477 U.S. at 325. The
nonmoving party must go “beyond the pleadings” and present
evidence designating “specific facts showing that there is a
genuine issue for trial.” Id, at 324.
All evidence and factual inferences should be viewed
in the light most favorable to the nonmoving party. Rollins v.
TechSouth, Inc,, 833 F.2d 1525, 1529 (11th Cir. 1987); Everett
yv. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). However,
“the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (emphasis in original). An issue
is not genuine if it is unsupported by evidence or is created by
evidence that is “merely colorable” or “not significantly
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probative.” Id. at 250. Similarly, a fact is not material unless
it is identified by the controlling substantive law as an essential
element of the nonmoving party's case. Id. at 248. Thus, to
survive a motion for summary judgment, the nonmoving party
must come forward with specific evidence of every element
essential to his or her case so as to create a genuine issue for
trial. Celotex, 477 U.S. at 323; Rollins, 833 F.2d at 1528.
Defendant argues that the Court should dismiss
Plaintiff's suit on the following grounds: (1) Plaintiff fails to
state a claim upon which relief may be granted because he
neglected to plead that Defendant's construction activities
involves land disturbances of “greater than five acres.” (2)
Plaintiff lacks standing because “there exists no manageable or
precise benchmarks to guide this court in granting the
prospective relief demanded by plaintiff,” (3) the EPD has
primary jurisdiction, and (4) Plaintiff failed to join an
indispensable party. Defendant's Motion to Dismiss, pp. 7-12.
In the instant case, matters outside the pleadings have
been presented to, and have not been excluded by the Court.
Additionally, Plaintiff was given notice of Defendant's Motion
for Summary Judgment, and adequate time to respond, and did
so respond. The Court, therefore, will treat Defendant's motion
as one for summary judgment, and will consider the parties’
evidence. See Fed. R. Civ. P. 12(b).
1. Failure to State a Claim.
Evidence presented at the October 16, 1992 hearing
demonstrates that Defendant's construction activities involved
land disruption of less than five acres. See Affidavit of J.
Dennis Billew, 14. As of October 1, 1992, the CWA no longer
provides an exception to land disturbances of five acres or less.
33 U.S.C. § 1342(p). Thus, evidence is before the Court that
Defendant may be liable for discharges made subsequent to
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October 1, 1992. The Court, therefore, denies Defendant's
Motion for Summary Judgment on Defendant's first-stated
ground.
2. — Standing.
Defendant asserts that Plaintiff does not have standing
under the-CWA-because the Act does not permit citizen suits
where the relief sought would require the court to make
complex findings of fact and engage in an independent process
of standard-setting. Defendant's Motion to Dismiss, p. 8. The
CWA provides that any citizen may commence a civil action
against any person “who is alleged to be in violation of (A) an
effluent standard or limitation under this Act or (B) an order
issued by the Administrator or a State with respect to such a
standard or limitation... .” 33 U.S.C. § 1365(a). The term
“effluent standard or limitation” is defined in such a way that
citizens may bring suit against any person alleged to be
discharging pollutants into waters of the United States without
a valid NPDES permit. See 33 U.S.C. § 1311(a).
Defendant cites the Act's legislative history for the
proposition that authorization of citizen suits is restricted to
cases in which there exist “manageable and precise
benchmarks for enforcement” by the courts. The legislative
history actually states that the Act was drafted in such a way as
tp_make-.“[e]nforcement of pollution regulations .. . . not a
technical matter beyond the competence of the courts.” S. Rep.
No. 414, 92d Cong., 2d Sess. 80 (1972), reprinted in 1972 U.S.
Code Cong. & Admin. News 3668, 3747. Because the Act was
so drafted, “citizen suits [will facilitate] the development of
clear and identifiable requirements [that will in turn] provide
manageable and precise benchmarks for enforcement.” Id.
Thus, the legislative history shows not that the citizen suit
provision should be limited to suits where there are
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OD BP SAA NOLS AE FIDE tt batins
“manageable and precise benchmarks for enforcement,” but
that the provision was drafted so as to include courts in the
development of “manageable and precise benchmarks for
enforcement.” See also Id. at 3746 (“It is the [Senate Public
Works] Committee's intent that enforcement of [a violation of
an effluent standard or limitation established under the Act] be
immediate, that citizens should be unconstrained to bring these
actions, and that the courts should not hesitate to consider
them.”); Georgia Environ. Project v. Atlanta, No. 90-345, slip
op. at 15-16 (N.D. Ga. June 27, 1991) (Moye, J.) (“GEP I”)
(“[c]itizens suits are proper where, as here, ‘the Federal, State
and Local agencies fail to exercise their enforcement
responsibility.’ . . . It is the EPD's failure or refusal to prohibit
the continuing violations which necessitated this suit. The very
purpose of the citizens’ liberal right of action [under the
FWPCA|] is to stir slumbering agencies”) (citations omitted).
Even if the courts were so constrained, however,
Plaintiffs suit does not require any complex findings or
applications. Plaintiffs claims are not, as Defendant charges,
“an attempt to have this court draft and issue a permit which no
environmental regulatory agency has heretofore required or
been able to prepare.” Defendant's Motion to Dismiss, p. 9.
Rather, Plaintiff asks only that the Court determine from the
evidence that Defendant has discharged stormwater without an
NPDES permit. Such a finding would entitle Plaintiff to
damages, sanctions, and an injunction, which appears to be all
that Plaintiff seeks. Plaintiff does not ask the Court to issue an
NPDES permit to Defendant, nor does Plaintiff's desired relief
require such. Thus, the Court finds that Plaintiff has standing
to bring its citizen suit against Defendant.
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3. Primary Jurisdiction.
Defendant asserts that the EPD has primary jurisdiction
over Plaintiff's claim, and, therefore, that the Court should refer
Plaintiff's suit to the EPD. Defendant's Motion to Dismiss, p.
10. The primary jurisdiction doctrine “is concerned with
promoting proper relationships between the courts and
administrative agencies charged with particular regulatory
duties.” United States v. Western Pac. R.R., 352 U.S. 59, 63
(1956). The doctrine “comes into play whenever enforcement
of the claim requires the resolution of issues which, under a
regulatory scheme, have been placed within the special
competence of an administrative body.” Id. at 64. Generally,
a court should suspend the judicial process and refer certain
issues to an administrative body where resolution of the issues
would benefit from the agency's “expertise and specialized
knowledge.” Id.; Taffet v. Southern Co., 930 F.2d 847, 854
(11th Cir. 1991); Feldspar Trucking Co. v. Greater Atlanta
Shippers Assoc., 683 F. Supp. 1375, 1377 (N.D. Ga. 1987)
(Freeman, J.). A court should also invoke the primary
jurisdiction doctrine when doing so “will promote doing so
“will promote . . . . uniformity in a highly regulated area.”
Western Pac., 352 U.S. at 64; Taffet, 930 F.2d at 854; Feldspar,
683 F. Supp. at 1377.
Defendant claims that invocation of the primary
jurisdiction doctrine is appropriate here because to properly
resolve Plaintiff's claims, the Court will have to step into the
EPD's shoes and fashion a permit for Defendant. See also
Defendant's Motion to Dissolve, p. 15. This is not so. Plaintiff
is not asking the Court to make any determinations that would
benefit from the EPD's expert analysis, or that would be
mooted by the EPD's eventual issuance of an NPDES
stormwater permit. Plaintiff asks merely that the Court
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determine from the evidence that the CWA permits no
stormwater discharges without a permit, that Defendant has
discharged stormwater, and that Defendant does not have a
permit. The CWA already sets out all of the relevant standards
for the Court to consider, and determination of the facts and
their application to those standards require absolutely no
administrative expertise. Therefore, the Court finds that
Plaintiff's claim is not appropriate for referral to the EPD's
primary jurisdiction. Compare Feldspar, 683 F. Supp. at 1377.
4. Indispensable Party.
endant contends that Plaintiff has failed to join, and
is incapable of joining, an indispensable party, namely the State
of Georgia. Therefore, Defendant asserts, Plaintiff's claim is
unlikely to prevail on the merits. Defendant's Motion to
Dismiss, pp. 11-12. Federal Rule of Civil Procedure 19(a)
instructs that a person is an indispensable party, and, therefore,
must be joined, if:
(1) in the person's absence complete relief
cannot be accorded among those already
parties, or (2) the person claims an interest
relating to the subject of the action and is so
situated that the disposition of the action in the
person's absence may (i) as a practical matter
impair or impede the person's ability to protect
that interest or (ii) leave any of the persons
already parties subject to a substantial risk of
incurring double, multiple, or otherwise
inconsistent obligations by reason of the
claimed interest.
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Federal Rule of Civil Procedure 12(b)(7), in turn, permits
courts to dismiss complaints for failure to join an indispensable
party under Rule 19(a).
Defendant argues that Plaintiff is seeking to compel it
to obtain an NPDES stormwater permit, and that such relief
would adversely impact the EPD's ability to implement a
uniform administration of water quality laws. Defendant cites
Georgia Environ. Project v. Atlanta, No. 90-345 (N.D. Ga.
March 22, 1991) (Moye, J.) (“GEP I’) as support for its
contention that Plaintiff is actually trying to force EPD to take
action, thus making the EPD an indispensable party.
In GEP I, the plaintiff sued the defendant for
discharging untreated sewage without an NPDES permit. Id. at
1-2. The CWA required an NPDES permit to discharge
untreated sewage, but under the Georgia Water Quality Act,
pursuant to which the CWA is implemented in Georgia, the
defendant was not required to have a permit until March 31,
1991. Id. at 4. This GWQCA provision was approved by the
EPA. Id. at 5. The court found that the plaintiff's suit was, by
necessity, an attempt to render the GWQCA, and the EPA's
approval of it ineffective. Id. Therefore, the court concluded,
the EPD and the EPA had an interest in defending the GWQCA
provision from Plaintiff's attack. Id. The court held that the
EPD and the EPA were indispensable parties, because plaintiff
was attempting “to enjoin further CSO discharges and impose
penalties for past [] discharges, even though Georgia law does
not require permits... until March 31, 1991. Id. (emphasis
added).
In the instant suit, Georgia law does not claim to
immunize Defendant from the need to obtain an NPDES permit
before discharging stormwater. A finding by the Court that
Defendant is in violation of the CWA and liable to injunction
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and penalties would not have the incidental effect of rendering
the GWQCA or any other Georgia law ineffective. Nor would
it run counter to any past EPA decision. In addition, the relief
sought by Plaintiff would not require Defendant to obtain from
the EPD an NPDES permit that does not yet exist. It will
require only that Defendant obtain an NPDES permit if it
intends to continue discharging stormwater. Therefore, neither
the EPD nor the EPA is an indispensable party to Plaintiff's
suit. In light of the above discussion, the Court denies
Defendant's Motion for Summary Judgment.
B. Plaintiffs Motion for a Preliminary Injunction,
and Defendant's Motion to Dissolve the TRO.
It is within this Court's sound discretion to grant or
deny a preliminary injunction. United States v. Lambert, 695
F.2d 536, 539 (11th Cir. 1983). The Court must consider the
following four prerequisites for a preliminary injunction in
exercising its discretion:
(1) a substantial likelihood that plaintiff will
prevail on the merits, (2) a substantial threat
that plaintiff will suffer irreparable injury if the
injunction is not granted, (3) that the threatened
injury to plaintiff outweighs the threatened
harm the injunction may do to defendant, and
(4) that granting the preliminary injunction will
not serve the public interest.
Id. (citing Canal Authority v. Callaway, 489 F.2d 5671 572
(Sth Cir. 1974)).
L Likelit | of Plaintiff P rf he Meri
Defendant contends that Plaintiff would be unlikely to
prevail on the merits, should this case go to trial, because the
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Court would likely find that: (1) the EPD has primary
jurisdiction, (2) Plaintiff lacks standing, (3) Plaintiff failed to
join an indispensable party, (4) Plaintiffs claim is moot, or
(5) the Court should invoke the abstention doctrine.
Defendant's Motion to Dissolve, pp. 14-17. The Court has
already addressed Defendant's first three assertions. In light of
that discussion, the Court finds that, with regard to those three
issues, there is a substantial likelihood Plaintiff would prevail
on the merits at trial.
a. Mootness.
Defendant asserts that Plaintiff's claim is moot because
(1) Plaintiff does not own the “point sources” from which the
stormwater is discharged, (2) Plaintiff has obtained and
complied with all available permits, and (3) the EPD will soon
begin issuing NPDES permits that will cover Defendant's
discharges. Defendant's Motion to Dissolve, pp. 10, 14, 16.
Defendant contends that because Gwinnett County
accepted Defendant's dedication of the subdivision's roads and
stormwater delivery systems prior to any alleged violation, it
was the County, and not Defendant, who actually “discharged”
the stormwater. Federal regulations governing Georgia’s
NPDES program provide that “[when a facility or activity is
owned by one person but is operated by another person, it is the
operator's duty to obtain a permit.” 40 CFR § 122.21 (b). At
the October 16, 1992 hearing, Mr. Douglas C. Ballard,
President of Defendant JMS Development Corporation,
testified that a condition of Defendant's conveyance of the
stormwater delivery systems to Gwinnett County was that
Defendant maintain them for one year. That one year
obligation presumably began on August 6, 1992 -the dedication
date- and continues to be in effect today. Thus, although
Gwinnett County may own the discharge points, Defendant's
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continuing obligation to maintain them places upon it the
responsibility of obtaining an NPDES permit. Evidence was
also presented that stormwater was discharged from a sediment
basin owned and operated by Defendant. This sediment basin
would likely be deemed a “point source,” and, therefore,
Defendant, as its owner and operator, would be liable for any
discharges made without a permit. See Sierra Club v. Abston
Constr. Co., 620 F.2d 41, 45 (Sth Cir. 1980) (defining “point
source”); 40 CFR § 122.2 (same). Georgia law similarly places
on the operator of a point source the responsibility for
obtaining a permit. O.C.G.A. § 12-530(a). Thus, under both
federal and state law, Defendant is liable for any violative
stormwater discharges from these sources.
Defendant is mistaken when it states that it has obtained
and complied with all necessary permits. Under federal law,
Defendant may not discharge stormwater without an applicable
NPDES permit. Defendant does not have such a permit. The
acknowledged unavailability of an NPDES stormwater permit
in the state of Georgia does not alter this equation. The Clean
Water Act establishes an absolute ban absent a permit, and
does not make accommodations for a state's refusal to make a
permit available. Defendant's possession of a Gwinnett permit
pursuant to O.C.G.A. § 127-8 does not absolve it of the
obligation to obtain an NPDES permit before discharging
stormwater.
Finally, Defendant's assertion that the EPD will soon
issue NPDES permits that will cover its discharges is incorrect.
As discussed above, neither of the EPD's two proposed NPDES
stormwater permits will cover stormwater discharges from
construction activities involving land disruption of less than
five acres. The testimony before this Court is that Defendant's
construction activities involve land disruption of only 4.64
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acres. Affidavit of J. Dennis Billew, 14. Thus, even when the
EPD issues its NPDES stormwater permits, if they mirror the
proposed permits, and if Defendant's activities continue to
disrupt only 4.64 acres of land, Defendant will still be unable
to acquire a permit to discharge stormwater.‘
b. Abstention Doctrine.
The EPD, in its Amicus brief, moves the Court to apply
the federal abstention doctrine and refuse to grant an
injunction. EPD's Amicus Curiae Brief, p. 9. In Burford v.
Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court
‘It is regrettable that the EPD has decided to compound the
damage its slothfulness has already wrought by neglecting to propose an
NPDES permit that will cover stormwater discharges from construction
activities involving less than five acres of land disturbance.
The EPD has never been required to wait for the EPA to issue
NPDES permits for certain types of discharges before it could develop
and issue permits in Georgia for the same types of discharges. Georgia’s
decision to “largely follow[] the lead of the U.S. EPA in regulating storm
water discharges” was made of its own volition. See EPD's Amicus
Curiae Brief, p. 6. See also Id, at 4 (“[i]t would be fair to say that, during
the 1970's and 80's, the focus of water pollution control efforts both by
EPA and by the delegated states was the control through permitting of
industrial wastewater discharges and municipal wastewater treatment
plant discharges. EPA's intent [and supposedly that of the EPD] was that
storm water discharges would eventually be regulated by means of
general permits . . .“) (emphasis added); Affidavit of David M. Word,
Chief of the Water Protection Branch for the EPD, 17 (“Because
[Georgia has regulated stormwater discharges under state law since
1975], it has not been a priority of EPD to create [an NPDES stormwater
permitting] program”). Although the argument can be made that limited
resources required the EPD to prioritize its tasks, the Department's
callous decision to delay issuing NPDES stormwater permits until after
the date sanctions became available under the CWA for stormwater
discharges without a permit, has stranded Defendant in this essentially
no-win position. Unfortunately, because EPD's authority to develop
permits is discretionary, even the route of Mandamus is denied to parties
in the Defendant's position.
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counseled against federal courts exercising their discretionary
power where doing so “would be disruptive of state efforts to
establish a coherent policy with respect to a matter of
substantial public concern.” Colorado River Water Conserv.
Dist. v. United States, 424 U.S. 800, 814 (1976). In 1989, the
Supreme Court described in more succinct form the reach of
Burford abstention:
Where timely and adequate state-court review
is available, a federal court sitting in equity
must decline to interfere with the proceedings
or orders of state administrative agencies: (1)
when there are “difficult questions of state law
bearing on policy problems of substantial
public import whose importance transcends the
result in the case then at bar”; or (2) where the
“exercise of federal review of the question in a
case and in similar cases would be disruptive of
state efforts to establish a coherent policy with
respect to a matter of substantial public
concern.”
Ww Vv i 491
U.S. 350, 361 (1989) (citation omitted).
Plaintiff asserted at the November 4, 1992 hearing that
the Burford doctrine's concern that federal courts not interfere
unduly in states' interpretation and application of state laws and
regulations is not implicated when the claim involves federal
regulatory authority that has been delegated to the States,
because the resulting state permit requirements become federal
law. This conclusion is not as obvious as Plaintiff contends.
See
Control Bd., 453 F. Supp 122, 125-26 (E.D. Va. 1978) (finding
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that “the state issuance of NPDES permits does not... .
constitute an act which is federal in nature.”).
However, even if the EPD's NPDES permitting scheme
is sufficiently non-federal to raise a Burford doctrine question,
the determination Plaintiff asks the Court to make here does
not warrant exercise of the doctrine. In New Orleans, the
Supreme Court found that even if the regulations at issue were
non-federal, application of the doctrine was inappropriate
because Plaintiff's requested relief required “no inquiry beyond
the four corners” of the allegedly state-regulatory decision.
491 U.S. at 350. Such a limited inquiry, the Court found,
“would not unduly intrude into the processes of state
government or undermine the State's ability to maintain desired
uniformity.” Id. Similarly, Plaintiff's request that the Court
determine (1) whether the CWA prohibits stormwater
discharge without an NPDES permit, (2) whether Defendant is
discharging stormwater, and (3) whether Defendant has an
NPDES stormwater permit, do not require interference with, or
undue inquiry into, any state law or regulatory scheme.
Therefore, the Court finds application of the federal abstention
doctrine inappropriate in this case.
2. Threat that Plaintiff Will Suffer Ineparable
Defendant asserts that Plaintiff's alleged injury is not
irreparable because the Court can order Defendant to restore
any harm to the Yellow River, and pay damages to Plaintiff.
Defendant's Motion to Dissolve, p. 17. Environmental injury
is generally considered to be irreparable. See, e.g., Amoco
Prod, Co. v. Gambell, 480 U.S. 531, 545 (1987)
(“Environmental injury, by its nature, can seldom be
adequately remedied by money damages and is often
permanent or at least of long duration, i.e., irreparable.”);
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pA Se VEE
Logan v. Gilmer County, No. 91-147, slip op. at 11 (N.D. Ga.
Nov. 13, 1991) (“Monetary damages are not adequate relief for
continued discharge of pollutants into United States waters in
disregard of federal law and the health and safety of others.”);
Sierra Club v. Cargill, 732 F. Supp. 1095, 1101 (D. Colo.
1990) (same); United States v. Malibu Beach, Inc., 711 F.
Supp. 1301, 1312-13 (D.N.J. 1989) (“Equitable relief is
appropriate here because there is no adequate remedy at law to
compensate the public for the harm caused by the disposal of
fill material into waters of the United States.”).
Dr. Wade Nutter, a Professor of Hydrology at the
University of Georgia, testified that he inspected the stream
bed near the discharge point and found “about six inches” of
sediment had been deposited there. Testimony of Wade Nutter,
October 16, 1992, p. 10. Dr. Nutter also testified that whereas
the original stream bottom contained organic matter, the
deposited sediment did not. Id. In addition, Plaintiff testified
at the November 4, 1992 hearing that the sedimentation of the
Yellow River due to the stormwater discharge interferes with
his ability to use and enjoy the river. The Court concludes that
Plaintiff will likely suffer an irreparable injury if an injunction
is not issued.
3. Balancing Plaintiffs Alleged Harm Against
Mr. Ballard testified at the October 16, 1992 hearing
that if Defendant is enjoined from discharging any stormwater
without an NPDES stormwater permit, it will be unable to sell
lots on the subdivision or secure any future loans. As a result,
Mr. Ballard testified, Defendant may have to file for
bankruptcy.
Balanced against this probable harm is the presumption
that if environmental harm is sufficiently likely, “the balance
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of harms will usually favor the issuance of an injunction to
protect the environment.” Gambell, 480 U.S. at 545. In
addition, compliance with an injunction against discharging
stormwater without an NPDES stormwater permit will prevent
Defendant's continuing exposure to civil penalties under the
CWA of up to $25,000 per day, per violation. See 33 U.S.C.
§ 1319(d); Logan v. Gilmer County, slip op. at 11. Weighing
the parties’ potential harms against one another, the Court
concludes that the threatened injury to Plaintiff outweighs the
threatened harm of an injunction to Defendant.
4. The Public's Interest.
The Court concludes that granting Plaintiffs Motion for a
Preliminary Injunction serves the public interest. Congress
enacted the CWA's zero-discharge standard and NPDES permit
program pursuant to the public's interest in restoring and
maintaining the chemical, physical, and biological integrity of
the Nation's waters. See 33 U.S.C. § 1251(a). This interest is
furthered by enforcing the CWA, and alerting tardy agencies of
their need to make permits available. See 1972 U.S. Code
Cong. & Admin. News 3747 (citizens perform a public service
by bringing citizen suits under the CWA). Compare Friends of
the Earth v. Carey, 535 F.2d 165, 173 (2d. Cir. 1976) (“the
very purpose of the citizens’ liberal nght of action is to stir
slumbering agencies and to circumvent bureaucratic inaction
that interferes with the scheduled satisfaction of the federal air
quality goals.”).
Based on the foregone analysis, the Court finds that it
is appropriate to issue a preliminary injunction to Defendant.
Accordingly, in light of the above discussion, the Court denies
Defendant's Motion to Dissolve the TRO.
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vf Plaintiffs Motion to Hold Defendant in
Contempt of Court.
Plaintiff moves the Court to hold Defendant in
Contempt for breaching the Court's August 31, 1992 60-day
TRO, and September 11, 1992 60-day extension. Plaintiff's
Contempt Motion, p. 1. [13-1]. Parties moving for contempt
sanctions bear the initial burden of proof, by Trading Comm’n
y._Wellington Precious Metals, Inc., 950 F. 2d 1525, 1529
(11th Cir. 1992). If such a showing is made, the alleged
coniemnor may defend its failure on the grounds that it was
unable to comply, despite making, in good faith, all reasonable
efforts to do so. United States v. Roberts, 858 F.2d 698, 701
(11th Cir. 1988).
The Court's TRO restrained Defendant from
discharging stormwater from the subdivision without a permit.
[S-1]. At the October 16, 1992 hearing, Plaintiff presented
clear and convincing evidence that Defendant violated the TRO
on September 4, 5, 27, 28, and October 4 and 8, 1992. Plaintiff
requests the Court to fine Defendant $25,000 per day of
violation, or $150, 000 total. Plaintiff ‘s Contempt Motion, p.
3.
Despite finding that Defendant violated the TRO, the
Court declines to hold it in contempt because, in the Court's
opinion, Defendant made, in good faith, all reasonable effort to
comply. At the October 16, 1992 hearing, Mr. Douglas C.
Ballard testified that Defendant has taken numerous steps to
prevent stormwater discharges from the subdivision. See also
Affidavit of Douglas C. Ballard, pp. 3-4. According to Mr.
Ballard, Defendant has not engaged in any land disturbing
activities in the subdivision subsequent to the August 31, 1992
S7-A
TRO.* Mr. Ballard testified also that Defendant had expended
more than $30,000 on erosion control, including siltation
fences, rock dams, a sediment basin, and sodding. Defendant
demonstrated the extent of these efforts at the November 4,
1992 hearing, by entering into evidence a series of photographs
displaying the labyrinthical layering of siltation fences it has
installed. Defendant's Exhibits, 24, 26, 27, 28, 29 and 30.
Plaintiff counters that the TRO restrained Defendant
from discharging any stormwater without a permit, and that
Defendant even admits that its prevention efforts were not
designed to eliminate all discharges. However, although
Defendant was not able to enter into the record any direct
evidence that complete elimination of stormwater discharge is
impossible, the clear inference from all evidence presented is
that full compliance is impossible as a practicable matter.®
Therefore, the Court denies Plaintiff Is Motion to Hold
Defendant in Contempt of Court.
CONCLUSION
The Court DENIES Defendant's Motion to Dissolve the TRO
as moot. [14]. The Court DENIES Defendant's Motion to
Dismiss, and Defendant's Motion for summary Judgment. [16].
*Mr. Ballard did testify that land was disturbed after the TRO
was issued in order to install various utility components. That work,
however, was conducted by government employees, not under
Defendant's control, though at Defendant's request in March, 1992, on
land to which Gwinnett County had a nght of way.
*Defendant’s counsel asserted at the November 4, 1992, hearing
that the only way Defendant could fully comply the TRO would be to
construct a moat around its subdivision. The Court is not convinced that
even by going to this absurd length Defendant could eliminate all
discharges. This Court, therefore, declines to find Defendant in
Contempt for failing to prevail over what is, in fact, a Hobson's choice.
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The Court GRANTS Plaintiffs Motion for a Preliminary
Injunction [18], but DENIES Plaintiff Is Motion to Hold
Defendant in Contempt of Court. [13]. Remaining before the
Court is Plaintiff's Complaint. [I].
So ORDERED this 9th day of November, 1992.
[signed]
ROBERT H. HALL
UNITED STATES DISTRICT JUDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERENCE D. HUGHEY, )
)
Plaintiff, )
) 1:92-cv-2051-RHH
VS. )
)
JMS DEVELOPMENT )
CORPORATION, )
Defendant. )
ORDER
Based upon the Order filed contemporaneously
herewith respecting Plaintiffs Motion for a Preliminary
Injunction; IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED:
That Defendant, JMS Development Corporation, shall
not discharge stormwater into the waters of the United States
from its development property in Gwinnett County, Georgia,
known as Rivercliff Place, without a National Pollutant
Discharge Elimination System permit permitting such
discharge.
So ORDERED this 9th day of November, 1992.
[signed]
ROBERT H. HALL
UNITED STATES DISTRICT JUDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERENCE D. HUGHEY, _)
)
Plaintiff, )
)
VS. ) 1:92-cv-205 1-RHH
)
JMS DEVELOPMENT )
CORPORATION, )
)
Defendant. )
ORDER
This case is before the Court on the Home Builders
Association of Georgia’s Motion for Leave to File a Brief as
Amicus Curiae [15], and to File a Supplemental Brief as
Amicus Curiae [25]. This case is also before the Court on the
Georgia Department of Natural Resources, Environmental
Protection Division's Motion to File a Brief as Amicus Curiae
[19], Defendant's Motion to Amend this Court's November 9,
1992 Order, or, in the alternative, for Relief from the Order
[28], and Plaintiffs Motion for Permanent Injunction and for
Summary Judgment [30]. The Court GRANTS both of the
Home Builders’ motions, GRANTS the Georgia Department of
Natural Resources’ motion, DENIES Defendant's motion, and
DENIES Plaintiffs motion.
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BACKGROUND
I. Procedural History.
Defendant, JMS Development Corporation, is a
Georgia corporation engaged in the development of a 19.2 acre
subdivision known as Rivercliff Place (“the subdivision”), in
Gwinnett County Georgia. Plaintiff, Terence Hughey, is a
resident of Gwinnett County, and owns property in the county,
adjacent to the Yellow River, and topographically downhill
from the subdivision.
On August 28, 1992, Plaintiff filed suit against
Defendant claiming that Defendant was vioiating the Federal
Clean Water Act, 33 U.S.C. § 1251 et seq, (“the CWA”), by
discharging from the subdivision, without a _ permit,
sedimentation collected in rain-water runoff, that travels off of
the property, into a stream, and into the Yellow River [1].
Plaintiff requested that the Court enjoin Defendant, and award
damages. The Court issued a Temporary Restraining Order on
August 31, 1992, restraining Defendant from “discharging
sand, silt, asphalt runoff and other pollutants into any waters of
the United States without a permit.” [5].
On October 13, 1992, Plaintiff filed a Motion to Hold
Defendant in Contempt of Court for having discharged storm
water, in violation of the TRO, on September 4, 5, 27, 28, and
October 4, and 8, 1992. Plaintiffs Contempt Motion, pp. 1-2.
(13]. On October 15, 1992, Defendant filed a Motion to
Dissolve the TRO. (14]. The Court held hearings on October
16 and November 4, 1992, and issued an Order on November
9, 1992 denying Defendant's motion to dissolve the TRO,
denying Defendant's motion to dismiss Plaintiff's complaint,
granting Plaintiffs motion for a preliminary injunction, and
denying Plaintiffs contempt motion. Hughey v. JMS Dev.
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ee ee
Corp., No. 92-2051 (N.D. Ga. Nov. 9, 1992) (hereinafter
Hughey).
Defendant filed its Motion to Amend on November 19,
1992, on the basis of recent developments in both the law and
the facts of the case. On November 24, 1992, the Court stayed
its November 9, 1992 Order [29], but did not rule on
Defendant's motion. Since that time, Plaintiff has moved for
summary judgment and for issuance of a permanent injunction.
II. Facts.
Defendant's subdivision contains 50 lots for the
construction of residential homes. Forty of these lots are
currently owned by Defendant. Defendant has sold the
remaining ten lots to individuals or builders, some of whom
have begun constructing homes thereon. No construction has
begun on Defendant's forty iots. In the Spring of 1992,
Defendant began its development of the subdivision by
clearing, grubbing and grading an area of the property for the
construction of three streets, with related curbing, gutters and
storm sewers. Defendant alleged that its street construction
involved the disturbance of approximately 4.64 acres of land.
Defendant's Motion to Dissolve, p. 2 [14]. Plaintiff concedes
this fact, but argues that Defendant' s total land disruption
involved more than five acres. On August 6, 1992, Defendant
dedicated the streets, curbing, gutters and storm sewers to
Gwinnett County, and the county accepted same.
On March 31, 1992, prior to commencing its clearing,
grubbing and grading activities, Defendant obtained a Gwinnett
County development permit (“Gwinnett permit”), authorizing
it to engage in land-disturbing activity in the subdivision, and
permitting it, under state law, to discharge certain amounts of
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storm water’. Gwinnett County issued the Gwinnett permit
pursuant to its authority to administer Georgia’s Soil Erosion
and Sedimentation Control Act of 1975 (“the SESCA”) within
the physical confines of Gwinnett County. See O0.C.G.A. § 12-
7-8.
The SESCA restricts the concentration of silt that can
be discharged in storm water in Georgia. The Act prohibits
storm-water discharges that are more than “SO nephelometric
turbidity units “NTUs”) higher than the turbidity level of the
receiving stream immediately upstream from the storm water
runoff discharge at the time of such discharge . . ..” O.C.G.A.
§ 12-7-6(18). Plaintiff presented evidence at an October 16,
1992 hearing that Defendant had discharged storm water that
was more than fifty-NTUs higher than any background
turbidity. See Testimony of Dr. Wade Nutter, pp. 6, 8-32, 35-
39; Testimony of Terence Hughey, pp. 8-17, 24, 38-43, 59-61,
83-85, 103.
On November 19, 1992, Defendant first acquired a
National Pollutant Discharge Elimination System (“NPDES”)
storm-water permit, which generally is required in order to
exempt oneself from the CWA's federal prohibition on
discharging storm water. Defendant's failure to obtain an
NPDES permit prior to this date is due, at least in part, to the
State of Georgia’s failure to make NPDES storm-water permits
available to potential applicants (see infra).
‘Under both federal and state law, the term “storm water” is
used for water that contains sedimentation from land-disturbing activities.
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a
Ill. The Clean Water Act, and the NPDES Permitting
Program.
In 1972, Congress amended the Clean Water Act “to
restore and maintain the chemical, physical, and biological
integrity of the nation's waters.” Pub. L. No. 92-500, § 2, 86
Stat. 816 (codified at 33 U.S.C. § 1251(a)). Pursuant to this
objective, the Act prohibits the discharge of any pollutants
from a “point source,”* except in accordance with standards
promulgated in permits issued under other sections of the Clean
Water Act. § 301(a) (codified at 33 U.S.C. § 1311(a)). The
permitting scheme requires that persons seeking to so discharge
pollutants must obtain an NPDES permit, either from the
Environmental Protection Agency (“the EPA”), or from their
state environmental agency if the EPA has delegated authority
to the state to issue the permits. § 402 (codified at 33 U.S.C. §
1342).
The Act also authorizes individuals to commence suits
on their own behalf (“citizen suits”). § 505(a) (codified at 33
U.S.C. § 1365 (a)). A person may bring a citizen suit against
“any person who is alleged to be in violation of an effluent
standard or limitation under this chapter... .” Id.
On June 28, 1974, the State of Georgia received
authority to administer the NPDES program within its borders.
Pursuant to this grant of authority, the CWA is now
implemented in Georgia by the Georgia Water Quality Control
Act (“the GWQCA”), 0.C.G.A. § 12-5-20 et seq. Georgia, in
turn, has delegated the authority to issue NPDES permits to the
*The CWA defines “point source” as “any discernible, confined
and discreet conveyance, including but not limited to any pipe, ditch,
channel . . . from which pollutants are or may be discharged.” § 502(14)
(codified at 33 U.S.C. § 1362 (14)).
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Environmental Protection Division of the Georgia Department
of Natural Resources (“the EPD”). O.C.G.A. § 12-5-20.
The CWA did not explicitly address storm-water
discharges, however, until it was amended in 1987. In that
year, Congress enacted the Water Quality Act, Pub. L. No.
100-4, 101 Stat. 7 (1987) (codified as amended in scattered
sections of 3 3 U.S.C. ), and created a new regulatory scheme
for storm-waiter discharges. § 402(p) (codified at 33 U.S.C. §
1342(p)). Congress subsequently amended the regulatory
scheme in 1991, and again in 1992. Pub. L. No. 102-240,
§ 1068, 105 Stat. 2007; Pub. L. No. 102-580, § 364, 106 Stat.
4797.
Until October 31, 1992, § 402(p) prohibited the EPA,
or states to which NPDES permitting authority had been
delegated, from requiring NPDES permits prior to October 1,
1992 for storm-water discharges. § 402(p)(Il). The section,
however, excepted from this moratorium discharges
“associated with industrial activity.” § 402 (p)(2)(B). Federal
regulations define “storm water discharge associated with
industrial activity” as “construction activity including clearing,
grading and excavation activities except: operations that result
in the disturbance of less than five acres of total land area
which are not part of a larger common plan of development or
sale.” 40 C.F.R. § 122.26(b)(14)(x).
On October 31, 1992, Congress amended section 402(p)
to extend, from October 1, 1992 to October 1, 1994, the date
upon which dischargers of storm water would be required to
obtain NPDES permits. The Water Resources Development
Act of 1992, Pub. L. No. 102-580 § 364, 106 Stat. 4797.
Congress continued, however, to exempt discharges
“associated with industrial activity’ from the moratorium.
Thus, prior to October 1, 1994, one does not violate the CWA
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by discharging storm water without an NPDES permit, so long
as the discharge is not associated with industrial activity.
However, it has been and continues to be a violation of the
CWA to discharge storm water without an NPDES permit if the
discharge is associated with construction activity resulting in
the disturbance of more than five acres, or the disturbance of
less than five acres if those less-than-five-acres are part of a
larger common pian of development or sale.
The Water Quality Act also imposed deadlines prior to
October 1, 1992 for the EPA, or states with delegated authority,
to establish NPDES permit application requirements, and to
accept and respond to applications. § 402(p)(4). The EPA
failed to comply with these deadlines. Not until September 9,
1992 did the EPA make available a “general NPDES permit”
to cover storm-water discharges falling under § 402(p)(2)(B).
57 Fed. Reg. 41,176 - 41,233 (September 9, 1992). The EPD,
apparently in an effort “to be consistent with the federal
program,” has consistently waited until after the EPA has acted
before implementing each step of its permit authorization
process. See EPD's Amicus Curiae Brief, p. 8.
On November 19, 1992, Defendant obtained an NPDES
general permit authorizing Defendant, upon submittal of a
Notice of Intent (“NOT”), “to discharge storm water associated
with construction activity to the waters of the State of Georgia
in accordance with [limitations and conditions set forth in the
permit).” Permit, cover page (appended to Defendant's Motion
to Amend at Exhibit A-1). That same day, Defendant
submitted an NOI to the EPD. Defendant's Motion to Amend,
Exhibit B-1.
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DISCUSSION
I. Amicus Briefs.
The Court referred to the Home Builders and the
Georgia Department of Natural Resources’ Amicus briefs in
reaching its November 9, 1992 ruling, but neglected to grant
the organizations' motions explicitly. The Court grants both
organizations, motions for leave to file briefs as Amicus
Curiae, and grants the Home Builders' motion to file a
supplemental brief.
I. Defendant's Motion to Amend and for Relief.
Defendant moves the Court to amend its November 9,
1992 Order to deny Plaintiffs motion for a preliminary
injunction, permanent injunction, and civil penalties, and to
grant Defendant's motion for summary judgment. Defendant
bases its motion on the following grounds.
A. The Association of Defendant's Discharges with
Industrial Activity.
Defendant contends that as a result of the 1992 Act,
neither the EPA nor the EPD require NPDES permits for
storm-water discharges associated with land disturbance
involving less than five acres of land until October 1, 1994. In
light of the Court's finding in its November 9, 1992 Order that
Defendant's construction activities involved land disruption of
less than five acres (i.e., 4.64 acres), Defendant asserts that it
is not required to obtain an NPDES permit until October 1,
1994.
As stated above, a storm-water discharger generally
need not secure an NPDES permit prior to October 1, 1994
order to discharge storm water and remain in compliance with
the CWA. § 402(p)(i). However, if the discharge is
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“associated with industrial activity,” then it is not covered by
the October 1, 1994 moratorium (nor the October 1, 1992
moratorium), and the discharger is in violation of the CWA
unless it has an NPDES permit. § 402 (p)(2)(B). Federal
regulations define “[s]torm water discharge associated with
industrial activity’ as: “Construction activity including
clearing, grading and excavation activities except; operations
that result in the disturbance of less than five acres of total land
area which are not part of a larger_common plan of
development or sale.” 40 C.F.R. § 122.26(b)(14)(x) (emphasis
added).
In the November 9, 1992 order, this Court stated that
the “[e]vidence presented at the October 16, 1992 hearing
demonstrates that Defendant's construction activities involved
land disruption of less than five acres.” Hughey, slip op. at 13.
See also Id. at 23 (“The testimony before the Court is that
Defendant's construction activities involve land disruption of
only 4.64 acres.”)
Plaintiff now contends that defendant was in violation
of the CWA notwithstanding the 1992 Act's extension of the
date by which NPDES permits must be secured. Plaintiffs
argue that this is so even if Defendant's construction activities
involved land disruption of less than five acres. Because those
five acres are “part of a larger common plan of development or
sale,” Plaintiff argues, Defendant's discharges are “associated
with industrial activities,” and, thus, not covered by the
October 1, 1994, or the previous October 1, 1992 moratoriums.
See 40 CFR. § 122.26(b)(14)(x). See also Defendant's
Statement of Material Facts as to Which There is no Genuine
Issue to be Tried, § 1 (“Defendant is a Georgia corporation
engaged in the development of a 19.2 acre subdivision known
as Rivercliff Place in Gwinnett County, Georgia (Ballard
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affidavit, paragraph 2).”) (appended to Defendant’s Motion to
Dismiss [16]); Testimony of Douglas C. Ballard on October 16,
1992, pp. 23-24 (answering “yes” when asked if his land-
disturbing activities were “conducted by and for JMS
Development Corporation as part of a common plan to develop
the entire neighborhood” and whether “that entire
neighborhood is in fact approximately 20 acres”).
Defendant responds to Plaintiff,’ s argument by entering
into the record an affidavit of Loomis E. Deavours, Secretary
of JMS Development Corporation, in which Deavours states
that as of December 31, 1992, Defendant had sold ten lots in
the subdivision to various individuals and builders, and that
Defendant had “no intention to further develop or engage in
land disturbing activities on property [it] owned.” Deavours
Affidavit, p. 1 (appended to Defendant's Response to Plaintiff's
Motion for Summary Judgment at Exhibit D [33]). Deavours
also testified that “all future land-disturbing activities will be
performed by others on property not under the control of the
JMS Development Corporation[, and that e}xcept for minor
utility work performed by others, all construction activities by
[Defendant] ceased prior to plaintiff filing his complaint.” Id.
at 1-2. Finally, Deavours testified that although Defendant is
the developer of the 19.2 acre subdivision, it “has no ‘common’
ownership or control over the remaining construction activities
occurring at [the] subdivision.” Id. at 2.
Defendant also directs the Court's attention to a recent
case in which the Ninth Circuit held that the CWA's exemption
of construction sites smaller than five acres from the definition
of storm-water discharges “associated with industrial activity”
is arbitrary and capricious. Natural Resources Defense Council,
Inc. v. United States E.P_.A., 966 F.2d 1292, 1305-06 (9th Cir.
1992) (hereinafter “N.R.D.C.”). The Ninth Circuit did not find
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that the EPA' s inclusion of some construction activities within
the definition of “industrial activity” was arbitrary and
capricious. Rather, the Circuit found that the EPA's
establishment of five acres of construction activity as the
threshold for industrial activity was arbitrary and capricious.
Id, at 1306, 1310. In fact, what the Circuit found to be
arbitrary and capricious primarily was
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