Stoddard v. Western Carolina Regional Sewer Auth., Nos. 85-1584

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before RUSSELL, SPROUSE and WILKINSON; SPROUSE
• Citation: 784 F.2d 1200
• Parties: , 16 Envtl. L. Rep. 20,503 L. Boyd STODDARD, Barry T. Terry and Sara M. McDonald, Appellees, v. WESTERN CAROLINA REGIONAL SEWER AUTHORITY, Appellant. L. Boyd STODDARD, Barry T. Terry and Sara M. McDonald, Appellants, v. WESTERN CAROLINA REGIONAL SEWER AUTHORITY, Appellee.
• Decision Date: 05 March 1986
• Docket Number: Nos. 85-1584,85-1590

Page 1200

784 F.2d 1200 23 ERC 2105, 16 Envtl. L. Rep. 20,503 L. Boyd STODDARD, Barry T. Terry and Sara M. McDonald, Appellees,
v.
WESTERN CAROLINA REGIONAL SEWER AUTHORITY, Appellant.
L. Boyd STODDARD, Barry T. Terry and Sara M. McDonald, Appellants,
v.
WESTERN CAROLINA REGIONAL SEWER AUTHORITY, Appellee. Nos. 85-1584, 85-1590. United States Court of Appeals,
Fourth Circuit. Argued Dec. 2, 1985.
Decided March 5, 1986.

Page 1201

O.W. Bannister, Jr., Leo H. Hill, Hill, Wyatt & Bannister, Greenville, S.C., John S. Pachter (Christopher L. Rissetto, Daniel E. Toomey, Wickwire, Gavin & Gibbs, P.C., Washington, D.C., on brief), for appellant/cross-appellee.

Bradford W. Wyche (Wyche, Burgess, Freeman & Parham, P.A., Greenville, S.C., Robert L. Stoddard, Moore, Stoddard, Stoddard & Wood, Spartanburg, S.C., on brief), for appellees/cross-appellants.

Page 1202

Before RUSSELL, SPROUSE and WILKINSON, Circuit Judges.

SPROUSE, Circuit Judge:

L. Boyd Stoddard, Barry T. Terry, and Sara M. McDonald (landowners) sued the Western Carolina Regional Sewer Authority in district court for enforcement of the Clean Water Act (Act), 33 U.S.C. Sec. 1251 et seq. (1982), under the Act's "citizen suit" provision, 33 U.S.C. Sec. 1365 (1982). In addition, they asserted a pendent state law claim that their property was taken in violation of the South Carolina constitution. ¹ The Sewer Authority appeals from the district court's judgment that it is liable for damage to the landowners' property under South Carolina law and from the award of attorneys' fees and costs. The landowners appeal the district court's failure to assess civil penalties against the Sewer Authority under section 309(d) of the Act, 33 U.S.C. Sec. 1319(d) (1982).

Stoddard, Terry and McDonald are the owners of farm land in Laurens County, South Carolina. In 1976 Terry's predecessor in title, Stoddard, and McDonald executed easements allowing the United States Soil Conservation Service (SCS) to flood portions of their property in order to construct Stoddard's Lake. They did not demand compensation from the SCS, believing that the presence of a lake would enhance the value of their remaining property. The lake was constructed in 1980. SCS designated the lake, which covers approximately sixty acres, Site 21 Sediment Pool and apparently designated it to reduce sediment flow into a larger lake located downstream.

When Stoddard executed the easement in favor of the SCS, he intended to develop his two hundred and twenty acres of lakefront property into a residential subdivision to be known as Holland's Place. In furtherance of this plan, he erected an entrance gate, laid a water line, and constructed a road into the planned development. ² Terry built a new home on his property because of its proximity to the lake. McDonald developed a picnic site near the lake for family outings and entertaining.

The Fountain Inn sewage treatment plant was built in 1967 and has been operating since that time. The plant is located on Stoddard's Creek, approximately three and one-half miles upstream from the landowners' property. The Sewer Authority acquired the plant from the City of Fountain Inn in 1969. In 1977, the South Carolina Department of Health and Environmental Control (Department) granted the Sewer Authority a permit to operate the plant under the Clean Water Act, setting forth effluent limitations for the plant's operation. ³ The Sewer Authority concedes that it violated the NPDES permit limitations. The principal issues presented in this appeal are whether those violations caused the polluted conditions in Stoddard's Lake and, if so, whether the pollution resulting from the plant's discharges constitute a compensable taking of the landowner's property in violation of the South Carolina Constitution.

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The NPDES permit which the Department issued to the Sewer Authority in 1977 authorized the discharge of treated wastewater into Stoddard's Creek in accordance with the following limitations:

(a) Dissolves Oxygen: 5 milligrams per liter (mg/1) (minimum);

(b) Total Suspended Solids (concentration): 30 mg/1 (monthly average) and 45 mg/1 (weekly average);

(c) Total Suspended Solids (mass): 171.9 lbs/day (monthly average) and 257.8 lbs/day (weekly average);

(d) Biochemical Oxygen Demand (concentration): 30 mg/1 (monthly average) and 45 mg/1 (weekly average);

(e) Biochemical Oxygen Demand (mass): 171.9 lbs/day (monthly average) and 257.8 lbs/day (weekly average);

(f) pH: 6 to 9; and

(g) Fecal Coliform: 200/100 milliliters (monthly average) and 400/100 milliliters (maximum).

The parameters detailed in the NPDES permit are not pollutants themselves, but serve to indicate the presence of pollutants. ⁴

In 1978, the Sewer Authority applied for an extension of time to meet the NPDES permit standards. The Department decided not to act on this application to modify the permit, but to wait until the permit expired. A new permit was finally issued in November, 1983, to become effective January 1, 1984. It set forth significantly less stringent discharge limitations except for the pH and fecal coliform parameters. ⁵

When the Sewer Authority acquired the wastewater treatment plant from the City of Fountain Inn in 1969, the plant, which was designed to treat only domestic waste, had minimal equipment, no chlorination process, and no means to dispose of the sludge remaining after wastewater treatment. A 1976 study recommended a substantial upgrade of the Fountain Inn plant, but because the Sewer Authority chose instead to work toward construction of a regional plant, it did not undertake to upgrade the Fountain Inn plant.

Over the years, the proportion of high strength industrial wastewater treated at the plant has increased. Approximately eighty-five percent of the plant's total organic load currently comes from industrial sources. A 1983 Sewer Authority plan acknowledged the presence of "some high strength industrial wastewaters which impose substantial loads on the plant and affect wastewater characteristics." At trial, the Sewer Authority admitted that it had the authority to require these industries to pretreat their wastes, but did not impose such requirements until it adopted a Sewer Use Regulation in June of 1984.

In July of both 1981 and 1982 the plant "went septic," experiencing anaerobic conditions resulting in extremely unpleasant odors which caused turmoil in the community. The 1982 breakdown required emergency operations at the plant, including the

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hauling of excess sludge to other waste treatment plants. Fish kills occurred in Stoddard's Lake in March and May of 1982 and again in May of 1983. The Department suspected discharges from the Fountain Inn plant in two of the kills and attributed the third to an algal bloom.

The Discharge Monitoring Reports submitted to the Department by the Sewer Authority showed frequent violations of the NPDES permit for the Fountain Inn plant. On at least two occasions, there was no dissolved oxygen in the discharged water. The average fecal coliform measurement was in violation of the permit every month from January 1979 to June 1983. For twelve of those months, the levels were reported as "too numerous to count." During the same fifty-four month period, the concentration of biochemical oxygen demand reached or exceeded the maximum permitted levels for twenty-nine months, and total suspended solids were excessive for fifty months. At trial, the landowners introduced into evidence nine notices of violation and numerous letters from the Department to the Sewer Authority which rated the operation of the Fountain Inn plant as "unacceptable" and detailed violations noted during the Department's on-site inspections.

Finally, in 1983, the Department ordered the Sewer Authority to install a chlorination system on the Fountain Inn plant to control fecal coliform levels. ⁶ The Sewer Authority undertook an "interim upgrade" of the plant and has been in substantial compliance with its NPDES permit since that time. Nevertheless, the district court found that the plant continues to experience serious operating problems, including the presence of excessive amounts of septic sludge and unacceptably low levels of dissolved oxygen.

Stoddard's Creek and Lake have been classified by the Department as "Class B" waters, suitable as a source of drinking water after conventional treatment and for secondary recreational contact such as boating, fishing, and wading. While all lakes eventually fill in and die through a process called eutrophication, this process is normally extremely slow. Human intervention, however, can dramatically speed up the process, resulting in what is known as cultural eutrophication.

In cultural eutrophication, high levels of nutrients are added to a lake, dissolved oxygen levels are lowered, and the lake experiences a rapid growth in rooted plants along the shore and algae in the water. Phosporous is a predominant element in promoting the growth of algae, and the district court found that the Fountain Inn plant contributes at least two-thirds of the phosphorous which flows into Stoddard's Lake. Expert testimony at trial indicated that the plant's discharges have caused the premature eutrophication of Stoddard's Lake, resulting in massive algal blooms, fish kills, and odor problems.

The district court found that the Sewer Authority has violated the terms of the NPDES permit on numerous occasions. It found from the evidence that discharges into Stoddard's Creek flowing into Stoddard's Lake had created extremely unpleasant conditions at the lake. Frequently odors were so noxious that humans could not remain in the vicinity; algae clumps and human sewage often floated on the surface of the lake. The repeated fish kills were widely reported. The district court found that these conditions were proximately caused by, and are likely to continue to be caused by, the discharge of waste from the plant.

The trial...