Piney Preservation Assoc v. Comm's of Carroll County
| Decision Date | 05 April 2001 |
| Docket Number | No. 00-1283,No. 00-1322,00-1283,00-1322 |
| Parties | (4th Cir. 2001) THE PINEY RUN PRESERVATION ASSOCIATION, Plaintiff-Appellee, v. COUNTY COMMISSIONERS OF CARROLL COUNTY, MARYLAND, Defendant-Appellant. ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES; WATER ENVIRONMENT FEDERATION; MARYLAND ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES, INCORPORATED; VIRGINIA ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES, INCORPORATED; WEST VIRGINIA MUNICIPAL WATER QUALITY ASSOCIATION, INCORPORATED; AMERICAN CHEMISTRY COUNCIL; AMERICAN FOREST AND PAPER ASSOCIATION; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; GENERAL ELECTRIC COMPANY; NATIONAL ASSOCIATION OF MANUFACTURERS; UTILITY WATER ACT GROUP; VIRGINIA MANUFACTURERS ASSOCIATION; M.A.D.E.IN MARYLAND; ALLIANCE OF AUTOMOBILE MANUFACTURERS; AMERICAN IRON AND STEEL INSTITUTE; AMERICAN PETROLEUM INSTITUTE; ENVIRONMENTAL FEDERATION OF OKLAHOMA; MICHIGAN MANUFACTURERS ASSOCIATIONS; MISSISSIPPI MANUFACTURERS ASSOCIATION; NATIONAL PETROCHEMICAL AND REFINERS ASSOCIATION; NUCLEAR ENERGY INSTITUTE; WESTERN STATES PETROLEUM ASSOCIATION, Amici Curiae. THE PINEY RUN PRESERVATION ASSOCIATION, Plaintiff-Appellant, v. COUNTY COMMISSIONERS OF CARROLL COUNTY, MARYLAND, Defendant-Appellee. ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES; WATER ENVIRONMENT FEDERATION; MARYLAND ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES, INCORPORATED; VIRGINIA ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES, INCORPORATED; WEST VIRGINIA MUNICIPAL WATER QUALITY ASSOCIATION, INCORPORATED; AMERICAN CHEMISTRY COUNCIL; AMERICAN FOREST AND PAPER ASSOCIATION; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; GENERAL ELECTRIC COMPANY; NATIONAL ASSOCIATION OF MANUFACTURERS; UTILITY WATER ACT GROUP; VIRGINIA MANUFACTURERS ASSOCIATION; M.A.D.E.IN MARYLAND; ALLIANCE OF AUTOMOBILE MANUFACTURERS; AMERICAN IRON AND STEEL INSTITUTE; AMERICAN PETROLEUM INSTITUTE; ENVIRONMENTAL FEDERATION OF OKLAHOMA; MICHIGAN MANUFACTURERS ASSOCIATIONS; MISSISSIPPI MANUFACTURERS ASSOCIATION; NATIONAL PETROCHEMICAL AND REFINERS ASSOCIATION; NUCLEAR ENER |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeals from the United States District Court for the District of Maryland, at Baltimore. Joseph H. Young, Senior District Judge. (CA-98-3124-Y) [Copyrighted Material Omitted] COUNSEL ARGUED: Linda S. Woolf, GOODELL, DEVRIES, LEECH & GRAY, L.L.P., Baltimore Maryland, for Appellant. Christopher Donald Pomeroy, MCGUIRE WOODS, L.L.P., Richmond, Virginia, for Amici Curiae State Associations. Guerdon Macy Nelson, Towson, Maryland, for Appellee. ON BRIEF: Michael B. MacWilliams, Ian Gallacher, GOODELL, DEVRIES, LEECH & GRAY, L.L.P., Baltimore, Maryland, for Appellant. F. Paul Calamita, MCGUIRE WOODS, L.L.P., Richmond, Virginia, for Amici Curiae State Associations. D. Randall Benn, Paul C. Freeman, LEBOEUF, LAMB, GREENE & MACRAE, L.L.P., Washington, D.C., for Amici Curiae Sewerage Agencies, et al. James N. Christman, HUNTON & WILLIAMS, Richmond, Virginia, for Amici Curiae Industry Groups. Robert G. Smith, Anthony M. Carey, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for Amicus Curiae M.A.D.E. in Maryland. Scott M. DuBoff, Kenneth S. Kaufman, WRIGHT & TALISMAN, P.C., Washington, D.C., for Amici Curiae Automobile Manufacturers, et al.
Before WILKINS, KING, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Wilkins and Judge Gregory joined.
The Piney Run Preservation Association sued the Commissioners of Carroll County, Maryland, claiming that a county-operated waste treatment plant was discharging warm water into a local stream, Piney Run, in violation of the Clean Water Act. The district court construed the plant's NPDES permit as not prohibiting the discharge of heat. Nonetheless, the court decided that the Commissioners were liable under the Clean Water Act for the discharge of pollutants not expressly authorized by the permit. On appeal, the Commissioners maintain that the "permit shield" defense, embodied in 33 U.S.C. S 1342(k), bars suit against a permit holder for the discharge of pollutants not expressly listed in the permit. Although we do not accept the Commissioners' position on the permit shield defense, we also disagree with the district court's interpretation of the Clean Water Act. Utilizing the two-part test spelled out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,1 467 U.S. 837 (1984), we adhere to the interpretation provided by the EPA. We therefore view the NPDES permit as shielding its holder from liability under the Clean Water Act as long as (1) the permit holder complies with the express terms of the permit and with the Clean Water Act's disclosure requirements and (2) the permit holder does not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was granted. Applying this rule, we conclude that the Commissioners did not violate the Clean Water Act because (1) they complied with the discharge limitations and reporting requirements of their permit, and (2) their discharges of heat were within the reasonable contemplation of the permitting authority at the time the permit was issued. Accordingly, we vacate the judgment of the district court, and we remand for entry of judgment in favor of the Commissioners.
Piney Run is a small stream with its headwaters near the border of Carroll and Baltimore counties in Maryland. The Maryland Department of the Environment ("MDE") has classified Piney Run as a Class III-P stream, which means that it is protected as a source of public drinking water and as a body capable of supporting a selfsustaining trout population. See Md. Regs. Code ("COMAR") tit. 26, S 26.08.02.02(B)(5). Carroll County operates the Hampstead Wastewater Treatment Plant ("Plant"), which serves approximately 4200 residential and commercial users. As part of the treatment process, the Plant discharges effluent, i.e., treated wastewater, into Piney Run.
Because of the Plant's discharge of effluent into Piney Run, the Plant is subject to the Clean Water Act ("CWA "). See 33 U.S.C. S 1311(a). Under the CWA, dischargers must operate pursuant to a National Pollutant Discharge Elimination System ( "NPDES") permit obtained from either the Environmental Protection Agency ("EPA") or an authorized state agency. See id. SS 1311(a), 1342(a), (c); see also Md. Code Ann. Envir. S 9-323. Beginning in 1975, the Plant has operated under a series of NPDES permits granted by the MDE as the authorized state agency. The most recent NPDES permit was issued to the Plant in 1990.
Under the CWA, the various states are required to promulgate water quality standards for certain waters within their borders. See 33 U.S.C. S 1313. Such standards denote designated uses of particular bodies of water and establish water quality criteria designed to protect those uses. See 40 C.F.R. SS 131.10(a), 131.11. In order to grant a permit or a permit modification, the MDE must determine that the discharger will not violate these water quality standards. See Md. Code Ann. Envir. S 9-324(a); COMAR tit. 26, S 26.08.04.02(A) (1)(b).
The Piney Run Preservation Association ("Association"), which is dedicated to the protection of Piney Run, filed this lawsuit in the District of Maryland in 1998. The Association sued the Commissioners under section 505 of the CWA, 33 U.S.C. S 1365(a),2 claiming that the Plant's NPDES permit limited the amount of heated effluent it could discharge into Piney Run, and that the Plant regularly exceeded this limit.3 The Plant's 1990 permit contained express limitations on the amount of certain pollutants that may be discharged. Heat, a statutory pollutant under the CWA, was not listed in the 1990 permit as one of these pollutants.4 See id. S 1362(6). In its lawsuit, the Association claimed that a footnote of the Plant's NPDES permit flatly prohibited the discharge of any pollutants that were not expressly listed in the permit. In the alternative, the Association argued that a permit holder may be liable under the CWA for the discharge of any pollutant not expressly allowed by its permit. The Association claimed that under either of these theories, the Plant was in violation of the CWA if it discharged any level of heat whatsoever. In May 1999, the district court construed the Commissioners' permit as allowing for the discharge of heat, but held that the CWA prohibits the discharge of any pollutant that is not limited by the permit. Using Maryland water quality standards, the court concluded that heat constituted a pollutant in violation of the CWA when effluent was discharged "with a temperature exceeding the greater of either 68 degrees[Fahrenheit] or the ambient temperature of Piney Run." Piney Run Pres. Ass'n. v. County Comm'rs., 82 F. Supp. 2d 464, 466 (D. Md. 2000) (citing COMAR tit. 26, S 26.08.02.03-3E). The court then calculated the "ambient temperature" of the stream, and found on partial summary judgment that the Commissioners had violated the CWA on 183 occasions.5 In January 2000, the court conducted a bench trial in connection with the discharges in dispute, and it found an additional 107 CWA violations against the Commissioners. Accordingly, the court in February 2000 entered judgment for the Association, enjoined the Commissioners from further violations, assessed them $400,000 in civil penalties payable to the United States Treasury, and awarded the Association its litigation costs and reasonable attorneys' fees.
Both the Association and the Commissioners appeal from the district court's final order of February 10, 2000. The Association claims that the district court erred in holding that the Plant only violated the CWA when its discharge of heat exceeded state temperature standards. It contends that the...
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