Petition for Writ of Certiorari — Piney Run Preservation Association Association Association v. County Commissioners of Carroll County, Maryland (No. 08-96)

(i) FILED

No. 08-96 JUL 222993

OFFICE OF THE CLEAK

Ju The. ‘Wiama IK. Suter, Clerk

Supreme Court of the Gnitted States

THE PINEY RUN PRESERVATION

ASSOCIATION,

Petitioner,

THE COUNTY COMMISSIONERS OF

CARROLL COUNTY, MARYLAND,

Respondent.

+

ON PETITION FOR WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FoR THE FOURTH CIRCUIT

s

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

¢

G. Macy Nelson

Counsel of Record

Paul N. De Santis

LAW OFFICE OF G. MACY NELSON

410 Washington Avenue, Suite 803

Towson, Maryland 21204

(410) 296-8166

Counsel for Petitioner

THE LEX GROUP®© ¢ 1750 K Street N.W. ¢@ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Fax (202) 955-0022 ¢www.thelexgroupdc com

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QUESTION PRESENTED

Should this Court address for the first time an

important question of federal law concerning the

parameters of “diligent prosecution” under the Clean

Water Act in a case where the Fourth Circuit held

that a consent judgment between the Maryland

Department of the Environment (“MDE”) and

Carroll County, Maryland constituted “diligent

prosecution” of the County’s violations of the Clean

Water Act even though the consent judgment

permitted the County to violete the terms of its

existing discharge permit until such time in the

future that MDE ruled on the County’s request for a

more lenient permit?

LIST OF PARTIES TO THE PROCEEDING

The caption of the case includes all parties to

the proceeding in the district court and court of

appeals.

CORPORATE DISCLOSURE STATEMENT

The Petitioner, The Piney Run Preservation

Association, is a § 501(c)(3) not-for-profit

corporation. It has no parent corporation and is not

owned, wholly or in part, by any publicly-traded

corporation

TABLE OF CONTENTS

QUESTION PRESENTED

LIST OF PARTIES TO THE PROCEEDING

CORPORATE DISCLOSURE STATEMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CITATION TO OFFICIAL, UNOFFICIAL

REPORTS OF OPINIONS/ORDERS

JURISDICTION STATEMENT

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES,

AND REGULATIONS

United States Codes

Maryland Regulations

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

This Court should address for the first

time the limits of the diligent

prosecution bar to citizen suits under

the Clean Water Act

CONCLUSION

APPENDIX

Published Opinion of

United States Court of Appeals for the

Fourth Circuit

entered April 23, 2008

Memorandum of

United States District Court for the

District of Maryland

Re: Order Granting Defendant’s

Motion to Dismiss

entered March 15, 2007

Consent Judgment of the

Circuit Court of Carroll County

entered July 25, 2006

Defendant’s Motion to Dismiss,

With Memorandum of Law in Support of

Defendant’s Motion to Dismiss

entered January 8, 2007

Complaint for Civil Fines and

injunctive Relief,

With Exhibits,

entered November 14, 2006

Memorandum to

Hampstead WWTP File from

Bill Limpert

Re: County in Violation

entered August 13, 2004

33 U.S.C. § 1251(a)

33 U.S.C. § 1311(a)

33 U.S.C. § 1342(a)-(b)

Se Be I ches naesoicns iutanienseonesesweabvenens 140a

ee NG I gai scan cstiiadnivcen ciayeaeiehcereneed 147a

COMAR 26.08.02.02-B

TABLE OF AUTHORITIES

CASES:

Arkansas Wildlife Federation v.

ICI Americas, Inc..,

29 F.3d 376 (8 Cir. 1994)

City of Milwaukee v. Illinois and Michigan,

451 U.S. 304, 101 S. Ct. 1784 (1981)

Coastal Fishermen’s Ass’n v. Remington Arms Co.,

777 F. Supp. 173 (D. Conn. 1991) 41,12

Connecticut Fund For Env'’t v.

Contract Plating Co.,

631 F. Supp. 1291 (D. Conn. 1986),

affd in part, rev'd in part,

989 F.2d 1305 (2d Cir. 1993)

Culbertson v. Coats American, Inc.,

913 F. Supp. 1572 (N.D. Ga. 1995)

Environmental Conservation Organization v.

City of Dallas,

__F.3d___, 2008 WL 2174066

(5 Cir 2008)

Friends of Milwaukee's Rivers uv.

Milwaukee Metropolitan Sewerage Dist.,

382 F.3d 743 (7" Cir. 2004)

Friends of the Earth, Inc. v.

Laidlaw Environmental Services,

528 U.S. 167, 120 S. Ct. 693 (2000)

Friends of the Earth, Inc. uv.

Laidlaw Environmental Services (TOC), Inc.,

890 F. Supp. 470 (D.S.C. 1995)

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc.,

484 U.S. 49, 108 S. Ct. 376 (1987)

Karr v. Hefner,

475 F.3d 1192 (10 Cir. 2007)

Middlesex County Sewerage Authority v.

National Sea Clammers Ass’n,

453 U.S. 1, 101 S. Ct. 2615 (1981)

North & South Rivers Watershed Ass’n v.

Town of Scituate,

949 F.2d 552 (1* Cir. 1991)

South Florida Water Management Dist. v.

Miccosukhee Tribe of Indians,

541 U.S. 95, 124 S. Ct. 1537 (2004)

The Piney Run Preservation Association v.

County Com’rs of Carroll County, Maryland,

523 F.3d 453 (4% Cir. 2008)

The Piney Run Preservation Assoc. v.

County Com’rs of Carroll County, Maryland,

268 F.3d 255 (4% Cir. 2001)

U.S. Dept. of Energy v. Ohio,

003 US. 607, 112 S. Ct. 1627 (1992)

STATUTES:

a cs rucsccavesssedsebsvexcosscstesevssdevoreesveewssacuss 8

28 U.S.C. § 1254(1)

33 U.S.C. § 1251(a)

Eg 1

33 U.S.C. § 1342(a)-(b)

33 U.S.C.

33 U.S.C.

33 U.S.C.

33 U.S.C.

33 U.S.C.

33 U.S.C.

42 U.S.C.

42 US.C.

REGULATIONS:

COMAR 26.08.02.02-B

COMAR 26.08.02.03-3D

CITATION TO OFFICIAL, UNOFFICIAL

REPORTS OF OPINIONS/ORDERS

The opinion of the United States Court of

Appeals for the Fourth Circuit in The Piney Run

Preservation Association v. The County

Commissioners of Carroll County, Maryland, is

published at 523 F.3d 453 (4" Cir. 2008). The

opinion of the district court, Civil No. AMD 06-3019,

is unpublished.

JURISDICTION STATEMENT

On April 23, 2008, the United States Court of

Appeals for the Fourth Circuit decided The Piney

Run Preservation Association v. The County

Commissioners of Carroll County, Maryland, 523

F.3d 453 (4 Cir. 2008). The court of appeals issued

the mandate on May 15, 2008. Petitioner invokes

the jurisdiction of this Court pursuant to 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND

REGULATIONS

: United States Codes

33 U.S.C. § 1251(a), (130a)

33 U.S.C. § 1311(a), (132a)

33 U.S.C. § 1342(a)-(b), (133a)

33 U.S.C. § 1362, (140a)

33 U.S.C. § 1365, (147a)

Maryland Regulations

COMAR 26.08.02.02-B, (152a)

COMAR 26.08.02.03-3D, (155a)

STATEMENT OF THE CASE

This Clean Water Act (“CWA”) case concerns

the discharge of thermally-polluted effluent from a

sewage treatment plant into the headwaters of the

Piney Run, a trout stream in Maryland. At the

discharge point, the quantity of the effluent

dominates the stream’s small base flow. The County

Commissioners of Carroll County, Maryland

(“County”) own and operate the sewage treatment

plant (“Plant”). The Petitioner, the Piney Run

Preservation Association (“Association”), is a group

of landowners who reside downstream from the

Plant.

On January 21, 2004, the Maryland

Department of the Environment (“MDE”) issued to

the County a modified National Pollutant Discharge

Elimination System (“NPDES”) permit after almost

ten years of administrative litigation concerning the

terms of the permit.’

' During this time, Petitioner also litigated a CWA citizens suit

based on the County's former permit. The Piney Run

Preservation Assoc. v. County Commissioners of Carroll County,

Maryland, 268 F.3d 255 (4% Cir. 2001). There, the Fourth

Circuit applied the “permit shield” defense to the Association’s

allegations of violations under the permit and vacated the

district court’s judgment against the County. Jd. at 269-72.

The circuit court found standing to sue on the part of the

Association, Id. at 264, and did not disturb the district court’s

findings regarding harm to stream. See generally, Id.

During the administrative litigation, the

parties offered competing evidence regarding the

effects of the thermal pollution on the stream. The

modified permit prohibits the County from

discharging effluent warmer than the higher of 20°C

(68°F) or the ambient temperature of the stream.

The County’s discharge of the thermally-polluted

effluent violates the terms of its NPDES permit

during the warm-weather months.

On July 9, 2004, the County applied to MDE

for an alternate effluent limitation to increase the

temperature limit so that it could comply with its

permit without changing its practices. The County’s

application for an alternate effluent limitation is still

pending before MDE.

On July 12, 2004, the Association sent a 60-

day notice to the County under the citizen suit

provision of the CWA, Section 505(b), 33 U.S.C.A. §

1365(b). In that notice, the Association alleged that

the County was violating the temperature limit in its

permit. Under the statute, the Association could

bring suit against the County if the government was

not “diligently prosecuting” the violations by

September 13, 2004. On August 13, MDE recorded a

request by the County that MDE file a suit against it

and enter into a consent decree regarding the

discharge of heated effluent. (129a.)

On September 13, 2004, MDE sued the

County alleging violations of the temperature limit

and monitoring and reporting provisions of the

NPDES permit. As requested by the County, MDE

also consented to a stay of its enforcement action.

The stay expired on November 20, 2005. (21a).

On August 3, 2006, MDE and Carroll County

entered into a Consent Judgment, thereby settling

MDE’s enforcement action. The Consent Judgment

acknowledged that the County had applied for an

alternate effluent limitation. The Consent

Judgment included four basic components. First, it

required the County to pay $13,500 for its violations

prior to the date of the Consent Judgment. (24a-25a,

47a). Second, it required the County to design and

implement an “Environmental Project.” This work

provides mitigation for temperature increases in the

Piney Run caused by storm water runoff or

modifications to stream buffers. (27a-30a). No part

of the “Environmental Project” reduces’ the

temperature of the effluent that comes out the

discharge pipe. Third, the Consent Judgment

provided that penalties of $500 per day would accrue

during the pendency of the County’s application for

an alternate effluent limitation but that the County

need only pay those penalties if “MDE or a final

judgment does not approve the alternate effluent

limit.” (26a). Fourth, if a final judgment

disapproves the alternate effluent limit, the County

will then have 300 days from that judgment to

“implement the measures necessary to comply with

the thermal limitations of the Permit.” (26a). The

County is only required to meet the terms of its

current NPDES permit if MDE denies the pending

application for alternate effluent limitation. Thus,

the Consent Order delays the requirement that the

County comply with the permit until some unknown

date in the future. Indeed, the County has violated

the temperature limit every year since MDE issued

the permit in 2004.

On August 25, 2006, in response to the

Consent Judgment, the Association sent a second 60-

day notice to the County regarding violations of the

NPDES permit. The Association alleged that “the

consent judgment does not constitute diligent

prosecution of Carroll County’s violations of the

Clean Water Act.” (126a). On November 14, 2006,

the Association filed a CWA citizen suit against the

County in the United States District Court for the

Northern District of Maryland pursuant to Section

505 of the Clean Water Act (“the Act”), 33 U.S.C. §

1365. The Association’s complaint also specifically

alleged that the Consent Judgment entered into

between MDE and the County did not constitute

diligent prosecution of the County’s CWA violations.

(70a).

The County moved to dismiss the Complaint

and argued that 33 U.S.C. § 1365(b)(1)(B) barred the

Association’s suit because MDE’s enforcement action

and the resulting Consent Judgment constituted

“diligent prosecution.” The Association argued that

the Consent Judgment did not require the County to

comply with the temperature limits of its NPDES

permit and thus could not constitute diligent

prosecution of those violations. On March 15, 2007,

the district court granted the County’s motion to

dismiss.

The Association appealed. The United States

Court of Appeals for the Fourth Circuit affirmed.

The court of appeals issued its judgment on April 23,

2008.

REASONS FOR GRANTING THE PETITION

This Court should address for the first

time the limits of the diligent prosecution bar

to citizen suits under the Clean Water Act.

The CWA prohibits the discharge of pollutants

into navigable waters of the United States without a

permit. 33 U.S.C. § 1862(12)(A). The CWA’s citizen

suit provision, Section 505, 33 U.S.C.A. § 1365(a)(1),

allows citizens to bring a federal action against a

discharger who is discharging pollutants either

without a permit or in excess of the limits specified

in the permit. The CWA requires such citizens to

give the discharger, the state agency, and the United

States Environmental Protection Agency 60-days

notice of their intent to sue. The CWA conditions

subject matter jurisdiction upon the government’s

failure to “diligently prosecute” the same violations.

33 U.S.C. § 1365(b)(1)(B). This case concerns the

parameters of diligent prosecution.

The decision below, The Piney Run

Preservation Association v. The County

Commissioners of Carroll County, Maryland, 523

F.3d 453 (4" Cir. 2008) decided an important

question of federal law concerning the limits of the

diligent prosecution bar to citizen suits under the

Clean Water Act. The Fourth Circuit held that a

consent judgment which permitted the County to

violate the terms of its existing NPDES permit until

such time as MDE rules on the County’s request for

a more lenient permit constituted “diligent

prosecution.” The Association contends that the

diligent prosecution bar is not satisfied by a consent

decree which gives the enforcement agency an

indefinite period of time in which to decide whether

the polluter must ever come into compliance with a

properly-issued permit. This Court has never

addressed the parameters of diligent prosecution

under the Clean Water Act. Petitioner urges this

Court grant certiorari in order to settle the question

of what constitutes diligent prosecution.

This Court’s jurisprudence on citizen suits

under the Clean Water Act consists of six opinions:

South Florida Water Management Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95, 124 S. Ct.

1537 (2004); Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167,

120 S. Ct. 693 (2000); U.S. Dept. of Energy v. Ohio,

503 U.S. 607, 112 S. Ct. 1627 (1992); Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,

484 U.S. 49, 108 S. Ct. 376 (1987); Middlesex County

Sewerage Authority v. National Sea Clammers Ass’n,

453 U.S. 1, 101 S. Ct. 2615 (1981); City of Milwaukee

v. Illinois and Michigan, 451 U.S. 304, 101 S. Ct.

1784 (1981).

Two of the six opinions discuss the statutory

intent of the CW citizen suit provision, but they do

not explain the parameters of diligent prosecution.

In Gwaltney, this Court heid that citizens should not

be permitted to file suit for only past violations “in

order to seek the civil penalties that the

Administrator chose to forgo” because such actions

would infringe on the Administrator’s discretion to

enforce the Clean Water Act in the public interest.

Gwaltney, 484 U.S. at 61, 108 S. Ct. at 383. This

Court specifically noted that the statutory language

of the citizen suit provision was prospective in

nature and substantively similar to the citizen suit

provisions of other environmental statutes.

Gwaltney, 484 U.S. at 57, 108 S. Ct. at 381 (citing

Clean Air Act, 42 U.S.C. § 7604; Resource

Conservation and Recovery Act of 1976, 42 U.S.C. §

6972 (1982 ed. and Supp. III); Toxic Substances

Control Act, 15 U.S.C. § 2619 (1982 ed. and Supp.

IV)). This Court required that citizens make a good

faith allegation of ongoing violations in order to

satisfy subject matter jurisdiction under the CWA.

Gwaltney, 484 U.S. at 64, 108 S. Ct. at 385.

In Friends of the Earth, Inc. v. Laidlaw

Environmental Services, this Court again held that

citizens have standing when violations are ongoing

at the time they file suit. Laidlaw, 528 U.S. at 187-

88, 120 S. Ct. at 707-08. This Court further held

that a case is not moot unless the discharging party

can make a clear showing that “permit violations

could not reasonably be expected to recur.” Laidlaw,

528 U.S. at 193, 120 S. Ct. at 711. Justice Scalia, in

his dissent, suggested that the issue of diligent

prosecution was still open on remand and opined

that citizen suit provision was not intended as an

opportunity to second guess the actions of state

enforcement agencies. Laidlaw, 528 U.S. at 212, 120

S. Ct. at 720 n.4 (Scalia, J., dissenting).

None of the other four cases refers to diligent

prosecution. South Florida Water Management Dist.

v. Miccosukee Tribe of Indians, 541 U.S. 95, 124 S.

Ct. 1537 (2004)(addressing the issue of whether a

pumping station requires an NPDES permit); U.S.

Dept. of Energy v. Ohio, 503 U.S. 607, 112 S. Ct.

1627 (1992)(addressing whether the federal

government has sovereign immunity from liability

for fines under the Clean Water Act); Middlesex

County Sewerage Authority v. National Sea

Clammers Assn, 453 U.S. 1, 101 S. Ct. 2615

(1981)(discussing who may file suit under the citizen

suit provision of the Clean Water Act); City of

Milwaukee v. Illinois and Michigan, 451 U.S. 304,

101 S. Ct. 1784 (1981)(addressing the interplay

between federal common law pertaining to pollution

nuisances and the newly enacted Clean Water Act).

Thus, the Court has never defined the parameters of

diligent prosecution in the context of a CWA citizen

suit.

This Court has noted the similarities among

the citizen suit provisions of various environmental

statutes. See, Gwaltney, 484 U.S. at 57, 108 S. Ct. at

381; see also, U.S. Dept. of Energy v. Ohio, 503 U.S.

at 615-16, 112 S. Ct. at 1633-34 (comparing the

citizen suit provisions of the Clean Water Act and

the Resource Conservation and Recovery Act). This

Court has not addressed the parameters of diligent

prosecution under the Clean Air Act, the Resource

Conservation and Recovery Act, or the Toxic

Substances Control Act.

Several circuit courts addressed _ the

parameters of diligent prosecution under the CWA

10

and afforded the agencies a choice of enforcement

methods. In each of these cases, the agency required

the polluter to address the alleged violation by a

date-certain. See, Karr v. Hefner, 475 F.3d 1192,

1194, 1197 (10 Cir. 2007) (noting that an agency’s

prosecutorial strategy does not have to mirror the

citizen suit to establish diligence, but further noted

that the consent decree did enjoin further CWA

violations); Arkansas Wildlife Federation v. ICI

Americas, Inc., 29 F.3d 376, 380 (8 Cir. 1994)

(finding that a consent agreement does not fail to be

diligent prosecution merely because a compromise

was reached, especially when the evidence presented

shows that the polluter had “to correct the

violations,” a compliance and reporting schedule was

imposed, and monetary penalties were assessed);

North and South Rivers Watershed Ass’n, Inc. v.

Town of Scituate, 949 F.2d 552, 554-55, 558 (1 Cir.

1991) (stating that citizen suits are not appropriate

“[Imlerely because the State may not be taking the

precise action Appellant wants it to or moving with

the alacrity Appellant desires,” and holding that the

state enforcement agency established diligent

prosecution where the consent agreement

established a definite timeline for compliance and

“(t]he record show[ed] the town [{ ] complied with a

variety of mandatory and ongoing tasks”). Further,

where an enforcement agency has brought suit,

courts have presumed diligence. Friends of

Milwaukee’s Rivers vu. Milwaukee Metropolitan

Sewerage Dist., 382 F.3d 743, 760 (7 Cir. 2004)

(noting that “diligence on the part of the

[enforcement agency] is presumed.”); see also Friends

of the Earth, Inc. v. Laidlaw Environmental Services

11

(TOC), Inc., 890 F. Supp. 470, 487 (D.S.C. 1995)

(noting the same).

However, federal courts addressing diligent

prosecution have also recognized limits to the

amount of deference owed to the enforcement

agency. Most recently, the Fifth Circuit, in

Environmental Conservation Organization v. City of

Dallas, ___ F.3d ___, 2008 WL 2174066 at 7 (5 Cir

2008), stated, “[ilf a citizen-suit plaintiff

demonstrates that there is a realistic prospect that

the violations alleged in its complaint will continue

notwithstanding the government-backed consent

decree, then a less-than-diligent prosecution might

have been shown.” The Court of Appeals for the

Seventh Circuit has recognized that “a diligent

prosecution analysis requires more than mere

acceptance at face value of the potentially self-

serving statements of a state agency and the violator

with whom it settled regarding their intent with

respect to the effect of the settlement.” Friends of

Milwaukee’s Rivers, 382 F.3d at 760. Indeed, several

district courts have held that any presumption of

deference paid to the enforcement agency can be

rebutted upon a showing that the agency “has

engaged in a pattern of conduct in its prosecution

that could be considered dilatory, collusive or

otherwise in bad faith.” Coastal Fishermen’s Ass’n v.

Remington Arms Co., 777 F. Supp. 173, 183 (D.

Conn. 1991) (quoting Connecticut Fund For Env’t v.

Contract Plating Co., 631 F. Supp. 1291, 1293 (D.

Conn. 1986), affd in part, reu’d in part, 989 F.2d

1305 (2% Cir. 1993); see also Culbertson v. Coats

American, Inc., 913 F. Supp. 1572, 1579 (N.D. Ga.

1995) (holding that an agency’s failure to require

12

compliance with effluent levels in an NPDES permit

was a mere extension of deadlines and not diligent

prosecution).

In each of these cases, the governmental

prosecution of the violations addressed the quality or

nature of the actual discharge. Friends of

Milwaukee’s Rivers, 382 F.3d at 750-51 (noting that

the stipulation required the discharger to spend

$907,000,000.00 and established a schedule to

establish compliance with the CWA); Environmental

Conservation Organization, 2008 WL 2174066 at 2, 8

(providing that the consent decree which set forth

penalties, a compliance time table, and reporting

requirements “resolved” all CWA _ violations);

Remington Arms Co., 777 F. Supp. at 176, 187

(noting that the state enforcement agency ordered

“that Remington cease the discharge of lead shot to

the waters of the State of Connecticut” and that

defendant had closed its gun club and kept it closed);

but see Culbertson, 913 F. Supp. 1572, 1576 (finding

a lack of diligent prosecution where the state

enforcement agency had obtained a judgment

requiring the discharger to “either comply with the

copper and zinc effluent limitations of the [NPDES]

permit, or submit a final report proposing site-

specific effluent limitations” and further extended

deadlines). In contrast, the Fourth Circuit’s ruling

below held for the first time held that a consent

agreement that does not require the polluter to

change the characteristics or quality of the actual

discharge can constitute diligent prosecution.

13

Here, the Court is squarely presented with a

case with a concise record which will allow this

Court to efficiently address, for the first time, the

parameters of the “diligent prosecution” bar to

citizen suits. The Association respectfully requests

that this Court grant certiorari to determine

whether a consent decree which does not require the

polluter to change its conduct regarding ongoing

violations should bar a citizen suit. A decision by

the Court on this issue would guide litigants and

courts in cases under the CWA and _ other

environmental statutes with similar provisions.

CONCLUSION

This petition presents an opportunity for this

Court to clarify the limits of the diligent prosecution

bar to citizen suits under the Clean Water Act and

other federal environmental statutes. This Court

has not previously addressed this matter, and the

Association respectfully requests that this Court

grant certiorari to review this case.

Respectfully submitted,

/s/ G. Macy Nelson

_ G. Macy Nelson

(Federa) Bar # 02993)

Paul N. De Santis

(Federal Bar # 27438)

410 Washington Avenue

Suite 803

Towson, Maryland 21204

(410) 296-8166