Appendices — Washington Suburban Sanitary Commission v. Cae-Link Corp.

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APPENDIX A

COURT OF APPEALS OF MARYLAND

No. 52, Sept. Term, 1992

WASHINGTON SUBURBAN SANITARY COMMISSION

V.

CAE-LINK CorPORATION et al.

April 8, 1993

Richard J. Magid, William F. Ryan, Jr. (Whiteford,

Taylor & Preston, both on brief), Baltimore, for peti-

tioner.

David H. Bamberger (Leonard L. Gordon, Piper &

Marbury, all on brief), Washington, DC, David L. Rut-

land, Annapolis, for respondent.

Argued before MURPHY, C.J., and RODOWSKY,

McAULIFFE, CHASANOW, KARWACKI, ROBERT

M. BELL and CHARLES E. ORTH, Jr., (retired, spe-

cially assigned), JJ.

ROBERT M. BELL, Judge.

We granted certiorari to consider whether, as the Court

of Special Appeals held, CAE-Link Corp. v. WSSC, 90

Md.App. 604, 602 A.2d 239, cert. granted, 327 Md. 304,

609 A.2d 312 (1992), the Washington Suburban Sani-

tary Commission (“WSSC”),’ the petitioner, is strictly

1The Washington Suburban Sanitary Commission is a bi-county

commission responsible for the water and sewage service for Mont-

gomery and Prince George’s Counties. See Md.Code (1957, 1990

Repl.Vol.) Art. 29, § 1-101 et seq.

2a

liable for nuisance as a result of its construction, and

operation, of a sewage sludge composting facilitiy pur-

suant to federal court orders.” This issue had its genesis in

litigation, initiated in the United States District Court for

the District of Columbia in 1973, to rectify an environ-

mental crisis at the Blue Plaints Sewage Treatment Plant,

and in consent decrees, to which WSSC was a party,

arising out of that litigation.®

Pursuant to an order entered by the United States

District Court for the District of Columbia, Mongomery

County reported that it would dispose of its share of the

Blue Plains sludge by building a composting facility on a

large tract of undeveloped. land adjacent to the Mont-

gomery Industrial Park. That undeveloped tract of land,

which was on the Montgomery County-Prince George’s

County border, was known as Site 2.*

2 According to the petitioner,

The sludge is delivered from Blue Plains in sealed trucks.

Upon arrival, the sludge is combined with wood chips, and

formed into compost piles in the composting building. Air is

drawn through the piles for approximately 21 days, after which

time the wood chips are removed, and the remaining compost

material is cured for 30 days. This results in a finished prod-

uct which is sold for garden and landscaping uses under the

trade name “ComPro.”

Petitioner’s brief, p. 13. See Electro-Nucleonics v. WSSC, 315

Md. 361, 377-78, 554 A.2d 804, 812, cert. denied, 493 U.S. 854,

110 S.Ct. 158, 107 L.Ed.2d 115 (1989), for a more complete de-

scription of the operation.

3 The history of the litigation and a detailed description of the

various consent decrees is detailed in United States v. District of

Columbia, 654 F.2d 802 (D.C.Cir.), cert. denied, sub nom. Prince

George’s County v. United States, 454 U.S. 1082, 102 S.Ct. 637, 70

T.Ed.2d 616 (1981).

4 The court’s order was issued after the inability of the parties,

i.e., the District of Columbia, Fairfax County, Montgomery County,

Prince George’s County, the State of Maryland, and WSSC, to

reach agreement on a permanent equitable plan for the disposal

of sludge produced at the Blue Plains Sewage Treatment Plant

3a

Subsequently, on July 10, 1978, the district court issued

an order requiring the user jurisdictions to proceed to

develop the designated sites. Montgomery County was

ordered to have the Site 2 composting facility operational

by July 1, 1979. WSSC thus was required to take all

necessary action to accomplish that goal, including acquir-

ing the land and obtaining the necessary permits.

Action by Prince George’s County, which opposed de-

velopment of a composting facility on Site 2, precipitated

additional orders. The district court, on April 25, 1980,

issued an order compelling WSSC to restore the funds

caused to be removed by the WSSC Commissioners from

Prince George’s County and to move forward with the

project. It issued a third order on June 27, 1980, in

response to two state court suits filed by Prince George’s

County. One of those suits challenged the validity of the

state sewage sludge permit and alleged that Site 2 was a

prospective nuisance. In the other, which alleged that

restrictive convenants benefitting the land made acquisi-

tion of the Site 2 property so expensive that the WSSC

Commissioners would likely be subject to liability for

breach of fiduciary duty if they acquired it, the Circuit

Court for Prince George’s County issued an injunction

enjoining WSSC from proceeding with development and

ordering it to withdraw purchase offers made to the Site 2

owners. United States v. District of Columbia, 654 F.2d

802, 806 (D.C.Cir.), cert. denied sub nom. Prince

George’s County v. United States, 454 U.S. 1082, 102

S.Ct. 637, 70 L.Ed.2d 616 (1981). The district court,

reiterating the directives set forth in its prior orders, en-

joined WSSC from complying with the state court injunc-

tion. It also ordered WSSC to proceed expeditiously to

resulted in a complaint, by the United States, alleging violation of

the Federal Water Pollution Control Act, 83 U.S.C. § 1215 et seq.

The parties had previously entered into two consent decrees, one

dated July 29, 1974 and the other January 24, 1978, with that ob-

jective. United States v. District of Columbia, 654 F.2d at 804.

4a

obtain the land and build and operate the composting

facility. Finally, the court ordered Prince George’s County

to withdraw from the state court suits, and all parties to

refrain from taking any action which would frustrate or

impede the execution of its order.

Pursuant to the district court’s July 10, 1980 order,

WSSC filed, in the Circuit Court of Montgomery County,

a condemnation action to acquire Site 2. The 115 acres

to which it acquired title were burdened by certain re-

strictive convenants.” Consequently, WSSC filed an ac-

tion against neighboring landowners, including the re-

spondents, CAE-Link Corporation, AT & T Resource

Management Corporation, International Fabricare Insti-

tute, Erie Indemnity Company and The Washington Post

Company, seeking a declaration that the covenant’s bene-

ficiaries need not be compensated for their value. The

defendants filed counterclaims for inverse condemnation,

breach of covenant, nuisance, bad faith, pursuaiit to Mary-

land Rule 1-341, and violation of 42 U.S.C. § 1983,

seeking monetary damages. Concluding that the restric-

tive covenants, which had been extinguished when WSSC

condemned the land, were compensable property interests,

the trial court denied WSSC declaratory relief.°

5 The covenants specifically provided that:

No waste material or refuse may be dumped or permitted

to remain upon any part of the property outside of buildings,

and that

No emission of objectionable odors outside the lot line shall

be permitted.

They specifically prohibit the use of the land for a “[d]Jump or

sanitary fill.”

6 That ruling was certified a final order, see Maryland Rule 2-

602(a), and WSSC appealed. The Court of Special Appeals affirmed.

See WSSC v. Frankel, 57 Md.App. 419, 470 A.2d 813 (1984). We

granted certiorari and vacated the judgment, noting:

The difficulty is that most of the Claimants have also requested

in their counterclaims monetary judgments for just compensa-

Sa

The trial court granted WSSC’s motion for summary

judgment as to the counterclaims alleging violation of

§ 1983, bad faith, and punitive damages, but denied it

as to inverse condemnation and breach of covenant claims.

WSSC was granted partial summary judgment on the

nuisance claim to the extent of requiring the respondents

to prove that WSSC negligently created the nuisance. At

trial, the breach of covenant claims having been dismissed

by stipulation of the parties,’ WSSC moved for judgment

on the inverse condemnation and nuisance claims. Deny-

ing the motion as to the former, the trial court ruled, as

to the latter:

With respect to the nuisance claim, the motion to

dismiss is granted for two reasons. The first reason

being that right or wrong I have held that in this

case, based upon the facts in this case, that in order

to recover on the nuisance theory, the Plantiffs have

to show simple negligence in the construction and

operation of the facility. There is no evidence that I

can recall to support that theory.

The second basis upon which I grant the motion

on the nuisance, is that the law is set forth not only

tion, if the circuit court entered an affirmative declaration on

the compensability issue. But WSSC’s claim for declaratory

judgment and the requests of certain Claimants for monetary

judgments are one and the same claim for purposes of apply-

ing former Md.Rule 605a. Thus, the entire claim has not been

adjudicated in the circuit court by the ruling of December 8,

1982.

WSSC v. Frankel, 302 Md. 301, 487 A.2d 651, 655 (1985). Never-

theless, the trial court’s ruling undoubtedly is correct. See Electro-

Nucleonics, 315 Md. at 367, 554 A.2d at 807. In Mercantile-Safe

Deposit & Trust Co. v. Mayor and City Council of Baltimore, 308

Md. 627, 641, 521 A.2d 734, 740-41 (1987), we held that a restric-

tive covenant running with the land is a compensable property

right, for condemnation purposes, to the extent it adds measurable

value to that land to which it is attached.

7 The parties agreed that the covenants had been extinguished in

July of 1980, when WSSC condemned Site 2.

6a

in [Maryland Port Administration v.] QC [Corp.,

310 Md. 379, 529 A.2d 829 (1987)], but language

in Electro-Nucleonics [, Inc. v. WSSC, 315 Md. 361,

554 A.2d 804, cert. denied, 493 U.S. 854, 110 S.Ct.

158, 107 L.Ed.2d 115 (1989)] in that the court can

find no substantial diminution in the use of any of

these properties by any of the Plaintiffs as the result

of the odor.

The inverse condemnation claim was submited to the

jury, which returned a verdict in favor of WSSC. The

jury found “the covenants extinguished on July 8, 1980

[did not] add measurable value to the respondent’s land.”

Their motion for new trial having been denied, the re-

spondents appealed. WSSC cross-appealed.

The Court of Special Appeals held that, because of its

savings clause, the Federal Water Pollution Control Act

does not preempt neighboring property owners’ state law

nuisance claims against WSSC for maintaining a facility

that emits noxious odors. CAE-Link Corp. v. WSSC, 90

Md.App. 604, 615, 602 A.2d 239, 244, cert. granted,

327 Md. 304, 609 A.2d 312 (1992). It also held that

nuisance law in Maryland is a matter of strict liability;

hence, negligence is not a prerequisite to recovery. Id. at

616, 602 A.2d at 244. Additionally, the intermediate

appellate court determined that the trial court erroneously

instructed the jury that, in determining the value of the

respondents’ property, for inverse condemnation purposes,

it was appropriate to consider whether extinguishment of

the covenants substantially interfered with its use and en-

joyment. Jd. at 619, 602 A.2d at 245. Moreover, the

court concluded, property appraisals prepared at the re-

quest of two of the respondents should not have been

admitted under the business records exception. /d. at

623, 602 A.2d at 248. On WSSC’s cross-appeal, the

court reversed the trial court’s rulings on “standing.” It

held that the respondents AT & T, BancTec Systems, In-

corporated, and CAE-Link Corporation, which purchased

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their property after the land had been condemned. were

“late-takers” and lacked standing to maintain an inverse

condemnation action. Jd. at 625-26, 602 A.2d at 249.

Both WSSC and the respondents filed petitions for

certiorari. We granted WSSC’s petition, but denied the

respondents’.

I,

A.

The law of nuisance frequently has been discussed in

the opinions of this Court. See Eanes v. State, 318 Md.

436, 455 n. 8, 569 A.2d 604, 613 n. 8 (1990); Tadjer

v. Montgomery County, 300 Md. 539, 552, 479 A.2d

1321, 1327-28 (1984); Corbi v. Hendrickson, 268 Md.

459, 464, 302 A.2d 194, 197 (1973); Slaird v. Klewers,

260 Md. 2, 9, 271 A.2d 345, 348 (1970); Stottlemyer v.

Crampton, 235 Md. 138, 143-44, 200 A.2d 644, 646

(1964); Bishop Processing Co. v. Davis, 213 Md. 465,

474, 132 A.2d 445, 449 (1957); Gorman v. Sabo, 210

Md. 155, 159, 122 A.2d 475, 478 (1956); Fox v. Ewers,

195 Md. 650, 658, 75 A.2d 357, 360 (1950); Meadow-

brook Swimming Club, Inc. v. Albert, 173 Md. 641,

645, 197 A. 146, 148 (1938); Jackson v. Shawinigan

Electro Products Co., 132 Md. 128, 136, 103 A. 453,

455-56 (1918); Northern Cent. Ry. Co. v. Oldenburg &

Kelley, Inc., 122 Md. 236, 244, 89 A. 601, 605 (1914);

Gallagher v. Flury, 99 Md. 181, 187, 57 A. 672, 675

(1904); Euler v. Sullivan, 75 Md. 616, 618, 23 A. 845,

846 (1892); Susquehanna Fertilizer Co. v. Malone, 73

Md. 268, 276, 20 A. 900, 901 (1890); Woodyear v.

Schaefer, 57 Md. 1, 11-12 (1881): Mayor and City Coun-

cil of Baltimore v. Radecke, 49 Md. 217, 227 (1878);

Adams v. Michael, 38 Md. 123, 126 (1873); Scott v.

Bay, 3 Md. 431, 444 (1853). We have held that, “where

a trade or business as carried on interferes with the rea-

sonable and comfortable enjoyment by another of his

property, a wrong is done to a neighboring owner for

8a

which an action lies. . . .”. Meadowbrook Swimming Club,

173 Md. at 645, 197 A. at 148. Moreover, “[I]t makes

no difference that the business [is] lawful and one useful

to the public and conducted in the most approved

method.” Bishop Processing Co., 213 Md. at 474, 132

A.2d at 449; Meadowbrook Swimming Club, 173 Md. at

645, 197 A. at 148. Vircually any disturbance of the en-

joyment of the property may amount to a nuisance so long

as the interference is substantial and unreasonable and

such as would be offensive or inconvenient to the normal

person. Gorman, 210 Md. at 159, 122 A.2d at 477, quot-

ing Prosser on the Law of Torts 406-07 (2nd ed.).

In Bishop Processing Co., the defendant, owner and

operator of a processing plant, was enjoined from main-

taining and operating its plant because the odors ema-

nating from it interfered with the plaintiffs’ lawful use and

enjoyment of their properties. 213 Md. at 468-69, 132

A.2d at 446. Unreasonable noise from the continuous

playing of a radio was the subject of the suit brought by

the plaintiffs in Gorman. Although there was no claim

for damages to the property, nor for diminution of its

value, the Court held that the loud and offensive sounds

interfered seriously with the plaintiffs’ ordinary comfort

and enjoyment of their property and, thus, constituted a

private nuisance, for which actual and punitive damages

would lie. 210 Md. at 162-64, 122 A.2d at 478-79. We

opined: although the property may not be depreciated in

its salable or market value, “it is the discomfort and an-

noyance in its use for purposes which is the primary con-

sideration in allowing damages.” Id. at 163, 122 A.2d

at 479, quoting Baltimore & Potomac Railroad Co. v.

Fifth Baptist Church, 108 U.S. 317, 335, 2 S.Ct. 719,

731, 27 L.Ed. 739, 746 (1883). In Meadowbrook

Swimming Club, the defendant operated a place of amuse-

ment which played amplifier enhanced dance music six

nights per week. An injunction against that activity was

upheld because the noise alone caused a number of resi-

dents and property owners actual physical discomfort and

9a

annoyance, thus constituting a nuisance. 173 Md. at

643-44, 197 A. at 147.

Maryland has long adhered to the rule that proof of

nuisance focuses not on the possible negligence of the

defendant but on whether there has been unreasonable

interference with the plaintiff's use and enjoyment of his

or her property. See Susquehanna Fertilizer Co., 73 Md.

at 276, 20 A. at 901. To prove the existence of a nul-

sance, therefore, the complained of interference must

cause actual physical discomfort and annoyance to those

of ordinary sensibilities, tastes and habits, Fifth Baptist

Church, 108 U.S. at 335, 2 S.Ct. at 731, 27 L.Ed. at

745-46: it must interfere seriously with the ordinary com-

fort and enjoyment of the property. Bishop Processing

Co., 213 Md. at 474, 132 A.2d at 449; Gorman, 210 Md.

at 159, 122 A.2d at 478; Meadowbrook Swimming Club,

173 Md. at 645, 197 A. at 148.

B.

WSSC concedes that, in Maryland, nuisance is a matter

of strict liability and that “liability for nuisance may arise

even where there is compliance with applicable laws and

authorized or permitted (as opposed to mandated) by

state statute.” Petitioner’s reply brief at 2. Nevertheless

it contends that it should not be held strictly liable that it

should not be held strictly liable in this case solely be-

cause of its good faith, and nonnegligent, execution of

emergency and mandatory orders of the district court

directing it to build and operate a sewage sludge com-

posting facility at Site 2. It asks this Court to sanction

an exception, given the unique circumstances of this case.

Under the circumstances of this case, WSSC argues,

strict liability for nuisance is inapplicable because its ac-

tions were not voluntarily undertaken; rather than receive

a “mere naked grant of power,” the district court ordered

it to build and operate a specific type of sludge compost-

ing facility, at a specific location and by a specific date.

10a

It relies on Toy v. Atlantic Gulf & Pacific Co., 176 Md.

197, 213, 4 A.2d 757, 765 (1939), for the proposition

that “[t]he basic concept underlying the rule [of strict

liability for maintaining a dangerous condition] is that a

person who elects to keep or bring upon his land some-

thing that exposes the adjacent land or its owner or occu-

pant to an added danger should be obliged to prevent its

doing damage.” (emphasis added). It also contends that

it should not be placed in a position where good faith

compliance with one court’s order should cause it to be

held strictly liable in another.

In Toy, the defendant, a company hired by the federal

government to dredge the Chesapeake and Delaware

Canal, deposited the dredged material on an embankment

constructed for that purpose. That embankment was on

the west side of Back Creek and across from the plaintiff's

land. The plaintiffs used that waterway to transport carp

by boat to their land. 176 Md. at 201, 4 A.2d at 759-60.

A substantial amount of the dredged material and a por-

tion of the embankment collapsed into the creek and

denied the plaintiffs access to their property by boat and

interfered with their operation of a pond constructed on

their property for raising carp. /d. at 207, 4 A.2d at 760.

Initially, we note, as did the Toy Court, that the action

before it was for negligence, not, as in the case sub

judice, nuisance. /d. at 208, 4 A.2d at 763. There is,

of course, a distinction between nuisance and negligence.

See Sherwood Bros, Inc. v. Eckhard, 204 Md. 485, 493,

105 A.2d 207, 211 (1954). In Toy, the Court did ad-

dress the “doctrine of liability without fault,” as enunci-

ated in Rylands v. Fletcher, 1866, L.R. 1 Ex. 265,

279, aff'd, 1868, L.R. 3 H.L. 30. Pursuant to that

doctrine,

{T]he person who, for his own purposes, brings in

his lands and collects and keeps there anything

likely to do mischief if it escapes must keep it at his

peril; and if he does not do so, is prima facie

lla

answerable for all the damage which is the natural

consequence of its escape.

This doctrine addresses a different situation from that

sub judice, see also Yommer v. McKenzie, 255 Md. 220.

257 A.2d 138 (1969), as the Court’s discussion of private

nuisance reveals:

If the defendant had caused the earth and debris to

be cast into the channel opposite the shore of the

plaintiffs, and so filled it that the plaintiffs’ limited

navigable access to their shore and dam had been

materially affected or destroyed, so that they had

sustained damages which were so special and pecu-

liar to their property as to make them substantially

different from those suffered by the public generally,

the plaintiffs would have a cause of action against

the defendant on the theory of the unlawful creation

of a private nuisance, since its existence does not

necessarily presuppose negligence but may arise from

an unlawful act.

176 Md. at 214, 4 A.2d at 766 (emphasis added).

The case sub judice is more closely akin to Taylor v.

Mayor and City Council of Baltimore, 130 Md. 133, 99

A. 900 (1917). There, pursuant to state law, the City

of Baltimore erected a sewage disposal plant 1500 feet

from the plaintiff's property, on which a hotel and a dance

and dining pavilion were located. The plaintiff brought

an action for nuisance seeking damages for injuries to her

property. /d. at 134, 99 A. at 901. After determining

that the city had not “taken” the plaintiff's property, the

Court framed the issue as “Whether the appellee, a mu-

nicipal corporation, is liable under the facts and circum-

stances above . . ., which would amount to a nuisance if

done by a private corporation, or individuals—even if

done by legislative authority.” Jd. at 143, 99 A. at 904.

Answering in the affirmative, we said, “[t]he delegation

of a power to do an act, whilst conferring full authority

to perform the act itself, does not, therefore, without

12a

more, essentially and without exception, carry the right to

so do it as to inflict loss or injury upon an innocent indi-

vidual.” 130 Md. at 145, 99 A. at 904. Accordingly, the

Taylor Court held that the City could be held liable for

nuisance even though the construction of the sewage dis-

posal plant did not result in a taking of plaintiffs prop-

erty and was done pursuant to State authority. Jd. at

~- 142-43, 99 A. at 906. See Bd. of Educ. v. Riverdale,

320 Md. 384, 388, 578 A.2d 207, 209 (1990). See also

Richards v. Washington Terminal Co., 233 U.S. 546,

556-58, 34 S.Ct. 654, 658, 58 L.Ed. 1088, 1092-93

(1914), which addressed a similar issue.

There, the plaintiff owned a residence abutting railroad

tracks and near a railroad tunnel. That residence, which

had been let to a tenant, was damaged by the volumes of

dense black or grey smoke, dust and dirt, cinders and

gases emitted from the trains while passing over the

tracks, going into or coming out of the tunnel, or stand-

ing on the tracks. Vibrations from the train also damaged

the house. As a result, the property depreciated in value

and the plaintiff, unable then to rent the house, was forced

to occupy it himself. /d. at 549-50, 34 S.Ct. at 655, 58

L.Ed. at 1089-90. The Supreme Court held that the

plaintiff had not been wholly excluded from the use and

enjoyment of his property and, hence, no ‘taking’ oc-

curred in the ordinary sense. The Court noted, however,

that “while the Icegislature may legalize what otherwise

would be a public nuisance, it may not confer immunity

from action for a private nuisance of such a character as

to amount in effect to a taking of private property for

public use.” /d. at 553, 34 S.Ct. at 657, 58 L.Ed. at

1091. (citations omitted).

Addressing what is to be deemed a private nuisance

that amounts to a taking, the Court referred to Baltimore

& Potomac Railroad Company v. Fifth Baptist Church,

108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739 (1883). In

that case, the railroad was immune from a private action

l3a

by the church based upon inconveniences incidentally and

unavoidably related to its operation of a railroad. Never-

theless, the Court pointed out that the church, in that

case, had a cause of action “where a building for housing

and repairing locomotive engines was unnecessarily estab-

lished in close proximity to . . . [it] and [was] so used

[as to] create[] a constant disturbance of the religious

exercises.” Richards, 233 U.S. at 555, 34 S.Ct. at 658,

58 L.Ed. at 1092. The Court therefore reasoned:

“Grants of privileges or powers to corporate bodies,

like those in question, confer no license to use them

in disregard of the private rights of others, and with

immunity for their invasion.”

Id. at 556, 34 S.Ct. at 658, 58 L.Ed. at 1092 quoting

Fifth Baptist Church, 108 U.S. at 331, 2 S.Ct. at 728,

27 L.Ed. at 744. It further opined that congressional

authority could not

“be invoked to justify acts, creating physical dis-

comfort and annoyace to others in the use and en-

joyment of their property, to a less extent than entire

deprivation, if different places from those occupied

could be used by the corporation for its purposes,

without causing such discomfort and annoyance.”

Id.

In Fifth Baptist Church, the option of where to locate

the repair shop and engine house rested with the railroad,

while, in Richards, “the location of the tunnel and its

south portal was established pursuant to law, and not vol-

untarily chosen by defendant.” /d., 233 U.S. at 557, 34

S.Ct. at 658, 58 L.Ed. at 1093. That distinction was

insufficient to require a different result in Richards than

in Fifth Baptist Church, however. As to

such damage as is attributable to the gases and

smoke emitted from locomotive engines while in the

tunnel, and forced out of it by means of the fanning

system through a portal located so near to plaintiff’s

l4a

property that these gases and smoke materially con-

tribute to injure the furniture and to render the

house less habitable than otherwise it would be,

Richards, 233 U.S. at 551, 34 S.Ct. at 656, 58 L.Ed. at

1090, the Court explained:

Construing the acts of Congress in the light of the

Fifth Amendment, they do not authorize the imposi-

tion of so direct and peculiar and substantial a bur-

den upon plaintiff's property without compensation

to him. If the damage is not preventable by the em-

ployment at reasonable expense of devices such as

have been suggested, then plaintiff's property is “nec-

essary for the purposes contemplated,” and may be

acquired by purchase or condemnation . . . and

pending its acquisition defendant is responsible. If

the damage is readily preventible, the statute fur-

nishes no excuse, and defendant’s responsibility fol-

lows on general principles.

233 U.S. at 557, 34 S.Ct. at 658, 58 L.Ed. at 1093 (cita-

tion omitted).

The district court ordered WSSC to build a sewage

sludge composting facility in Montgomery County, Mary-

land. It did not select the site—Montgomery County, one

of the two counties for which WSSC has responsibility

for sewage, did that, see United States v. District of Co-

lumbia, 654 F.2d 802, 804 (D.C.Cir.), cert. denied sub

nom Prince George’s County v. United States, 454 U.S.

1082, 102 S.Ct. 637, 70 L.Ed.2d 616 (1981 )—nor man-

date how, as opposed to when, the construction would

proceed. WSSC acquired the land, and was solely re-

sponsible for the development of the facility.* While the

8 The respondents take issue with WSSC’s characterization of

its role in the development process. It contends that, far from being

a helpless recipient of a federal court order, WSSC sought “a clear

set of marching orders” so as to avoid problems which it perceived

to exist, from the beginning. Indeed, the respondents suggest, and

15a

district court expedited the construction, it was the peti-

tioner that created the nuisance. A strict liability stand-

ard should apply. “[The United States District Court for

the District of Columbia] can not be presumed, from

general grant of authority, to have intended to sanction

or legalize any acts or any use of property that will create

a private nuisance which will injuriously affect the prop-

erty of another.” Taylor, 130 Md. at 145, 99 A. at 905

(quoting Mayor and City Council of Baltimore v. Fair-

field Impro. Co., 87 Md. 352, 362, 39 A. 1081, 1083

(1898)). See also Webb v. Town of Rye, 108 N.H. 147,

230 A.2d 223 (1967) (statutory duty of town to provide

and maintain public facilities for depositing garbage and

refuse did not sanction the creating and maintenance of a

nuisance); Jones v. Knox County, 205 Tenn. 561, 327

S.W.2d 473 (1959) (although acting in governmental

capacity, county is not authorized to maintain a public

nuisance in form of sewage treatment plant).

If.

A.

The supremacy clause to the United States Constitu-

tion, Article VI, clause 2, provides: “This constitution,

and the laws of the United States . . . shall be the supreme

law of the land. . . .” This clause has been interpreted

to mean that “state laws which ‘interfere with, or are

contrary to the laws of Congress, made pursuant to the

constitution’ are invalid.” Wisconsin Public Intervenor v.

Mortier, US. , 111 S.Ct. 2476, 2481,

115 L.Ed.2d 532, 542 (1991) (quoting Gibbons v. Og-

den, 9 Wheat. 1, 211, 6 L.Ed. 23, 73 (1824)). The

Supreme Court has identified three situations in which

the record supports, that it was WSSC which requested the district

court to order it to acquire Site 2 to expedite the process. The

respondents argue, therefore, that WSSC is not entitled to any spe-

cial consideration in light of the role it played in obtaining the

federal district court orders it now characterizes as coercive.

l6a

federal law preempts state law. English v. General Elec-

tric, 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110

L.Ed.2d 65, 74 (1990). State law is preempted when

Congress has explicitly defined the extent to which its

enactment preempts state law. 496 U.S. at 78, 110 S.Ct.

at 2275, 110 L.Ed.2d at 74. When there is no explicit

statement of preemption, state law which seeks to regu-

late conduct in a field that Congress intended the federal

government to occupy exclusively is preempted. /d. at 79,

110 S.Ct. at 2275, 65 L.Ed.2d at 74. State law is also

preempted to the extent that it actually conflicts with

federal law, id.; Maryland v. Louisiana, 451 U.S. 725,

747, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576, 596 (1981),

as “when compliance with both federal and state regu-

lations is a physical impossibility”. Harrison v. Schwartz,

319 Md. 360, 364, 572 A.2d 528, 530, cert. denied, 498

U.S. 851, 111 S.Ct. 143, 112 L.Ed.2d 110 (1990);

Becker v. Litty, 318 Md. 76, 86, 566 A.2d 1101, 1106

(1989); Bd. of Trustees v. Mayor & City Council of

Baltimore City, 317 Md. 72, 115, 562 A.2d 720, 741

(1989), cert. denied sub nom., Lubman v. Mayor & City

Council of Baltimore City, 493 U.S. 1093, 110 S.Ct.

1167, 107 L.Ed.2d 1069 (1990); Hecht Co. v. C & P

Telephone Co., 310 Md. 148, 152, 528 A.2d 474, 476

(1987), quoting Hillsborough County, Fla. v. Automated

Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct.

2371, 2375, 85 L.Ed.2d 714, 721 (1985).

WSSC posits that the district court orders requiring it

to build and operate a composting facility on Site 2,

conflicted with, and, therefore, preempted, Maryland’s

rule of strict liability in nuisance. Relying on the second

and third bases for preemption, it makes two arguments:

(1) that the emergency federal court orders issued pur-

suant to the Water Pollution Control Act, under the

unique circumstances of this case, effect the preemption

and (2) that Maryland law is preempted because it was

impossible for WSSC to comply with both the federal

court orders and Maryland law.

17a

1.

Underlying WSSC’s first argument is the premise that

the savings clause, § 1365(e)* applies only to citizens’

suits. WSSC argues that § 1365(e) has no applicability,

broadly, to the Water Pollution Control Act and, in

particular, to court orders issued pursuant to § 1364."

Because the district court orders were issued pursuant to

the emergency powers, to which the savings clause is

® 33 U.S.C. § 1365(e) provides:

(e) Statutory or common law rights not restricted. Nothing

in this section shall restrict any right which any person (or

class of persons) may have under any statute or common law

to seek enforcement of any effluent standard or limitation or

to seek any other relief (including relief against the Adminis-

trator or a State agency).

1

—)

Section 1364 provides:

(a) Emergency Powers. Notwithstanding any other provision

of this Act, the Administrator upon receipt of evidence that a

pollution source or combination of sources is presenting an

imminent and substantial endangerment to the health of per-

sons or to the welfare of persons where such endangerment is

to the livelihood of such persons, such as inability to market

shellfish, may bring suit on behalf of the United States in the

appropriate district court to immediately restrain any person

causing or contributing to the alleged pollution to stop the

discharge of pollutants causing or contributing to such pollu-

tion or to take such other action as may be necessary.

The respondents assert that the record is not at all clear that the

suit, pursuant to which the district court orders at issue were

passed, was brought under § 1364. They correctly point out that

there is nothing in the record to indicate that the administrator

brought the action. On the other hand, the July 10, 1978 order

states that it was issued “on the basis of the existence of an

emergency affecting the health and safety of the residents of the

Washington metropolitan area.” Moreover, it is clear that the

United States filed the complaint alleging the failure of, inter alia,

WSSC and Montgomery County to devise a permanent sludge man-

agement plan, which failure resulted in increased discharges into

the Potomac River in violation of the Federal Water Pollution

Control Act. United States v. District of Columbia, 654 F.2d at 804.

18a

inapplicable, WSSC asserts, the Maryland nuisance stand-

ard is not saved, but is preempted. It advises us that this

result is mandated by /nternational Paper Company v.

Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883

(1987).

Even if we assume, arguendo," that federal district

court orders can trigger preemption, no such preemption

occurred in this case. In Ouellette, Vermont property own-

ers sued, in a Vermont state court, the operator of a New

York pulp and paper mill for nuisance. The property

owners alleged that pollutants discharged by the New

York mill made the water in Vermont “foul, unhealthy,

smelly, and unfit for recreational use,” and, thus, consti-

tuted a “continuing nuisance.” The action having been

removed to federal district court, the mill operator moved

for summary judgment, arguing that the Clean Water Act

(the Water Pollution Control Act), preempted the state

law suit. /d. at 484, 107 S.Ct. at 807, 93 L.Ed.2d at

892. The district court denied the motion, finding that

the Act’s savings clause preserved actions to redress inter-

state water pollution under the law of the state in which

the injury occurred. 602 F.Supp. 264 (D.Vt.1985). The

Court of Appeals for the Second Circuit affirmed. 776

F.2d 55 (2d Cir.1985).

After analyzing the Act’s regulatory framework and

legislative history, the Supreme Court rejected the argu-

ment that the savings clause preserved a state’s right to

regulate its waters and an injured party’s right to seek

relief under any statute or the common law of the state

11 We observe, as the respondents argue, that the preemption

doctrine operates in the context of the United States Constitution

and the laws of the United States. Thus, when the Constitution of

the United States is not involved, it is the laws enacted by Congress

in an attempt to carry out congressional intent, to which the doc-

trine relates. Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458

U.S. 141, 152-153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664, 674-75

(1982).

19a

in which the injury occurred. 479 U.S. at 492, 107 S.Ct.

at 811-12, 93 L.Ed.2d at 896-97. It held that the Act

precludes a court from applying the law of an affected

State against an out-of-state source. Id. at 493-94, 107

S.Ct. at 812, 93 L.Ed.2d at 898. See also Michigan Can-

ners & Freezers Ass’n v. Agricultural Marketing & Bar-

gaining Bd., 467 U.S. 461, 477, 104 S.Ct. 2518, 2527,

81 L.Ed.2d 399, 411 (1984). If it were otherwise—if

affected states were allowed to impose separate discharge

standards on a single point source—the Court explained,

serious interference with the achievement of the “full pur-

poses and objectives of Congress” would result:

If a New York source were liable for violations of

Vermont law, that law could effectively override

both the permit requirements and the policy choices

made by the source State. The affected State’s nui-

sance laws would subject the point source to the

threat of legal and equitable penalties if the permit

standards were less stringent than those imposed by

the affected State. Such penalties would compel the

source to adopt different control standards and a

different compliance schedule from those approved

by the EPA, even though the affected State had not

engaged in the same weighing of the costs and

benefits.

479 U.S. at 495, 107 S.Ct. at 813, 93 L.Ed.2d at 899.

The property owners were not without a remedy, the

Court pointed out, because, even though Congress in-

tended to dominate the field of pollution regulation, the

savings clause negates the inference that Congress “left

no room” for the state causes of action. Jd. at 492, 107

S.Ct. at 812, 93 L.Ed.2d at 897. Indeed, it noted “[t]he

savings clause specifically preserves other state actions,

and... nothing in the Act bars aggrieved individuals

from bringing a nuisance claim pursuant to the law of

20a

the source State.” Jd. at 497, 107 S.Ct. at 814, 93

L.Ed.2d at 900. The Court explained:

An action brought against IPC under New York

nuisance law would not frustrate the goals of the

CWA as would a suit governed by the Vermont law.

First, application of the source State’s law does not

disturb the balance among federal, source-state, and

affected-state interests. Because the Act specifically

allows source States to impose stricter standards, the

imposition of source-state law does not disrupt the

regulatory partnership established by the permit sys-

tem. Second, the restriction of suits to those brought

under source-state nuisance law prevents a source

from being subject to an indeterminate number of

potential regulations. Although New York nuisance

law may impose separate standards and thus create

some tension with the permit system, a source only

is required to look to a single additional authority,

whose rules should be relatively predictable. More-

over, States can be expected to take into account

their own nuisance laws in setting permit require-

ments.

Id. at 498-99, 107 S.Ct. at 815, 93 L.Ed.2d at 900-01

(footnotes omitted ).

In the course of discussing the effect of the savings

clause on suits brought under the laws of the affected

State, the Supreme Court observed:

Section 505(e) [the savings clause] merely says that

“(njothing in this section,” i.e., the citizen-suit pro-

visions, shall affect an injured party’s right to seek

relief under state law; it does not purport to preclude

pre-emption of state law by other provisions of the

Act.

Id. at 493, 107 S.Ct. at 812, 93 L.Ed.2d at 897. Focus-

ing on these comments, surmising that the district court

2la

orders in this case were issued under § 1364, and stress-

ing that the first sentence of § 1365(e) refers only to

that section, WSSC argues that “the ‘savings clause’ is

inapplicable to actions under § 1364.” It concludes that

the federal orders in this case preempted the strict liability

standard for nuisance because it “conflicts with, ‘stands

as an obstacle to’ or ‘interferes with the methods’ for

reaching federal environmental goals.” Petitioner’s brief

at 22, quoting Ouellette, 479 U.S. at 494, 107 S.Ct. at

813, 93 L.Ed.2d at 898.

As we have seen, the Supreme Court held that the

savings clause did preserve other state law remedies when

those remedies were sought pursuant to the law of the

source state. Ouellette simply does not stand for the prop-

osition that all actions under the Clean Water Act, except

the citizens’ suit section, preempt state law. WSSC reads

the savings clause much too narrowly. To the extent that

the action does not otherwise thwart the goal of the Clean

Water Act, the savings clause does preserve state law rem-

edies. Notwithstanding its inclusion within § 1365, the

effect of the savings clause is not limited to that section; it

is, rather, a recognition that, in addition to actions under

the Clean Water Act, persons injured by pollution may

seek additional remedies. The mere inclusion in the same

section, of a statute both a specific remedy and a savings

clause does not limit the injured person to the specified

remedy only.

2.

The next argument that WSSC makes is that the strict

liability feature of Maryland’s nuisance law made it im-

possible, for WSSC to carry out the federal court orders

and comply with State law at the same time. Compliance

with both, it maintains, is a physical impossibility. It

offers as the best evidence that this is so, the district

court’s June 27, 1980 order and the opinion of the United

States Court of Appeals affirming those orders. See gen-

erally United States v. District of Columbia, 654 F.2d

802 (D.C.Cir.), cert. denied sub nom., Prince George's

22a

County v. United States, 454 U.S. 1082, 102 S.Ct. 637,

70 L.Ed.2d 616 (1981). WSSC points out that the

June 27, 1980 order required various parties to withdraw

their complaints, one of which sought a declaration that

it was a prospective nuisance, against the Site 2 project

in Maryland State courts.

The federal court orders, of course, did not expressly

prohibit the filing and maintenance of nuisance actions

with respect to operation of Site 2, against WSSC in a

Maryland court. It is true, however, that, for there to be

preemption, the conflict between State and federal laws

which makes compliance with both “a physical impos-

sibility,” need not be direct; it may be indirect. Fidelity

Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141,

155-56, 102 S.Ct. 3014, 3023-24, 73 L.Ed.2d 664, 676-

77 (1982). Nevertheless, the Court of Special Appeals

correctly determined that there was no conflict. It quite

properly observed, in that regard, that “the federal district

court ordered WSSC to build and operate a composting

site in the MIP. It did not, however, order Appellee to

build and operate a composting site that emits obnoxious

odors that invade the property of others.” CAE-Link, 90

Md.App. at 615, 602 A.2d at 244.

When the federal district court orders were passed, the

issue before the court was the development of the com-

posting plant, i.e., its compliance with the Clean Water

Act and the comprehensive program submitted by the

parties. The issue was not how the composting plant was

to be constructed or whether, as constructed, it would

have a nuisance impact on the surrounding community.

Different considerations underlie these very different

issues. An order that seeks to contain challenges and to

have them litigated in a single forum does not, contrary

to WSSC’s argument, have ramifications for federal pre-

emption of a state nuisance action. The district court

relied on the public interest in seeing that all challenges

and objections to the sludge disposal plant be expedi-

23a

tiously and consistently resolved as the basis for requiring

that all adjudications of that issue occur in that court.

Moreover, in order to build the compositing facility, the

petitioner had to condemn 115 acres of land and ex-

tinguish the restrictive covenants benefitting that land.

That was a cost of the facility. The elimination of odors,

or compensating those affected, is likewise a cost of the

facility if the plant emits the odors. The Court of Special

Appeals put it thusly,

If the users within the entire area serviced by [the

petitioner] through the operation of Site II, are going

to inflict the odors generated by the treatment of

their sludge on a limited number of Site II neighbors,

we see no reason why they should not be required

to alleviate that damage or compensate those they

damage.

90 Md.App. at 617, 602 A.2d at 245. See also Fifth

Baptist Church, 108 U.S. at 332, 2 S.Ct. at 729, 27

L.Ed. at 744.

B.

WSSC argues that, even if the strict liability standard

in nuisance is not preempted by the emergency orders

of the district court, principles of comity and sound judi-

cial policy require that it not be applied in this case.

Noting that by enacting the Federal Water Pollution

Control Act and vesting primary responsibility and control

over its implementation in a federal agency, see Cleve-

land Electric Illuminating Co. v. Envtl. Protection

Agency, 603 F.2d 1, 5 (6th Cir.1979), Congress ex-

pressed a paramount interest in the restoration of the

navigable waters of the nation, and that the district court

gave it no choice but to develop the Site 2 project, it

urges us, by application of comity, to refrain from ap-

plying the strict liability in assessing whether it should

be held liable for nuisance. It asks that, instead, we

adopt a different standard, applicable only to this case.

We decline to do so.

24a

Under the doctrine of comity, courts of one state or

jurisdiction will give effect to laws and judicial decisions

of another state or jurisdiction, not as a matter of obli-

gation but out of deference and respect. Galloway v.

Watts, 395 F.Supp. 729, 731 (D.Md.1975). That doc-

trine is a part of our common law. Holloway v. Safe De-

posit & Trust Co., 151 Md. 321, 334, 134 A. 497, 501

(1926).

We are not being asked to defer to the federal law of

nuisance. We are simply being asked to refrain from

applying this State’s law, not because it is inapplicable,

but because, in WSSC’s opinion, when applied in the con-

text of the federal orders in this case, it may have a harsh

result. None of the cases WSSC cites, see Fair Assess-

ment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100,

102-03, 108-12, 102 S.Ct. 177, 179, 181-84, 70 L.Ed.2d

271, 275, 278-281 (1981); Mitcheson v. Harris, 955

F.2d 235, 239-40 (4th Cir.1992); Cox Cable Hampton

Roads v. City of Norfolk, 739 F.Supp. 1074, 1076-77

(E.D.Va.1990) (refusal of federal courts to exercise jur-

isdiction over matters of state law more appropriately

handled by the state courts) requires, nor are we per-

suaded by WSSC’s arguments, that we should do so.

ack

Relying on the Restatement (2nd) of Torts § 822,”

WSSC argues that liability for private nuisance should

apply only when the interferences with the private use

—_—- ——_—_—

12 The Restatement (Second) of Torts § 822 provides:

One is subject to liability for a private nuisance if, but only

if, his conduct is a legal cause of an invasion of another’s

interest in the private use and enjoyment of land, and the

invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules

controlling liability for negligent or reckless conduct, or for

abnormally dangerous conditions or activities,

25a

and enjoyment of property are intentional and unreason-

able or caused by negligence, or reckless, or abnormally

dangerous conduct. It urges, therefore, that we reject

the strict liability standard and join the jurisdictions which

have adopted the Restatement’s formulation.’* Aside from

the fact that other courts have adopted the Restatement,

WSSC provides no reasoned basis for our discarding the

strict liability standard which has a pedigree of long

standing in this state. See e.g. Adams v. Michael, 38 Md.

123, 126 (1873); Scott v. Bay, 3 Md. 437, 444 (1853).

For that reason alone. we refuse WSSC’s invitation.”

13 Nissan Motor Corp. v. Maryland Shipbuilding & Drydock Co.,

544 F.Supp. 1104 (D.Md. 1982), aff'd, 742 F.2d 1449 (4th Cir.

1984); District of Columbia v. Fowler, 497 A.2d 456 (D.C.Cir.

1985); Rumbough v. Tampa, 403 So.2d 1139 (Fla.App. 1981);

Richmond Bros. Inc. v. Hagemann, 359 Mass. 265, 268 N.E.2d 680

(1971) ; Maerz v. United States Steel Corp., 116 Mich.App. 710, 323

N.W. 524 (1982); Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d

787 (Mo.App. 1980); Hall v. Phillips, 231 Neb. 269, 486 N.W.2d

139 (1989); Burke v. Briggs, 239 N.J.Super. 269, 571 A.2d 296

(1990); Copart Ind. v. Consolidated Edison Co., 41 N.Y.2d 564,

394 N.Y.S.2d 169, 362 N.E.2d 968 (1977); Waschak v. Moffat, 379

Pa. 441, 109 A.2d 310 (1954).

14 While acknowledging that this Court has not explicitly rejected

strict liability as a standard for the proof of nuisance, WSSC sug-

gests that we may have done so implicitly. It refers to Kelley v.

R.G. Industries, Inc., 304 Md. 124, 182-33, 497 A.2d 1143, 1146-47

(1985); Yommer v. McKenzie, 255 Md. 220, 225-226, 257 A.2d 138,

139 (1969), cases adopting the Restatement (Second) of Torts,

§§ 519 and 520, relating to “Abnormally dangerous activities.”

Nothing in these opinions make that suggestion. Abnormally dan-

gerous activities or conditions are not the only types of nuisances

recognized in this state. Nuisance is usually placed into three

classifications:

First, those which are nuisance per se or by statute; second,

those which prejudice public health or comfort such as

slaughterhouses, livery stables, etc.; third, those which in their

nature are not nuisances, but may become so by reason of their

locality, surroundings, or the manner in which they may be

maintained.

Burley v. Mayor, Counsellor and Alderman of City of Annapolis,

182 Md. 307, 312, 34 A.2d 603, 605 (1943) (quoting 2 Dillon on

26a

Moreover, it is not the unanimous verdict of other juris-

dictions that the Restatement should be adopted and the

Strict liability standard for nuisance discarded. See Graber

v. Peoria, 156 Ariz. 553, 753 P.2d 1209, 1211 (Ariz.Ct.

App.1988) (whether an interference is unreasonable is

determined by the injury caused by the condition and not

by the conduct of the party creating the condition);

Turner v. Thompson, 102 Il.App.3d 838, 58 IIl.Dec.

215, 219, 430 N.E.2d 157, 161 (1981) (Negligence is

not involved in an action with respect to nuisance); Page

County Appliance Center, Inc. v. Honeywell, Inc., 347

N.W.2d 171, 175 (Iowa 1984) (The existence of a

nuisance is not affected by the intent of its creator not

to injure anyone); State v. Lloyd A. Fry Roofing Steven-

son, 310 Minn. 535, 246 N.W.2d 692, 695 (1976)

(Negligence and nuisance are distinct concepts and the

defendant’s negligence or failure to act reasonably is not

an essential element in a nuisance action); Frank v. Envitl.

Sanitation Memt. Inc., 687 S.W.2d 876, 880 (Mo. 1985)

(Nuisance is a condition and does not depend on the

degree of care used).

In addition to the failure to produce evidence of negli-

gence in constructing and operating the composting facil-

ity, the trial judge ruled, alternatively:

The second basis upon which I grant the motion

on the nuisance, is that the law is set forth not only

in [Maryland Port Administration v.] QC [Corp.,

310 Md. 379, 529 A.2d 829 (1987)], but language

in Electro-Nucleonics [, Inc. v. WSSC, 315 Md. 361,

554 A.2d 804, cert. denied, 493 U.S. 854, 110 S.Ct.

Municipal Corporations, 1044-45 (5th ed.). Sewage composting

facilities, like slaughterhouses or livery stables, prejudice public

comfort. We have stated “[i]t is not necessary that a public

nuisance should be injurious to health; if there be smells offensive

to the senses, that is enough... .” Woodyear v. Schaefer, 57 Md.

1, 12 (1881) (quoting Rez v. Neil, 2 C. & P 185).

27a

158, 107 L.Ed.2d 115 (1989)] in that the court can

find no substantial diminution in the use of any of

these properties by any of the Plaintiffs as the result

of the odor.

The Court of Special Appeals held that ruling was error.

It reasoned that neither QC, nor Electro-Nucleonics, ad-

dressed the standard of proof applicable to nuisance; '*

rather, both dealt with the standard required to prove a

non-possessory taking. 90 Md.App., at 619, 602 A.2d at

246. On this point, the intermediate appellate court is

clearly correct.

In QC, the issue was “whether, by operating a hazard-

ous waste disposal facility on its own land, the State of

Maryland has taken adjacent leasehold property of the

plaintiff.” 310 Md. at 381, 529 A.2d at 829. In Electro-

Nucleonics, in addition to that raised in QC, the issue

was whether “property of the appellant in the form of the

benefit of certain restrictive covenants which had bur-

dened the condemned property” had been taken. 315 Md.

at 363, 554 A.2d at 805.

While not disputing that QC and Electro-Nucleonics

did not involve nuisance, WSSC maintains that the trial

court applied the correct standard to assess the sufficiency

of the evidence of nuisance to create a jury question. It

asserts that neither respondent presented “‘sufficient evi-

dence from which the jury could find that the value of

each Responudent’s property was diminished materially

as a result of odors from Site II and that those odors

15 A nuisance count was pled in Maryland Port Admin. v. QC

Corp., 310 Md. 379, 385, 529 A.2d 829, 831 (1987); however, it

was dismissed for failure to give the State notice, a ruling not

challenged on appeal. In part III of the opinion, the Court con-

sidered “the taking claim from a nuisance point of view.” Id. at

391 n. 9, 529 A.2d at 834 n. 9. By that, we meant that we would

consider whether in that case a taking had occurred, as it could

have, “without a physical invasion of the property allegedly taken.”

Id. at 399-402, 529 A.2d at 838-840.

28a

seriously interfered with each Respondent’s use of its

property.” Petitioner’s brief at 36.

Not every interference with the use or enjoyment of

land constitutes an actionable nuisance. Adams _ v.

Michael, 38 Md. 123, 126 (1873). To be actionable,

“{t]he injury must be of such a character as to diminish

materially the value of the property as a dwelling [or for

the purpose] and seriously interfere with the ordinary

comfort and enjoyment of it.’ (citations omitted). Slaird

v. Klewers, 260 Md. 2, 9, 271 A.2d 345, 348 (1970).

See Stottlemyer v. Crampton, 235 Md. 138, 143-44, 200

A.2d 644, 646 (1964); Bishop Processing Company v.

Davis, 213 Md. 465, 472-474, 132 A.2d 445, 449

(1957); Gorman v. Sabo, 210 Md. 155, 162-64, 122

A.2d 475, 478 (1956); Five Oaks Corp. v. Gathmann,

190 Md. 348, 352, 353, 58 A.2d 656, 658 (1948);

Meadowbrook Swimming Club, 173 Md. 641, 645, 197

A. 146, 148 (1938). This standard is best understood

by reference to its application in specific cases.

Bishop's Processing Company involved a suit perpetu-

ally to enjoin the operator of a processing plant from

maintaining and operating the plant so that the odors

emanating from the plant interfered with the rightful use

and enjoyment by the plaintiffs of their properties in the

area. The evidence showed that the plaintiffs resided

between one-half to one mile of the plant and that

the process used by the Company in manufactur-

ing its products, when not curbed, produces a

shocking and nauseating stench and odor which per-

meates the surrounding atmosphere for more than a

mile and that the stench is so bad that even though

the doors and windows of the homes of persons liv-

ing in the neighborhood surrounding the plant are

closed, it comes into the homes causing throat irri-

tations, severe headaches, loss of appetite, nausea,

regurgitation and in other ways interferes with the

29a

comfortable enjoyment of their homes by the appel-

lees in this proceedings. The appellees complained

particularly of terrific, indescribable unwholesome

effluvia that came from the plant and which varied

only with the change of the direction of the wind,

and stated that while there was relief when the wind

blew the odor away from a particular location it was

continuous during the operation of the plant in that

it followed the wind and caused discomfort in an-

other location in the direction from the plant in

which the wind was blowing.

213 Md. at 470, 132 A.2d at 447. The Court rejected

the argument that the evidence was insufficient to estab-

lish that, had they sued at law, the plaintiffs would have

been entitled to substantial damages. Applying the test

set out above, it held that the plaintiffs had shown suffi-

cient discomfort and injury to their properties to entitle

them to injunctive relief. The Court said:

[T]he evidence justifies a finding that the odors com-

plained of caused physical discomfort and annoyance

to those of ordinary taste, sensibilities and habits;

and that the injury to the appellees’ properties was

of such a character as to diminish materially their

value as dwellings, and to interfere seriously with the

ordinary comfort and enjoyment thereof. This

clearly brings the appellees within the above quoted

and cited decisions of this Court so as to be entitled

to relief.

213 Md. at 474, 132 A.2d at 449. One of the cases to

which the Court referred was Meadowbrook Swimming

Club. In that case, we said that,

where a trade or business as carried on interferes

with the reasonable and comfortable enjoyment by

another of his property, a wrong is done to a neigh-

boring owner for which an action lies at law or

equity. In such cases it makes no difference that the

30a

business was lawful and useful to the public and con-

ducted in the most approved method.

173 Md. at 645, 197 A. at 148 (citations omitted).

The allegation in Gorman was that the Gormans

“embarked upon an intentional malicious and willful

course of action to annoy, harass and injure the

plaintiffs by causing, permitting, or causing and per-

mitting loud and offensive sounds to emanate from

their said property in such a way as to pass over into

the plaintiffs’ property resulting in serious interfer-

ence with the ordinary comfort, use and enjoyment

by the plaintiffs of their property, and persisted and

still persist in continuance of the said course of ac-

tion after frequent requests to desist.”

210 Md. at 158-59, 122 A.2d at 476. We held that:

If noise causes physical discomfort and annoyance

of persons of ordinary sensibilities, tastes, and habits

and seriously interferes with the ordinary comfort

and enjoyment of their homes, and thus diminishes

the value of the use of their property rights, it con-

stitutes a private nuisance, entitling those offended

against to damages.

Id. at 159, 122 A.2d at 476 (citations omitted). We went

on to quote Prosser, Law & Torts, 406, 407 (2d ed.)

for the proposition that noise that disturbs the comfort or

convenience of the occupant of property is a nuisance

and, “[s]o long as the interference is substantial and un-

reasonable, and such as would be offensive or inconven-

ient to the normal person, virtually any disturbance of the

enjoyment of the property may amount to a nuisance.”

Id. Moreover, we said,

Where there is a non-trespassory invasion rights in

real property occupied by the owner as a home,

consisting of a temporary private nuisance, the meas-

ure of damages is the diminution in the value of the

31a

use of the property as a home. The elements to be

considered in the loss of the value of the use include

the ordinary use and enjoyment of the home, and

may also include sickness or ill health of those in the

home caused by the nuisance.

210 Md. at 162, 122 A.2d at 478. Among the authori-

ties cited for that proposition was Baltimore & PR Co. v.

Fifth Baptist Church, 108 U.S. 317, 2 §.Ct. 719, 27 L.Ed

739 (1883). In that case, as we have seen, the Supreme

Court said:

The plaintiff was entitled to recover because of the

inconvenience and discomfort caused to the congre-

gation assembled, thus necessarily tending to destroy

the use of the building for the purposes for which

it was erected and dedicated. The property might

not be depreciated in its salable or market value. . . .

But, as the court below very properly said to the

jury, the congregation had the same right to the com-

fortable enjoyment of its house for church purposes

that a private gentleman has to the comfortable en-

joyment of his own house, and it is the discomfort

and annoyance in its use for those purposes which

is the primary consideration in allowing damages.

Id. at 335, 2 S.Ct. at 731, 27 L.Ed. at 745-46. See also

Beahm v. Shortall, 279 Md. 321, 341-42, 368 A.2d 1005,

1017 (1977); Carr’s Beach Amusement Co. v. Annapolis

Roads, 222 Md. 392, 396, 160 A.2d 598, 600 (1960):

Mass Transit Admin. v. Miller, 271 Md. 256, 259, 315

A.2d 772, 774 (1974); Meadowbrook Swimming Club,

173 Md. at 644-47, 197 A. at 148.

The Court of Special Appeals referred to the evidence

presented by the respondents to prove that WSSC’s op-

eration of Site 2 interfered with their use and enjoyment

of their property. See 90 Md. App. at 618, 602 A.2d at

245. From that testimony, the jury could have found that

the odors emanating from WSSC’s plant produced “actual

32a

physical discomfort to persons of ordinary sensibilities,

tastes, and habits,” thereby diminishing materially the

value of the property as a commercial establishment and

seriously interfering with their ordinary comfort and en-

joyment.

IV.

The trial judge admitted into evidence, as proof of

damages on the inverse condemnation count, three real

estate appraisals prepared at the request of AT & T and

two appraisals made at the request of Computer Entry

Systems (now BancTec Systems, Inc.). These appraisals

showed that, rather than decreasing in value, the AT & T

and BancTec properties had actually increased in value

since the composting facility was built. When the admis-

sibility of these reports was raised, AT & T, BancTec and

CAE-Link ™ expressly objected. Holding that they were

business records, the trial court overruled the objections

and admitted the reports pursuant to Maryland Code

(1989) § 10-101 of the Courts and Judicial Proceedings

Article. The respondents argued, both in the trial court

and before the Court of Special Appeals, that the records

were inadmissible for lack of authentication and because

they are hearsay. The Court of Special Appeals held

that the trial court committed clear error, and reversed.

WSSC’s challenge to this portion of the Court of Spe-

cial Appeals’ opinion is threefold. First, noting that the

court held that BancTec, AT & T, and CAE-Link lacked

standing to maintain an inverse condemnation action

against it, which was rendered final when we denied their

petition for certiorari and, therefore, can no longer enjoy

the benefits of a reversal on that issue, it asserts that the

Other respondents waived the issue when they failed to

object to the admissibility of the reports.

16 WSSC does not definitively concede that CAE-Link objected;

it does, however, acknowledge that it is arguable that it did.

33a

Second WSSC argues that, assuming the erroneous ad-

mission of the appraisals, only AT & T and BancTec

were prejudiced; it was harmless and non prejudicial as

to the other respondents. Finally, WSSC contends that

the reports were properly admitted into evidence.

As to the preservation argument, the respondents cor-

rectly point out that during pretrial diccussions, when an

attorney for one of the parties ’’ attempted to insure that

objections previously made were preserved as to his or

her client, the court indicated that “they [objections]

apply to all plaintiffs, is that right? That is understood.”

An attorney then said, “An objection for one is an ob-

jection for all plaintiffs.” No one stated a contrary posi-

tion and the record does not reflect that, at any time

thereafter, the ground rules were changed. Accordingly,

despite no explicit objection having been made by any

of the respondents whose inverse condemnation claim

survives, the issue was not thereby waived. See Mejia v.

State, 328 Md. 522, 539, 616 A.2d 356, 364 (1992).

Nor was the error harmless. No limiting instruction was

given. While the reports purported to relate only to

AT & T’s and BancTec’s property, the appraisals them-

selves contained comments and opinions about the neigh-

borhood in which the AT & T and BancTec property was

located. One of the AT & T’s appraisals titled “Neighbor-

hood Analysis” stated,

[T]he subject neighborhood will likely experience

an increased rate of growth regarding high tech de-

velopment and should continue to enjoy expansion

in the residential sector. New office development is

ecoming more preponderant in this neighborhood

and tends to increase the overall quality of the type

17 The attorney did not identify himself nor his client, as re-

quired. In fact, the transcript reflects that the rule the court im-

posed, that counsel should identify themselves when speaking,

was more honored in the breach.

34a

of properties. This new development should tend to

enhance land values in the area and promote future

marketability of properties in this neighborhood.

Similarly, the section of BancTec’s appraisal titled

“Neighborhoood Data” described the area thusly, “Real

estate values in the subject neighborhood have continued

to increase over the past several years because of the ex-

cellent location with respect to the Washington Metro-

politan Area.” The jury could have inferred from that

that the property of the other respondents also increased

in value.

In holding the appraisals inadmissible, the Court of

Special Appeals noted, that the appraisals, rather than

being required by law, on the day-to-day functions of the

business, the appraisals were requested by AT & T and

BancTec, and that the appraisals had no effect on the

operation of those businesses. 90 Md.App. at 623-24. 602

A.2d at 248. The court concluded, therefore, that the

appraisals do not qualify as business records. Jd. We

agree.

V.

On the issue of damages for inverse condemnation; the

trial judge instructed the jury on the issues of damages,

as follows:

[t]he measure of damages, if any, to Plaintiffs for

the loss of their right to enforce the restrictive cove-

nants against the Washington Suburban Sanita[ry

Commission, shall be determined by comparing the

fair market value of each of the Plaintiffs’ property

immediately prior to the July 8, 1980 extinguishment

of the restrictive convenants, which the fair market

value of each Plaintiffs’ properties immediately after

July 8, 1980.

Any difference that you may find between those

values should be the measure of damages available to

each Plaintiff in this proceeding.

* * * ”

35a

In the determination of any changes of value of

the Plaintiff's [sic], you may consider whether there

was substantial interference with the use and enjoy-

ment of the property by Plaintiff’s [sic] resulting from

extinguishment of the covenants.

WSSC maintains that the trial judge correctly instructed

the jury concerning the valuation of the respondents’ prop-

erty. Relying on Maryland Code (1988) § 12-104(b) of

the Real Property Article, it asserts that consequential

damages may be awarded for a partial taking, which may

be proven by evidence of specific problems the taking

and future public use caused.

The respondents argue, on the other hand, that the

instruction erroneously suggested that they had to prove,

in addition to measurable value, that the extinguishment

of the covenants would “substantially interfere” with the

use and enjoyment of their properties. That is not, they

posit, the proper test for determining the extent to which

restrictive covenants add measurable value to a property.

Section 12-104(b) provides:

The damages to be awarded where land, or any

part of it, is taken is the fair market value of the

part taken, but not less than the actual value of the

part taken plus any severance or resulting damages

to the remaining land by reason of the taking and of

future use by the plaintiff of the part taken. The

severance or resulting damages shall be diminished to

the extent of the value of the special (particular)

benefits to the remainder arising from the plaintiff's

future use of the part taken.

In Brannon v. State Road Comm'n, 305 Md. 793, 506

A.2d 634 (1986). we noted that damages for a partial

taking may be assessed in two ways: the measure of dam-

ages prescribed by § 12-104(b), i.¢., “the actual value of

the part taken plus any severance or resulting damages to

the remaining land by reason of the taking and of future

36a

use by the plaintiff of the part taken.” 305 Md. at.799,

506 A.2d at 637, (footnote omitted) and “the difference

between the fair market value of the entire tract before

the taking and the fair market value of what is left there-

after.” Jd. (quoting Big Pool v. State Roads Comm'n,

245 Md. 108, 113, 225 A.2d 283, 285 (1967) (citing

Mayor and City Council of Baltimore v. State Roads

Comm’n, 232 Md. 145, 152, 192 A.2d 271, 279 (1963) ).

See also Oxon Hill Rec. Club, Inc. v. Prince George's

County, 281 Md. 105, 107-08, 375 A.2d 564, 566

(1977); Bd. of Educ. v. Hughes, 271 Md. 335, 345, 317

A.2d 485, 490 (1974); State Roads Comm'n v. Hance,

242 Md. 137, 139, 218 A.2d 33, 35 (1966). We pointed

out that these different methods have the same goal: put-

ting the landowner in as good a pecuniary position as if

no taking had occurred. 305 Md. at 799, 506 A.2d at

637-38, citing Dodson v. Anne Arundel County, 294 Md.

490, 494, 451 A.2d 317, 320 (1982). They are not,

however, cumulative. “The landowner may choose to offer

direct evidence, in the form of expert testimony .. . [olr,

the landowner may choose to offer no direct evidence of

consequential damages and, instead, offer evidence per-

taining to the before-taking and after-taking value of the

property.” Jd. [305 Md.] at 801, 506 A.2d at 639. The

first two paragraphs contained a proper instruction on the

before/after valuation method, consistent with the respond-

ents’ theory. The court should have stopped there. By

going further and addressing whether there was substan-

tial interference with the use and enjoyment of the prop-

erty. it attempted to employ the statutory method of as-

sessing damages as well. Because only one method may

be utilized, and, in this case, was sought to be used, the

court erred.

JUDGMENT AFFIRMED, WITH COSTS.

37a

APPENDIX B

COURT OF SPECIAL APPEALS OF MARYLAND

No. 849, Sept. Term, 1991

CAE-LINK CORPORATION, et al.

be

WASHINGTON SUBURBAN SANITARY COMMISSION

March 2, 1992

David H. Bamberger, Baltimore, and John E. Promin-

ski, Jr., Fairfax, Va.-(Joanne L. Cronrath and Piper and

Marbury, Baltimore, on the brief), for appellants.

Richard J. Magid and William F. Ryan (Whiteford,

Taylor & Preston on the brief, Baltimore, of counsel:

Nathan J. Greenbaum, Gen. Counsel, and Robert H.

Drummer, Associate Gen. Counsel for WSSC on the

brief), Hyattsvill, for appellee.

Argued before GARRITY, BLOOM and CATHELL,

JJ.

CATHELL, Judge.

The Washington Suburban. Sannitary Commission

(WSSC) commenced this declaratory judgment action

eleven years ago against various specified property owners

in the Montgomery Industrial Park (MIP),' as well as

1On motions prior to and during trial, WSSC asked the court to

dismiss the inverse condemnation claims of those Appellants who

38a

other persons claiming injury as a result of WSSC’s taking

of certain covenants running with the land. The MIP

owners who are present parties to the case are CAE-Link

Corporation, BancTec Systems, Inc., AT & T Resource

Management Corporation, International Fabricare Insti-

tute, Erie Indemnity Company and the Washington Post

Company. Additionally, John and Norma Robertson and

Jerry and Barbara Robertson are also appellants. All of

the appellants are represented by the same attorneys on

appeal and all issues and arguments here raised by coun-

sel are made on behalf of all appellants. Except when

otherwise necessary, we shall refer to all of the owners as

appellants.

On July 10, 1978, the United States District Court for

the District of Columbia issued a comprehensive order,

pursuant to the Federal Water Pollution Control Act,

which required WSSC to build and have operational by

July 1, 1979, a sewage sludge composting facility in Mont-

gomery County, Maryland.”

On April 25, 1980, the district court issued a second

order compelling WSSC to move forward with the con-

struction and operation of a sewage sludge composting

took title to their land in the MIP after WSSC’s July 8, 1980,

condemnation date. Computer Entry Systems Corp. (now known

as BancTec Systems, Inc.), Singer Company (now known as CAE-

Link Corporation) and AT & T twok title to their land after that

date. The trial court denied WSSC’s motions for judgment as to

these “subsequent takers” and permitted the jury to consider in-

verse condemnation claims based on covenant rights which were

extinguished on July 8, 1980.

2 This order was the result of a suit by the United States to

rectify an environmental crisis caused by the inadequate methods

of disposal of sewage sludge generated by the Blue Plains Sewage

Treatment Plant. Because the Blue Plains Plant provided sewage

treatment for several Washington Metropolitan jurisdictions, includ-

ing Montgomery and Prince George’s counties, WSSC, as the bi-

county commission of the State of Maryland responsible for the

water and sewage service for both counties, was named as a de-

fendant in that suit.

39a

facility to be located at the specified site in the MIP,

known as “Site II.” On June 27, the district court issued

a third order reiterating the directives set forth in its prior

orders. In this order, the district court overrode and en-

joined WSSC from complying with an injunction issued

by the Circuit Court for Prince George’s County which

prohibited WSSC from expending any funds to build or

operate Site II. The federal judge also ordered WSSC to

proceed expeditiously to obtain the land, build, and oper-

ate the composting project. Finally, the judge enjoined all

parties from taking any action which would frustrate or

impede the execution of the order.

Pursuant to the district court’s order, WSSC filed a

condemnation action in the Circuit Court for Montgomery

County to obtain the land for the Site II composting proj-

ect. WSSC condemned 115 acres in the MIP for the con-

struction and operation of a sewage sludge composting

facility. The land WSSC took by condemnation was bur-

dened by certain restrictive covenants in favor of neighbor-

ing land owners in the MIP. Thus, WSSC initiated a

declaratory judgment action to determine whether the

beneficiaries of the covenants had to be compensated for

the value of those property rights. The defendants an-

swered WSSC’s complaint and filed counterclaims for

monetary damages alleging inverse condemnation, breach

of covenant, nuisance, bad faith pursuant to Maryland

Rule 1-341 and violation of 42 U.S.C. section 1983.

On motion of the defendants, the trial court issued a

ruling that the restrictive covenants owned by the defend-

ants and extinguished by WSSC’s condemnation were com-

pensable property interests and denied WSSC’s claim for

declaratory relief. WSSC appealed to this Court, which

affirmed the lower court’s ruling. WSSC v. Frankel, 57

Md.App.. 419, 470 A.2d 813 (1984). The Court of

Appeals subsequently vacated and remanded the case for

further proceedings in the circuit court. WWSC v.

Frankel, 302 Md. 301, 487 A.2d 651 (1985).

40a

WSSC moved for partial summary judgment. The trial

court granted WSSC’s motion as to the counterclaims that

alleged violation of § 1983, bad faith, and punitive dam-

ages. The court denied WSSC’s motion as to the counter-

claims for inverse condemnation and breach of covenants.

As the nuisance claim, the court granted partial summary

judgment to the extent of requiring that the defendants

prove that WSSC was negligent. The counterclaims for

breach of covenant were nevertheless dismissed by stipu-

lation of the parties that the covenants had been extin-

guished in July of 1980 as a result of the WSSC’s condem-

nation of Site II.

Trial by jury on the nuisance and inverse condemnation

counts began on March 4, 1991. At the close of the

counterclaimants’ case-in-chief, WSSC moved for judg-

ment on both counts. The trial court denied WSSC’s mo-

tion as to inverse condemnation, but granted the motion

on the nuisance count. At the conclusion of all the evi-

dence, the jury found in favor of WSSC.° Counterclaim-

ants’ motion for new trial was denied and this appeal en-

sued.

On appeal, Appellants present the following assign-

ments of error.

I. The trial court committed reversible error in grant-

ing WSCC’s Motion For Judgment on Appellants’

claims for nuisance.

A. The trial court committed reversible error in

ruling that proof of negligence was a prerequisite

to recovery on Appellants’ nuisance claim.

B. The trial court erred in equating the standard

of proof necessary to establish a non-possessory

3 The jury did not “find by the preponderance of the evidence

that the covenants extinguished on July 8, 1980 added measurable

value to the land in the Montgomery Industrial Park owned by”

each of the defendants.

EE

4la

taking with the standard of proof necessary to

establish a nuisance.

II. The trial court committed reversible error in in-

structing the jury that in determining the value of

the restrictive covenants, they could consider

whether WSSC’s use of Site 2 substantially inter-

fered with Appellants’ use and enjoyment of their

lands.

III. The trial court committed reversible error in ad-

mitting evidence of unforeseeable “comparable”

sales that occurred long after the date of taking.

IV. The trial court committed reversible error in ad-

mitting prejudicial evidence that certain Appel-

lants had knowledge when they purchased their

lands that WSSC proposed to build a sludge fa-

cility.

V. The trial court’s erroneous and inconsistent evi-

dentiary rulings created jury confusion and war-

rant reversal.

A. WSSC’s internal memoranda on the issue of

the value of the restrictive covenants should have .

been admitted.

B. The trial court committed reversible error by

allowing the jury to visit Site 2 at the close of all

the evidence.

C. The trial court’s double standard for admissi-

bility of evidence “inside” and “outside” MIP pre-

vented the jury from having an accurate picture of

the effect of Site 2 on Appellants’ properties.

D. The trial court’s admission of hearsay apprais-

als was erroneous and prejudicial.

E. The trial court erred by admitting WSSC’s

“state-of-the-art” evidence.

ai le

42a

F. The trial court erred in refusing to allow Ap-

pellants to cross-examine WSSC’s expert fully with

regard to his credibility.

Appellee cross appeals, raising three issues:

I. The trial court erred by permitting the jury to con-

sider the inverse condemnation claims of those

Appellants who purchased their land after the re-

strictive covenants were extinguished on July 8,

1980.

II. The trial court erred by refusing to strike the

speculative valuation testimony of Appellants’ ex-

pert witness, E.L. Dieudonne.

III. The trial court erred by refusing to grant WSSC’s

motion for judgment against AT & T on the

ground that its inverse condemnation claim was

barred by limitations.

DISCUSSION

I. THE TRIAL COURT ERRED BY GRANTING

WSSC’S MOTION FOR JUDGMENT AS TO AP-

PELLANTS’ NUISANCE CLAIMS.

In granting judgment in favor of WSSC on the nuisance

claims, the trial court said:

With respect to the nuisance claim, the motion to

dismiss is granted for two reasons. The first reason

being that right or wrong I have held that in this

case, based upon the facts in this case, that in order

to recover on a nuisance theory, the Plaintiffs have

to show simple negligence in the construction and

operation of the facility. There is no evidence that

I can recall to support that theory.

Appellee argues that the principal issue on this appeal

is whether, as a matter of law, it can be held strictly

43a

liable in nuisance for complying with the injunctive orders

of a federal district court which specifically required it to

build and operate a sewage sludge composting facility at a

specified location near Appellants’ properties. Appellee

contends that federal law (Federal Water Pollution Con-

trol Act) preempts the state law of nuisance and an award

of damages would constitute an “attack” on the order of

the district court. Appellants rebut Appellee’s preemption

argument, asserting that an award of damages, unlike in-

junctive relief, would not interfere with the operation of

Site II and that a nuisance cannot be created with im-

punity pursuant to legislative or judicial authority.

A. PREEMPTION

The Supremacy Clause of the United States Constitu-

tion, art. VI, cl. 2, requires that when compliance with

both federal and state law is a physical impossibility, the

“state law is ‘void to the extent it conflicts with a federal

statute.” Sanders v. State, 57 Md.App. 156, 167, 469

A.2d 476 cert. denied, 299 Md. 656, 474 A.2d 1345

(1984) (quoting Maryland v. Louisiana, 451 U.S. 725,

747, 101 S.Ct. 2114, 2169, 68 L.Ed.2d 576 (1981)).

See also Hillsborough County, Fla. v. Automated Medical

Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371,

2375, 85 L.Ed.2d 714 (1985); Harrison v. Schwartz, 319

Md. 360, 364, 572 A.2d 528, cert. denied, US.

, 111 S.Ct. 143, 112 L.Ed.2d 110 (1990); Hecht

Co. v. C & P Telephone Co., 310 Md. 148, 152, 528

A.2d 474 (1987). If Congress has expressly stated to

preemptive intent or evidenced an intent to occupy a field,

federal law shall govern. Harrison, 319 Md. at 364, 572

A.2d 528. When, however, Congress does not expressly

state its intent, there is a presumption against preemption.

Abbott by Abbott v. American Cyanamid Co., 844 F.2d

1108, 1112 (4th Cir.1988) (citing Maryland v. Louisi-

ana, 451 U.S. at 726, 101 S.Ct. at 2118). The presump-

tion is even stronger against preemption of state remedies,

44a

like tort recoveries, when no federal remedy exists. Ab-

bott, 844 F.2d at 1112 (citing Silkwood v. Kerr-McGee

Corp., 464 U.S. 238, 251, 104 S.Ct. 615, 622, 78 L.Ed.

2d 443 (1984)). See also Taylor v. Gen. Motors Corp.,

875 F.2d 816 (11th Cir.), cert denied, 494 U.S. 1065,

110 S.Ct. 1781, 108 L.Ed.2d 783 (1991) (strong pre-

sumption against preemption when subject matter is tort

remedy).

The federal district court passed its order pursuant to

33 U.S.C. $1251 et seqg., the Federal Water Pollution

Control Act or the Clean Water Act (1987). Section

1251(a)(5) provides that “it is the national policy that

areawide waste treatment management planning processes

be developed and implemented to assure adequate control

of sources of pollutants in each State. ” Section

1365(e), known as “the saving clause,” provides that

“[njothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any effluent

standard or limitation or to seek any other relief. .. .”

(Emphasis added. )

The paradigmatic decision in this area is /nternational

Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93

L.Ed.2d 883 (1987). In Outllette, Vermont landowners

brought suit against an operator of a New York pulp and

paper mill, under the Vermont common law of nuisance.

The Supreme Court held that the Clean Water Act pre-

empted Vermon nuisance law to the extent that that law

sought to impose liability on an out-of-state point source *

because that “would be a serious interference with the

achievement of the ‘full purposes and objectives of Con-

gress.” Ouellette, 479 U.S. at 493-94, 107 S.Ct. at 812

(citation omitted). The Act did not, however, bar land-

owners from bringing a nuisance claim pursuant to the

4“A ‘point source’ is defined by the CWA as ‘any discernible,

confined and discrete conveyance . . . from which pollutants are or

may be discharged.’” 479 U.S. at 485 n. 4, 107 S.Ct. at 808 n. 4.

45a

law of the source state, which in that case was New York.

Id. at 497-99, 107 S.Ct. at 814-15. The Court stated that

“{t]he saving clause specifically preserves other state ac-

tion, and therefore nothing in the Act bars aggrieved

individuals from bringing a nuisance claim pursuant to the

law of the source State.” 479 U.S. at 497, 107 S.Ct. at

814 (emphasis in original). But see City of Milwaukee v.

Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114

(1981) (the Water Pollution Control Act saving clause

does not bespeak a congressional intent to preserve fed.

eral common law remedies inconsistent with the complex

statutory scheme provided by that Act). Accord Nat'l

Audubon Soc’y v. Dep’t of Water, 869 F.2d 1196 (1988)

(federal common law nuisance claims are preempted by

Federal Water Pollution Control Act).

Appellee relies on the case of Bieneman v. City of Chi-

cago, 864 F.2d 463 (7th Cir. 1988), cert. denied, 490

U.S. 1080, 109 S.Ct. 2099, 104 L.Ed.2d 661 (1989).

This reliance is misplaced. The Bieneman Court held

that all state common law remedies were not preempted.

Id. at 473. Appellee finds significant the Court’s holding

that “[a] state court could not award damages against

O’Hare or its users for conduct required by these regula-

tions... .” Jd. at 472. In the case sub judice, the fed-

eral district court ordered WSSC to build and operate a

composting site in the MIP. It did not, however, order

Appellee to build and operate a composting site that emits

obnoxious odors that invade the property of others. There-

fore, WSSC’s conduct was not entirely directed by the

district court order and state actions are not precluded.

Thus, because of the saving clause, the Water Pollution

Control Act would not bar Appellants from maintaining

their nuisance suit in this state nor is the nuisance action

otherwise preempted by federal law.

46a

B. NUISANCE CLAIM

Appellants argue that the trial court erred by requiring

them to prove negligence as a prerequisite to recovery on

their nuisance claim. They specifically argue that in Mary-

land nuisance is a matter of strict liability and that negli-

gence is not a necessary element; thus, the trial court’s

ruling directly contradicts established law in this state.

Appellees refutes this argument, contending that it should

not be held strictly liable for doing what it was ordered

to do and cites numerous cases from other jurisdictions

that require a showing of negligence in order to establish

nuisance. Appellee advises us to carve out an exception

based on the unusual facts of this case. We decline.

The Court of Appeals, in Meadowbrook Swimming

Club, Inc. v. Albert, 173 Md. 641. 645, 197 A. 146

(1938), said:

The law is clear that where a trade or business

as carried on interferes with the reasonable and com-

fortable enjoyment by another of his property, a

wrong is done to a neighboring owner for which an

action lies at law or equity. In such cases it makes

no difference that the business was lawful and one

useful to the public and conducted in the most ap-

proved method. [Citations omitted. ]

See also Bishop Processing Co. v. Davis, 213 Md. 465,

47, 4, 132 A.2d 445 (1957); Gorman v. Sabo, 210 Md.

155, 159, 122 A.2d 475 (1956); Anne Arundel Fish &

Game Conservation Ass'n, Inc. v. Carlucci, 83 Md.App.

121, 131, 573 A.2d 847, cert. denied, 320 Md. 800, 580

A.2d 218 (1990). The Court of Appeals held in Taylor

v. Mayor and City Council of Baltimore, 130 Md. 133,

99 A. 900 (1917), that the City of Baltimore could be

liable for nuisance even though it constructed a sewage

treatment plant under the authority of state law. The

Court, discussing nuisance, posed the question: “Is it to

be said that a municipal corporation can thus interfere

47a

with the rights of others and injure their property without

being liable in damages, merely because it, in constructing

its work, is acting under legislative authority?” Taylor,

130 Md. at 140, 99 A. 900. The Court answered, “The

Legislature has no power to grant such rights to any cor-

poration, public or private.” Jd. See also Richards v.

Washington Terminal Co., 233 U.S. 546, 556-58, 34

S.Ct. 654, 658, 58 L.Ed. 1088 (1914), where the Su-

preme Court held that even though a defendant’s activity

is so important to the public that he is given the power

of eminent domain, if it causes an unreasonable invasion

of another’s property interests, defendant will be liable for

damages for the nuisance.

At oral argument, Appellee suggested that even with a

“state of the art” facility some obnoxious odors may well

be emitted from the site. When suggestions were made

that such emisisons might well necessitate the obtaining

of sufficient property (or easement rights) by WSSC to

contain such odors on site, it was proffered that to do so

would be so costly as to be economically unfeasible and or

impossible. Without accepting the logical inconsistency of

WSSC’s position that, first, it is not maintaining a nuisance

and that, second, it would have to purchase so much land

to contain the smell that it would be financially impos-

sible, we note that its position assumes that the nuisance

burden it creates should be borne only by the Site II

neighbors, rather than spread through condemnation costs

or damages °* to all of its users, i.e., the sources of the

material creating the odors. WSSC’s position is that it can

create a nuisance with impunity. It does not acknowledge

that it can allot the costs of the damage it creates through-

5 Condemnation or purchase of fee simple property or easement

rights would be a one-time cost whereas damages might be con-

tinuing or intermittent into the future. Maryland Annotated Code

art. 29, § 1-202(b) (1990), provides that “WSSC may purchase in

fee or as an easement property for the construction, extension, or

maintenance of a project the WSSC considers necessary to carry

out the provisions of this article.”

48a

out its user base by additional condemnation financed by

charges directly or indirectly assessed against its users,

or through damages similarly financed.

If the users within the entire area serviced by WSSC,

through the operation of Site II, are going to inflict the

odors generated by the treatment of their sludge on a

limited number of Site II neighbors, we see no reason why

they should not be required to alleviate that damage or

compensate those they damage. That, as we see it, can

be accomplished by operating an odor-free facility, ob-

taining sufficient property to contain odors on site, or by

the payment of damages.

Appellee, during oral argument, forcefully argued that

at the time it built the composting facility they used the

“state of the art“ technology and, accordingly, should not

be held liable. We said in Little v. Union Trust Co. of

Maryland, 45 Md. App. 178, 412 A.2d 1251 (1980),

that “a ‘nuisance exists because of a violation of an abso-

lute duty so that it does not rest on the degree of care

used. . . .” Id. at 185, 412 A.2d 1251 (quoting Sher-

wood Bros., Inc. v. Eckard, 204 Md. 485, 493, 105 A.2d

207 (1954)). See also Benson v. Loehler, 228 Md. 55,

60, 178 A.2d 909 (1962); Edwards v. Chadwick, 22 Md.

App. 140, 155, 321 A.2d 792 (1974). See generally

- Sherwood Bros. v. Eckard, 204 Md. 485, 493, 105 A.2d

207 (1954) (noting distinction between nuisance and

negligence); Gilbert, Maryland Tort Law Handbook

§ 18.0 at 185 (1986) (nuisance is distinguished from

negligence in that even though a person or corporation

complies with all laws, rules and regulations they might

nevertheless commit a nuisance).

In the instant case, extensive testimony was presented

that WSSC’s operation of Site II interfered with the use

and enjoyment of Appellants’ properties. Several em-

ployees from Appellant companies testified that there was

a foul odor in the air that could not be detected prior to

to operation of the composting facility. Several employees

49a

became nauseated and complained of headaches. These

complaints related to odors both inside and outside of the

various buildings operated by Appellants.* There was also

testimony that the smells remained for days and some-

times weeks depending on the weather.

The evidence showed that, on occasion, the vents on

some of Appellants’ buildings allowing fresh air intake

had to be closed and inside air recirculated because of

odor. Additionally, when the intakes were open, the in-

take filters had to be replaced on a weekly rather than a

monthly basis, which was more costly. One of the Apel-

lant companies cancelled plans to double the size of its

facility in part because of the odor emanating from the

composting site.

We believe that the evidence might justify a finding by

the trier of fact that the odors complained of are such

that they produce “actual physical discomfort to persons

of ordinary sensibilities, tastes and habits” thus, entitling

the offended to damages. Bishop Processing Co., 213

Md. at 474, 132 A.2d 445; Meadowbrook Swimming

Club, 173 Md. at 645, 197 A. 146. We hold that the trial

court erred when it ruled that negligence was a necessary

element of the tort of nuisance. We shall vacate the judg-

ment on the nuisance count.

Appellants argue further that the triai court erred in

equating the standard of proof necessary to establish a

non-possessory taking with the standard of proof neces-

sary to establish a nuisance. In granting WSSC’s motion

for judgment, the trial judge said:

The second basis upon which I grant the motion

on the nuisance, is that the law is set forth not only

in [Maryland Port Admin. v.] QC [Corp., 310 Md.

379, 529 A.2d 829 (1987) ], but language in Electro-

6 There was testimony that at one point steamy and decaying

sludge was placed in outdoor football field size piles 15 feet high.

Eventually it came to be placed primarily indoors.

50a

Nucleonics [, Inc. v. WSSC, 315 Md. 361, 554 A.2d

804, cert. denied, 493 U.S. 854, 110 S.Ct. 158, 107

L.Ed.2d 115 (1989)] in that the Court can find no

substantial diminution in the use of any of these prop-

erties by any of the Plaintiffs as the result of the

odor.

The evidence necessary to establish a claim for nuisance

is different from that necessary to establish a non-posses-

sory taking. To establish a nuisance claim one must show

interference with one’s interest in the enjoyment of his/

her property, Exxon Corp. v. Yarema, 69 Md.App. 124,

148, 516 A.2d 990 (1986); whereas a taking requires

that a landowner be deprived of all beneficial use of the

land. Pitsenberger v. Pitsenberger, 287 Md. 20, 34, 410

A.2d 1052, appeal dismissed, 449 U.S. 807, 101 S.Ct.

52, 66 L.Ed.2d 10, reh’g denied, 449 U.S. 1028, 101

S.Ct. 601, 66 L.Ed.2d 491 (1980). Thus, an action

based on an unconstitutional taking is distinct from a

nuisance action. Bd. of Educ. of Prince George’s County

v. Mayor and Common Council of the-Fown of Riverdale,

320 Md. 384, 388, 578 A.2d 207 (1990). See Taylor,

130 Md. 133, 99 A. 900, where the Court of Appeals

held that although the defendant’s construction of a sew-

age disposal plant did not result in a taking of plaintiff’s

property, the defendant could be held liable in damages

for nuisance.

In this case, the trial judge’s reliance on QC Corp. and

Electro-Nucleonics was misplaced as those cases dealt

with non-possessory takings and not nuisance claims. Ap-

pellants never claimed in the nuisance count that the oper-

ation of Site II constituted a taking of their lands. That

argument was made in the other counts. Thus, the trial

judge committed error.

| i

II. THE TRIAL COURT ERRED IN INSTRUCTING

THE JURY THAT IT COULD CONSIDER

II. WHETHER WSSC’S USE OF SITE II SUBSTAN-

TIALLY INTERFERED WITH APPELLANTS’

USE AND ENJOYMENT OF THEIR LANDS IN

DETERMINING THE VALUE OF THE RE-

STRICTIVE COVENANTS.

The trial judge, relying on QC Corp., instructed the

jury that, “[i]n the determination of any changes of value

of the Plaintiffs’ property, you may consider whether

there was substantial interference with the use and enjoy-

ment of the property by Plaintiffs’ resulting from extin-

guishment of the covenants.” Appellants argue that the

trial court’s instruction erroneously suggested that in addi-

tion to proving measurable value, they had to prove that

an extinguishment of the covenants would “substantially

interfere” with the use and enjoyment of their properties.

In QC Corp., the issue was whether there was a suffi-

ciently substantial interference with a party’s land to effect

a non-possessory taking. In the case of sub judice, the

parties stipulated in open court that the covenants had

been extinguished thus, there was no need for the jury to

decide if there was a substantial interference with the use

and enjoyment of Appellants’ land. Therefore, the only

issue for the jury to determine was the value of Appel-

lants’ covenant rights pursuant to the inverse condemna-

tion claims. Hence, the QC Corp. instruction was irrele-

vant and improper.

Ill. EVIDENTIARY ISSUES.

Appellants have also raised several other issues relating

to the admissibility of certain evidence. Because we have

decided to remand this case for a new trial, and in light

of the fact that a new trial may proceed in a different

fashion, we find it unnecessary to address all of the re-

maining issues. We believe, however, that in at least one

a ee ae

52a

instance the court committed clear error; therefore, we

will comment upon that issue.

A. THE TRIAL COURT’S ADMISSION OF HEAR-

SAY APPRAISALS WAS ERRONEOUS AND

PREJUDICIAL.

The appraisals at issue were prepared at the request of

AT & T and Computer Entry Systems (now BancTec

Systems, Inc.). They were furnished to Appellee during —

discovery and offered into evidence by Appellee. The trial

court admitted these documents, over objection, pursuant

to the business records exception to the hearsay rule,

codified in section 10-101 of the Maryland Courts and

Judicial Proceedings Article (1989). At trial and now

on appeal, Appellants contend that not only were the

documents not properly authenticated but they contain

inadmissible hearsay. We find it necessary to point out

that Appellants’ hearsay allegation is correct; these ap-

praisals do not qualify as business records.

Section 10-101(b) permits the admission of a business

record or writing “made in the regular course of business

as a memorandum or record of an act, transaction, oc-

currence, or event . . . to prove the act, transaction,

occurrence, or event.” In addition, it must also be “[t]he

practice of business . . . to make such written records of

its acts at the time they are done... .” § 10-101(c).

Appellee discussed both the authentication and founda-

tion necessary to admit a business record but failed to

address the initial question of whether the appraisals

-qualify as business records.

Recently, in Owens-Illinois v. Armstrong, 87 Md.App.

699, 710-713, 591 A.2d 544, cert. granted, 324 Md. 90,

595 A.2d 1077 (1991), we discussed the characteristics

of a business record which guarantees its reliability and

trustworthiness. It is essential that the business record

possess these qualities in order to justify the introduction

53a

of evidence which is generally hearsay in nature. We

relied on language from Palmer v. Hoffman, 318 USS.

109, 63 S.Ct. 477, 87 L.Ed 645 (1947), and Wigmore

on Evidence (1974) for reasons guaranteeing the “cir-

cumstantial trustworthiness” of business records.

According to 5 Wigmore on Evidence § 1522

(1974), the typical record entry made in the regular

course of business has a circumstantial guarantee of

trustworthiness because:

(1) the needs of the entrant and the business

require a habit of accuracy and the influence of this

habit may be relied upon to prevent mistakes and

counteract the possible temptation to make misstate-

ments purposely;

(2) the regular dependence of the business upon

the entries will almost certainly detect any errors or

misstatements and thus misstatements can be made

safely only by a systematic and comprehensive plan

of falsification accomplishable only by the most dar-

ing and unscrupulous; or

(3) in addition to the first two reasons, the entrant

made the record under a duty to an employer or

supervisor and thus is under the additional risks of

censure and disgrace for any inaccuracies.

87 Md.App. at 710, 591 A.2d 544,

Although stated differently, these findings by the Su-

preme Court are consistent with the reasons for cir-

cumstantial trustworthiness set forth in Wigmore.

. . . The report was properly exclude \because the

railroad did not depend on the report . . . to run the

daily operation of its railroad business and, thus, it

could not be assumed that the report was a product

of a necessary habit of accuracy. Moreover, in-

accuracies in the report would not have had a detri-

mental effect on the railroad and therefore would not

54a

have been detected by the almost continuous use of

the information contained therein. Finally, the en-

trant was not under a duty to a superior to make the

report objectively accurate, and thus the report con-

tained the railroad’s version of events.

87 Md.App. at 712, 591, A.2d 544.

Business records having these characteristics “which

have been found to be admissible . . . are ‘payrolls,

accounts receivable, accounts payable, bills of lading and

the like,’; statements in a medical record . . .; items in a

police report which are within the personal observation

of the investigating officer; and reports required by law.”

Id. at 710-11, 591 A.2d 544 (citations omitted).

In Armstrong, we held that a dust count report made

by an engineer at a steel corporation did not meet the

criteria of a business record. We opined:

The investigation and report were not required by

law, but were made at the request of one of the com-

pany vice-presidents. On its face, the report appears

to be a single or, at most irregular, request. Never-

theless, even if dust count reports were made regu-

larly by Bethlehem Steel Corporation, there was

nothing to show that they are a necessary component

of the daily operation of its business as a steel com-

pany. Therefore, the report is not inherently trust-

worthy as the product of a necessary habit of ac-

curacy, and any inaccuracies would have remained

undetected because Bethlehem Steel Corporation did

not regularly rely on its contents. Moreover, because

Bethlehem Steel Corporation did not apparently de-

pend on the accuracy of the information contained

in the report, we cannot infer that the motive behind

its creation was objective accuracy rather than the

creation of a subjective version of events.

Id. at 712, 591 A.2d 544.

55a

The appraisals in the present case also do not possess

the characteristics of a business record. The appraisals

were requested by AT & T and BancTec; they were not

required by law. Neither company’s business required the

appraisal in order to function on a day to day basis.

Thus, even if they were regularly requested, it would

not be the result of a “habit of accuracy”. Furthermore,

mistakes would not be detected because the companies

did not continuously rely on the information contained

in the reports. They had no effect on the operation of

the business. Therefore, the appraisals do not have the

indicia of reliability necessary to qualify under the excep-

tion. The court erred in admitting the appraisals which

do not qualify as business records.

CROSS APPEAL

I. DID THE TRIAL COURT PROPERLY PERMIT

THE JURY TO CONSIDER INVERSE CONDEM-

NATION CLAIMS OF THOSE APPELLANTS WHO

PURCHASED THEIR LAND AFTER THE RE-

STRICTIVE COVENANTS WERE EXTINGUISHED

ON JULY 8, 1980?

Appellee argues that Appellants CAE-Link Corp.,

BancTec Systems, Inc., and AT & T do not have standing

to maintain an inverse condemnation action because they

purchased their land in the MIP subsequent to WSSC’s

July 8, 1980, extinguishment of the covenants. Appellee

buttresses this argument by contending that by purchasing

their land after July 8th the late-takers could not purchase

the extinguished covenant rights because the rights no

longer existed. Appellee also argues that the sellers of the

land could not convey to the late-takers a greater estate

or interest in the land than the seller itself held. Thus,

WSSC concludes the owners at the time of the taking, not

the present owners, are entitled to compensation.

Appellants, on the other hand, make several opposing

arguments. First, they argue that there never was a

56a

“taking” of the covenants, only an extinguishment as a

result of the condemnation of Site II. Second, they con-

tend that the covenants were not condemned in 1980, nor

have they ever been condemned, thus title to the cove-

nants has not vested in WSSC. Third, Appellants main-

tain that because compensation has not been paid, the

covenants have not been taken. Lastly, Appellants argue

that their sellers assigned the covenants and thus, in the

alternative, claim the right to maintain suit on the cov-

enants or receive the compensation when its amount is

properly determined.

The covenants which the parties agree were breached

by operation of Site II provide in part:

No waste material or refuse may be dumped or per-

mitted to remain in or upon any part of the property

outside of buildings.

No omission of objectionable odors outside the lot

line shall be permitted... .

The covenants also prohibit the use of land in the MIP

as a dump or sanitary fill. The parties stipulated that the

covenants were extinguished when WSSC began the opera-

tion of Site II, i.e., on July 8, 1980. By that stipulation,

the parties have agreed that the covenants did not there-

after exist. See Electro-Nucleonics v. WSSC, 315 Md.

361, 376, 554 A.2d 804 (1989) (three-year statute of

limitations began to run against inverse condemnation ac-

tion based on loss of benefit of restrictive covenant when

servient estate was taken for purposes inconsistent with

the covenant). Until such time as the covenants were

breached by WSSC, and extinguished by virtue of the

breach, no cause of action could arise. It was only upon

and subsequent to that extinguishment that the right to

compensation arose. Accordingly, at that point, July 8,

1980, the then owners had a chose in action.

In the case sub judice, CAE-Link’s predecessor in in-

terest, the Singer Company, contracted to purchase its

57a

land by an Agreement dated September 30, 1980. That

agreement does not contain any express assignment of any

chose in action which then existed. It purported to con-

vey all rights to compensation from “taking” on or after

that date.

Loss or damage to the Property . . . as a result of

the exercise of the power of eminent domain. . .

between the date of this Contract and the time of

settlement shall not void or impair this Contract, but

Purchaser, upon completing settlement, shall be en-

titled to the eminent domain award or compensation

. and to an assignment of all claims to such com-

pensation or award. . . . [Emphasis added. ]

The parties have stipulated that the covenants had already

been extinguished by September 30, 1980. Similarly,

BancTec’s predecessor in interest, Computer Entry Sys-

tems (“CES”), contracted to purchase its property by a

Purchase Agreement. The Sales Contract contains a pro-

vision virtually identical to that found in the Singer con-

tract relating to the purchaser’s entitlement to any emi-

nent domain award or compensation in the future. The

date of that agreement was also subsequent to July 8,

1980. Therefore, that language, as to eminent domain,

was not intended to relate to the prior exercise of eminent

domain (inverse condemnation), but applied to any sub-

sequent exercise of such power. Thus, as to CAE-Link

and BancTec, no proper assignment of the right to main-

tain an action in inverse condemnation was made.

As to AT& T, the documents in its chain of title show

that the inverse condemnation claim was purportedly as-

signed to it by its predecessor, SDL,Data Crown, Inc. In

the Agreement of Purchase and Sale dated March 15,

1984, between AT & T and SDL/Data Crown, an inverse

condemnation claim was expressly assigned to AT & T.

Paragraph 3.6 of this Agreement provides, in pertinent

part:

58a

Seller has a claim against the Washington Suburban

Sanitary Commission for damages resulting from the

operation of a facility for the storage and processing

of sewerage sledge [sic]. Seller hereby agrees to

authorize Purchaser to use its name in prosecution of

said claim, at Purchaser’s sole expense, and Pur-

chaser shal] be entitled to any and all proceeds of

said claim.

Thus, if SDL/Data Crown, itself had the chose in action,

AT & T would have received it. SDL/Data Crown re-

ceived the property by deed dated October 1, 1981. That

deed contained no reference to any assignment of a chose

in action by SDL/Data Crown’s predecessor, Crown Life

Insurance, the entity that possessed the property on July

8, 1980. Thus, SDL/Data Crown did not possess that

which it purported to convey to AT & T in that SDL/

Data Crown had no right to maintain the suit.’ The trial

court erroneously concluded that CAE-Link, BancTec and

AT & T had standing to prosecute the inverse condemna-

tion claims in this case. We thus shall reverse its denial

of WSSC’s motion for partial summary judgment as to

the inverse condemnation counts as they relate to CAE-

Link, BancTec and AT & T.

As we have held that the trial court should have dis-

missed AT & T’s inverse condemnation claim upon

WSSC’s Motion for Partial Summary Judgment, we shall

not address the issue of limitations.

™The deeds of the respective parties contained standard “to-

gether with” clauses. Generally “together with” clauses convey

rights still attached to the land being conveyed. Once a covenant

is extinguished, it cannot be conveyed because it does not exist.

Under the circumstances of this case, the owner, at the time of the

extinguishment, became possessed of a chose in action for damages.

That chose in action was not then incidental to an existing property

right, it had independent existence. In the case at bar, the posses-

sors of the chose in action, as far as the record reflects, have not

assigned that right.

59a

JUDGMENT DENYING WSSC’S MOTION FOR

PARTIAL SUMMARY JUDGMENT ON THE IN-

VERSE CONDEMNATION COUNTS AGAINST CAE-

LINK, BANCTEC, AND AT & T IS REVERSED;

JUDGMENT ON REMAINING ISSUES VACATED;

CASE REMANDED FOR NEW TRIAL; COSTS TO

BE PAID 75% BY WSSC, 25% BY CAE-LINK,

BANCTEC AND AT & T.

60a

APPENDIX C

Filed: 08/01/90

IN THE CIRCUIT COURT

FOR MONTGOMERY COUNTY, MARYLAND

Civil No. 56245

WASHINGTON SUBURBAN SANITARY COMMISSION,

Plaintiff

Vv.

MorRIS FRANKEL, et al.,

Defendants

ORDER

Having considered the memoranda filed by the parties

on the issue of strict liability with respect to the nuisance

claim, it is this 31st day of JULY, 1990, by the Circuit

Court for Montgomery County, Maryland.

ORDERED, that plaintiff and counterdefendant’s Mo-

tion for Partial Summary Judgment be, and is hereby,

GRANTED as to the issue of strict liability; and, it is

further

ORDERED, that the defendant and counterplaintiffs’

may proceed on a negligence theory with regards to the

nuisance claim.

‘s/ Paul H. Weinstein

PAUL H. WEINSTEIN, Judge

Circuit Court for Montgomery

County, Maryland

6la

APPENDIX D

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

Nos. 80-1653, 80-1654, 80-1718, 80-1719,

80-1495 and 80-1496

UNITED STATES OF AMERICA

Vv.

DISTRICT OF COLUMBIA, et al.

Appeal of Prince George’s County, Maryland

(Intervenor-deft. )

STATE WATER CONTROL BOARD et al.

Vv.

WASHINGTON SUBURBAN SANITARY COMMISSION et al.

Appeal of Prince George’s County, Maryland

(Intervenor-deft. )

STATE WATER CONTROL BOARD,

An Agency of the Commonwealth of Virginia, et al.

V.

WASHINGTON SUBURBAN SANITARY COMMISSION et al.

Appeal of Prince George’s County, Maryland

(Intervenor-deft. )

62a

UNITED STATES OF AMERICA

-

DISTRICT OF COLUMBIA et al.

Appeal of Prince George’s County, Maryland

STATE WATER CONTROL BOARD et al.

Ve

WASHINGTON SUBURBAN SANITARY COMMISSION et al.

Appeal of Prince George’s County, Maryland

UNITED STATES OF AMERICA

V.

DISTRICT OF COLUMBIA et al.

Appeal of Prince George’s County, Maryland

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil Action Nos. 77-1929 and 1813-73)

Argued April 9, 1981

Decided June 10, 1981

As Amended July 29, 1981

63a

Frank W. Stearns and David T. Stitt, Asst. County

Attys., Farfax, Va., also entered appearances for appel-

lees, Fairfax County, Va.

Judith W. Rogers, Corp., Counsel, Joyce M. Notarius,

Richard G. Wise and Edward L. Curry, Assistant Corp.

Counsel, Washington, D.C., were on the brief for appel-

lee, District of Columbia.

_ Robert B. Ostrom, County Atty., Prince George’s

County, Upper Marlboro, Md., with whom Richard S.

Alper and Robert H. Drummer, Associate County Attys.,

Washington, D.C., were on the brief for appellant.

Thomas A. Deming, Asst. Atty. Gen., State of Md.,

Annapolis, Md., for appellee, State of Md.

John P. Arness, Washington, D.C., with whom Curtis

E. von Kann, Allan D. Windt and Henderson J. Brown,

IV, Washington, D.C., were on the brief for appellee,

Washington Suburban Sanitary Commission.

Rosanne Mayer, Atty., Dept. of Justice, Washington,

D.C., with whom James W. Moorman, Asst. Atty. Gen.,

Anne S. Almy and Patrick J. Cafferty, Jr., Atty., Dept. of

Justice, Washington, D.C., were on the brief, for appellee,

United States. Angus Macbeth and Donald W. Stever,

Atty., Dept. of Justice, Washington, D.C., also entered

appearances for appellees, United States.

Marshall Coleman, Atty. Gen., James E. Ryan, Jr.,

Deputy Atty. Gen., and Frederick S. Fisher, Asst. Atty.

Gen., Com. of Va., Richmond, Va., were on the brief

for appellee, Com. of Va., State Water Control Bd.

Robert G. Tobin, Jr., Deputy County Atty., Nathan J.

Greenbaum, Asst. County Atty., Montgomery County,

Rockville, Md., were on the brief for appellee, Mont-

gomery County, Md.

Before MCGOWAN, TAMM, and WALD, Circuit

Judges.

aaa

64a

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This appeal is the latest chapter in an eight-year-old

controversy concerning disposal of sewage sludge gener-

ated at the Blue Plains Sewage Treatment Plant in the

District of Columbia. Since the early 1970's, the parties

to this appeal have struggled to devise a plan for sludge

disposal at sites within the Washington area jurisdictions

which use the Blue Plains facility. Appellant Prince

George’s County (P.G. County”) opposes appellee Mont-

gomery County’s selection of one such site (“Site 2”) for

its sludge disposal. The district court, however, endorsed

the selection of Site 2 in 1978 and ordered the budgeting

of funds for its implementation on April 25, 1980, and

June 4, 1980. In an effort to block that implementation,

P. G. County then instituted a series of state court ac-

tions. The district court responded by enjoining further

state court proceedings on June 27, 1980. P. G. County

argues here that the district court orders of April 25 and

June 4 exceeded the court’s authority under the Clean

Water Act, and that the order of June 27, 1980, violates

the Anti-Injunction statute. For the reasons stated below,

we disagree.

I. BACKGROUND

On September 24, 1973, the Virginia Water Control

Board, Fairfax County, and the District of Columbia

brought suit in the United States District Court for the

District of Columbia against the Washington Suburban

Sanitary Commission (“WSSC”)* (Civil Action No.

1813-73). The complaint alleged that WSSC, in violation

of regional agreements, was exceeding its allotted use

1The WSSC is an agency formed under the laws of Maryland

to serve the sewage and water supply needs of Montgomery and

Prince George’s Counties. The Commission’s policies are deter-

mined by six Commissioners, three from each county. See Section

1-1 of the WSSC Code. Budgets adopted by the WSSC are subject

to the approval of both county governments. Section 1-4, 7-1.

65a

of the Blue Plains sewage treatment plant in D.C., thus

causing the plant to discharge inadequately treated sew-

age into the Potomac River.

The United States intervened as a party-plaintiff, alleg-

ing that excess flow from the WSSC was causing pollution

of the Potomac in violation of the Federal Water Pollu-

tion Control Act of 1970, 33 U.S.C. § 1251 et seq.

Montgomery County, P. G. County, and the State of

Maryland intervened as parties defendant. Plaintiffs then

amended their complaint to request that P. G. and Mont-

gomery Counties be ordered to comply with another pro-

vision of the regional agreement by designating and pro-

viding sites for the disposal of sludge ~ generated at the

Blue Plains facility.

Prior to trial the parties entered into the Blue Plains

Sewage Treatment Plant Agreement, which was subse-

quently incorporated into a Consent Decree dated July

29, 1974. The decree provided that the court would re-

tain jurisdiction to enforce the agreement and required

court approval for any modification of it. The agreement

established limits on flows to the plant and provided that

the user jurisdictions in the Washington metropolitan area

would devise a permanent equitable plan for the disposal

of sludge produced at Blue Plains by June 30, 1976, and

would implement the plan by December 31, 1977. During

the interim period the parties agreed to dispose of sludge

in proportion to their share of sewage flow to the plant.

Despite the requirements of the Consent Decree, the

parties failed to agee on a permanent sludge disposal plan.

On the eve of the expiration date for the interim plan,

2 Sludge is the byproduct of the sewage treatment process. Dis-

posal methods include entrenchment in designated areas and the

composting process for which Site 2 was designated. The end

product of composting may be used as a fertilizer or compost. The

1974 agreement contemplated that the Blue Plains plant would

generate 2,400 tons per day of sludge requiring disposal. Joint

Appendix at 108.

66a

the United States filed a complaint in district court (Civil

Action No. 77-1929) on November 9, 1977, alleging that

the District of Columbia, the WSSC, Montgomery County,

P. G. County, and Fairfax County had violated the court’s

1974 order by failing to devise a permanent sludge man-

agement plan. The complaint further alleged that the

impasses over sludge disposal would cause the Blue Plains

plant to curtail or eliminate treatment of sewage, thus re

sulting in increased discharges of pollutants into the

Potomac River in violation of the Federal Water Pollu-

tion Control Act. Like its predecessor, the 1977 suit led

to negotitions culminating in a consent order, dated Janu-

ary 24, 1978, which extended the date of the interim

period under the 1974 agreement to September 21, 1978,

and extended the deadline for submission of a permanent

sludge plan io January 15, 1978.

The user jurisdictions again failed to agree on a per-

manent plan. On May 18, 1978, upon motion of the

United States and after hearing, the district court entered

an order requiring each jurisdiction to file a report desig-

nating a site within its boundaries for disposal of sludge.

Montgomery County submitted a report designating two

sites for disposal of raw sludge, one of which was an under-

developed tract of land adjacent to the Montgomery In-

dustrial Park on the Montgomery County-Prince George’s

County border (Site 2). Site 2 was designated as a com-

posting site, where sludge would be mixed with wood

chips and aerated for periods of 35-45 days. The Calver-

ton Citizens Association, representing residents of the

area surrounding Site 2, submitted a report to the court,

alleging that the proposed use of Site 2 would subject

them to a health hazard.

On July 10, 1978, the court entered an order requiring

the user jurisdictions to proceed to develop their desig-

nated sites for sludge disposal. In particular, Montgomery

County was ordered to have the Site 2 composting facility

operational by July 1, 1979. The court ordered WSSC

67a

to take all necessary action, including acquisition of prop-

erty rights and obtaining all necessary permits. The court

also ordered that the user jurisdictions take no action un-

related to protection of the public health to prevent the

sludge disposal measures ordered. Noting the concerns

expressed by the Calverton Citizens Association, the court

ordered that Montgomery County through the WSSC take

all measures necessary to protect the public health in the

implementation of Site 2. P. G. County, which had made

known its objections to Site 2 in a letter to the court dated

Jnne 28, 1978, did not appeal the July 10 order.”

The WSSC and Montgomery County then proceeded

with the development of Site 2 as required by the 1978

order. The WSSC filed condemnation proceedings to

acquire Site 2 in the Circuit Court for Montgomery

County, and obtained the requisite permit from the Mary-

land Department of Health and Mental Hygiene. In May

1979 the WSSC adopted a budget for fiscal year 1980

which included $16.9 million for the acquisition and con-

struction of the Site 2 facility.

P. G. County opposed implementation of Site 2 on

several fronts outside the forum of the district court. The

County unsuccessfully appealed the issuance of the health

permit to the Board of Review of the Maryland State

Health Department. It also brought suit in the Circuit

Court for Prince George’s County seeking to enjoin ac-

quisition of Site 2 on grounds it had never given the

requisite approval to WSSC funds allotted to Site 2.°. The

Circuit Court dismissed the complaint, and P. G. County

appealed.

3 The District of Columbia appealed that portion of the July 10

order requiring it to construct a compost facility at the Blue Plains

plant. This court affirmed the contested portion of the order in an

unpublished opinion. State Water Control Bd. v. Washington Su-

burban Sanitary Commission, 600 F.2d 281 (D.C.Cir.1979) .

4 Prince George’s County v. WSSC, No. E-7692 (Circuit Court

for Prince George’s County, Maryland, filed Nov. 27, 1979).

68a

In March 1980 implementation of Site 2 encountered

more severe obstacles. First, the three WSSC Commis-

sioners from P. G. County blocked funding for Site 2 in

WSSC’s budget for fiscal year 1981. In addition, the

WSSC learned that a title search of the Site 2 land con-

ducted in connection with the condemnation proceeding

had revealed that the land was burdened by restrictive

covenants ° which appeared inconsistent with a compost

facility and which might cost millions of dollars to acquire.

By letter dated March 18, 1980, the WSSC informed the

district court of the budget impasse and the covenants.

Montgomery County then filed a motion in district court

on April 4 to compel the WSSC to restore funds for Site

2 to its budget. After a hearing at which P. G. County

opposed the motion, the court issued on order on April

25 requiring the WSSC to restore the funds and to take

all actions necessary to place Site 2 into operation at

the earliest practicable date. On May 8 P. G. County

noted an appeal from this order, the first of this group of

consolidated cases.

Despite the April 25 order, the three P. G. County

WSSC Commissioners declined to vote to reinsert funds

for Site 2 in the budget. Consequently on May 14, 1980,

Montgomery County moved the district court to cite the

three Commissioners for contempt. The Commissioners

defended on grounds that the restoration of funds ordered

on April 25 was a purely ministerial act which required

no Commission vote. After a hearing the district court on

June 4 denied the contempt motion but, finding that

reinsertion of the funds was a ministerial act, ordered the

5 The covenants preclude use of the land in any manner which

would create objectionable odors, generate dense smoke or high

levels of noise, or constitute a “dump or sanitary landfill.” P.G.

County agreed that because the covenants run not only to owners

of adjacent properties but also to property owners “in the general

neighborhood,” a lengthy judicial determination of the composition

of the protected class would be required.

69a

General Manager of the WSSC to perform it. On June 5

P. G. County sought a stay from the district court of its

April 25 and June 4 orders, and on June 10 it noted an

appeal from the June 4 order.® The district court denied

the motion for stay on June 19.

Meanwhile P. G. County had filed two new suits in

state court seeking to block implementation of the Site

2 facility. One suit alleged that the state sewage sludge

permit was invalid and that Site 2 constituted a prospec-

tive nuisance.’ The second suit alleged that because of

the restrictive covenants, acquisition of Site 2 would be

so costly as to render the WSSC Commissioners liable for

breach of fiduciary duty.* In this second suit, the Prince

George’s County Circuit Court on June 17, 1980, issued

a temporary injunction forbidding the WSSC from pro-

ceeding with the acquisition of Site 2 and ordering it to

withdraw a purchase offer it had made to the owners.

WSSC then moved in the district court for an order to

protect and effectuate the court’s prior judgments, orders

and decrees. Following a hearing, the district court on

June 27 issued an order which enjoined WSSC from

complying with the state court order and further ordered

WSSC to proceed expeditiously with development of Site

2: ordered P. G. County to withdraw from the three state

court suits relating to Site 2; enjoined all parties from ini-

tiating any state court proceeding which would frustrate

the district court’s orders; and ordered any party believ-

6 Qn November 19, 1980, a motions panel of this court sum-

marily affirmed that portion of the June 4 order which declined

to hold the P.G. Commissioners in contempt. See United States v.

District of Columbia, No. 80-1495 (D.C.Cir. Nov. 19, 1980) (per

curiam order).

7 Calverton County Association v. Buck, No, E-70934 (Circuit

Court for Montgomery County, Maryland, filed April 16, 1980).

8 Prince George’s County v. WSSC, No. E-8512 (Circuit Court

for Prince George’s County, Maryland, filed April 16, 1980).

ee

70a

ing modification of the court’s order was required to seek

such modification only in the district court or in this

court.

The last of this group of consolidated cases is P. G.

County’s appeal of the June 27 order. P. G. County’s

request for a stay of the order was denied first by the

district court on the same day and then by this court on

July 3. Two such requests for stay were later denied by

the Supreme Court. WSSC has proceeded to comply with

the April 25 and June 4 orders, has acquired legal title

to Site 2 and has let contracts for the construction of the

compost facility.

Il. ANALYSIS

A. Tenth Amendment Objections

P. G. County argues that the three challenged district

court orders violate principles of federalism embodied in

the tenth amendment and affirmed in National League of

Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d

245 (1976). Appellant alleges that the April 25 and

June 4 orders of the district court usurped the power of

the WSSC to control its own budget, thereby intruding

upon an integral function of a state agency. It further

alleges that the June 27 order, by prohibiting further col-

lateral challenges to Site 2 in state courts, usurped the

power of the state of Maryland to protect the public

health and safety of its citizens. Arguing that the Clean

Water Act allocated the primary responsibility for elimi-

nating water pollution to the states, appellant concludes

that the broad control over the development of Site 2

asserted by the district court exceeded both its powers

under the act and its equity jurisdiction. We find these

arguments without merit.

In National League of Cities v. Usery, the Supreme

Court held that extension of the Fair Labor Standard

Act’s minimum wage and maximum hour provisions to

state employees was an impermissible exercise of the com-

Tla

merce power because it impaired state sovereignty guar-

anteed by the tenth amendment. In a plurality opinion

the Court held that the power to determine the wages

and hours of employees was an “integral” state function,

essential to the separate and independent existence of the

states. Justice Blackmun, concurring, interpreted the plu-

rality opinion as mandating a balancing approach, pro-

tecting states from federal intrusion only where the federal

interest did not outweight the state interest. Justice Black-

mun thought it apparent that National League of Cities

“does not outlaw federal power in areas such as environ-

mental protection, where the federal interest is demonstra-

bly greater and where state compliance with imposed

federal standards would be essential.” 426 U.S. at 856,

96 S.Ct. at 2476.

We agree that whatever the precise limits of the state

sovereignty doctrine set forth in National League of

Cities, it clearly does not control where, as here, the

9The lower courts have limited National League of Cities to

legislation which is based on the commerce clause. Thus the Second

Circuit has held that the Federal Railway Labor Act, which per-

mits strikes by railroad employees, must yield under Usery to a

state statute barring strikes by public employees, see United Trans-

portation Union v. Long Island Rail Road Co., 634 F.2d 19 (2d

Cir. 1980), and the Sixth Circuit has held that employees of a mu-

nicipal airport were not covered by the Fair Labor Standards Act

because operation of the airport was an integral function of city

government, see Amersbach v. City of Cleveland, 598 F.2d 1033

(6th Cir. 1979). Compare State of New Hampshire v. Marshall,

616 F.2d 240 (1st Cir.), appeal dismissed, 449 U.S. 806, 101 S.Ct.

53, 66 L.Ed.2d 10 (1980) (rejecting tenth amendment challenge

to amendments to Federal Unemployment Tax Act extending bene-

fits to state employees on grounds that statute was enacted under

spending power, not commerce power) ; Cantwell v. County of San

Mateo, 631 F.2d 631 (9th Cir. 1980), cert. denied, U.S. —-,

101 S.Ct. 1708, 68 L.Ed.2d 199 (1981) (holding federal statute

governing retirement pay for reserve military personnel must pre-

vail over state statute, despite Usery, because federal statute en-

acted under Congressional war power) ; Usery v. Charleston County

School District, 558 F.2d 1169 (4th Cir. 1977); and Usery v.

72a

federal interest has long been recognized as overriding.’

The Supreme Court has recently described the 1972

amendments to the Federal Water Pollution Control Act

as “a comprehensive program for controlling and abating

water pollution.” City of Milwaukee vy. Illinois,

U.S. ——, 101 S.Ct. 1784, 1793, 68 L.Ed.2d 114 (1981)

(quoting Train v. City of New York, 420 U.S. 35, 37,

95 S.Ct. 839, 841, 43 L.Ed.2d 1 (1975)). While it is

clear that Congress contemplated that the states would

play an active role in this effort, it is equally clear it did

not contemplate that a subdivision of one state would

have the power to block a regional plan for sewage

disposal, thereby causing injury not only to its own state

government but to neighboring states as well. Cf. United

States v. Duracell International, Inc., 510 F.Supp. 154

Allegheny County Institution District, 544 F.2d 148 (3d Cir. 1976),

cert. denied sub nom. Allegheny County Institution District v.

Marshall, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977) (re-

jecting tenth amendment challenges to application of Equal Pay

Act to state and local governments on grounds Act was exercise of

Congressional power under fourteenth amendment).

19In Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385,

31 L.Ed.2d 712 (1972), the Court, in an opinion recognizing the

existence of a federal common law concerning interstate water pol-

lution, stated:

The Federal Water Pollution Control Act in §1(b) declares

that it is federal policy “to recognize, preserve, and protect

the primary responsibilities and rights of the States in pre-

venting and controlling water pollution.” But the Act makes

clear that it is federal, not state, law that in the end controls

the pollution of interstate or navigable waters.

Id. at 102, 92 S.Ct. at 1892 (footnote omitted). Subsequent to the

Court’s decision in Illinois v. City of Milwaukee, Congress ex-

panded federal statutory control over water pollution by enacting

the Federal Water Pollution Control Act Amendments of 1972.

The Court has recently held that those amendments were so com-

prehensive as to preempt federal common law in that area. See

City of Milwaukee v. Illinois, US. , 101 S.Ct. 1784, 68

L.Ed.2d 114 (1981).

73a

(M.D.Tenn.1981) (rejecting tenth amendment challenge

to provision of Clean Water Act holding liable any state

which prevents municipality from complying with Act).

The courts have recognized the breadth of this federal

interest and have upheld federal environmental legislation

which, like the Clean Water Act, requires state impl-

mentation while leaving the states latitude to make essen-

tial choices. See United States v. Ohio Department of

Highway Safety, 635 F.2d 1195 (6th Cir. 1980), cert.

denied, ——— US. 101 S.Ct. 2031, 68 L.Ed.2d

334 (1981) (upholding authority of EPA under Clean

Air Act to require a state to deny registration to vehicles

which have not passed mandatory inspection); District

of Columbia v. Train, 521 F.2d 971 (D.C.Cir.1975),

vacated as moot sub nom. EPA v. Brown, 431 U.S. 99,

97 S.Ct. 1635, 52 L.Ed.2d 166 (1977) (same)."* When

necessary the courts have exercised broad equitable pow-

ers to ensure state compliance with federal environmental

11 At issue in District of Columbia v. Train was an EPA trans-

portation control plan under the Clean Air Act for the National

Capital Region. This court affirmed the regulations in part but

struck down a portion of the plan which required area jurisdic-

tions to adopt automobile inspection and maintenance programs and

to retrofit certain vehicles with pollution control devices. The court

held that that portion of the regulations, by substituting compelled

state regulation for permissible federal regulation, exceeded the

scope of the commerce power, 521 F.2d at 992, and was such a

“drastic” invasion of state sovereignty as to violate the tenth

amendment, id. at 994. Appellant invokes Train to argue that the

district court orders in this case are likewise an impermissibly

“drastic” invasion of state sovereignty. We find the analogy un-

persuasive. The Train court emphasized that the regulations in-

validated there forced “unconsenting” states to administer and

enforce a federal program. 7d. at 992. In this case, however, ap-

pellant, along with other area jurisdictions, entered into a consent

decree and agreed that the district court should retain power to

enforce it. In addition, the nature of state action required by the

district court in this case is significantly less intrusive on state

sovereignty than the ongoing state regulatory program invali-

dated in Train.

74a

laws, even where the exercise of such powers has necessi-

tated the bypassing of normal state decisional processes.

Thus after Detroil failed to comply with a consent decree

concerning sewage disposal, the district court appointed

the Mayor of Detroit as administrator of the treatment

plant, and directed him to act “‘without the necessity of any

actions on the part of the Common Council of the City of

Detroit when in the judgment of the Administrator the

same might unavoidably delay or impede” compliance.

United States v. City of Detroit, 476 F.Supp. 512, 515

(E.D.Mich.1979); cf. Washington v. Washington State

Commercial Passenger Fishing Vessel Assn., 443 USS.

658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (sanctioning

district court’s direct supervision of state fisheries where

necessary to secure compliance with its order recognizing

Indian rights).

The weakness of appellant’s federalism argument is un-

derscored by the fact that it, along with other regional

jurisdictions, agreed that the district court should have

continuing authority to enforce the 1974 consent decree.

P. G. County voluntarily intervened in the initial suit in

1973 and was a signatory to the consent decree which

emerged from that suit. Like the other parties to that

agreement, appellant failed to comply with the deadlines

it had agreed to meet, thereby necessitating enforcement

of the agreement by the district court. The tenth amend-

ment cannot be used to bar the very enforcement mech-

anism agreed to in 1974. Cf. Brown v. Neeb, 25 Fair

Empl. Prac.Cases 267 (Lab.Rel.Rep.BNA), 644 F.2d

551 (6th Cir. 1981) (affirming district court order re-

quiring city, which had ordered layoffs from fire depart-

ment due to budget crisis, to comply with prior consent

decree concerning hiring of minorities by making layoffs

proportionate to racial composition of the department,

even though collective bargaining agreement and state law

provided that layoffs should be on basis of seniority).

75a

Thus we find that the district court did not exceed its

statutory or equitable authority and that no interest pro-

tected by the tenth amendment has been infringed.

B. Anti-Injunction Act Objections

Appellant’s second contention is that the district court’s

order of June 27 violates the Anti-Injunction Act, 28

U.S.C. § 2283, which provides:

A court of the United States may not grant an in-

junction to stay proceedings in a state court except

as expressly authorized by Act of Congress, or where

necessary in aid of its jurisdiction, or to protect or

effectuate its judgments.

The Supreme Court has noted that the purpose of the

Act, which rests on the fundamental constitutional inde-

pendence of the states and their courts,” is to prevent

“needless friction between state and federal courts.” “

The Court has applied the Act strictly,"* stating that it is

an “absolute prohibition” against any injunction of any

state court proceedings that does not fall within one of the

three specifically defined exceptions in the Act.” The

12 Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive

Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 17438, 26 L.Ed.2d 234

(1970).

13 Mitchum v. Foster, 407 U.S. 225, 233, 92 S.Ct. 2151, 2157, 32

L.Ed.2d 705 (1972), quoting Oklahoma Packing Co. v. Oklahoma

Gas & Electric Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 447

(1939).

147 Moore’s Federal Practice § 60.39[2], at 657 (2d ed. 1979).

15 Vendo Co. v. Lektro-Vend Corp., 483 U.S. 623, 630, 97 S.Ct.

2881, 2887, 53 L.Ed.2d 1009 (1977). The United States has argued

before this court that the Act does not apply where, as here, one

of the litigants seeking to enjoin state proceedings is the federal

government. The Supreme Court so held in two cases, reasoning

that the policy behind the Act is far less compelling where a stay

is sought to protect “superior federal interests.” See National

os

76a

issue for decision, then, is whether the June 27 order falls

within one of the three exceptions.

The district court relied primarily, as do appellees be-

fore this court, on the last of the three exceptions, which

permits a federal court to enjoin a state proceeding in

order to “protect or effectuate” its judgments.’ Known as

Labor Relations Bd. v. Nash-Finch Co., 404 U.S. 138, 146, 92 S.Ct.

373, 378, 30 L.Ed.2d 328 (1971); Leiter Minerals, Inc. v. United

States, 352 U.S. 220, 226, 77 S.Ct. 287, 291, 1 L.Ed.2d 267 (1957).

The status of this implied exception is left unclear in other de-

cisions of the Court which stress that the three specific statutory

exceptions are exclusive and “should not be enlarged by loose statu-

tory construction.” Atlantic Coast Line Railroad Co. v. Brotherhood

of Locomotive Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743,

26 L.Ed.2d 234 (1970). Because this issue is raised for the first

time on appeal and because its resolution is unnecessary to our

disposition of this case, we express no view on whether the par-

ticipation of the federal government in this case renders § 2283

inapplicable.

16The district court also adverted to, and the appellees sec-

ondarily rely on, the second exception, which permits an injunc-

tion “in aid of” the federal court’s jurisdiction. The Reviser’s Note

to § 2283 states that the “in aid of” language was intended “to

conform to section 1651 of this title [the All Writs Act, 28 U.S.C.

§ 1651] and to make clear the recognized power of the Federal

courts to stay proceedings in state cases removed to the district

courts.” The “in aid of” exception has also been construed to

allow a federal court to protect its prior jurisdiction over a res

by enjoining a state proceeding that interferes therewith. 1A

Moore’s Federal Practice {| 0.225, at 2617 (2d ed. 1981) ; 17 Wright,

Miller & Cooper, Federal Practice and Procedure § 4225 (1978).

Professor Wright has suggested that the “in aid of’ exception

also encompasses cases “where a district court has taken a con-

troversy in hand and wil! exercise continuing jurisdiction,” id.,

reasoning that state court intervention in such a controversy would

seriously impair the power of the district court to decide the case,

and citing Swann v. Charlotte-Mechlenburg Board of Education,

501 F.2d 383 (4th Cir. 1974), and Grenchik v. Mandel, 373 F.Supp.

1298 (D.Md.1973). Because the Supreme Court has indicated that

there is some overlap between the “protect or effectuate” and “in

aid of” exceptions, see Atlantic Coast Line Railroad Co. v. Brother-

77a

the “relitigation” exception, the “protect or effectuate”

language was intended to affirm the power of federal

courts to enjoin the relitigation of cases and controversies

fully adjudicated by such courts."" The Supreme Court

has construed the exception to\ mean that a state court

may be prevented “from so interfering with a federal

court’s consideration or disposition of a case as to seri-

ously impair the federal court’s flexibility and authority to

decide that case.” Atlantic Coast Line Railroad Co. v.

Brotherhood of Locomotive Engineers, 398 U.S. 281,

295, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970).

Appellant argues that this exception should be read

narrowly to permit an injunction only where the state pro-

ceeding involves the same cause of action as did the

federal proceeding. Appellant contrasts the cause of ac-

tion in the federal suit, to ensure compliance with the

Clean Water Act by providing for sludge disposal, with

the causes of action in the enjoined state proceedings,

which involve issues such as compensability of restrictive

covenants under Maryland property law. Appellant con-

cludes that the state suits are collateral to, rather than

duplicative of, the federal suit and that therefore the

relitigation exception does not apply.

We believe, however, that Atlantic Coast Line man-

dates an examination of the effect a state proceeding

would have on a prior federal judgment, rather than a

comparison of formal causes of action. Where a state

court enjoins a course of conduct which is necessary to

hood of Locomotive Engineers, 398 U.S. 281, 295, 90 S.Ct. 1739,

1747, 26 L.E.2d 234 (1970), we believe that either of the excep-

tions provides ample jurisdiction for the June 27 order.

17 Reviser’s Note to 28 U.S.C. § 2283. The exception was intended

to overrule Touncey v. New York Life Insurance Co., 314 U.S. 118,

62 S.Ct. 139, 86 L.Ed. 100 (1941), in which the Supreme Court

had held that federal courts lacked the power to enjoin relitigation

in state court of controversies adjudicated in federal court.

78a

comply with a prior federal court order, the federal court

has authority to effectuate its order by enjoining the state

proceeding. In Doe v. Ceci, 517 F.2d 1203 (7th Cir.

1975), a federal district court had enjoined a county hos-

pital from refusing to permit its medical personnel to

perform elective abortions within the hospital. Subse-

quently a state court entered an order restraining county

officials from disbursing any county funds for elective

abortions. The district court enjoined enforcement of the

state court order and the Seventh Circuit affirmed on

srounds that such action was “necessary to effectuate the

earlier order of the federal court and thus not in contra-

vention of 28 U.S.C. § 2283.” Id. at 1204. See also

Henry v. First National Bank of Clarksdale, 595 F.2d

291, 306-07 (Sth Cir. 1979), cert. denied sub nom. Clai-

borne Hardware Co. v. Henry, 444 U.S. 1074, 100 S.Ct.

1020, 62 L.Ed.2d 756 (1980); Thomason v. Cooper, 254

F.2d 808 (8th Cir. 1958); Baker v. Gotz, 415 F.Supp.

1243 (D.Del.), aff'd mem., 546 F.2d 415 (3d Cir. 1976).

Thus the district court plainly acted within its authority

in enjoining the WSSC from complying with the June

17 order of the Circuit Court for Prince George’s County.

The State of Maryland, while acknowledging the power

of the district court to stay the Prince George’s Circuit

Court injunction, joins appellant in arguing that the June

27 order was overly broad in enjoining both pending state

proceedings which had not progressed to final judgment

and prospective state litigation concerning Site 2. The

law is clear, however, that a federal court is not required

to await a final judgment by a state court before acting

to protect its own decrees.**

18In Brown v. O’Brien, 469 F.2d 563 (D.C.Cir.), vacated as moot,

409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 72 (1972), the Credentials

Committee of the Democratic Party had ruled that challenged dele-

gates from Illinois should be unseated and replaced. The unseated

delegates challenged this action in suits filed in both state and

federal court. In the federal suit, the defendant Democratic Party

79a

Where proceedings in a federal court have been ongoing

for several years, as they have here, state proceedings

which would frustrate the federal court’s effective dis-

position of the case have frequently been enjoined even

where the state proceedings have not yet progressed to

final judgment. Many of these cases have involved school

desegregation orders. See Swann v. Charlotte-Mecklenburg

Board of Education, 501 F.2d 383 (4th Cir. 1974);

Grenchik v. Mandel, 373 F.Supp. 1298 (D.Md.1973).”

In New York State Association for Retarded Children,

Inc. v. Carey, 456 F.Supp. 85 (E.D.N.Y.1978), the dis-

trict court enjoined a state proceeding which would have

interfered with its disposition of a civil rights case over

which it had acquired jurisdiction five years earlier, noting

that the state court plaintiffs’ claims would properly have

filed a counterclaim, seeking to enjoin prosecution of the state

court action. The district court upheld the action of the Cre-

dentials Committee but denied an injunction. This court affirmed

the judgment dismissing the complaint but remanded for an in-

junction against the state court proceeding, finding that an in-

junction was necessary to prevent the state court from “taking

any action in any other court that would impair the effectiveness

and the integrity of the judgments of this Court.” 469 F.2d at

574. See also Donelon v. New Orleans Terminal Co., 474 F.2d 1108

(5th Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105

(1973).

19 Appellant argues that the foregoing cases are distinguishable

because they involve protection of individual constitutional rights,

as to which the federal injunctive power is singularly broad. What-

ever the validity of this suggestion as a general proposition, it has

no relevance in the context of § 2283, which allows a federal court

to enjoin state proceedings in order to “protect or effectuate” its

judgments in any type of proceeding. See Samuel C. Ennis & Co.

v. Woodmar Realty Co., 542 F.2d 45 (7th Cir. 1976), cert. denied,

429 U.S. 1096, 97 S.Ct. 1112, 51 L.Ed.2d 543 (1977) (action in

state court against trustee in bankruptcy enjoined by federal court

which had conducted bankruptcy proceeding years earlier); Baker

v. Gotz, 415 F.Supp. 1243 (D.Del.), aff'd mem., 546 F.2d 415 (3d

Cir. 1976) (enjoining state court sequestration of notes which con-

flicted with prior district court determination that sequestration

was not an available remedy).

$Oa

been brought before the federal court. /d. at 97. In this

case, too, we believe that if P. G. County believed

changed circumstances required modification of the 1978

order. it was obligated to seek such modification in the

district court, which ordered the implementation of Site 2

in 1978

Thus we conclude that it was within the district court’s

discretion to enjoin P. G. County’s participation in the

three pending proceedings in Maryland state courts in

which the relief sought would have frustrated the district

court's “flexibility and authority” to enforce its 1978

order. The injunction against prospective state court

litigation concerning Site 2, being outside the scope of

2283," is likewise valid. In sum, we find no violation of

the Anti-[njunction Act or of equitable principles in the

June 27 injunction order

Hl. CONCLUSION

We find that neither the tenth amendment nor the Ant!

Injunction Act was violated by the three district court

orders challenged here. We also find appellant’s other

rguments, that evidentiary hearings were required before

issuance of the orders and that the June 27 injunction was

unwarranted under traditional equitabie criteria, without

merit. We believe that the actions taken by the district

court were necessary to effectuate its 1978 order and to

ensure the long overdue implementation of a regional

sludge management plan. Accordingly, the judgment of

the district court is

Affirmed.

““ Section 2283 bars injunctions only to existing state court

proceedings and has no application before such proceedings have

begun. In a case where equitable principles warrant relief, a party

may be enjoined from instituting proceedings in a state court.

1A Moore’s Federal Practice § 0.208[3-.1], at 2316 (2d ed. 1981

17 Wright, Miller & Cooper, Federal Practice and Procedure § 4222

(1978).