U.S. v. District of Columbia
| Decision Date | 29 July 1981 |
| Docket Number | 80-1718,80-1654,80-1495 and 80-1496,Nos. 80-1653,80-1719,s. 80-1653 |
| Parties | , 210 U.S.App.D.C. 87, 11 Envtl. L. Rep. 20,595 UNITED STATES of America, v. DISTRICT OF COLUMBIA et al. Appeal of Prince George's County, Maryland (Intervenor-deft.). STATE WATER CONTROL BOARD et al. v. 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.). UNITED STATES of America v. DISTRICT OF COLUMBIA et al. Appeal of Prince George's County, Maryland. STATE WATER CONTROL BOARD et al. v. 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. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Frank W. Stearns and David T. Stitt, Asst. County Attys., Fairfax, Va., also entered appearances for appellee, 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 appellee, 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 appellee, 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, Montgomery County, Md.
Before McGOWAN, TAMM and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
This appeal is the latest chapter in an eight-year-old controversy concerning disposal of sewage sludge generated 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 Montgomery 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 actions. 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.
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") 1 (Civil Action No. 1813-73). The complaint alleged that WSSC, in violation of regional agreements, was exceeding its allotted use of the Blue Plains sewage treatment plant in D.C., thus causing the plant to discharge inadequately treated sewage into the Potomac River.
The United States intervened as a party-plaintiff, alleging that excess flow from the WSSC was causing pollution of the Potomac in violation of the Federal Water Pollution 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 Montgomery Counties be ordered to comply with another provision of the regional agreement by designating and providing sites for the disposal of sludge 2 generated at the Blue Plains facility.
Prior to trial the parties entered into the Blue Plains Sewage Treatment Plant Agreement, which was subsequently incorporated into a Consent Decree dated July 29, 1974. The decree provided that the court would retain 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 agree on a permanent sludge disposal plan. On the eve of the expiration date for the interim plan, 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 management plan. The complaint further alleged that the impasse over sludge disposal would cause the Blue Plains plant to curtail or eliminate treatment of sewage, thus resulting in increased discharges of pollutants into the Potomac River in violation of the Federal Water Pollution Control Act. Like its predecessor, the 1977 suit led to negotiations culminating in a consent order, dated January 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 to January 15, 1978.
The user jurisdictions again failed to agree on a permanent 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 designating 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 undeveloped tract of land adjacent to the Montgomery Industrial Park on the Montgomery County-Prince George's County border (Site 2). Site 2 was designated as a composting site, where sludge would be mixed with wood chips and aerated for periods of 35-45 days. The Calverton 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 designated 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 to take all necessary action, including acquisition of property rights and obtaining all necessary permits. The court also ordered that the user jurisdictions take no action unrelated 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 June 28, 1978, did not appeal the July 10 order. 3
The WSSC and Montgomery County then proceeded with the development of Site 2 as required by the 1978 order. The WSSC filed condemnation proceedings to acquire Site 2 in the Circuit Court for Montgomery County, and obtained the requisite permit from the Maryland Department of Health and Mental Hygiene. In May 1979 the WSSC adopted a budget for fiscal year 1980 which included $16.9 million for the acquisition and construction of the Site 2 facility.
P. G. County opposed implementation of Site 2 on several fronts outside the forum of the district court. The County unsuccessfully appealed the issuance of the health permit to the Board of Review of the Maryland State Health Department. It also brought suit in the Circuit Court for Prince George's County seeking to enjoin acquisition of Site 2 on grounds it had never given the requisite approval to WSSC funds allotted to Site 2. 4 The Circuit Court dismissed the complaint, and P. G. County appealed.
In March 1980 implementation of Site 2 encountered more severe obstacles. First, the three WSSC Commissioners from P. G. County blocked funding for Site 2 in WSSC's budget for fiscal year 1981. In addition, the WSSC learned that a title search of the Site 2 land conducted in connection with the condemnation proceeding had revealed that the land was burdened by restrictive covenants 5 which appeared inconsistent with a compost facility and which might cost millions of dollars to acquire. By...
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