# Appendices — Washington Suburban Sanitary Commission v. Cae-Link Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1087%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendices - **Published:** January 1, 1993 - **Citation:** 510 U.S. 907 ## Text a ——— -_ i ee ee Ae et nang oe la 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 7a 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 proceede [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1087%3A2. Public record. Not legal advice.