Petition for Writ of Certiorari — Piney Run Preservation Ass'n v. County Commissioners
Supreme Court brief2002
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TnCRF ME OF THE CLER,
Supreme Court of the ‘Clnited States
; THE PINEY RUN
PRESERVATION ASSOCIATION,
Petitioner,
COUNTY COMMISSIONERS OF
CARROLL COUNTY, MARYLAND,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petition for Writ of Certiorari
RECEIVED |
G. Macy Nelson : ee
Counsel of Record FEB 1 2 2bve
401 Washington Avenue OFFICE OE THE CLERK |
Suite 803 jy SUPREME COURT, U.S.
Towson, Maryland 21204 -
(410) 296-8166
Counsel for Petitioner
THE LEX GROUP ¢ 1108 East Main Street Suite 1400 ¢ Richmond, VA 23219
(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com
\
QUESTIONS PRESENTED
Does the “permit shield” provision in the Clean
Water Act allow a permit holder to discharge
pollutants not listed on its National Pollutant
Discharge Elimination System (“NPDES”)
permit?
May a federal court construe the “permit shield”
provision in the Clean Water Act to license a
permitholder to discharge a pollutant in
quantities that violate the applicable state water
quality standards, when that pollutant is not
listed on its NPDES permit?
Does a federal court have the power to make
legal the discharge of a pollutant not listed on a
NPDES permit in quantities which the state
permitting agency could not have permitted
under its governing state law?
LIST OF PARTIES TO PROCEEDING
The caption of the case includes all parties to the
proceeding in the district court and court of appeals.
CORPORATE DISCLOSURE STATEMENT
The Petitioner, The Piney Run Preservation
Association, Inc., is a § 501(c)(3) not-for-profit
corporation. It has no parent corporation and is not
owned, wholly or in part, by any publicly-traded
corporation.
li
TABLE OF CONTENTS
Page
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EE Ce Fe Ce sien ccetirescs a nceniancieetomnenanate ii
CORPORATE DISCLOSURE STATEMENT ................. iii
TE CP CG a scicicrenidiaecisensniencovsnrenionemassiomnain vi
FABLE OF AU Tried tee cescssescitsiassnrcssesectisniensnnssbisanninn iv
CITATION TO OFFICIAL,
UNOFFICIAL REPORTS OF
COPE Ce wivesccisnnsacrssnsssnsnsnsctnnrssasccadisatacabanvensia 1
JURISDICTION STATEMENT 0..:0.sccssssasscsssssscsnrsesasaseases 1
CONSTITUTIONAL PROVISIONS,
TREATIES, STATUTES, ORDINANCES
GD EULA TINGS csicicsissieissncnsinssninainisvnsnussvsnnianronesias 2
STATEMENT GO THE CASE ncsscccccncssssnsancsasnescsccentansannsas 2
REASONS FOR GRANTING THE PETITION.............. 10
I. Does the “permit shield” provision
in the Clean Water Act allow a
permit holder to discharge
pollutants not listed on its National
Pollutant Discharge Elimination
SY OMNI TORTIE osscisnsacasnsansainnicnssnsansnnannitinesion 10
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1. The Fourth Circuit's ruling
conflicts with opinions of
other Circuit Courts of
2. The Circuit Court’s ruling
decided an _ important
question of federal law
that conflicts with relevant
decisions in which this
Court explained the Act............... 13
>. The Circuit Court’s ruling
decided an important
question of federal law
that has not been, but
should be, decided by this
May a federal court construe the
“permit shield” provision in the
Clean Water Act to license a
permitholder to discharge a
pollutant in quantities that
violate the applicable state water
quality standards, when that
pollutant is not listed on its
NEP EID POTTY ccsrceicensieimnsniinineiminntin 17
iv
II.
APPENDIX
1. The Fourth Circuit's ruling
conflicts with opinions of
other Circuit Courts of
2. The Circuit Court’s ruling
decided an important
question of federal law that
conflicts with relevant
decisions of this Court ..............
Does a federal court have the
power to make legal _ the
discharge of a pollutant not listed
on a NPDES permit in quantities
which the state permitting agency
could not have permitted under its
governing state law? .............. aippsciiiaisios
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TABLE OF AUTHORITIES
Page(s)
Cases:
Atlantic States Legal Foundation v. Kodak,
12 F.3d 353, (2"4 Cir. 1993), cert. denied,
513 U.S. 811, 115 S.Ct. 62,
Free Be Fe Si scactesaicsnssssnsatincgncteacescanses 13, 18
Arkansas, et al. v. Oklahoma, et al,
503 U.S. 91, 112 S. Ct. 1046,
Bae Mele Be Be Ce iiinanssn si nassicdnatnaspasdsiasansonsias 18
City of Milwaukee v. Illinois, _
451 U.S. 304, 101 S.Ct. 1784,
OP Le BG I sosisenscsnsinsssannnatasnsanserasostonnis 13
E.I. du Pont de Nemours & Co. Train,
430 U.S. 112, 97 S.Ct. 965,
Bee i AE GET ET Pcnctttinnsnincnionnipsntnndssesseniantesenia 14
Environmental Protection Agency v.
California ex rel. State Water Resources Control Board,
426 U.S. 200, 96S. Ct. 2022,
OD Bike Be A Ge CE certerhaesneintiinnnsenipnniszsonen 18, 19
Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc.,
484 U.S. 49, 108 S.Ct. 376,
FP La eeAd DOGE IMI Pacipsoninnesasncntinnsnisnaninnsanavsasansiis 13
v1
Jefferson County v. Washington Dept. of Ecology,
511 U.S. 700, 114 S.Ct. 1900,
Se SE FE EOI ats cnenshsnstinanicssniacasssienbininiinies 17
National Resource Defense Counsel v. Costle,
968 F.2d 1369 (D.C. Cir. 1977) .........c000000. 11, 12, 13
Northwest Environmental Associates v.
City of Portland,
56 F.3d 979 (9 Cir. 1995), cert. denied
518 U.S. 1018, 116 S.Ct. 2550,
DD Nek BP CIPI cecccsncnnesicsntetniccnanrionieni 17,18
Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co. Inc.,
FD FIO SO Gr GRE, TIO) vertesctnanincenscsneincssnrenccenness 12
The Piney Run Preservation Association, Inc. v.
County Commissioners of Carroll County, Maryland,
BG FSG Bae CPG, FE) seccssncninssssonsnsssisnssnerne 1,17
Woodward, et al. v.
~The Maryland Department of Environment,
Maryland Court of Special Appeals,
No. 1660 (September Term 1997).................. passim
United States v. Frezzo Bros. Inc.,
602 F.2d 1123, (3'4 Cir. 1979), cert. denied
444 U.S. 1074, 100 S.Ct. 1020,
Ak Rae FOUR IE ccnnshissccdaanhatsedrsinncisinhakovsnuanacnbilca’ 12
Upper Chattahoochee Riverkeeper Fund, Inc. v.
City of Atlanta,
953 F. Supp. 1541 (N.D.Ga. 1996)... eeeeeeeee 18
Vii
Statutes:
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MB IG, GFA iscsscenccisascncriaisainansenncerssnnscinnnanrsscnnan | iaccaow 1
BS UG. 6 TTB) vesiscsinsesscsssissnsssnssncincrannsnnasasrinenaseonincnian 19
BE EK TEN ssecciintaisccnsesssniiteeniticinaidcsvcinicimannsiabvoninns 13, 19
SB LTB. BUSTA R) on sccsnccncnsessisccosssessisanensaincagrenerensasrsssenn yy
BE UGG GED wriessssssinssiasscrnccasnnescicrnersnnaanmserisnanssnsshansnars 19
SO UI FIG rncissinsnpsacnsasiscencniaccnconivsininannnsonasntsontnaaune 19
BB. UGiC. § TSGRR) ccsnsissasiccsncnsisrenscssneniersensenanssrscionnse passim
33 U.S.C. § 1362(6) .........csccsscsscccsssssssnsecssesessssssasscasscrorsossers yf
BB UE, © TI iaessiseiiseinsscscasiansscnisaipesitssnsnennnsiscasabiasananave a
33 U.S.C. § 1365(f)(6) ............cscccssssscssseecrscsseseseseensenensecens 18
BO isiainiteisnctiscnininsisicatiasindssssscnimibadinnsansens passim
Md. EN. Code Ann. §9-324......c:cccsceseseseeeeeeeeeeeeeteees passim
Md. EN. Code Ann, Title 9.0.0... ceeseseeneeneneeseneeeesees 3, 20
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Rules:
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Regulations:
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I Se Ba ah sicnnsntscsihiniiaitdnasincesenpnnieaaean hy Dy Be
CR, FRIAS i sscsrsniisncinndansenssuictinsasscnicainaiasiaaedel 4
SPAR DOI GEM vssssnscennnssssansnitasennnsasiinssideenuiao 2,4
Other Authorities:
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CITATION TO OFFICIAL, UNOFFICIAL REPORTS
OF OPINIONS/ORDERS
The opinion of the United States Court of
Appeals for the Fourth Circuit in The Piney Run
Preservation Association, Inc. v. County Commissioners of
Carroll County, Maryland, is published at 268 F.3d 255
(4h Cir. 2001). The opinions of the district court are
published at 50 F.Supp.2d 443 (D. Md. 2000) and 82
F.Supp.2d 464 (D. Md. 2001).
The citation to the unpublished opinion in a
related state case, Woodward, et al. v. The Maryland
Department of Environment, is Maryland Court of
Special Appeals, No. 1660 (September Term 1997).
JURISDICTION STATEMENT F
On October 10, 2001, the United States Court of
Appeals for the Fourth Circuit decided The Piney Run
Preservation Association, Inc. v. County Commissioners of
Carroll County, Maryland, 268 F.3d 255 (4% Cir. 2001).
On November 6, 2001, that court denied a timely-filed
Petition for Rehearing and Petition for Rehearing en
Banc. (App. 99) Petitioner files this Petition for a Writ of
Certiorari within ninety days of that denial. See 28
US.C. § 2101(c); S.Ct.R. 13.3.
Petitioner invokes the jurisdiction of this Court
pursuant to 28 U.S.C. § 1254(1).
-
CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES, ORDINANCES AND REGULATIONS
United States Code
33 U.S.C. § 1311(a), (App. 100)
33 U.S.C. § 1342(k), (App. 101)
33 U.S.C. § 1362(6), (App. 102)
33 U.S.C. § 1365, (App. 103)
33 U.S.C. § 1370, (App. 104)
United States Code of Federal Regulations
CFR 122.4, (App. 105)
Maryland Statutes
Md. EN. Code Ann. §9-324, (App. 106)
Maryland Regulations
COMAR 26.08.02.03-3D(3), (App. 107-12)
STATEMENT OF THE CASE
This Clean Water Act citizen suit involves a
wastewater treatment plant’s discharge of warm
effluent to a trout stream in Carroll County, Maryland.
The stream is the Piney Run, a tributary of the Loch
Raven Reservoir. The State of Maryland has classified
the Piney Run as “Class IIIP ” waters to be protected
for the growth and propagation of trout and as a
source of drinking water. (App. 33)
The Petitioner here, and Plaintiff below, is The
Piney Run Preservation = Association, Inc.
(“ Association”). The Association was formed to further
the preservation of the stream and its watershed, and
its members include riparian owners downstream of
the plant. The Respondent, and Defendant below, is the
entity known as The Commissioners of Carroll County
(“Carroll County”). Carroll County owns and operates
the wastewater treatment plant.
As the plant operator, Carroll County holds a
National Pollutant Discharge Elimination System
(“NPDES”) permit that was issued by the Maryland
Department of the Environment (“MDE”) on March 1,
1990. MDE issued the permit “[p]ursuant to the
i provisions of Title 9 of the Environment Article,
: Annotated Code of Maryland.” Section 9-324 of the
statute empowers MDE to issue NPDES permits only
upon a showing that the applicant's discharge will not
violate water quality standards. (App. 106) Regulations
in Part 122 of 40 C.F.R. also governed MDE's issuance
of the permit. Section 122.4 provides that “No
[NPDES] permit may be issued: ...(d) When the
imposition of conditions cannot ensure compliance
with the applicable water quality requirements of all
affected States.” (App. 105)
Carroll County’s permit contains both “Special
Conditions” and “General Conditions.” (App. 131-39)
Special Condition I A. grants numerical effluent
limitations for BOD5, Suspended Solids, TKN, Total P,
Fecal Coliforms, Dissolved Oxygen and pH. A
footnote to the “effluent limitations” heading provides:
“discharge of pollutants not shown shall be illegal.”
(App. 132) Special Condition I A does not grant a
numerical effluent limitation for heat. General
Bi lil a iS ah Sie Ses MR Dale a 2 aT NM LDR DY, DER AN ENA MRE ASAD
Condition II. 12 states: “Nothing in this permit shall be
construed to ... relieve the permittee from any
responsibilities, liabilities, or penalties established
pursuant to any applicable State law or regulation
under authority of Section 510 of the Clean Water Act
of 1977 as amended.” (App. 139) Section 510, 33 U.S.C.
§ 1370, preserves Maryland’s rights to adopt and
enforce its own rules that may be more stringent than
the federal standard.
The applicable state regulations appear in the
Code of Maryland Regulations (hereinafter
“COMAR”). COMAR contains a regulation mandating
the Water Quality Standard for temperature in Class III
and IIIP waters (hereinafter “water quality standard”
or “thermal criterion”). (App. 110-12) The thermal
criterion requires that the temperature of the Piney Run
(a) must not exceed 20°C (68°F) or the ambient
temperature, whichever is higher, and (b) must not
create a “thermal barrier” that “adversely affects
aquatic life.” COMAR 26.08.02.03-3D(3). Maryland also
promulgated numerical limits applicable to the Piney
Run for fecal coliforms, dissolved oxygen, pH,
turbidity, Total Residual Chlorine and thirty toxic
confirm substances. COMAR 26.08.02.03-2.
In 1991, Carroll County applied for a
modification to its 1990 permit because it wished to
increase the volume of its discharges, and MDE gave
notice of its determination to grant the modification.
Like the 1990 permit, the modification did not list heat.
Individual landowners’ contested the permit
modification because MDE had never determined
either whether the existing discharges violated the
stream’s water quality standard for temperature or
whether the proposed increase would violate that
standard. MDE argued at that time that wastewater
treatment plants were exempt from the thermal
criterion. Woodward, et al. v. The Maryland Department of
Environment, Maryland Court of Special Appeals, No.
1660 (September Term 1997) (App. 74)
In 1993, during the modification proceedings,
MDE gathered temperature data which revealed that
the temperature of Carroll County’s effluent exceeded
that of the stream. The data also showed that the
effluent exceeded the 20°C (68°F) prong of the water
quality standard. (App. 71-73) Those data were
introduced in the state permitting proceedings. In
September 1998, the Maryland Court of Special
Appeals vacated the permit modification and
remanded the case to MDE. (App. 96) The Woodward
court held that Maryland law did not authorize MDE
to issue an NPDES permit in the absence of a
determination that “the discharge met the thermal
criterion, pursuant to the command in EN § 9-324.”
(App. 93) The court ordered MDE to acquire the
temperature data necessary to both quantify the
ambient temperature prong of the standard and
determine the effect of the effluent on the temperature
of the stream. (App. 95-96)
In 1998, the Association mailed 60-day letters in
accordance with 33 U.S.C. § 1365 to inform MDE, the
United States Environmental Protection Agency, and
Carroll County of its intention to file a citizen
suit under the Clean Water Act. Neither agency
diligently prosecuted Carroll County. On September
16, 1998, the Association filed this citizen suit in the
United States District Court for the District of
Maryland. Citing MDE’s 1993 temperature readings,
the Association alleged that Carroll County was
continuously violating both its permit and the Clean
Water Act by adding heat to the waters without a
permit listing that pollutant.
In 1996, Carroll County began measuring both
the temperature of Piney Run upstream of the plant
and the temperature of the effluent. The Association
acquired the 1996-98 temperature data in discovery in
this case. Those data showed that Carroll County
frequently added heat to the Piney Run. The County’s
thermal pollution of the stream occurred on 371 of the
397 days that the temperature was measured between
July 10, 1996 and December 31, 1998. On 183 of those
days, the discharge exceeded both 20°C (68°F) and the
temperature of the upstream water.!
On March 17, 1999, the Association moved for
partial summary judgment on liability. Carroll County
did not introduce any evidence that it had disclosed its
discharges of heat to MDE before the issuance of the
1990 permit. Instead, the County cross-moved for
summary judgment, admitted that the permit did not
list heat, introduced the Woodward opinion, argued that
it could only be liable for discharges in excess of the
water quality standard, and urged delay until action by
MDE. Carroll County argued that “the omission of
thermal effluent limitations from the County’s NPDES
permit does not lead to the conclusion that the Plant's
discharge is free to discharge heat without limitations.
To the contrary, the water quality regulations
promulgated by MDE set forth criteria linked to the
various use classifications assigned to the waters of the
: The Piney Run did not have a mixing zone at the point of
discharge because the amount of discharge dominates the base
flow of the stream. Thus, the discharge itself must satisfy the
water quality standards.
state, including the Piney Run.” Carroll County’s
: Cross-Motion for Summary Judgment at p. 7. The
: Association argued that every addition of heat through
; the discharge pipe was an unpermitted addition of the
pollutant. Alternatively, the Association argued that
: Carroll County violated the water quality standard on
i the 183 days that the temperature of the effluent
‘ exceeded both 20°C (68°F) and the temperature of the
ambient receiving water.
On May 20, 1999, the district court granted
partial summary judgment to the Association. The
court found 183 violations: one violation for each day
on which the discharge exceeded the water quality
standard. (App. 62) The district court held that a
reasonable interpretation of the word “ambient” in the
regulation was the “upstream temperature of the Piney
Run” and found violations for each day on which the
discharge exceeded both 20°C (68°F) and the upstream
temperature. (App. 61) Carroll County moved for
reconsideration. It still did not introduce any evidence
: that it had disclosed its addition of heat to MDE before
the 1990 permit was issued. The court denied the
5 motion.
In January, 2000, the district court, sitting as fact
finder, conducted a trial on the relief aspects of its 1999
summary judgment. Because Carroll County was still
adding heat to the stream, the court also heard liability
evidence on the allegations of newer violations. Carroll
County did not introduce any documents to the effect
that it had disclosed its additions of heat to MDE
before the issuance of the 1990 permit. It called one
MDE witness, James Dieter, who began his
employment at MDE in 1997, seven years after MDE
issued the permit. (App. 114) It also called James
ab iden spt Ae a AGN es sper
BR Sal RB ALS SERA ERO PIAL O48 RINSING
Slater, a County employee who began his employment
in May 1990, two months after the 1990 permit had
been issued. (App. 120) Neither witness identified any
written disclosure to MDE by March 1990 that the
temperature of the County’s effluent would exceed
both 20°C (68°F) and the temperature of the stream.
Neither witness specified any such oral disclosure as of
March 1990. Thus, Carroll County introduced no
evidence as to any knowledge by MDE in 1990 that the
County would add heat to the stream in the amounts
and at the temperatures proven by the County's 1996-
1999 data. Indeed, Mr. Dieter testified that Woodward,
et al. v. The Maryland Department of Environment had
caused MDE to begin to assess whether wastewater
treatment plants were discharging thermal pollution.
(App. 119) Woodward was decided eight years after the
1990 permit was issued.
Consistently with its earlier ruling, the district
court found additional violations for the 107 days on
which the discharges exceeded the water quality
standard, and not for the other days on which Carroll
County had added heat. (App. 43) The court's opinion
contained no finding of fact that Carroll County had
disclosed its additions of heat to MDE before the
issuance of the 1990 permit. The court recounted the
testimony that Carroll County “recognized thermal
discharges as a potential problem beginning as early as
1992.” (App. 48)
Carroll County appealed to the United States
Court of Appeals for the Fourth Circuit and was joined
by numerous industry associations.as amici. A three-
judge panel interpreted the “permit shield” provision
in 33 U.S.C. § 1342(k) to mean that a discharger may
discharge any pollutant not listed on the NPDES
BS k. a =. —-. ‘
= . » “
permit if the permittee “adequately disclosed,” and the
permitting authority “ reasonably contemplated,” the
discharge of that pollutant. (App. 31) The court then
found de novo that Carroll County had “adequately
disclosed,” and MDE had “reasonably contemplated,”
the discharge of heat. The court cited only the trial
testimony of Messrs. Dieter and Slater. (App. 31) In its
published opinion, the court further concluded as a
matter of law that the fact of “reasonable disclosure” of
a pollutant coupled with its omission from in the
permit necessarily implies the agency's acquiescence to
the discharge of that pollutant, rather than a decision
not to permit it, and that an agency's mere
“contemplation” of a discharge serves to incorporate
unlimited amounts of that discharge into the permit.
The court did not consider the holding in Woodward
that MDE had not addressed the plant’s thermal
discharge. The court did not address Mr. Dieter's
testimony that MDE only began to consider such
thermal discharges in 1998. The court did not overrule
Judge Young's findings that the discharges violated the
applicable water quality standard and were deleterious
to the stream. (App. 52)
The court vacated the judgment of the district
court and remanded the case for entry of judgment in
favor of Carroll County. Carroll County continues to
add heat to the Piney Run in amounts that violate the
water quality standard and without a permit which
lists that pollutant.
REASONS FOR GRANTING THE PETITION
I. Does the “permit shield” provision in the Clean
Water Act allow a permit holder to discharge
pollutants not listed on its National Pollutant
Discharge Elimination System permit?
This case squarely presents the question of
whether, under the Clean Water Act, a discharger is
entitled to add a pollutant to the Nation’s waters from
a point source without first procuring a National
Pollutant Discharge Elimination System permit which
lists the amount and quantity in which that pollutant
may be discharged.
The Fourth Circuit, reversing the judgment of
the district court, found that the discharger had
“adequately disclosed,” and the regulatory agency had
“reasonably contemplated,” the discharge of heat. The
court then held that such disclosure and contemplation
triggered the application of the “permit shield” to
subsequent discharges of heat in quantities violating
the water quality standard. The consequence of this
first-impression case on the elements of the permit
shield provision is that dischargers may now claim that
they may discharge with impunity any pollutant which
they have merely identified by name to the permitting
agency, as long as the permit does not list that
pollutant. The ruling below fundamentally alters the
structure of the Clean Water Act and contradicts the
intention of Congress that there is no extra-permit right
to discharge pollutants into the Nation’s waters.
Petitioner respectfully asserts that this case
merits review by this Court for five reasons: first, it
poses a conflict with cases in circuits which have held
10
that a discharger’s right to add a pollutant to the
Nation's waters derives solely from the issuance of an
NPDES permit. Second, it conflicts with this Court's
explanation of the role of NPDES permits in the Clean
Water Act and of the importance of the finality of such
permits, as written. Third, it conflicts with Congress’
intent that the public be informed of the pollutants
which a discharger proposes to discharge into their
waters, so that the public has a meaningful opportunity
to challenge discharges which they believe will
degrade the waters. Fourth, it conflicts with the EPA’s
internal understanding of § 1342(k). Fifth, it conflicts
with Congress’ intent that the enforcement of the Act
be straightforward. The ability of citizens and the EPA
to enforce the Clean Water Act quickly and efficiently
was one of the main purposes of the enactment of the
NPDES system. The unsettled state of the law and the
Fourth Circuit's view that polluters may now litigate
what the permitting authority could have “reasonably
contemplated,” pose important federal questions
bearing on the enforceability of the Act.
1. The Fourth Circuit’s ruling conflicts with
opinions of other Circuit Courts of Appeals
The Fourth Circuit’s ruling conflicts with
opinions of the Circuit Courts .of Appeals for the
District of Columbia, Third and Fifth Circuits. Each
has ruled that no one may discharge any pollutant
without an NPDES permit to do so.
In National Resource Defense Counsel v. Costle, 568
F.2d 1369, 1374 (D.C. Cir. 1977), the District of
Columbia Circuit Court wrote that “the legislative
11
history makes clear that Congress intended the NPDES
permit to be the only means by which a discharger
from a point source may escape the total prohibition of
[§] 301(a).” That court quoted the legislative history
that “Even when infeasibility arguments were squarely
raised, the legislature declined to abandon the permit
requirement.” (quoting 118 Cong. Rec. 10215 (1972)).
That court held, therefore, that the Act prohibits the
Environmental Protection Agency from excluding
“minor” polluters from the NPDES program. The
Fourth Circuit, however, determined below that a
pollutant is exempt from the NPDES requirement if
“adequately disclosed” to, and “reasonably
contemplated” by, the permitting agency. The Fourth
Circuit’s . uling that MDE could validly pre-screen a
pollutant from the NPDES requirement directly
conflicts with Costle.
Similarly, in United States v. Frezzo Bros. Inc., 602
F.2d 1123, 1128 (3'4 Cir. 1979), cert. denied 444 USS.
1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980), the Third
Circuit held that absence of the promulgated effluent
limitations for a certain pollutant does not “nullify the
flat prohibition on discharges under § 1311(a).” Thus,
in the Third Circuit, the fact that permissible limits of
the pollutant remain undetermined does not mean that
the defendant can discharge it without a permit. In
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,
73 F.3d 546, 559 (5 Cir. 1996), the Fifth Circuit held
that “the discharge of any pollutant without a NPDES
permit is an unlawful act under § 1311(a).”
These circuits applied the legal principle that a
discharger may-only add those pollutants allowed in
the four corners of their permits. The law as stated by
\, Costle, that an agency “has the discretion either to issue
12
a permit or to leave the discharger subject to the total
prescription of [§ 1311],” 568 F.2d 1375, leaves no room
for the exceptions carved out below for discharges
“contemplated” by an agency.
The Fourth Circuit has not followed the District
of Columbia, Third and Fifth Circuits. Instead, it has
joined the Second Circuit, which has ruled that “the
discharge of unlisted pollutants is not unlawful under
the CWA.” Atlantic States Legal Foundation v. Kodak, 12
F.3d 353, 354 (24 Cir. 1993), cert. denied 513 U'S. 811,
115 S.Ct. 62, 130 L.Ed.2d 19 (1994). There, prior
disclosures had been made in writing and there was no
evidence that the discharges violated the state’s water
quality standards.
Z. The Circuit Court’s ruling decided an
important question of federal law that
conflicts with relevant decisions in which this
Court explained the Act
The Fourth Circuit's interpretation of the permit
shield provision conflicts with the Supreme Court's
explanation of the Clean Water Act. In applying the
Act in other contexts, this Court has explained that the
Act prohibits the discharge of pollutants into navigable
waters without a permit to do so. Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Foundation, Inc Chesapeake Bay
Foundation, 484 U.S. 49, 52, 108 S.Ct. 376, 379, 98
L.Ed.2d 306, (1987), City of Milwaukee v. Illinois, 451 U.S.
304, 310-11, 101 S.Ct. 1784, 1789, 68 L.Ed.2d 114 (1981).
The’ Fourth Circuit held the converse: that a
permitholder may discharge any amount of any
pollutant not listed on the permit if this state agency
“reasonably contemplated” some level of discharge of
that pollutant.
13
Neither this Court nor any other Circuit Court
has previously applied the “permit shield” to allow the
discharge of an unlisted pollutant on the basis of
adequate disclosure and reasonable contemplation.
This Court has only observed: “The purpose of [§]
402(k) seems to be to insulate permit holders from
changes in various regulations during the period of a
permit and to relieve them of having to litigate in an
enforcement action the question whether their permits
are sufficiently strict. In short, [§] 402(k) serves the
purpose of giving permits finality.” E.J. du Pont de
Nemours & Co. Train, 430 U.S. 112, 138 n.28, 97 S.Ct. 965,
980 n.28, 51 L.Ed.2d 204 (1977). The Fourth Circuit's
ruling that a federal court may both consider
subsequent oral testimony of what a state agency could
have “reasonably contemplated,” and imply an entirely
different pollutant into a permit conflicts with the
purpose of giving permits finality.
2. The Circuit Court’s ruling decided an
important question of federal law that has not
been, but should be, decided by this Court
The ruling below presents an important federal
question on three grounds. First, the Fourth Circuit's
ruling conflicts with Congress’ intent that the public be
informed of the pollutants which a discharger proposes
to discharge into their waters, so that the public has a
meaningful opportunity to challenge discharges which
they believe will degrade the waters. The Declaration
of Policy in the Act's legislative history states that “[a]
high degree of informed public participation in the
control process is essential to the accomplishment of
the objectives we seek-- a restored and protected
l4
natural environment.” 1972 US.C.C.A.N. 3679.
Congress explained further that “[t]he public must
have a genuine opportunity to speak on the issue of
protection of its waters.” Id. at 3738. The Fourth
Circuit’s ruling that a permit which does not list a
pollutant may be later interpreted to allow unlimited
and deleterious discharges of that pollutant nullifies
the public notice and challenge provisions of the Act.
As held by the state court in Woodward, citizens cannot
be expected to participate meaningfully in a permit
challenge when the agency has not publicly articulated
its findings concerning compliance with water quality
standards. The Fourth Circuit's ruling that the “permit
shield” can authorize the discharge of unlisted
pollutants raises an important federal question
concerning citizens’ ability to participate in the
permitting process.
Second, the ruling below conflicts with the
EPA’s understanding of the permit shield. The EPA has
interpreted § 1342(k) in two internal memoranda. The
final memorandum requires, as an element of the
defense, proof that the permit holder provided written
disclosure of the pollutant during the permit
application process. The EPA “[clarified] that a
discharge must provide the information in writing for
the permit record in order to obtain the authorization
to discharge and the shield provided by a (NPDES)
permit.” (App. 140) According to the EPA, the
pollutants must be “identified in writing as present ...
during the permit application process and contained in
the administrative record which is available to the public.”
(App. 142) Here, the record contains no written
disclosure by the County prior to the issuance of the
permit, no testimony of any witness who was
15
employed by the County or MDE during the permit
application process, and no reference to any
knowledge by MDE that the thermal pollution would
violate the water quality standard. The ruling below
presents an important federal question as to the
elements of the permit shield defense.
Third, the ruling below calls into question the
functioning of the NPDES scheme as an effective
enforcement tool. The legislative history of the Clean
Water Act makes clear that the finality of permits was
intended to ensure efficient enforcement proceedings.
Congress intended that the Act would “avoid the
necessity of lengthy fact finding, investigations and
negotiations at the time of enforcement. Enforcement of
violations of requirements under this Act should be
based on relatively narrow fact situations requiring a
minimum of discretionary decision making or delay.”
1972 US.C.C.A.N. 3730. The Fourth Circuit’s de novo
consideration of oral testimony about the recollections
of agency staff leaves the law unsettled as to when a
permit may be supplemented by reference to an
understanding between a state agency and a discharger
that was never included in the permit.
Petitioner respectfully requests that this Court
grant certiorari to resolve the inter-circuit conflict, to
address the conflict between the Fourth Circuit's ruling
_ and the settled principles of the Act as set forth by the
Court and to address these important federal
questions.
16
Il. May a federal court construe the “permit
shield” provision in the Clean Water Act to
license a permitholder to discharge a pollutant
in quantities that violate the applicable state
water quality standards, when that pollutant is
not listed on its NPDES permit?
The Fourth Circuit acknowledged that the
undisputed evidence proved that the County's
discharges of heat violated the applicable water quality
standard. (App. 9) The court then ruled as a matter of
_ law that the “permit shield” made those discharges
legal. This Court should grant certiorari to determine
whether the “permit shield” doctrine may be construed
so as to permit the discharge of pollutants in violation
of the applicable state water quality standards.
he The Fourth Circuit's ruling conflicts with
opinions of other Circuit Courts of Appeals
The Fourth Circuit's ruling conflicts with the
rule in the Ninth and Eleventh Circuits. In Northwest
Environmental Associates v. City of Portland, 56 F.3d 979
(9th Cir. 1995), cert. denied 518 US. 1018, 116 S.Ct. 2550,
135 L.Ed.2d 1069 (1996), the Ninth Circuit relied on
PUD No. 1 of Jefferson County v. Washington Dept. of
Ecology, 511 U.S. 700, 114 S.Ct. 1900, 128 L.Ed.2d 716
(1994) to hold that citizens may sue for violations of
water quality standards that have not been reduced to
end-of-pipe effluent limitations. This Court denied
certiorari in Northwest Environmental Associates prior to
the Fourth Circuit's ruling in Piney Run. At that time,
there was no conflict between the Circuits on the
question of whether citizens had standing to sue a
discharger under the Clean Water Act for violations of
17
water quality standards. The only published opinion
from the Eleventh Circuit acknowledged Atlantic States
Legal Foundation v. Kodak, but followed the Ninth
Circuit rule in Northwest Environmental Associates. Upper
Chattahoochee Riverkeeper Fund, Inc. v. City of Atlanta, 953
F.Supp. 1541 (N.D.Ga. 1996).
2. The Circuit Court’s ruling decided an
important question of federal law that
conflicts with relevant decisions of this
Court
The ruling below also conflicts with this Court's
explanation of the Act. In Environmental Protection
Agency v. California ex rel. State Water Resources Control
Board, 426 U.S. 200, 224, 96 S. Ct. 2022, 2033, 48 L. Ed.
2d 578 (1976). There, the Court stated that citizens may
sue permit holders under 33 U.S.C. § 1365(f)(6) if they
can prove a violation of "conditions imposed in
accordance with EPA-promulgated effluent limitations
and standards and for those imposed in accordance
with more stringent standards _and~- limitations
established by a State pursuant to § 510 [of the Clean
Water Act, 33 U.S.C. § 1370].” (emphasis added)
Carroll County’s permit expressly required it to
comply with state law.
More recently, the Court in Arkansas, et al. v.
Oklahoma, et al, 503 U.S. 91, 101, 112 S. Ct. 1046, 117
L.Ed. 2d 239, 251 (1992), reviewed the relationship
between water quality standards and end-of-pipe
effluent limitations:
a
ee ee — = >
The Clean Water Act anticipates a
partnership between States and the
federal Government, animated by a
shared objective: “to restore and maintain
the chemical, physical, and biological
integrity of the Nation’s waters.” 33
US.C. § 1251(a). Toward this end, the
Act provides for two sets of water quality
measurements. “Effluent limitations” are
promulgated by the EPA and restrict the
quantities, rates and concentrations of
specified substances which are
discharged from point sources. See §§
1311, 1314. “[W]ater quality standards”
are, in general, promulgated by the States
and establish the desired condition of a
waterway. See § 1313. These standards
supplement effluent limitations “so that
the numerous point sources, despite
individual compliance ~ with effluent
limitations, may be further regulated to
prevent water quality from falling below
acceptable levels.” EPA v. California ex rel.
State Water Resources Control Board, 426
U.S. 200, 205, n 12, 48 L.Ed. 2d 578, 96 S. ;
Ct. 2022 (1976).
The primary means for enforcing
these limitations and standards is the
NPDES, enacted in 1972 as a critical part
of Congress’ “complete rewriting” of
federal water pollution law.
19
i aaa
Thus, a discharger violates the Act if its discharge
contains a pollutant in quantities that violate either
the applicable state water quality standard or the
numerical effluent limitation in the permit. Here,
MDE issued Carroll County’s permit pursuant to
Title 9 of Maryland’s Environmental Article. Section
9-324 requires all discharges to comply with
water quality standards. (App. 106) Similarly, 40 CFR
§ 122.4 provides that “No [NPDES] permit may
be issued: (d) When the imposition of conditions
cannot ensure compliance with the applicable
water quality requirements of all affected States.”
(App. 105)
The Fourth Circuit’s ruling conflicts with this
authority by establishing the rule that dischargers
are not required to comply with water quality
standards so long as the permit contains no
numerical effluent limitation for that pollutant and
the agency “reasonably contemplated” the discharge
of the pollutant. The ruling below also effectively
excludes the public from knowing the components
of a permitholder’s discharge, until, as here, the
violation of the water quality standards has
occurred.
The question presented in this case can be
expected to recur frequently in the future. Until now,
district courts addressing Clean Water Act cases have
found them well-suited to summary judgment because
the only discharges allowed were those listed on the
permit. The ruling below, however, opens the door to a
defense, nowhere stated in the Act, that discharges of
unlisted pollutants are legal whenever an agency
“reasonably contemplated” it. Citizens whose state
agencies refused to diligently prosecute violators will
20
now be required to litigate the state of mind of agency
staff. Congress did not so intend, and the words of §
1342(k) do not so provide.
Petitioner respectfully requests that this Court
grant certiorari to resolve the inter-circuit conflict and
the conflict between the Fourth Circuit's ruling and the
rulings of this Court.
III. Does a federal court have the power to make
legal the discharge of a pollutant not listed on
a NPDES permit in quantities which the state
permitting agency could. not have permitted
under its governing state law?
The Fourth Circuit’s ruling that the permit
shield licensed Carroll County to add heat over 20°C
(68°F) and the ambient temperature rewards those
dischargers which “adequately disclose” pollutants by
name only, rather than by quantity. Had Carroll
County “adequately disclosed” the temperatures of its
effluent, MDE could not have permitted them because
those temperatures violated the water quality
standard. In the absence of such specificity, the Fourth
Circuit has licensed them.
The ruling below also conflicts with a prior
Maryland state appellate court decision to vacate
MDE’s decision to modify the County’s 1990 permit.
Woodward, et al. v. The Maryland Department of
Environment, Maryland Court of Special Appeals, No.
1660 (September Term 1997). The Woodward court held
that (1) state law prohibited the MDE from issuing a
permit without considering the thermal water quality
standard and (2) there was nothing in MDE’s files as
late as 1993 concerning the temperature of the County's
21
discharge. (App. 90-91) In 1998, the Woodward court
vacated MDE’s decision to issue the modified permit
because “there was no evidence in the record that: (1)
the MDE ... (a) applied the agency’s thermal criterion
[water quality standard], and (b) found that the
temperature limit would be met with the proposed
discharge.” (App. 90-1) The state court concluded “that
MDE never determined, at any point during the entire
permit-issuing process, the underlying facts necessary
for a proper application of the stream’s temperature
regulation.” (App. 66, n.1) (emphasis by the court)
Woodward was in evidence before the district court.
(App. 56-57) By deeming the 1990 permit to include
heat discharges, the Fourth Circuit gave MDE powers
which the Woodward court had found that agency
lacked.
Whether a federal court may determine after the
issuance of a permit that NPDES permits “shield”
discharges of unlisted pollutants in quantities which
violate state law raises the important federal question
of whether a polluter may invoke the federal permit
shield to defeat the state’s more stringent requirement
that no permit may be issued without an articulated
finding that the discharge will not violate the water
quality standards. EN § 9-324; Woodward. The Clean
Water Act expressly preserves the power of States to
impose more stringent requirements than those in the
Act. 33 U.S.C. § 1370. The Fourth Circuit deemed MDE
to have issued a permit which that agency lacked the
power to issue. Whether a federal appeals court may
read into a permit provisions which are illegal under
state law, and theri enforce that permit, and whether it
may expand a state agency’s permitting powers, are
questions this Court has never addressed.
\
22
Petitioner respectfully requests that this Court
grant certiorari to address these important federal
questions.
Respectfully submitted,
G. Macy Nelson
Counsel of Record
401 Washington Avenue
Suite 803
Towson, Maryland 21204
410-296-8166
Counsel for Petitioner
APPENDIX
TABLE OF CONTENTS
Appendix to the Petition
Page
Opinion
United States Court of Appeals
for the Fourth Circuit
entered October 10, 2001...........cceceseseeseeees App. 1
Memorandum Opinion and Order of
The Honorable Joseph H. Young
United States District Court
for the District of Maryland
entered February 10, 2000.............:c0 App. 33
Memorandum Opinion and Order of
The Honorable Joseph H. Young
United States District Court
for the District of Maryland
entered May 20, 1999..............c0ssscsssssseees App. 55
Opinion
Maryland Court of Special Appeals
Re: C. Victoria Woodward, et al. v.
The Maryland Department of Environment
entered September Term, 1997 ............... App. 63
Order
United States Court of Appeals
for the Fourth Circuit
Re: Denying Petition for Rehearing and
Rehearing En Banc
entered November 6, 2001...........:::s0+ App. 97
App. i
Excerpt of
PE ee RIPEN wirncisrstommnsinncisnsanaibcaiintblaesonaiel App. 100
Excerpt of
Fi BI scnsssciseninrndasenininsserasisiadisiieilgleniada App. 101
Excerpt of
a ee AE AR isscxnsornionnncsiinnsanntasensiibiaiocdubibcaiian App. 102
Excerpt of
Fa ss A IIE isnssnnsonchiodasnceahaaitiasadenalaseenanninell App. 103
ee i Et eine acseicuscscecssiaeuienenioamonsanaaniione App. 104
Excerpt of :
ad a Re isriactinicneeasienonnnnnsian App. 105
Excerpt of
Maryland Code Annotated, §9-324 .........eee App. 106
Excerpt of
CRIA, DRAB S ociccscsissszsrasscanssonsanraanesionita App. 107
Excerpt of
Testimony of James John Dieter
sworn on January 18, 2002 ............e App. 113
Excerpt of
Testimony of James Slater
sworn on January 18, 2002...........:ss0 App. 120
App. ii
Excerpt of
State of Maryland, Department of Environment
Discharge Permit,
effective March 1, 1990... App. 131
Excerpt of _
Memorandum to
Regional Administrators and
Regional Counsels from
Perciasepe, Herman and Nelson
Re: Revised Policy on Scope of Discharge
_Authorization and Shield Associated with
NPDES Permits
App. iii
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-1283
THE PINEY RUN PRESERVATION ASSOCIATION,
Plaintiff-Appellee,
Vv.
COUNTY COMMISSIONERS OF CARROLL
COUNTY, MARYLAND,
Defendant-Appellant.
ASSOCIATION OF METROPOLITAN SEWERAGE
AGENCIES; WATER ENVIRONMENT FEDERATION;
MARYLAND ASSOCIATION OF MUNICIPAL
WASTEWATER AGENCIES, INCORPORATED;
VIRGINIA ASSOCIATION OF MUNICIPAL
WASTEWATER AGENCIES, INCORPORATED;
WEST VIRGINIA MUNICIPAL WATER QUALITY
ASSOCIATION, INCORPORATED;
AMERICAN CHEMISTRY COUNCIL;
AMERICAN FOREST AND PAPER ASSOCIATION;
CHAMBER OF COMMERCE OF THE UNITED
STATES OF AMERICA; GENERAL ELECTRIC
COMPANY; NATIONAL ASSOCIATION OF
MANUFACTURERS; UTILITY WATER ACT GROUP;
VIRGINIA MANUFACTURERS ASSOCIATION;
M.A.D.E.IN MARYLAND; ALLIANCE OF
AUTOMOBILE MANUFACTURERS;
App. 1
AMERICAN IRON AND STEEL INSTITUTE;
AMERICAN PETROLEUM INSTITUTE;
ENVIRONMENTAL FEDERATION OF OKLAHOMA;
MICHIGAN MANUFACTURERS ASSOCIATIONS;
MISSISSIPPI MANUFACTURERS ASSOCIATION;
NATIONAL PETROCHEMICAL AND REFINERS
ASSOCIATION; NUCLEAR ENERGY INSTITUTE;
WESTERN STATES PETROLEUM ASSOCIATION,
Amici Curiae.
No. 00-1322
THE PINEY RUN PRESERVATION ASSOCIATION,
Plaintiff-Appellant,
¥. -
COUNTY COMMISSIONERS OF CARROLL
COUNTY, MARYLAND,
Defendant-Appellee.
ASSOCIATION OF METROPOLITAN SEWERAGE
AGENCIES; WATER ENVIRONMENT FEDERATION;
MARYLAND ASSOCIATION OF MUNICIPAL
WASTEWATER AGENCIES, INCORPORATED;
VIRGINIA ASSOCIATION OF MUNICIPAL
WASTEWATER AGENCIES, INCORPORATED;
WEST VIRGINIA MUNICIPAL WATER QUALITY
ASSOCIATION, INCORPORATED; AMERICAN
CHEMISTRY COUNCIL; AMERICAN FOREST
AND PAPER ASSOCIATION; CHAMBER OF
COMMERCE OF THE UNITED STATES OF
AMERICA; GENERAL ELECTRIC COMPANY;
App. 2
NATIONAL ASSOCIATION OF MANUFACTURERS; -
UTILITY WATER ACT GROUP;
VIRGINIA MANUFACTURERS ASSOCIATION;
M.A.D.E.IN MARYLAND; ALLIANCE OF ~-
AUTOMOBILE MANUFACTURERS;
AMERICAN IRON AND STEEL INSTITUTE;
AMERICAN PETROLEUM INSTITUTE;
ENVIRONMENTAL FEDERATION OF OKLAHOMA;
MICHIGAN MANUFACTURERS ASSOCIATIONS;
MISSISSIPPI MANUFACTURERS ASSOCIATION;
NATIONAL PETROCHEMICAL AND REFINERS
ASSOCIATION; NUCLEAR ENERGY INSTITUTE;
WESTERN STATES PETROLEUM ASSOCIATION,
Amici Curiae.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-98-3124-Y)
Argued: April 5, 2001
. Decided: October 10, 2001
[Entered: October 10, 2001]
Before WILKINS, KING, and GREGORY, Circuit
Judges.
Vacated and remanded by published opinion. Judge
King wrote the opinion, in which Judge Wilkins and
Judge Gregory joined.
App. 3
COUNSEL
ARGUED: Linda S. Woolf, GOODELL, DEVRIES,
LEECH & GRAY, L.L-P., Baltimore, Maryland, for
Appellant. Christopher Donald Pomeroy, MCGUIRE
WOODS, L.L.P., Richmond, Virginia, for Amici Curiae
State Associations. Guerdon Macy Nelson, Towson,
Maryland, for Appellee.
ON BRIEF: Michael B. MacWilliams, Ian Gallacher,
GOODELL, DEVRIES, LEECH & GRAY, L.LP.,
Baltimore, Maryland, for Appellant. F. Paul Calamita,
MCGUIRE WOODS, L.L.P., Richmond, Virginia,
for Amici Curiae State Associations. D. Randall Benn,
Paul C. Freeman, LEBOEUF, LAMB, GREENE &
MACRAE, L.L.P., Washington, D.C., for Amici Curiae
Sewerage Agencies, et al. James N. Christman,
HUNTON & WILLIAMS, Richmond, Virginia, for
Amici Curiae Industry Groups. Robert G. Smith,
Anthony M. Carey, VENABLE, BAETJER &
HOWARD, L.L.P., Baltimore, Maryland, for Amicus
Curiae M.A.D.E. in Maryland. Scott M. DuBoff,
Kenneth S. Kaufman, WRIGHT & TALISMAN, P.C.,
Washington, D.C., for Amici Curiae Automobile
Manufacturers, et al.
App. 4
OPINION
KING, Circuit Judge:
The Piney Run Preservation Association sued
the Commissioners of Carroll County, Maryland,
claiming that a county-operated waste treatment plant
was discharging warm water into a local stream, Piney
Run, in violation of the Clean Water Act. The district
court construed the plant’s NPDES permit as not
prohibiting the discharge of heat. Nonetheless, the
court decided that the Commissioners were liable
under the Clean Water Act for the discharge of
pollutants not expressly authorized by the permit. On
appeal, the Commissioners maintain that the “permit
shield” defense, embodied in 33 U.S.C. § 1342(k), bars
suit against a permit holder for the discharge of
pollutants not expressly listed in the permit. Although
we do not accept the Commissioners’ position on the
permit shield defense, we also disagree with the
district court’s interpretation of the Clean Water Act.
Utilizing the two-part test spelled out in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council,! 467
U.S. 837 (1984), we adhere to the interpretation
provided by the EPA. We therefore view the NPDES
permit as shielding its holder from liability under the
Clean Water Act as long as (1) the permit holder
complies with the express terms of the permit and with
the Clean Water Act's disclosure requirements and (2)
. The Chevron doctrine provides that interpretations of
governing statutes by authorized administrative agencies receive
deference from the courts if (1) the statutory language is
ambiguous and (2) the administrative interpretation is reasonable.
467 US. at 844.
App. 5
the permit holder does not make a discharge of
pollutants that was not within the reasonable
contemplation of the permitting authority at the time
the permit was granted. Applying this rule, we
conclude that the Commissioners did not violate the
Clean Water Act because (1) they complied with the
discharge limitations and reporting requirements of
their permit, and (2) their discharges of heat were
within the reasonable contemplation of the permitting
authority at the time the permit was _ issued.
Accordingly, we vacate the judgment of the district
court, and we remand for entry of judgment in favor of
the Commissioners.
I.
Piney Run is a small stream with its headwaters
near the border of Carroll and Baltimore counties in
Maryland. The Maryland Department of the
Environment (“MDE”) has classified Piney Run as a
Class III-P stream, which means that it is protected as a
source of public drinking water and as a body capable
of supporting a self-sustaining trout population. See
Md. Regs. Code (“COMAR?”) tit. 26, § 26.08.02.02(B)(5).
Carroll County operates the Hampstead Wastewater
Treatment Plant (“Plant”), which serves approximately
4200 residential and commercial users. As part of the
treatment process, the Plant discharges effluent, i.e.,
treated wastewater, into Piney Run.
Because of the Plant's discharge of effluent into
Piney Run, the Plant is subject to the Clean Water Act
(“CWA “). See 33 U.S.C. § 1311(a). Under the CWA,
dischargers must operate pursuant to a National
Pollutant Discharge Elimination System ( “NPDES”)
App. 6
permit obtained from either the Environmental
Protection Agency (“EPA”) or an authorized state
agency. See id. §§ 1311(a), 1342(a), (c); see also Md.
Code Ann. Envir. § 9-323. Beginning in 1975, the Plant
has operated under a series of NPDES permits granted
by the MDE as the authorized state agency. The most
recent NPDES permit was issued to the Plant in 1990.
Under the CWA, the various states are required
to promulgate water quality standards for certain
waters within their borders. See 33 U.S.C. § 1313. Such
standards denote designated uses of particular bodies
of water and establish water quality criteria designed
to protect those uses. See 40 C.F.R. §§ 131.10(a), 131.11.
In order to grant a permit or a permit modification, the
MDE must determine that the discharger will not
violate these water quality standards. See Md. Code
Ann. Envir. § 9-324(a); COMAR tit. 26, § 26.08.04.02(A)
(1)(b).
The Piney Run Preservation Association
(“ Association”), which is dedicated to the protection of
Piney Run, filed this lawsuit in the District of Maryland
in 1998.-The Association sued the Commissioners
under section 505 of the CWA, 33 U.S.C. § 1365(a),/7
claiming that the Plant’s NPDES permit limited the
amount of heated effluent it could discharge into Piney
2 Section 505 provides, in pertinent part, that “any citizen
may commence a civil action on his own behalf against any person
. who is alleged to be in violation of an effluent standard or
limitation under this chapter.” 33 U.S.C. § 1365/a). This provision
of the CWA allows citizens “to bring suit against any NPDES
permit holder who has allegedly violated its permit” and “a
successful suit may result in the award of injunctive relief and the
imposition of civil penalties payable to the United States
Treasury.” Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 204 F.3d 149, 152 (4th Cir. 2000).
App. 7
Seen
|
Run, and that the Plant regularly exceeded this limit.
The Plant’s 1990 permit contained express limitations
on the amount of certain pollutants that may be
discharged. Heat, a statutory pollutant under the
CWA, was not listed in the 1990 permit as one of these
pollutants.4 See id. § 1362(6). In its lawsuit, the
Association claimed that a footnote of the Plant’s
NPDES permit flatly prohibited the discharge of any
3 In 1991, the Plant petitioned MDE for modification of its
1990 permit to allow it to increase its daily discharge of effluent.
The MDE proposed granting the modification, but several
neighboring landowners challenged the change and contended
that the MDE had not sufficiently analyzed whether the Plant
would comply with state water quality temperature standards in
discharging the increased effluent. Although the MDE
adjudicatory bodies and the Circuit Court for Baltimore County
dismissed the landowners’ claim, the Court of Special Appeals of
Maryland upheld the landowners’ challenge and remanded the
case to the MDE to measure the ambient temperature of Piney
Run and to ascertain whether the Plant violated Maryland water
quality standards at its current or proposed levels of discharge.
Therefore, because the Plant has not received final approval for a
modified permit, the 199U permit is the relevant permit for this
case.
‘ Although the Association asserts that the Plant discharged
heat in violation of the NPDES permit, the crux of the
Association’s challenge is that the Plant discharged water into
Piney Run that was warmer than the baseline temperature, or
“ambient temperature,” of the stream. In essence, the Association
contends that heat was discharged into Piney Run in violation of
the CWA any time the temperature of the water discharged
exceeded that of Piney Run, even if the difference in temperature
between the two was slight. For example, the Association claims
that the Commissioners violated the CWA even though the Plant's
effluent was less than ten degrees Fahrenheit warmer than the
temperature of Piney Run, and the discharged water was never
measured as exceeding approximately 75.2 degrees Fahrenheit.
App. 8
pollutants that were not expressly listed in the permit.
In the alternative, the Association argued that a permit
holder may be liable under the CWA for the discharge
of any pollutant not expressly allowed by its permit.
The Association claimed that under either of these
theories, the Plant was in violation of the CWA if it
discharged any level of heat whatsoever. In May 1999,
the district court construed the Commissioners’ permit
as allowing for the discharge of heat, but held that the
CWA prohibits the discharge of any pollutant that is
not limited by the permit. Using Maryland water
quality standards, the court concluded that heat
constituted a pollutant in violation of the CWA when
effluent was discharged “with a temperature exceeding
the greater of either 68 degrees [Fahrenheit] or the
ambient temperature of Piney Run.” Piney Run Pres.
Ass‘n. v. County Comm('rs., 82 F. Supp. 2d 464, 466 (D.
Md. 2000) (citing COMAR tit. 26, § 26.08.02.03-3E). The
court then calculated the “ambient temperature” of the
stream, and found on partial summary judgment that
the Commissioners had violated the CWA on 183
occasions.5 In January 2000, the court conducted a
. The Commissioners subsequently moved for
reconsideration by the district court of its summary judgment
ruling or, in the alternative, for certification of an interlocutory
appeal, pursuant to 28 U.S.C. § 1292(b). In order to grant
certification under § 1292(b), a district court must find that the
order at issue “involves a controlling question of law as to which
there is substantial ground for difference of opinion.” The district
court denied the Commissioners’ motion to reconsider, but
properly certified its summary judgment ruling for interlocutory
appeal. On August 30, 1999, however, we denied the
Commissioners’ petition for interlocutory review. The-
Commissioners then filed a second motion for reconsideration in
the district court, which was also denied.
App. 9
ee a a eee
bench trial in connection with the discharges in
dispute, and it found an additional 107 CWA
violations against the Commissioners. Accordingly, the
court in February 2000 entered judgment for the
Association, enjoined the Commissioners from further
violations, assessed them $400,000 in civil penalties
payable to the United States Treasury, and awarded
the Association its litigation costs and reasonable
attorneys’ fees.
Both the Association and the Commissioners
appeal from the district court’s final order of February
10, 2000. The Association claims that the district court
erred in holding that the Plant only violated the CWA
when its discharge of heat exceeded state temperature
standards. It contends that the Plant violated the CWA
henever it discharged any level of heat whatsoever.
Accordingly, the Association seeks remand of this case
on the issue of damages. The Commissioners, on the
other hand, claim that the permit shield defense in 33
U.S.C. § 1342(k) bars holding a permit holder liable for
the discharge of pollutants not expressly regulated by
the permit. © The Commissioners also challenge the
Article III standing of the Association to sue, and they
assert that the doctrine of primary jurisdiction
‘ The permit shield defense is derived from the provisions
of 33 U.S.C. § 1342(k), which provides:
Compliance with a permit issued pursuant to this
section shall be deemed compliance, for purposes
of sections: 1319 and 1365 of this title, with
sections 1311, 1312, 1316, 1317, and 1343 of this
title, except any standard imposed under section
1317 of this title for a toxic pollutant injurious to
human health.
App. 10
precludes the district court’s findings with respect to
the ambient temperature of Piney Run. 7We possess
jurisdiction pursuant to 28 U.S.C. § 1291.
IT.
The Commissioners claim that the Association
lacks Article III standing. Pursuant to Article III of the
Constitution, federal courts are restricted to the
adjudication of “cases” and “controversies.” The
standing requirement therefore “ensures that a plaintiff
has a sufficient personal stake in a dispute to render
judicial resolution appropriate.” Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153
(4th Cir. 2000). Moreover, the standing inquiry also
“tends to assure that the legal questions presented to the
court will be resolved, not in the rarefied atmosphere of
a debating society, but in a concrete factual context
conducive to a realistic appreciation of the consequences
of judicial action.” Valley Forge Christian College v.
. The doctrine of primary jurisdiction “is a doctrine
specifically applicable to claims properly cognizable in court that
contain some issue within the special competence of an
administrative agency. It requires the court to enable.a ‘referral’ to
the agency, staying further proceedings so as to give the parties
reasonable opportunity to seek an administrative ruling.” Reiter v.
Cooper, 507 U.S. 258, 268 (1993). The doctrine has been deemed to
apply in circumstances in which federal litigation raises a difficult,
technical question that falls within the expertise of a particular
agency. See, e.g., American Auto. Mfrs. Ass'n. v. Mass. Dept. of
Envt’l. Prot., 163 F.3d 74, 81- (1st Cir. 1998). In this case, the
Commissioners contend that the district court should have
deferred to the MDE to calculate the ambient temperature of Piney
Run. Aithough the Commissioners’ point may be compelling, we
need not reach this issue '«cause the ambient temperature of
Piney Run has no bearing « our disposition of this appeal.
App. 11
Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472 (1982). In analyzing a decision on
Article III standing, we review the district court’s factual
findings for clear error. We consider the legal question
of whether the Association possesses standing to sue as
a de novo matter. See Marshall v. Meadows, 105 F. 3d
904, 905-06 (4th Cir. 1997).
An association, as the representative of its
members who have been harmed, possesses standing
to sue if it can show: (1) at least one member would
otherwise have individual standing, (2) the interests at
stake in the litigation are germane to the organization's
purpose, and (3) neither the claim asserted nor the
relief requested requires the participation of individual
members in the lawsuit. See Friends of the Earth, Inc. v.
Laidlaw Envt'l. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000); Warth v. Seldin, 422 U.S. 490, 511 (1975). On
appeal, the Commissioners only contest the first prong
of this three-part test, i.e., whether any member of the
Association has individual standing to sue. An
individual possesses Article III standing if (1) he or she
has suffered an “injury in fact,” (2) that is fairly
traceable to the challenged action of the defendant, and
(3) it is likely that the injury will be redressed by a
favorable decision. See Laidlaw, 528 U.S. at 180-81. In
this proceeding, the Commissioners challenge the first
two elements of the individual standing test: they
assert that no member of the Association has suffered
an “injury in fact,” and that even if an Association
member has suffered such an injury, it is not “fairly
trace-able” to the Plant’s operation. They correctly
point out that the elements of standing are “not mere
App. 12
pleading requirements,” but rather must be supported
by sufficient evidence. Lujan v. Defenders of Wild-life,
504 U.S. 555, 561 (1992).
A plaintiff can show an “injury in fact” when he
or she suffers “an invasion of a legally protected
interest which is concrete and particularized, as well as
actual or imminent.” Gaston Copper, 204 F.3d at 154;
see also Defenders of Wildlife; 504 U.S. at 560. In an
environmental case, the question is whether the
plaintiff has suffered an injury, as opposed to whether
the environment has actually been harmed. See
Laidlaw, 528 U.S. at 181. Specifically, a plaintiff need
only show that he used the affected area, and that he is
an individual “for whom the aesthetic and recreational
values of the area [are] lessened” by the defendant's
activity. Sierra Club v. Morton, 405 U.S. 727, 735 (1972);
see also Laidlaw, 528 US. at 184 (holding that plaintiffs
had established an injury in fact because the challenged
activity directly affected their “recreational, aesthetic,
and economic interests”); Defenders of Wildlife, 504 U.S.
at 562-63 (“[T]he desire to use or observe an animal
species, even for purely aesthetic purposes, is
undeniably a cognizable interest for the purpose of
standing.”); Gaston Copper, 204 F.3d at 159 (concluding
that individuals’ allegations that they would make
greater recreational use of waterway except for
concern over defendant's discharges sufficient for injury
in fact). ,
In this case, Dorothy Rowland, a member of the
Association, is able to show that she has suffered an
injury in fact. Piney Run flows through Rowland’s
property. She testified that when she purchased her
property in 1967, Piney Run was “very pristine,” but
that in the last several years the stream had acquired a
App. 13
high concentration of green algae. Rowland stated
that the green algae significantly interfered with
her use and enjoyment of Piney Run. For example,
the algae made the stream’s rocks slippery, and
therefore difficult to cross. Because the water is no
longer clear, she stopped allowing her horses to
drink from Piney Run. Further, according to Rowland,
the green algae made the stream less desirable to
observe. In sum, Rowland demonstrated that her
enjoyment of Piney Run has been diminished, and
accordingly, she has sufficiently shown an “injury
in fact.”
Rowland can also show that her injury was
“fairly traceable” to the Plant's operation. The
plaintiff's injury must be fairly traceable to the
challenged action of the defendant and not the result of
some independent action. See, e.g., Defenders of
Wildlife, 504 U.S. at 561. The Commissioners maintain
that the Association failed to provide sufficient
scientific evidence that the concentration of green algae
in Piney Run was caused by the Plant’s discharge of
heat. According to the Commissioners, the Association
had to show that, but for the Plant’s operation, the
algae would not have developed in the stream. The
Commissioners, however, misapprehend what the
Association must demonstrate to show traceability.
Traceability “does not mean that plaintiffs must show
to a scientific certainty that defendant's effluent .. .
caused the precise harm suffered by the plaintiffs.”
Natural Res. Def. Council, Inc. v. Watkins, 954 F.2d 974,
980 n.7 (4th Cir. 1992) (internal quotation marks
omitted); see_also Gaston Copper, 204 F.3d at 161
(same). Rather, a plaintiff “must merely show that a
defendant discharges a pollutant that causes or
App. 14
contributes to the kinds of injuries alleged.” Watkins,
954 F.2d at 980 (internal quotation marks omitted); see
also Gaston Copper, 204 F.3d at 161 (same).
In this case, the Association presented evidence
that the Plant is discharging heat into Piney Run. Dr.
Stauffer, a professor of ichthyology (the study of fish),
testified that heat can cause green algae to proliferate.®
Rowland therefore has sufficiently shown that her
alleged injury is “fairly traceable” to the challenged
actions of the Plant. Rowland has demonstrated that
she would possess individual standing if she were to
sue the Commissioners for unlawfully operating the
Plant. Because Rowland would have individual
standing the Association has standing to sue as a
representative of its members.
III.
We turn now to the district court’s interpretation
and application of the CWA. The court found that the
Plant’s NPDES permit contained no prohibition on
discharging heat, but concluded that the Plant was
liable under the CWA because the discharge of heat
was not expressly allowed by the permit. We are,
however, constrained to disagree. In _ these
circumstances, because the Commissioners adequately
disclosed that the Plant was discharging heat and
. The Commissioners contend that the district court abused
its discretion in allowing Dr. Stauffer to opine that the Plant's
discharge of heat was affecting Piney Run’s trout population.
Specifically, the Commissioners claim that Dr. Stauffer’s testimony
did not meet the standards for admissibility. Regardless, because
of the broad discretion accorded trial courts in such matters, and
due to Dr. Stauffer’s qualifications and the nature of his testimony,
it was not erroneous for the district court to consider his evidence.
App. 15
because their discharges were within the reasonable
contemplation of the MDE during the permit
application process, the NPDES permit allowed the
Plant to discharge heat. To explain our view on this
point, a brief overview of the history and structure of
the CWA is required.
A.
Prior to enactment of the CWA in 1972,
the Water Pollution Control Act of 1948, as amended
by the Water Quality Act of 1965, was the primary
means of federal regulation of water pollution. See
generally EPA v. California ex rel. State Water Res.
Control Bd., 426 US. 200, 202 (1976); Martin A.
McCrory, Standing in the Ever-Changing Stream: The
Clean Water Act, Article III Standing, and_Post-
Compliance Adjudication, 20 Stan. Envtl. L.J. 73, 79-81
(2001).
Under this regulatory scheme, states were
required to promulgate water quality standards for
certain bodies of water within their borders. See
Friends of the Earth v. Gaston Copper Recycling Corp.,
204 F.3d 149, 151 (4th Cir. 2000). Operators could
discharge pollutants so long as their discharges did not
reduce water quality below these standards. This water
quality standard scheme, however, was plagued with
many problems. Significantly, it was often difficult to
formulate precise water quality standards and even
more difficult to prove that a particular operator's
discharge reduced water quality below these
standards. See S. Rep. No. 92-414 (1971); see also
Gaston Copper, 204 F.3d at 151.
App. 16
The CWA (and its later amendments)
represented a fundamental change in the manner of
federal regulation of water pollution. The CWA
“shifted the focus away from water quality standards
to direct limitations on the discharge of pollutants.”
Gaston Copper, 204 F.3d at 151 (citing 33 U.S.C. §
1311). Regulators no longer had to determine whether
there was a causal link between the degradation of
water quality and the pollutant in question; they
simply had to determine whether the entity was
discharging more pollutant into water than allowed by
the CWA. Id. The CWA also established a default
regime of strict liability. Unless a discharge fit within
one of the CWA’s limited exceptions, the entity
discharging the pollutant violated the CWA, regardless
of the quantity of pollutant emitted. Id. Thus, the
“centerpiece of the Clean Water Act,” § 301(a),
provides that “[e]xcept as in compliance with this
section and [other sections of the Act], the discharge of
any pollutant by any person shall be unlawful.” Gaston
Copper, 204 F.3d at 151 (quoting 33 U.S.C. § 1311(a)).
The primary exception to the blanket liability
imposed by the CWA is the NPDES permitting system.
See Natural Res. Def. Council, Inc. v. Costle, 568 F.2d
1369, 1374 (D.C. Cir. 1977) (“[T]he legislative history
makes clear that Congress intended the NPDES permit
to be the only means by which a discharger from a
point source may escape the total prohibition of [§]
301(a).”). Although Congress intended the CWA to
lead to the long-term elimination of pollutants in the
nation’s waterways, Congress recognized the
technological infeasibility of prohibiting all pollutants
in the short term. See id. at 1373. Therefore, under § 402
of the CWA, individuals may apply for NPDES permits
App. 17
to discharge a limited amount of effluent. See 33 U.S.C.
§ 1311(a), 1342(a) & (c). The EPA issues NPDES
permits; however, the EPA suspends its issuance of
permits if it approves a state permitting program. See
id. § 1342(c)(1). The EPA has_ authorized
approximately forty states, including Maryland, to
issue NPDES permits. See 57 Fed. Reg. 43,733, 43,
734-35 (1992) (listing states with permitting authority).
Permit holders, no matter the issuing authority, are
required to comply “not only with the limitations
on the amount of pollutants they may discharge, but
also with a variety of monitoring, testing, and
reporting requirements.” Gaston Copper, 204 F.3d
at 151. Assuming that they follow the terms of
their NPDES permits, however, permit holders avoid
CWA liability. .
In crafting a permit, the permitting authority
(either the EPA or the designated state authority, in
this case, the MDE), must take account of two central
concepts. The CWA requires that “every permit contain
(1) effluent limitations that reflect the pollution
reduction achievable by using technologically
practicable controls and (2) any more stringent
pollutant release limitations necessary for the
waterway receiving the pollutant to meet “water
quality standards.” American Paper Inst., Inc. v.
United States Envt'l. Prot. Agency, 996 F.2d 346, 349
(D.C. Cir. 1993) (citing 33 U.S.C. § 1311(b)(1)) (internal
citations omitted). Thus, despite the CWA’s shift in
focus of environmental regulation towards the
discharge of pollutants, water quality standards still
have an important role in the CWA regulatory
App. 18
scheme? Before issuing a permit the permitting
authority must, with reference to what is
technologically feasible, incorporate “discharge
limitations necessary to satisfy [the state water quality]
standard.” Id. at 350 (citing § 301 of the CW A).
The effectiveness of the permitting process is
heavily dependent on permit holder compliance with
the CWA’s monitoring and reporting requirements. See
33 U.S.C. § 1318. The permitting authority receives
discharge information from all relevant parties and
then calibrates each individual permit to maintain
overall state water quality standards. NPDES permits
are therefore somewhat interdependent; the permitting
authority must account for the effluent discharge of
others in calculating the appropriate levels for an
individual permit holder.
B.
Having briefly reviewed the history and
structure of the CWA, we now turn to the central
question on appeal, the nature of the Commissioners’
liability, if any, under the CWA. The district. court
concluded that the CWA prohibits the discharge of any
pollutant not expressly allowed by an operator's
NPDES permit. The Commissioners challenge that
ruling, contending that the permit shield defense bars
. Under the CWA, states have the primary role in
promulgating water quality standards. The CWA requires that
states review their water quality standards at least once every
three years in “a process commonly known as triennial review” to
ensure that the standards “*protect the public health or welfare,
enhance the quality of water and serve the purposes’ of the Act.”
American Paper Inst. 996 F.2d at 349 (quoting 33 USC. §
1313(c)(2)(A)).
App. 19
suit against NPDES permit holders under the CWA
except for violations of the express conditions of the
permit. We view each of these interpretations as being
at variance with the CWA’s liability scheme; although
the CWA does prohibit the discharge of pollutants not
contained within the NPDES permit, the protection
offered by the permit is broader than the district
court suggests.
At issue is the scope of the permit shield
defense. As noted previously, the NPDES permit sets
out the allowable departures from the CWA’s baseline
of total liability for discharges of effluent. Natural Res.
Def. Council, Inc. v. Costle, 568 F.2d at 1374. It is clear,
therefore, that if a permit holder discharges pollutants
precisely in accordance with the terms of its permit,
the permit will “shield” its holder from CWA liability.
The permit shield defense, however, raises two
additional questions that are slightly more difficult: (1)
what comprises the scope or terms of an NPDES
permit, and (2) whether the permit shield bars CWA
liability for discharges not expressly allowed by the
permit when the holder has complied with the permit’s
express - restrictions. It is to these matters that we
now turn.
The central issue in determining the scope of a
NPDES permit is whether the permit implicitly
incorporates pollutant discharges disclosed by the
permit holder to the permitting authority that are not
explicitly allowed in the permit. Put more simply,
although an operator may report multiple discharges
of pollutants to the licensing body, the permit may
only contain explicit limitations for some of those
pollutants. The question, in that circumstance, is
whether the permit holder may continue to empty the
App. 20
unlisted pollutants into the water, or whether it may
only discharge those pollutants that are specifically
listed in the permit.
Determining the proper scope of an NPDES
permit requires us to examine the language of the CWA.
See Atlantic States Legal Found., Inc. v. Eastman Kodak
Co., 12 F.3d 353, 358 (2d Cir. 1993). In construing the
application of the CWA’s provisions in this case, we find
it necessary and appropriate to perform a Chevron
analysis. See Chevron, U:S.A., Inc. v. Natural Res. Def.
Council, Inc. 467 US. 837, 842-43 (1984). Under
Chevron, we are required to apply a two-part test. First,
we examine the language of the statute to see if
“Congress has directly spoken to the precise question
at issue.” Id. at 842. If Congressional intent is clear,
“that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 843. If the statute
is ambiguous, then we apply Chevron’s second step,
and we defer to the agency’s interpretation of its
governing statute and regulations, as long as (1) the
agency has promulgated that interpretation
pursuant to a notice-and-comment rulemaking or a
formal adjudication, Christensen_v. Harris County,
529 US. 576, 587 (2000), and (2) the agency's
interpretation is reasonable. Chevron, 467 US. at 843.
In analyzing the reasonableness of the EPA’s
interpretation of the CWA, “we need not find that [the
EPA’s interpretation] is the only permissible
construction that EPA might have adopted but only
that EPA’s understanding of this very “complex
statute’ is a sufficiently rational one to preclude a
court from substituting its judgment for that of EPA.”
Chemical Mfrs. Ass’n. v. Natural Res. Def. Council,
App. 21
Inc., 470 U.S. 116, 125 (1985) (quoting Train v. Natural
Res. Def. Council, Inc., 421 U.S. 60, 75, 87 (1975))
(emphasis added).
In applying step one of Chevron, we view the
crucial language of the CWA as ambiguous. The permit
shield provision, 33 U.S.C.§ 1342(k), specifies that
“compliance with a permit issued pursuant to this
section shall be deemed compliance, for purposes of
sections 1319 and 1365 of this title, with sections 1311,
1312, 1316, 1317, and 1343 of this title.” Although this
statutory language makes clear that compliance with a
permit constitutes an exception to the general strict
liability of the CWA, we must agree with the Second
Circuit’s conclusion that § 1342(k) does not explicitly
explain the scope of permit protection. See Atlantic
States Legal Found., 12 F.3d at 357-58 (concluding that
permit shield language ambiguous with respect to
scope of coverage). Therefore, because Congressional
intent is not clear, we must turn to the second step of
the Chevron analysis.
In applying step two of Chevron, we observe
that the EPA has promulgated, pursuant to a formal
adjudication, an interpretation of the permit shield
provision that is reasonable. The EPA is authorized
both to administer and enforce the CWA. See 33 U.S.C.
§ 1251(d). In a 1998 formal adjudication proceeding
before the EPA’s Environmental Appeals Board,’° In re
Ketchikan Pulp Co., the Board determined that the
NPDES permit covers all pollutants disclosed to the
permitting authority during the permit application
process. 7 E.A.D. 605 (EPA 1998), 1998 WL 284964
10 The EPA Administrator has delegated authority to review
NPDES permit violations to the Environmental Appeals Board. -
See 40 C.F.R. §§ 1.25, 124.2.
App. 22
(E.P.A.) at *12-13 (“[W]hen the permittee has made
adequate disclosures during the application process
regarding the nature of its discharges, unlisted
pollutants may be considered to be within the scope of
an NPDES permit, even though the permit does not
expressly mention those pollutants.”). In explaining
this ruling, the Ketchikan Board observed that the EPA
had already acknowledged that “it is impossible to
identify and rationally limit every chemical or
compound present in the discharge of pollutants” and
that the EPA consequently had determined that the
“goals of the CWA may be more effectively achieved
by focusing on the chief pollutants and wastestreams
established in effluent guidelines and disclosed by
permittees in their permit applications.” Id. at *11. The
Board, adopting the reasoning of the Second Circuit in
Atlantic States Legal Foundation, therefore held that
“[t]he proper interpretation of the [CWA] regulations is
that . . . [w]ater quality based limits are established
where the permitting authority reasonably anticipates
the discharge of pollutants by the permittee at levels
that have the reasonable potential to cause or
contribute to an excursion above any state water
quality criterion.” Id. at *11 (quoting Atlantic States
Legal Found., 12 F.3d at 358).
The Ketchikan decision therefore made clear
that a permit holder is in compliance with the CWA
even if it discharges pollutants that are not listed in its
permit, as long as it only discharges pollutants that
have been adequately disclosed to the permitting
authority. Id. at *17 (“[T]he discharge of unlisted
pollutants is in violation of the CWA unless the
applicant makes adequate disclosures to permit
authorities during the application process about the
App. 23
source and nature of its discharges.”). To the extent
that a permit holder discharges a pollutant that it did
not disclose, it violates the NPDES permit and the
CWA. Id. at *13 (“[W]here the discharger has not
adequately disclosed the nature of its discharges to
permit authorities, and as a result thereof the permit
authorities are unaware that unlisted pollutants are
being discharged, the discharge of unlisted pollutants
has been held to be outside the scope of the permit.”).
The EPA in Ketchikan therefore outlined the
proper structure for the permitting process. The
applicant discloses the nature of its effluent discharges
to the permitting authority. The permitting authority
analyzes the -environmental risk posed by the
discharge, and places limits on those pollutants that, in
the words of the Second Circuit and EPA, it
“reasonably anticipates” could damage _ the
environmental integrity of the affected waterway. Id. at
*11; Atlantic States Legal Found. 12 F.3d at 358
(internal citations omitted). Thus, as long as a permit
holder complies with the CWA’s reporting and
disclosure requirements, it may discharge pollutants
not expressly mentioned in the permit. Ketchikan, 1998
WL 284964 at *11. The only other limitation on the
permit holder’s ability to discharge such pollutants is
that the discharges must be reasonably anticipated by,
or within the reasonable contemplation of, the
permitting authority. Id. at *11. Because the permitting
scheme is dependent on the permitting authority being
able to judge whether the discharge of a particular
pollutant constitutes a significant threat to the
environment, discharges not within the reasonable
contemplation of the permitting authority during the
permit application process, whether spills or otherwise,
App. 24
“
do not come within the protection of the permit shield.
We see the EPA’s interpretation of the permit shield as
a rational construction of the CWA’s statutory
ambiguity; as such, we deem it “reasonable” within the
meaning of a Chevron analysis. See Chemical Mfrs.
470 US. at 125. Therefore, because the CWA provision
in question, § 1342(k), is ambiguous, and because the
EPA's interpretation of this provision is reasonable, we
must defer under Chevron to the EPA’s interpreta-
tion of the scope of an NPDES permit.11
Thus, the scope of the permit shield defense is
relatively straightforward. An NPDES permit holder is
shielded from CWA liability for discharges in
compliance with its permit, and is liable for any
a Prior to its Ketchikan decision, the EPA in 1994 published
a policy statement on the scope of the permit shield defense that
mirrors its holding in Ketchikan. That statement provides in
relevant part:
A permit provides authorization and therefore a
shield for the following pollutants resulting from
facility processes, waste-streams and operations
that have been clearly identified in the permit
application process when discharged from
specified out-falls:
eee
2) Pollutants for which the permit authority has
not established limits or other permit conditions,
but which are specifically identified as present in
facility discharges during the permit application ~
process[.]
Policy Statement on Scope of Discharge Authorization and Shield
Associated with NPDES permits at 2_3 (July 1, 1994) (emphasis
added).
App. 25
discharges not in compliance with its »ermit. As the
EPA has determined, however, compliance is a broader
concept than merely obeying the express restrictions
set forth on the face of the NPDES permit; all
discharges adequately disclosed to the permitting
authority are within the scope of the permit’s
protection. Having examined the nature of liability
under the CWA, we turn to whether, in this case, the
Plant’s discharge of heat during the period in question
was in violation of its NPDES permit and the CWA.
.
3
The Commissioners would be in violation of
their NPDES permit through the Plant’s discharge of
heat if either: (1) the permit specifically barred such
discharges; or (2) the Commissioners did not
adequately disclose them to the MDE. Section I of the
Commissioners’ NPDES permit expressly limits the
discharge of certain pollutants, such as dissolved
oxygen and fecal coliforms, but makes no mention of
heat. Under the permitting process previously
explained, that would indicate, assuming proper
disclosure of its heat discharges, that the
Commissioners did not violate the CWA. A footnote to
the list of pollutants in the Commissioners’ NPDES
permit provides, however, that the “discharge of
pollutants not shown shall be illegal.” J.A. 1553. A
plain application of this footnote, which is urged upon
us by the Association, is that it is illegal for the Plant to
discharge any pollutants not specifically listed in the
permit at any level. Because heat is not listed in the
App. 26
NPDES permit, imparting this meaning to the footnote
provision would render illegal the discharge of heated
effluent by the Plant. The Commissioners, however,
view the footnote as prohibiting only those pollutants
that were not disclosed to the MDE during the
permitting process. In other words, the Commissioners
read the footnote as providing, “the discharge of
pollutants not shown [to the MDE during the
permitting process] shall be illegal.”
In analyzing a provision of an NPDES permit,
we review the district court's interpretation in the same
manner as we would contracts or other legal
documents. See Hendricks v. Central Reserve Life Ins.
Co., 39 F.3d 507, 512 (4th Cir. 1993) (applying rules of
contract interpretation to benefit plan provision in
ERISA lawsuit); see also Northwest Envt'l. Advocates
v. Portland, 56 F.3d 979, 982 (9th Cir. 1995) (applying
principles of contract interpretation to NPDES permit).
We review the district court’ application of contract
principles de novo, but review its findings of fact with
respect to extrinsic matters for clear error. Hendricks,
39 F.3d at 512.
A proper interpretation of the footnote requires
that we first determine whether it is ambiguous; if “the
language is plain and capable of legal construction, the
language alone must determine” the permit’s meaning.
FDIC v. Prince George Corp., 58 F.3d 1041, 1046 (4th
Cir. 1995). If the footnote is ambiguous, however, then ~
we must look to extrinsic evidence to determine the
correct understanding of the permit. See Northwest
Envt'l. Advocates, 56 F.3d at 983-984. Having carefully
examined the footnote, we conclude that it is
ambiguous. Although the footnote specifies that “the
discharge of pollutants not shown shall be illegal,” it
App. 27
fails to indicate either to whom or where the pollutants
must be shown in order to fall within the NPDES
permit’s protection. Both of the interpretations offered
by the parties, i.e., (1) that the pollutants must be
shown in the language of the permit, and (2) that the
pollutants must be shown during the permit
application process, are entirely reasonable readings of
the footnote. Given this ambiguity, we must turn to
extrinsic evidence to determine the intent of the
permitting authority in drafting this footnote.
Examining the footnote in the context of the
entire NPDES permit and the permitting process
persuades us that the interpretation offered by the
Commissioners is the correct one. Indeed, another
section of the NPDES permit anticipates that the Plant
will discharge new, unlisted pollutants. Pursuant to
Section II.A.1 of the permit, titled “Change in
Discharge”:
Any anticipated facility expansions,
production increases, or process
modifications which will result in new,
different, or increased discharge of
pollutants shall be reported by the
permittee by submission of a new
application at least 180 days prior to the
commencement of the changed discharge
or, if such changes will not violate the
effluent limitations specified in this
permit, by notice to the Department.
J.A. 1561. This subsection of the NPDES permit
indicates that the MDE contemplated, in its issuance,
that the Plant would in fact discharge pollutants
App. 28
other than those expressly listed. To suggest,
therefore, that the footnote constitutes a blanket ban
on all pollutants not listed in the NPDES permit
is problematic. Indeed, the Second Circuit, in its
Atlantic States Legal Foundation decision in 1993,
interpreted a _ similar permit provision as
inconsistent with a general prohibition on the
discharge of new pollutants. Atlantic States Legal
Found., 12 F.3d at 359.
In fact, the structure laid out in the “Change in
Discharge” provision reflects the permitting process as
a whole. Because the focus of that process is to ensure
that the MDE possesses sufficient information to
calibrate discharge levels so that state water quality
standards are met, the NPDES permit mandates that
the Plant inform the MDE of future changes in what it
discharges. This allows the MDE time to calculate the
effects of the change and, if necessary, to modify the
perinit in order to maintain state water quality
standards. If the permit holder is discharging less of a
pollutant than originally disclosed, however, the
change in discharge poses no risk to the environmental
integrity of the system. Therefore, it is no surprise that
the “Change in Discharge” provision exempts such
cases from the new application process.
Moreover, the logic of the Commissioners’
position is apparent when the practical implications of
interpreting the footnote as prohibiting the discharge
of all pollutants not expressly listed, at any level, are
considered. The CWA defines pollutant as “dredged
spoil, solid waste, incinerator residue, sewage, garbage,
sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and
App. 29
industrial, municipal, and agricultural waste
discharged into water.” See 33 U.S.C. § 1362(6). This
definition is extremely broad, covering innumerable
individual substances. See, e.g., Sierra Club, Lone Star
Chapter v. Cedar Point Oil Co., 73 F.3d 546, 566 (5th
Cir. 1996) (“[T]he definition of “pollutant” is meant to
leave out very little... .”); Atlantic States Legal Found.,
12 F.3d at 357 (noting that there is “no principled
reason why water itself, which is conceded to be a
chemical, would not be considered a ‘pollutant’ under
. the Act”). Thus, if we were to adopt the
interpretation urged by the Association, the Plant
would violate the terms of its NPDES permit (thereby
giving rise to monetary and injunctive relief under the
CWA) if it discharges an unlisted pollutant even at an
infinitesimal amount.
We are not persuaded that the MDE either
intended or contemplated such consequences when it
issued the Commissioners’ NPDES permit. The
provision at issue, an eight-word footnote in a twenty-
one page NPDES permit, deals with significantly less
controversial topics in great detail. For example, the
permit contains a half-page description of the MDE’s
and EPA’s rights of entry. Further, the record contains
no evidence that the MDE or any other party discussed
this footnote, its provisions, its possible ramifications,
or its proper interpretation during the permitting
process. If the MDE had intended to impose liability on
the Commissioners for the discharge of a fully
disclosed but unlisted pollutant at any level, we would
expect to find an extended discussion of the
consequences of such a decision. Thus, having
reviewed and carefully considered the extrinsic
evidence concerning the MDE’s intent in granting the
App. 30
Commissioners their permit, we must conclude that the
language of the permit itself contains no bar to the
Plant's discharges of heat.!2
2.
The final questions that we must address are
whether the Commissioners adequately disclosed the
Plant's discharges of heated effluent to the MDE
during and after the permit application process, and
whether the Plant’s discharges of heat were reasonably
contemplated by the MDE. If both of these conditions
are satisfied, then the Commissioners are protected by
the permit shield defense and they are not liable under
the CWA.
The record clearly demonstrates that both of
these conditions were in fact met. The MDE and the
Commissioners each testified that the Commissioners
informed the permitting authority that the Plant was
discharging heat during the permit application process.
See J.A. 1213-21, 1338-44. The record also contains a
significant compilation of the daily reports on water
temperature and heat discharges provided by the
Commissioners to the MDE after the permit was issued
in 1990; in addition, there is testimony from the MDE
and the Commissioners that the Commissioners filed
such reports as required by the permitting authority.
ss Although adopting the Commissioners’ interpretation of
the footnote suggests that it simply represents the codification of
the preexisting permit shield defense, it is important to recognize
that the permit was issued in 1990, eight years before the EPA's
decision in Ketchikan. When the permit was issued the scope of
the permit shield defense was not clear, and therefore an effort by
the MDE to shield all properly disclosed pollutants from CWA
liability was not redundant.
App. 31
The evidence thus demonstrates that the
Commissioners complied with permit and CWA
disclosure requirements. Furthermore, the testimony of
the MDE and the Commissioners shows that the MDE
reasonably contemplated that the Plant would
discharge heat pursuant to its permit, and the
temperature records demonstrate that the Plant did not
act outside that reasonable contemplation. Therefore,
the Commissioners are entitled to the full protection of
the permit shield, and they are not liable under the
CWA. 5
IV.
For the foregoing reasons, the judgment of the
district court must be vacated, and we remand for the
entry of judgment in favor of the Commissioners.
VACATED AND REMANDED
App: 32
United States District Court,
D. Maryland.
THE PINEY RUN PRESERVATION ASSOCIATION
v.
COUNTY COMMISSIONERS OF
CARROLL COUNTY, MARYLAND.
No. CIV. Y-98-3124.
Feb. 10, 2000.
[Entered: February 19, 2000]
MEMORANDUM OPINION
~ YOUNG, Senior District Judge.
I.
The Piney Run Preservation Association [“the
Association”] is a non- profit citizens’ group whose
activities include the protection of a stream known as
Piney Run in Baltimore County, Maryland. Members
of the Association reside in_Baltimore County in the
vicinity of the stream. The Maryland Department of
the Environment [“MDE”] has designated Piney Run a
Class III-P stream, which signifies that it supports the
growth and propagation of trout and serves as a source
of public drinking water. The Defendant, the County
Commissioners of Carroll County [the County”],
operates a sewage treatment plant [“the Plant”] in
Hampstead, Carroll County, Maryland. The Plant
discharges treated sewage into Piney Run pursuant to
a National Pollution Discharge Elimination System
~ App. 33
[“NPDES”] permit issued by MDE. The permit allows
the County to discharge certain listed pollutants into
Piney Run, but heat is not one of the pollutants listed in
the permit.
In 1991, the County sought to modify its permit
to increase the amount of effluent it discharged into
Piney Run. After MDE determined that the increased
effluent would comply with all applicable
requirements, several landowners challenged the
determination and requested an administrative
hearing. They asserted that the Plant’s current level of
discharge violated the maximum temperature criterion
for a Class III-P stream and contended -that an
increased flow would continue the thermal pollution of
the stream. The temperature criterion at issue is found
in the Maryland Administrative Code [“COMAR"],
which under the heading “Criteria for Use III Waters--
Natural Trout Waters,” contains the following
provision: “The maximum temperature outside the
mixing zone ... may not exceed 68 <<degrees>> F (20
<<degrees>> C) or the ambient temperature of the
surface waters, whichever is greater.” COMAR §
26.08.02.03-3E.
The Circuit Court for Baltimore County affirmed
MDE’s decision in 1997. The landowners appealed to
the Court of Special Appeals, which reversed the
Circuit Court on August 17, 1998, and remanded the
case to MDE for further factual findings. *466
Specifically, the court instructed MDE to determine:
(1) with respect to the Plant and its discharge of
effluent, where to measure the ambient temperature of
Piney Run; (2) what the ambient temperature is in this
case; (3) whether, at the current level of discharge, the
temperature outside the mixing zone exceeds 20
App. 34
<<degrees>> C or the ambient temperature of the
surface waters, whichever is greater; and (4) whether,
with the proposed increase in effluent, the temperature
outside the mixing zone will exceed 20 <<
degrees>>>> C or the ambient temperature of the
surface waters, whichever is greater. MDE has not yet
made its determination.
The Association filed this suit on September 16,
1998, alleging that the County violated the terms of its
permit by discharging heat into Piney Run. On May 20,
1999, the Court granted partial summary judgment to
the Association, finding that the County had violated
the Clean Water Act [“CWA”]. Piney Run Preservation
Ass’n_v. County Commissioners of Carroll County, 50
F.Supp.2d 443 (D.Md.1999)(hereinafter “Piney Run I“).
This ruling followed the Ninth Circuit in holding that
citizens have standing to bring suit under the CWA to
enforce water quality standards that have not been
reduced to specific quantitative limitations in a NPDES
permit. See id. at 445 (following Northwest
Environmental Advocates v. City of Portland, 56 F.3d 979,
985-90 (9th Cir.1995)).
The Court also found that the Association.
established 183 CWA violations by the County. Id. at
446-47. Specifically, the Association provided
undisputed temperature readings indicating that
on 183 occasions, the County discharged waste
water with a temperature exceeding the greater of
either 68 <<degrees>> F (20 <<degrees>> C) or the
ambient temperature of Piney Run. See COMAR
§ 26.08.02.03-3E. In reaching its decision, the Court
interpreted the term “ambient” in the Maryland
Administrative Code to mean “encompassing,”
“atmospheric” or “surrounding on all sides.” See
App. 35
Letter from the Court, Dec. 15, 1999. In this case,
therefore, “ambient temperature” meant the
temperature of the waterway into which the
County made its discharges. Because the temperature
of the Plant's effluent exceeded either 68 <<degrees>>
F or the temperature of Piney Run upstream of the
Plant on 183 separate days, the Court found 183
violations of the CWA. The issue of damages was set
for trial.
The County filed a motion for reconsideration
with this Court and a petition for leave to file an
interlocutory appeal with the Fourth Circuit. Both
were denied. On October 27, 1999, the County
again moved for reconsideration. The Court
denied that Motion by marginal order on
December 15, 1999.
Between June 1 and November 4, 1999, the
County collected and recorded temperature data from
four locations on Piney Run: two locations upstream of
the Plant's outfall and two locations downstream. The
County also recorded the temperature of the Plant’s
effluent. These temperature readings were
automatically taken by fixed “temperature loggers”
every fifteen minutes, twenty-four hours a day, seven
days a week. The parties agree that these temperature
data are reliable, but differ as to the proper
interpretation of the data and the conclusions the Court
should draw from it. The Association argues that the
County has violated the CWA because the Plant's
effluent has exceeded the upstream temperature of
Piney Run or 20 <<degrees>> C, whichever was
higher, during at least one reading on 107 separate
App. 36
days.' In contrast, the County points out that the
temperature of the Plant’s effluent infrequently
exceeded the highest upstream temperature of Piney
Run on any given calendar day. The County argues,
therefore, that *467 something other than the Plant is
heating Piney Run.
On November 12, 1999, the Association moved
for summary judgment, seeking the Court's ruling on
alleged CWA violations from June 1, 1999, through
August 12,1999. The County opposed the Motion and
filed a Cross-Motion for Summary Judgment on
November 29, which the Association opposed. The
Court denied both Motions on December 15, 1999, due
to disputed issues of material fact. A three-day non-
jury trial was held on January 20, 21, and 24, 2000.
II. Discussion
A. Standing
In Piney Run I, the Court held that the
Association had standing to bring this CWA citizen
suit to enforce state water quality standards for heat,
even though heat is not listed as a pollutant in the
Plant’s permit. 50 F.Supp.2d at 445. The County now
argues, however, that the Association lacks standing to
bring this suit under Article III of the Constitution.
Specifically, the County claims that the Association’s
a The Association has also asked the Court to find that the
County violated the CWA on every day that the Plant's effluent
exceeded the upstream temperature of Piney Run. In Piney Run I,
however, the Court made clear that a violation occurs only where
the Maryland water criterion is violated, i.e., when the effluent
temperature exceeds 68 <<degrees>> F (20 <<degrees>> C) or the
ambient temperature of the surface waters, whichever is greater.
App. 37
members have not suffered a “particularized” injury
that is traceable to the CWA violations involved in this
case.
[1] The Court disagrees. To meet the “case or
controversy” standing requirements under Article III, a
plaintiff? must show “(1) that it has suffered an ‘injury
in fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be addressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Services (TOC), Inc., -- U.S. ----, 120 S.Ct. 693, 703,
145 L.Ed.2d 610 (2000). In Friends, an environmental
group filed a citizens suit under the CWA seeking
damages and injunctive relief related to pollution of
the North Tyger River. Members of the group
provided testimony and affidavits stating that they
lived within several miles of the polluting facility and
saw and smelled the contaminated river. See id. at 704.
' They also stated that they desired to use the area near
the river for fishing, camping, and hiking, as they once
had, but were prevented from doing so by concerns
about pollution. See id. The Supreme Court held that
the group had standing because the members’
affidavits and testimony alleged that the discharges to
the river and “reasonable concerns about the effects of
those discharges” directly affected the members’
“recreational, aesthetic, and economic interests.” Id. at
705.
2 An association may bring suit on behalf of its members
when the members have standing as individuals. See United Food
& Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 116
S.Ct. 1529, 134 L.Ed.2d 758 (1996). ‘a
App. 38
[2] In light of the standards enunciated in Friends,
the Association clearly has standing to bring the present
suit. To begin, the Association presented the testimony
of two landowners whose property is crossed by Piney
Run. Perhaps no person is more likely to have Article III
standing in a CWA citizen suit than a landowner whose
land abuts or surrounds the water body at issue. Sucha
landowner undoubtedly suffers injury “in fact” from the
reasonable fears of pollution on the borders of his or her
property. Moreover, the landowner must cope with the
loss of recreation, aesthetics, and economic value that
the polluted waterway once brought to the land.
Provided that the effects are real and traceable to the
violations at issue, it would be hard to imagine a more
“particularized” injury.
In this case, the Association provided the
testimony of Dorothy Rowland, who stated that Piney
Run bisects her property, which she purchased more
than 30 years ago and uses to raise horses. She testified
that, at one time, her horses took water from Piney Run,
she enjoyed the stream as a source of recreation, and her
children ice-skated on it in cold weather. In recent
years, however, Ms. Rowland *468 has seen Piney Run
turn green with algae, and her fears about the stream’s
condition have caused her to stop watering horses from
it. Furthermore, the stream no longer freezes, even
during periods of very cold weather. Because these
allegations present a clear instance of particularized
injury in fact, the Court holds that Ms. Rowland has
standing to bring the present suit.
Two other members of the Association provided
similar testimony. Victoria Woodward owned property
along Piney Run. She described the expanding algae in
the river and her belief that the stream’s pollution
App. 39 \
reduced the economic and recreational value of her
property. Edward Halle testified that he can see Piney
Run from his house and would like to use it for fishing
and for recreation with his children, but will not do so
because of the stream’s condition. Mr. Halle decided to
keep his children from playing in the stream after he
noticed that Piney Run was green with algae, in contrast
to the other clear streams that join Piney Run
downstream from the Plant. Given that both Ms.
Woodward and Mr. Halle alleged that they use Piney
Run and are persons “for whom the aesthetic and
recreational values of the area [have been] lessened” by
the Plant’s heat discharges, they have standing under
Article III and, therefore, the Association is entitled to
bring a citizens suit on their behalf. See id. at 705.
B. Motion to Strike the Testimony of Dr. Stauffer *
The County moved at trial and filed a post-trial
motion to strike the testimony of Dr. Stauffer--an
expert witness proffered by the Association-- insofar as
it concerns the effects of water temperatures below 68
<<degrees>> F (or 20 <<degrees>> C) on brown trout.
This testimony, contends the County, is irrelevant
because the Association is seeking damages for CWA
violations relating to discharges that exceeded
Maryland regulatory limits of 68 << degrees>>>> C.
3 The County also moved after trial to exclude the opinion
testimony of Dr. Bouwer, the Association’s other expert witness.
The Court permitted the County to file its opposition to Dr.
Stauffer’s testimony in a post-trial memorandum, but because no
serious dispute was raised with regard to the bulk of Dr. Bouwer’s
testimony during trial, the Court refuses to address the broad
relevance issues now raised by the County.
App. 40
es Bee
th AS ett eee
[3] The Court agrees, but only in part. The
regulation at issue prohibits discharges that exceed the
higher of 68 <<degrees>> F (20 <<degrees>> C) or the
ambient temperature of the surface waters. Because
most of the violations in this case involve discharges at
temperatures over 68 <<degrees>> F, the portion of Dr.
Stauffer’s testimony relatin, to lower temperatures has
only minor significance. At the same time, however,
the Association proved that on various occasions the
Plant discharged effluent at a temperature that was
lower than 68 <<degrees>> F but higher than the
ambient temperature of Piney Run. Dr. Stauffer’s
disputed testimony is relevant to these discharges.
The Court, therefore, refuses to strike Dr. Stauffer’s
testimony on this issue, but has considered it in
accordance with these findings.
The County also argues that Dr. Stauffer’s
testimony should be stricken because his opinions on
brown trout populations in Piney Run “are based upon
critical unsubstantiated assumptions that are not
supported by any factual evidence in the case nor
grounded in established scientific theory or reasoning.”
In particular, the County is concerned about the
absence of conclusive evidence that Piney Run above
Trenton Road does not currently contain brown trout
or that it ever did contain brown trout. 4
[4] The Court refuses to strike the testimony.
Although numerous factors come into play when a
district judge makes the “gatekeeping” determination
on a proffer of expert testimony, the Court’s *469
evaluation is flexible and seeks primarily to ensure that
: Evidence such as this is relevant not to liability, but only
to damages, for a violation of the state regulation is a violation of
the CWA, whether or not brown trout populations were affected.
App. 41
age
the testimony is relevant and reliable. See Oglesby v.
General Motors Corp., 190 F.3d 244, 250 (4th Cir.1999).
Here, the evidence of damage to brown trout is not
conclusive,> but the testimony presented by Dr.
Stauffer is supported by facts in the record and,
therefore, is admissible. The record shows that Piney
Run supports brown trout at Trenton Road and
downstream from that location. MDE has classified
the stream as a Class III-P waterway, indicating that it
is capable of supporting the growth and propagation of
trout. Based on his examination of the stream and his
expertise as an ichthyologist experienced in waters of
the region, Dr. Stauffer agreed with this classification.
He also testified that typical spring-fed streams in the
region support trout upstream in the colder locations,
but trout populations generally diminish downstream
because of natural warming. Piney Run, in.contrast,
contains trout downstream, but not upstream in the
vicinity of the Plant. In addition, Dr. Stauffer testified
that high stream temperatures inhibit the growth of
trout and discourage trout migration, and the record
shows that the Plant has added heat to Piney Run.
5 In its Motion, the County focuses on Dr. Stauffer’s
assumption that there are no brown trout in Piney Run above
Trenton Mill. The County points out that although this
assumption forms the basis for all of Dr. Stauffer’s testimony, he
cannot be absolutely sure that the assumption is accurate. The
Court notes, however, that there is no evidence in the record to
indicate that trout do currently reside in Piney Run upstream of
Trenton Mill. Indeed, the only evidence is to the contrary. If there
are trout in Piney Run near the Plant, the County had the means to
find them and present evidence thereof. It has not. To argue that
the assumptions behind Dr. Stauffer’s opinions “are not ... subject
to objective, scientific validation,” Def.’s Renewed Mot. to Strike
Testimony at 17, therefore, is somewhat disingenuous.
App. 42
Given this factual scenario, Dr. Stauffer opined
that Piney Run once supported brown trout in the
vicinity of the Plant, but the Plant's effluent could be
inhibiting trout migration or propagation in the areas
of Piney Run upstream from Trenton Road. The Court
finds that this opinion, like many expert opinions, was
based on an assumption, but that assumption is
supported by evidence in the record. See Tyger Constr.
Co. v. Pensacola Const. Co., 29 F.3d 137, 142-43 (4th
Cir.1994). Moreover, although one may doubt
whether Dr. Stauffer’s conclusions are ultimately
correct, the Court finds that the underlying reasoning
and methodology of the testimony was reliable,
scientifically valid, and applicable to the facts in this
case. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
909 U.S. 579, 590-93, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993). The Court finds that Dr. Stauffer’s opinions
would be helpful to the trier of fact in determining the
damage caused to Piney Run by the Plant's added heat.
See id. at 591, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469.
C. Liability
In Piney Run I, the Court held that the Plant
violated the CWA by discharging effluent into Piney
Run with a temperature exceeding the higher of 20
<<degrees>> C or the ambient temperature of Piney
Run. The undisputed temperature data for the period
between July 1, 1999, and November 4, 1999, indicate
that the temperature of the Plant's effluent violated this
standard on 107 additional days. Adding this sum to
the 183 violations identified in Piney Run I, the Court
finds a total of 290 CWA violations.
App. 43
[5] The Association argues that United States v.
Smithfield Foods, Inc., 191 F.3d 516, 527 (4th Cir.1999),
requires the Court to impose a penalty for each
instance that the Plant’s effluent exceeded the heat
standard on the same day. The Court disagrees.
Under Smithfield, courts should impose damages on a
parameter-by-parameter basis for any given day. In
other words, if a polluter’s discharge exceeds two
separate permit limitations on the same day, then each
excess qualifies as *470 a separate infraction, even if
caused by the same waste stream. See id. at 528 n. 6.
However, in the present case, the Association has
proved that the Plant violated only one parameter--
heat-- though it may have done so various times on a
given day. Although imposing a penalty for multiple
violations of the same effluent limit may be
appropriate in some circumstances, the Court is not
prepared to do so under the facts of this case. The
penalty structure of the CWA _ gives courts
“considerable flexibility to tailor penalties to the
unique facts of each case.” Id. at 527. As discussed
more fully below, th’s case involves several important
mitigating factors that compel the Court to impose only
one penalty for any day the Plant violated State
thermal pollution limits.
D. Monetary Damages
Courts have the authority to impose a maximum
civil penalty of $25,000 per day for each violation of the
CWA. See 33 U.S.C. § 1319(d); Smithfield Foods, 191
F.3d at 527. In determining the amount of any civil
penalty under the CWA, however, the Court must
consider six factors: “the seriousness of the violation or
App. 44
violations, the economic benefit (if any) resulting from
the violation, any history of such violations, any good-
faith efforts to comply with the applicable
requirements, the economic impact of the penalty on
the violator, and other such matters as justice may
require.” § 1319(d).
When calculating damages, courts generally
employ either a “top-down” or “bottom-up” method.
See Smithfield, 191 F.3d at 528. Courts following the
“top-down” method first calculate the maximum
penalty based on the $25,000 per day figure, then
adjust the figure down, as necessary, to account for the
six factors listed in § 1319(d). See id. at 528 n. 7. In
contrast, the “bottom up” method requires the Court to
determine the economic benefit the defendant derived
by violating’ the Act, and then adjust that figure
upward or downward using the remaining five factors
in § 1319(d). See id. at 528. Because the Act does not
prescribe a particular method, the Court has discretion
to choose. See id. The “highly discretionary
calculations necessary to assess penalties [under the
CWA] are particularly within the purview of trial
judges” and, therefore, are granted wide deference. Id.
at 529 (citing Tull v. United States, 481 U.S. 412, 426-27,
107 S.Ct. 1831, 95 L.Ed.2d 365 (1987).
Considering all the circumstances in the present
case, a bottom-up approach is most appropriate. The
starting point under this approach is the economic
benefit the County gained by delaying compliance with
the CWA. Because precise economic benefit is difficult
to prove, “reasonable approximations ... will suffice.”
Smithfield, 191 F.3d at 529. The trial testimony
indicated that the County has considered as many as
four options to address its thermal pollution issues.
App. 45
Much of the testimony focused on a method of cooling
the Plant’s discharge by means of air-cooled “chillers.”
When the County undertook a feasibility study to
evaluate options for cooling the Plant’s effluent, it
determined, based on a consultant's report, that the air-
cooled chillers were the preferred option. Although
this method involved lower initial costs than the other
alternatives considered by the County,‘ it also required
higher operational costs due to electricity demand. As
such, the Court finds that the air-cooled chillers option
provides a fair estimate of the County’s “avoided cost”
or economic benefit.
Furthermore, the Court determines that this cost
should be calculated from November 1998, the date of
the County’s feasibility study. Although the County
may have been aware of its thermal pollution at an
earlier date, the feasibility study is the clearest
indicator of the time the County recognized it as a
problem. Using this later date also accounts for the
months, if not years, of permit applications and
approvals the County would have needed to install the
chillers. Evidence introduced *471 by the Association
indicates that the initial cost of installing the chillers
would have been $967,500 and annual costs, including
operating expenses, would have been approximately
$208,000 per year.” Because this case covers violations
‘ The other alternatives were geothermal chillers and night
cooling.
7 _ These costs appear in Plaintiffs Exhibit No. 38, the
Hampstead Wastewater Treatment Plant Effluent Temperature
Reduction Study, Carroll. County Project No. S-306 (Nov.1998),
which was prepared by an engineering consultant. The sums are
in 1998 dollars and the annual cost figure is based on a 7% interest
rate on the initial cost, spread over ten years, plus operational cost.
- App. 46
through November 1999, the Court will add one year’s
annual cost to the initial cost figure, rounding upward
to approximate the shift from 1998 dollars to 1999.
This adjustment brings the “reasonable
approximation” of the County’s economic benefit to
$1.2 million. :
~Once the Court determines the defendant's
economic benefit, the total penalty should be adjusted
up or down, as necessary, considering the remaining
five factors in § 1319(d). See Smithfield, 191 F.3d at 528.
The Court makes the following anny with regard to
those five factors:
: Seriousness of the Violations
To determine the seriousness of the County’s
violations, the Court should consider the frequency
and severity of the violations as well as their effect on ©
the environment. See United States v. Smithfield Foods,
Inc., 972 F.Supp. 338, 343 (E.D.Va.1997). Although the
Association has established 290 violations and has
proved that the County added heat to Piney Run, the
extent of damage caused by these violations is far from
clear. The Association provided expert testimony to
demonstrate that thermal pollution may induce algae
growth and hamper brown trout development and
propagation. At the same time, the County established
that the heating of Piney Run, the growth of algae, and
the diminution of brown trout could be linked to a
variety of factors, including nutrients from agricultural
activities, runoff from development, or stormwater
collection activities. Moreover, on certain occasions,
even though the Plant's effluent exceeded regulatory
- limits, it was cooler than upstream temperature
App. 47
readings in Piney Run. In short, although the
Association proved that the Plant added heat and that
thermal pollution has had a deleterious effect on Piney
Run, it did not prove the extent of harm attributable to
the Plant or even that the Plant is the major factor in
the demise of Piney Run as a trout stream.
Nevertheless, the Court acknowledges that a
significant penalty may be appropriate even absent
proof of actual negative effect. See id. at 344 (citing
cases). The Court is convinced that the Plant adds heat
to Piney Run and that continued addition of heat will
preclude the relevant portion of Piney Run from
attracting brown trout in the future. In addition, any
damage to Piney Run is exacerbated because it is
identified not only as a trout stream, but also as a
source of public drinking water. In spite of these
considerations, however, the Court finds that this
factor weighs in favor of a lower penalty for the
County.
y History of Violations
In determining the County’s history of
violations, the Court considers not only similar
violations in the past, but also the duration and
continuity of the County’s present violations. See
Smithfield Foods, 972 F.Supp. at 349. Testimony at trial
indicated that the County recognized thermal
discharges as a potential problem beginning as early as
1992. The County also established, however, that it
did not consider these discharges to be permit
violations, and the Court finds that this interpretation
was not unreasonable. As discussed more fully below,
the County believed, based on its own colorable legal
App. 48
et a
a ee p
determinations and experience with MDE, that it was
in compliance with its permit provided that its
discharges remained within explicit limitations in the
permit. The Court is aware that the CWA is a *472
strict liability statute, see id. at 342 (citing Stoddard v.
Western Carolina Reg’l Sewer Auth., 784 F.2d 1200, 1208
(4th Cir.1986)), but courts have discretion to adjust
damages based on culpability, see 33 U.S.C. § 1319(d);
Smithfield Foods, 972 F.Supp. at 353. In the present
case, this factor justifies a downward adjustment in the
County’s penalty.
3. Good-Faith Efforts to Comply
Although significant efforts to mitigate negative
environmental effects or to decrease the number of
violations may justify a reduced damages award, see
Smithfield Foods, 972 F.Supp. at 349-50, the Court finds
the evidence in this area to be inconclusive. In short,
the record shows that the County took several initial
steps-e.g., studying options, submitting permit
applications- to address its thermal pollution
problems. Although the County may have
experienced delays in obtaining the necessary permits,
due in some part to factors beyond its control, it made
no notable effort to expedite the process. The County’s
leisurely pace, the Court finds, cancels out its earlier
efforts to come into compliance.
The record also shows that the County
attempted to improve the Piney Run ecosystem by
removing the concrete channel in favor of a naturally
meandering stream. The County did not undertake
this project with the aim of reducing thermal pollution,
but the Court acknowledges that the improvement of
App. 49 ;
Piney Run would make it more likely to support brown
trout populations, thus reducing the harm alleged in
this case. The final damages determination, therefore,
will reflect a credit for the County’s effort.
4. Economic Impact of the Penalty on the
County
The central purpose of CWA penalties is to deter
the defendant, and others, from committing future
violations. See Smithfield Foods-972-F:Supp. at 352. A
damage award that is limited to economic benefit,
therefore, is no deterrent at all because the violator
would be no worse off than if it had complied in the
first place. See id. In this context, municipalities--
such as Carroll County--are distinct from private
actors. Whereas a large penalty passed on to
consumers in the form of higher prices may have a
significant effect on a private polluter, a municipal
polluter merely passes the costs on to its taxpayers
who, in turn, have no option other than to pay the tax.
Moreover, the testimony at trial showed that the
County has already applied to install chillers and has
allocated the necessary funds. In other words, the
County is poised to remedy its violations. (Cf. id. at
350. As such, it appears that the years of litigation on
this matter, in concert with the injunction to be issued
by this Court, will be sufficient to halt the Plant's
violations. Additional deterrent in the form of a large
penalty, therefore, is not necessary and would not
serve a useful function at this time.
App. 50
5. Other Such Matters as Justice may Require
Courts may adjust CWA penalties to account for
the bad-faith conduct of the violator and its attitude
towards achieving compliance. See id. at 353. The
particular circumstances of this case deserve special
attention under this factor. Until recently, the County
believed that compliance with its permit was
tantamount to compliance with the CWA--a doctrine
known as the “permit shield.” Although the Court has
found that this belief was mistaken and an improper
interpretation of existing law, the Court also finds that
the County’s position was not unreasonable.
Moreover, this interpretation relied, in part, on prior
experience and interaction with State permit
authorities. | Because the law was unclear and the
County had a good faith belief in the permit shield
doctrine, the Court finds that a downward adjustment
of the penalty would be appropriate.
6. Conclusion
[6]Based on an evaluation of the factors above,
the Court will adjust the penalty *473 figure downward
to $400,000. This calculation accounts, in particular, for
the Defendant's municipality status and its prior
understanding of the permit shield doctrine, as well as a
credit for removing the concrete channel on Piney Run.
E. Injunctive Relief
[7IThe CWA authorizes district courts to enter
injunctions in citizen suit proceedings. See 33 U.S.C. §
1365(a); Friends, 120 S.Ct. at 700. Considering the
Court's findings that (a) the Plant continues to violate
App. 51
the CWA, (b) the Plant continues to add heat to Piney
Run, and (c) these activities have a deleterious effect on
Piney Run and members of the Association, injunctive
relief is appropriate. Therefore, the Court will issue an
injunction to address the specific injuries at issue. The
Court’s order will enjoin the Plant from discharging
effluent into Piney Run at temperatures that exceed the
higher of 20 <<degrees>> C or the ambient stream
temperature until MDE modifies the existing permit or
issues a new permit to account for the unique aspects of
Piney Run as a Class III-P stream and to comply with all
relevant federal and state standards. To ensure
compliance with this injunction, the Court will maintain
jurisdiction over the case.
F. Costs and Fees
[8]In addition to monetary and injunctive relief,
the CWA provides that a court “may award costs of
litigation (including reasonable attorney and expert
witness fees) to any prevailing or substantially
prevailing party, whenever the court determines such
award is appropriate.” 33 US.C. § 1365(d). In
consideration of the Association’s efforts in this case,
and its success in proving 290 violations of the CWA,
the Court will award costs and reasonable attorneys
fees to the Association. As noted at the trial, the
Association must file its petition for costs and fees
within ten days of judgment.
App. 52
LL
NT Oa SOS DURE Oe ee ee
ITI. Conclusion
Based on the foregoing analysis, the Court finds
that the County is liable for 290 violations of the CWA.
The Court will order the County to pay a penalty of
$400,000 to the United States Treasury in accordance
with the CWA, plus costs and reasonable attorneys fees
to the Association. The Court will also issue an
injunction to protect Piney Run from further thermal
pollution.
ORDER
In accordance with the attached Memorandum,
it is this 10th day of February 2000, by the United States
District Court for the District of Maryland, ORDERED:
L. That the Defendant IS LIABLE for 290
violations of the Clean Water Act and SHALL PAY to
the U.S. Treasury the sum of $400,000, plus all costs
and reasonable attorneys fees to the Plaintiff: and
2. That the Defendant SHALL CEASE any
and all discharges of effluent into Piney Run at
temperatures that exceed the higher of 20 <<degrees>>
C or the ambient temperature of Piney Run until such
time as the Maryland Department of the Environment
either: (a) modifies the existing permit to account for
the unique aspects of Piney Run as a Class III-P stream
and to comply with all relevant federal and state
standards as set forth in this Court's decisions; or (b)
issues a new permit that accounts for the unique
aspects of Piney Run as a Class III-P stream and
complies with all relevant federal and state standards
as set forth in this Court's decisions.
App. 53
| That JUDGMENT BE ENTERED in favor
of the Plaintiff; and
4. That copies of this Memorandum and
Order be mailed to counsel for the parties.
END OF DOCUMENT
App. 54
emma ec
United States District Court,
D. Maryland.
The PINEY RUN PRESERVATION ASSOCIATION,
Plaintiff,
V.
COUNTY COMMISSIONERS OF CARROLL
COUNTY, MARYLAND,
Defendant.
No. Civ.A. Y-98-3124.
May 20, 1999.
[Entered May, 20, 1999]
MEMORANDUM
JOSEPH H. YOUNG, District Judge.
The Piney Run Preservation Association
(“Association”) filed this suit against the County
Commissioners of Carroll County, Maryland
(“County”), alleging violations of the Clean Water Act
(“Act”), 33 U.S.C. § 1251 et seq. Plaintiff seeks partial
summary judgment on the issue of liability, and
defendant has filed a motion for summary judgment.
*444 |.
The Association is a non-profit association whose
activities include the protection of the Piney Run Stream
in Baltimore County, Maryland. | Members of the
Association reside in Baltimore County in the vicinity of
the Piney Run Stream. Defendant operates a sewage
treatment plant (“Plant”) in Hampstead, Carroll County,
App. 55
Maryland, located near the border of Carroll County
and Baltimore County. The Plant discharges treated
sewage into the Piney Run, a Class IIIP stream. A Class
III stream is a stream which supports the growth and
propagation of trout. The designation “P” identifies the
stream as a source of public drinking water.
The Maryiand Department of the Environment
(“MDE”) issued a National Pollutant Discharge
Elimination System (“NPDES”) permit to defendant.
See NPDES Permit Number MD0022446 (also referred to
as 88-DP-0594), Ex. B to Plaintiff's Motion for Partial
Summary Judgment. The NPDES permit allows
defendant to discharge certain amounts of listed
pollutants into the Piney Run. Heat is not one of the
pollutants listed on the permit.
NPDES Permit Number 88-DP-0594 was
scheduled to expire on February 28, 1995. Because
MDE has not yet issued a new permit, that permit
remains effective until the new permit is issued. In
1991, defendant sought to have the amount of
permitted effluent increased from 500,000 gallons per
day (“gpd”) to 900,000 gpd. Before allowing such an
increase, MDE must make a determination that the
proposed discharge will comply with all applicable
requirements, including those of the Act. See COMAR §
26.08.04.02. MDE made such a determination when it
approved the increase in 1993.
Several Baltimore County landowners whose
land is bisected by the Piney Run (and at least one of
whom is a member of the Association) requested an
administrative hearing, contesting the MDE’s
determination to issue the modified permit. They
asserted that the Plant’s current level of discharge
(500,000 gpd of effluent) violated the maximum
App. 56
temperature criterion for a IIIP stream, and that an
increase in the flow of effluent would continue the
“thermal pollution” of the stream. After a hearing, the
Administrative Law Judge (ALJ) rendered a Proposed
Decision and Order on January 4, 1996 to uphold the
MDE’s decision to grant the modified permit. The
landowners filed exceptions to the proposed decision.
On November 20, 1996, the MDE’s Final Decision
Maker (FDM) affirmed the MDE’s determination to
allow the County to increase the flow of effluent from
the Plant. The landowners sought review of the
MDE'’s final decision in the Circuit Court for Baltimore
County. On August 22, 1997, the Circuit Court
affirmed the MDE’s decision.
The landowners then appealed to the Maryland
Court of Special Appeals. On August 17, 1998, the
Court of Special Appeals reversed the Circuit Court's
decision and remanded the case to MDE for further
factual findings. Specifically, the court instructed MDE
to determine: (1) with respect to the Plant and its
discharge of effluent, where to measure ambient
temperature of the Piney Run; (2) what the ambient
temperature measurement is in this case; (3) whether,
at the current level of discharge, the temperature
outside the mixing zone exceeds 20 Celsius or the
ambient temperature of the surface waters, whichever
is greater; and (4) whether, with the proposed increase
in effluent volume, the temperature outside the mixing
zone will exceed 20 Celsius or the ambient temperature
of the surface waters, whichever is greater. On
February 17, 1999, MDE held a hearing regarding the
proposed changes, but MDE has not made a
determination regarding the proposed changes to the
NPDES permit.
App. 57
On July 8, 1998, plaintiff gave nottice of the
defendant’s alleged violations of the Act to the
defendant, MDE, and the United States Environmental
Protection Agency (“EPA”) and on September 16, 1998,
filed this suit alleging that the defendant *445 has
violated the terms of its MPDES permit by discharging
heat into the Piney Run.
IT.
Plaintiff filed this suit under 33 U.S.C. § 1365,
the citizen suit provision of the Act. This section
provides that when state and federal governments
have failed to enforce an NPDES permit, citizens may
bring a civil suit against “any person ... who is alleged
to be in violation of ... an effluent standard or limitation
under this Act.” Plaintiff gave the required 60 days’
notice to the appropriate parties before filing this suit.
See 33_ US.C. § 1365(b)(1)(A). Defendant has
presented no evidence that EPA or MDE has addressed
the alleged violations.
Plaintiff alleges that defendant has violated its
NPDES permit by discharging “heat” into the Piney
Run. The Act makes unlawful “the discharge of any
pollutant by any person,” except in compliance with
numerous provisions of the Act, including NPDES
permits. See id. § 1311(a). A discharge is “any
addition of any pollutant to navigable waters from any
point source.” Id. § 1362(12)(A). The term “pollutant”
is defined as, among other things, “heat.” Id. § 1362(6).
As a condition of defendant’s NPDES permit,
defendant must submit monthly reports to MDE.
Among the reported items produced during discovery
are the temperatures of the plant influent, plant effluent,
App. 58
stream above the outfall, and stream sixty feet below the
outfall. See Hampstead Waste Water Treatment Plant
Temperature in Celsius, Ex. G to Plaintiffs Motion for
Partial Summary Judgment. Plaintiff has summarized
these reports and indicated the days on which the plant
effluent temperature exceeded the upstream
temperature of Piney Run. See Transcription of
Temperature Data, Ex. H to Plaintiff's Motion for Partial
Summary Judgment. According to these reports, the
temperature of the plant effluent has exceeded the
upstream temperature on 371 of 397 days. See id.
Defendant argues that this Court lacks
jurisdiction over a citizen suit regarding a pollutant
that is not listed on the alleged polluter’s NPDES
permit. See Atlantic States Legal Found. v. Eastman
Kodak Co., 12 F.3d 353 (2d Cir.1993). In Atlantic States,
the Second Circuit held that “[o]nce within the NPDES
or SPDES scheme, therefore, polluters may discharge
pollutants not specifically listed in their permits so
long as they comply with the appropriate reporting
requirements and abide by any new limitations when
imposed on such pollutants.” Id. at 357. However, the
Ninth Circuit reached a different conclusion in
Northwest Environmental Advocates v. City of Portland, 56
F.3d 979 (9th Cir.1995) (“NWEA “), holding that the Act
allowed a citizen suit to enforce water quality
standards that had not been translated into numerical
effluent limitations on a permit. Id. at 985-90.
[1] A plain reading of the Act indicates that
citizens may bring this type of suit. The citizen suit
section provides that any citizen may sue “any person...
whe is alleged to be in violation of (A) an effluent
standard or limitation under this chapter or (B) an order
issued by the Administrator or a State with respect to
_
App. 59
such a standard or limitation.” 33 U.S.C. § 1365(a)(1).
The term “effluent standard or limitation under this
chapter” means, among other things, “an unlawfui act
under subsection (a) of section 1311 of this title.” Id. §
1365(f). The referenced section provides: “Except as in
compliance with this section and sections 1312, 1316,
1317, 1328, 1342, and 1344 of this title, the discharge of
any pollutant by any person shall be unlawful.” Id. §
1311 (a).
Defendant, in a permitted surreply, has filed an
affidavit by defendant's counsel Linda Woolf pursuant
to Federal Rule of Civil Procedure 56(f), stating the
reasons that defendant needs to conduct further
discovery. Pursuant to this Court’s scheduling order of
December 10, 1998, discovery is to be completed by
August 19, 1999. It is therefore entirely reasonable that
defendant *446 had not completed its discovery before
plaintiff's motion for partial summary judgment was
filed. However, the discovery sought by defendant is
irrelevant to the pending motions.
First, Woolf states that many of plaintiff's
answers to interrogatories were incomplete, and that
these answers were received after the County was
required to file its opposition to plaintiff's motion.
Specifically, plaintiff failed to respond to interrogatories
regarding NPDES permits which include a temperature
criterion (Interrog.No. 5), how to measure the ambient
temperature of the Piney Run (Interrog.No. 7), and the
membership of the Association (Interrogatory No. 21).
The first and third interrogatories are irrelevant. Even if
no NPDES permit in the country contained an explicit
temperature criterion, defendant could still be liable for
discharging heat into the Piney Run. It has already been
established that at least one member of the Association
App. 60
has standing to bring this suit; therefore, the Association
as a whole has standing. The measurement of ambient
temperature is relevant to the pending motions;
however, plaintiff has answered that interrogatory.
Plaintiff stated that “the best indicator of the ‘ambient
temperature’ is the upstream temperature of the Piney
Run.” Pl.’s Ans. to Interrog. No. 7. Defendant has not
come forward with any evidence to the contrary, nor
has defendant explained how further discovery would
lead to any evidence to the contrary.
[2] Second, Woolf avers that defendant wishes to
take the deposition of C. Victoria Woodward, an
Association member whose affidavit was filed with
plaintiff's motion for partial summary judgment. By
taking Woodward's deposition, defendant would probe
the factual basis behind Woodward’s affidavit. Absent
evidence from defendant that Woodward’s affidavit is
not credible, such a deposition is unnecessary. Courts
have often relied upon affidavits to establish standing in
citizen suits. See, e.g., Sierra Club v. Simkins Indus., Inc.,
847 F.2d 1109, 1112 (4th Cir.1988); Chesapeake Bay Found.
v.__Bethlehem Steel Corp, 608 F.Supp. 440, 445
(D.Md.1985). See also Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co., 73 F.3d 546, 556-57 (5th Cir.1996):
Save Our Community v. United States E.P.A, 971 F.2d
1155, 1160-61 (5th Cir.1992). Moreover, Woodward's
standing as one whose interests have been affected by
the Plant has been established by her participation as a
plaintiff in the state law suit. There is no indication that
defendant seeks this deposition for any reason other
than delaying this Court's decision.
Third, defendant received plaintiff's response to
its request for production of documents on April 17,
1999, after defendant’s opposition had been filed.
App. 61
Woolf notes that defendant has not yet had an
opportunity to review those documents. It is not clear
what relevant information defendant could ascertain
from those documents. The temperature data plaintiff
lias proffered come from defendant’s own records;
therefore, defendant has all of the documentation
needed to decide these motions.
Fourth, Woolf states that the County has not yet
taken the deposition of either of plaintiff's experts,
because defendant wanted to obtain the plaintiff's
responses to written discovery and other factual
discovery prior to taking their depositions. In
particular, defendant intends to ask plaintiff's experts
about the conflict between their opinions and the
regulations propounded by MDE. This information is
irrelevant to this Court's rulings on the pending
motions, because plaintiff has already established that
defendant violated the MDE regulations. This citizen
suit is not the appropriate forum for seeking a change
in the applicable MDE regulations.
For the foregoing reasons, summary judgment is
granted for plaintiff on defendant's liability for 183
violations of the Clean Water Act. A separate order
effecting this ruling is entered herewith.
*447 ORDER
For the reasons stated in the memorandum filed
herewith, it is, this 20th day of May, 1999
ORDERED that
1. Summary judgment is granted in favor of
plaintiff on the issue of liability for 183 violations of the
Clean Water Act; and
2. The issue of damages will be resolved at
the trial scheduled for November 1999.
App. 62
UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1660
September Term, 1997
[entered September Term, 1997]
C. VICTORIA WOODWARD, ET AL.
v.
THE MARYLAND DEPARTMENT
OF ENVIRONMENT
Wenner, Salmon, Byrnes, JJ.
Opinion by Salmon, J.
The Hampstead Wastewater Treatment Plant
(the Plant) is located on the Piney Run in Hampstead,
Carroll County, Maryland. Since 1974, the Piney Run,
a tributary of the Loch Raven Reservoir, has been
classified as “Use III” for growth and propagation of
trout. The classification was changed in 1990 to “Use
IlI-P” to provide protection for the Piney Run not only
as a trout stream but also as a source of public water.
The Maryland Department of the Environment's
(the MDE) Water Management Administration issued a
National Pollutant Discharge Elimination System
(NPDES) permit (the permit) on March 1, 1990, to the
App. 63
Commissioners of Carroll County (the County),
allowing treated wastewater, or effluent, from the Plant
to be discharged into the Piney Run at a rate of 0.5
million gallons per day (mgd). Upon petition from the
County on January 31, 1991, the MDE made a
determination in early 1993 that it would issue a
modified permit for the Plant, approving the request to
increase the flow of treated effluent to 0.9 mgd.
The appellants in this case are several
landowners (the Landowners) whose land in Baltimore
County is bisected by the Piney Run. The Landowners
requested an administrative hearing, contesting the
MDE’s determination to issue the modified permit.
Their challenge was based on an assertion that the
Plant's current level of discharge — 0.5 mgd of effluent
— violated the maximum temperature criterion for the
“Use III-P” Piney Run water and that an increase in the
flow of effluent would continue the “thermal
pollution” of the stream.
A hearing was held on May 30 - 31 and June 5,
1995, before the Office of Administrative Hearings. On
January 4, 1996, the administrative law judge (the ALJ)
rendered a Proposed Decision and Order to uphold the
MDE’s decision to grant the modified permit.
The Landowners filed exceptions to the proposed
decision. On November 20, 1996, the MDE’s Final
Decision Maker (the FDM) affirmed the MDE’s
determination to allow the County to increase the
flow of effluent from the Plant. Appellants sought
review in the Circuit Court for Baltimore County. On
August 22, 1997, the circuit court affirmed the MDE’s
decision. .
App. 64
Appellants filed a timely appeal and present two
questions for our review, which we have rephrased
slightly:
1.
Did the MDE’s Final Decision Maker err in
deciding that the issuance of the permit
would not violate the water quality
regulation when the MDE had not
determined the underlying facts regarding
that issue and had not applied the
regulation when it determined to grant the
modified permit?
Does the MDE’s decision to issue the
modified permit conflict with the clean
water laws and thus constitute an abuse
of the limited discretion delegated to the
MDE?
a. Does the MDE’s interpretation
of ambient temperature to permit
effluent-filled or distant waters
to be used as the water
quality standard for the Piney
Run contravene both the Clean
Water Act and = its own
regulations?
b. Did the MDE abuse its discretion
by interpreting the water quality
standards to permit an effluent
temperature that violates the
Plant’s permit?
App. 65
We answer “yes, on the particular facts of this
case,” to question one! and remand the case to the
MDE. Given our means of resolving the first question,
we need not decide either part of question two.
REGULATORY BACKGROUND
The Federal Water Pollution Control Act (also
known as the Clean Water Act), 33 U.S.C. §§ 1251—
1387 (1994), prohibits the discharge of pollutants into
the waters of the United States unless the US.
Environmental Protection Agency (EPA) has issued an
NPDES permit to the discharger. 33 U.S.C. § 1342(a).
The EPA will suspend its own licensing program ina
state provided that the state program meets certain
requirements. 33 U.S.C. § 1342(b), (c). Maryland
‘meets those requirements and, accordingly, it issues
NPDES permits for discharges into Maryland waters.
The MDE is responsible for administering the State’s
permit program. See Md. Code (1982, 1996 Repl.
Vol.), §§ 9-322, 9-323 of the Environment Article
(“EN”).
: We phrase our answer to question one in this fashion
because the key element of this case, as we explain infra, is that the
MDE never determined, at_any point during the entire permit-
issuing process, the underlying facts necessary for a proper
application of the stream’s temperature regulation. Not only did
the MDE fail to determine the necessary facts initially in 1993 when
it decided to issue the permit, neither did it do so at the contested
case hearing before the ALJ.
App. 66
a ee, oe
Under EN § 9-324:
(a)
A.
In_general. — Subject to the
provisions of this section, the
[Maryland] Department [of the
Environment] may issue a
discharge permit if the Department
finds that the discharge meets:
(1) All applicable State and
federal water quality
standards and_ effluent
limitations; and
(2) All other requirements of
this subtitle.
Similarly, the Code of Maryland Regulations
(COMAR), Md. Regs. Code tit. 26, § 26.08.04.02
[hereinafter COMAR], states in part:
Requirements for the Issuance and
Reissuance of Discharge Permits.
General. The Department shall
issue or reissue a _ discharge
permit upon a determination that:
(1) The discharge or proposed
discharge specified in the
application is or “will be
in compliance with all
applicable requirements of:
(a) Effluent limitations,
(b) Surface and ground
water quality
standards,
(c) The Federal Act,
App. 67
(d) State law or
regulation,
(e) Best available
technology, and
(f) Federal effluent
guidelines.
The MDE is authorized to adopt regulations to set
water quality standards? and effluent limitations? for
waters within the State. EN § 9-314(a). The MDE has
adopted surface water quality standards to protect
public health or welfare, to enhance water quality, to
protect aquatic resources, and to serve the purposes of
the Clean Water Act. COMAR 26.08.02.01A.
The surface water quality standards consist of (1)
designated uses and (2) water quality criteria to protect
those designated uses. COMAR 26.08.02.01B. To
achieve the goals of the water quality standards, a body
of water is classified by a “designated use” and then is
protected by a specific set of water quality criteria. The
stringency of the criteria depends on the type of
designated use to be maintained. One of the water
quality criteria for the Piney Run’s “Use III-P”
classification (natural trout water and public water
supply) is the following:
2 Water quality standards “specify the maximum
permissible short term and long term concentrations of pollutants
in the water, the minimum permissible concentrations of
dissolved oxygen and other desirable matter in the water, and the
temperature range for the water.” EN § 9-314(b)(1).
5 . Effluent standards “specify the maximum loading or
concentrations and the physical, thermal, chemical, biological, and
radioactive properties of wastes that may be discharged into the
waters of this State.” EN § 9-314(b)(2).
App. 68
Temperature.
(a) The maximum temperature outside
the mixing zonell . . . may not
exceed § 68? F[ahrenheit] (20?
C[elsius]) or the ambient
temperature of the surface waters,
whichever is greater.
(b) A thermal barrier that adversely
affects aquatic life may not be
established.
COMAR 26.08.02.03-3D(3). At issue here is the
interpretation and application of paragraph (a), which,
for convenience, we shall call the “thermal criterion.”
FACTS
I. The MDE’s Determination to Issue the
Proposed Permit
Following the County’s 1991 application for a
permit modification to increase the flow of the Plant’s
wastewater discharge, the MDE published notice of the
requested modification and held a public hearing.
A “mixing zone” is
an area contiguous to a discharge where surface
water quality or ground water quality does not
have to meet:
(a) All water quality criteria; or
(b) (b) All requirements otherwise applicable
to the natural water.
COMAR 26.08.01.01B(44).
App. 69
i
Comments received on the proposal were addressed in
the MDE’s Notice of Final Determination. In the
Notice, the MDE summarized its decision to issue the
modified permit by stating
The Department's evaluation indicates
that the discharge, as limited by the
proposed stringent effluent requirements .
. . , Will not cause violations of water
quality standards in Piney Run. Water
quality conditions in Piney Run, above
and below the [Plant's] discharge, were
used to establish the proposed discharge
permit parameters.§!
5 The only explicit mention of temperature in the Notice of
Final Determination was the following statement made in
response to one of the comments received by the MDE:
Comment
Concerns were expressed over increases in
temperature in the concrete channel of Piney Run
at the [Plant].
Determination
Measurements of temperature changes along the
channel indicated a significant rise in temperature
is not occurring.
(The concrete channel, which extends downstream from the Plant,
is not part of the treatment plant. It was installed as a flood
control measure, according to the testimony of one of the MDE’s
experts at the hearing before the ALJ.)
The modified permit itself did not contain any specific
temperature limitation, nor did it contain a statement that the
thermal criterion in COMAR 26.08.02.03-3D would be met..
App. 70
4
4
*
ao
F)
se
II. The Hearing before the ALJ
The Landowners presented the expert testimony
of Edward J. Bouwer, Ph.D., Professor of Engineering,
Department of Geography and_ Environmental
Engineering at Johns Hopkins University. A portion of
Dr. Bouwer’s testimony consisted of his interpretation of
a 1993 temperature study conducted by the MDE. In this
study, the MDE made temperature recordings on six
days at four stations along the Piney Run in the area of
the Plant: Station 1 was located upstream from the point
of effluent discharge; Station 2 was located at the source
of the discharge and measured the temperature of the
effluent; Station 3 was located about 60 feet downstream
from the effluent source; and Station 4 was located about
485 feet downstream from the effluent source.®
| . The following table summarizes the results of the study:
Temperature Measurements (in degrees Celsius) in 1993
Station Jul Jul Jul Jul Jul Aug
15 16 19 21 28 9
1 pre-effluent
Piney Run 20.0 | 20.0 | 18.0 18.5 | 23.5 20.3
Temp.
2 effluent temp.
21.5 | 21.0 | 20.0 | 210 | 22.7 | 21.1
3 60 ft.
post-effluent a5 (215 191 (2ip 1 BS 1 2s
Piney Run
temp.
4 485 ft.
post-effluent 22.0 | 22.0 19.9 | 21.0 | 245 | 241
Piney Run
temp.
Dr. Bouwer told the ALJ, “The upstream [pre-
effluent] portion of Piney Run is coming in, and this
[Station 1] is what I interpret to be the ambient surface
water temperature.”” Based upon his opinion that
Station 1 provided the correct measure of ambient
temperature, Dr. Bouwer stated, “Because the
treatment plant effluent [Station 2] is warmer than this
water flowing upstream from Piney Run [Station 1],
then when it mixes with the water down here [at
Station 3] . . . , the water will be warmer.” The
downstream temperature was higher, relative to Dr.
Bouwer’s calculation of ambient temperature, which
indicated to him that there was a violation of the
thermal criterion at the current discharge level.’ By
increasing the amount of effluent from 0.5 mgd to 0.9
d On rebuttal, Dr. Bouwer testified that the meaning of
“ambient temperature” is, for the region in question, “[the
temperature] in the absence of any input, any wastewater input to
the stream.” :
8 Moreover, under a condition called the “seven-day, ten-
year low flow,” the “temperature violation would be even more
severe than what is shown by the measurements that are made
here [if these measurements were not made during the low-flow
condition].”
The seven-day, ten-year low flow (the “Qy.10”) represents
the most conservative estimate of a stream’s flow, ie., under
drought conditions or the “worst-case scenario” for aquatic life.
At the point of discharge, an effluent release of 0.5 mgd would
represent 93% of the Piney Run’s flow during the Qy.10; a 0.9 mgd
release would represent 96% of the stream’s flow under the Q>.10
condition. According to Dr. Bouwer, the almost complete
domination of the stream by the effluent during the low-flow
period would cause an even greater increase in the temperature of
the stream because the lack of pre-effluent water, i.e., cooler water,
would result in less dissolution of the warmer effluent.
App. 72
mgd, Dr. Bouwer explained, “[Y]ou’re putting more
heat into the river [sic] and getting less dissolution, and
that heat will be carried further down and would
elevate the temperature downstream.”?
On cross-examination, Dr. Bouwer was asked
what would happen to the detention time of the
wastewater traveling through the Plant if the Plant flow
increased to 0.9 mgd. He replied that the wastewater
detention time in the Plant would decrease. Following
his answer, the MDE’s counsel asked what result the
decrease in detention time would have on the
temperature of the outgoing water (i.e., the treated
’ On rebuttal, the Landowners’ counsel posed a
hypothetical to Dr. Bouwer. As opposed to the upstream, pre-
effluent water being the measure of ambient temperature, Dr.
Bouwer was asked to assume (1) that the ambient temperature of
the Piney Run was the temperature of the stream as it existed in
1975 when the treatment plant was discharging approximately
0.2 mgd of effluent into the stream and (2) that all other variables
remained constant. In response to the question of what would
happen to the temperature of the stream if the effluent volume
were increased, Dr. Bouwer replied:
As you increase the [effluent] flow [to 0.5
mgd or to 0.9 mgd], you increase the
temperature. It remains the same as the flow is.
You're essentially increasing the amount of
thermal pollution to the water.
There’s less [diss]olution, because you
have more flow from the treatment plant, and
it's an elevated temperature relative to the
upstream flow that is a constant seven day, ten
year low flow as a constant value. And if you
increase . . . [from 0.2 mgd to 0.5 mgd or to 0.9
mgd], then that represents the increase in the
thermal pollution in the stream which would
elevate the temperature.
App. 73
effluent). Dr. Bouwer testified that “there won’t be as
much warming of the [outgoing] water.” (Emphasis
added.) .
Although the MDE argued at the hearing before
the ALJ that the temperature limit in the Use III-P
wat
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