# Petition for Writ of Certiorari — Hughey v. JMS Development Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1467%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 993 ## Text 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- : 4 r : : 4 et 0k Rati Eh itn d hos} : 4. + i 2 x ~ } 4 & g 3 ca # s & e ‘ > 3 j 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 5-A 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. 6-A 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). 8-A 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 10-A 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 11-A 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. 12-A 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. 13-A 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. 14-A 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. 15-A 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. 16-A ARI RCRA A LS Ng bee GM lO As Taal baat WLP NAL Dag ee Diahat 6 a st ts Biota tected babe ei, Pea Raa A Lee S ia SD AAAI NAO Reb Bi ih STA al reach Wiha tA E I int Nii Cb na pT Gi 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 17-A 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 18-A ¢ ; ‘ x : Fy 5 $ } { : | ; o 3 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 19-A 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 20-A 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 42-A 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 43-A 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 44-A 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. 45-A 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 46-A A eee A ere at en el cl A 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. 47-A Federal Rule of Civil Procedure 12(b)(7), in turn, permits courts to dismiss complaints for failure to join an indispensable party under Rul [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1467%3A1. Public record. Not legal advice.