Member Pipeline - Legal - Alert (Leg01-8)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | October 12, 2001 |
| Subject: | FEDERAL COURT ENDORSES CLEAN WATER ACT PERMIT SHIELD |
| Reference: | Legal Alert 01-8 |
Printer friendly versionThis week the United States Court of Appeals for the Fourth Circuit handed AMSA and publicly-owned treatment works (POTWs) across the nation an important victory by wholeheartedly endorsing the Clean Water Act’s (CWA) permit shield. In Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, No. 00-1283 (4th Cir. October 10, 2001) (Piney Run), the court ruled that the CWA’s permit shield protected Carroll County (County) from liability for discharging a pollutant – in this case, heat – not specifically listed in the County’s National Pollutant Discharge Elimination System (NPDES) permit. The court’s opinion can be accessed via AMSA’s website at: http://www.amsa-cleanwater.org/private/littrack/10-12-01courtopinion.pdf. AMSA and the Water Environment Federation (WEF) filed a joint amicus curiae brief in the case in August 2000, arguing that the County should not be held liable for the unlisted pollutant under the CWA’s permit shield.
In its decision, the court deferred to EPA’s interpretation of the CWA and found that "the NPDES permit [ ] shield[s] 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." See Piney Run at 5. Using this analysis, the court found the County did not violate the CWA because it had disclosed its effluent temperature to the Maryland Department of the Environment (MDE); MDE did not impose a limit in the permit; the County complied with the permit discharge limitations and reporting requirements; and the discharges were within MDE’s reasonable contemplation when the permit was issued.
The Piney Run decision is of tremendous value to POTWs facing similar permitting challenges from citizen groups in their jurisdictions. The decision confirms that a common-sense permitting approach is one focused on those pollutants that have the reasonable potential to cause or contribute to an excursion above state water quality standards. The decision gives greater certainty to POTWs on how compliance with an NPDES permit will be evaluated and also clarifies the types of conditions that should be disclosed and discussed during the permitting process.
Background
Piney Run is a small stream with its headwaters near the border of Carroll and Baltimore
counties in Maryland. Carroll County operates an NPDES-permitted wastewater treatment
plant (plant), serving approximately 4,200 residential and commercial users, that
discharges into Piney Run.
In 1998 the Piney Run Preservation Association (Association) filed a citizen suit against the County in Maryland Federal District Court. The Association claimed 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. While the plant’s permit contained express limitations on the amount of certain pollutants that could be discharged, heat was not listed in the permit as one of these pollutants.
In reviewing the Association’s claim, the Maryland District Court found that heat was a pollutant only when it exceeded the ambient temperature of the stream. Using this criteria, the District Court found that the County had exceeded Piney Run’s ambient temperature on 183 occasions. The District Court also found an additional 107 CWA violations. In February 2000, the District Court found for the Association, enjoined the Commissioners from further violations, assessed $400,000 in civil penalties, and awarded the Association its litigation costs and attorneys fees.
Both the Association and the County appealed the decision to the Fourth Circuit. The Association claimed the plant violated the CWA whenever it discharged heat in any amount and that the lower court should not have considered the ambient temperature of Piney Run. The County claimed the permit shield defense in CWA § 402(k) bars holding a permit holder liable for the discharge of pollutants not expressly regulated by the permit. AMSA and WEF filed an amicus curiae brief to support the County’s permit shield defense, and to ensure that the court understood the historical and national importance of the permit shield to POTW NPDES permits.
Highlights of the Fourth Circuit’s Decision
In order to apply the permit shield to the County’s past discharges of
heat, the Fourth Circuit first examined the scope and reasonableness of the CWA permit
shield using the standard analysis for construing statutory provisions. See Chevron,
U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984) (Chevron). If
the statutory provisions indicate that Congressional intent is clear on the precise
question at issue, no more analysis is necessary because the court is required to give
effect to the unambiguously expressed intent of Congress. However, where a statute is
ambiguous on the question at issue, the court must determine the reasonableness of the
particular Agency’s interpretation. In Piney Run, the Fourth Circuit found
that CWA § 402(k) does not "explicitly explain the scope of permit protection"
and is therefore ambiguous on the extent of the permit shield. See Piney Run at 17.
Following this stage of the analysis, the court, as required under Chevron, looked to the rationale of EPA’s interpretation of § 402(k). As a result of this analysis, the court found that in past cases EPA had advanced a reasonable interpretation of the scope of the NPDES permit and the corresponding shield by establishing that the NPDES permit covers all pollutants disclosed to the permitting authority during the permit application process. EPA had acknowledged in these prior decisions that "it is impossible to identify and rationally limit every chemical or compound present in the discharge of pollutants" and that the "goals of the CWA can be more effectively achieved by focusing on the chief pollutants and wastestreams established in effluent guidelines and disclosed by permittees in their permit applications." Id. These earlier decisions also held that permits should contain water quality based limits "where the permitting authority reasonably anticipates the discharge of pollutants by the permittee at levels that have the reasonable potential to cause or contribute to an excursion above any state water quality criterion." Id.
Taking these precedents into account, the Piney Run court found that "a permit holder is in compliance with the CWA even if it discharges pollutants that are not listed in its permit, as long as it only discharges pollutants that have been adequately disclosed to the permitting authority." See Piney Run at 18. Correspondingly, the permittee violates the permit and the CWA to the extent the permittee discharges a pollutant it did not disclose. The Fourth Circuit outlines the process in this straightforward manner – the permit applicant discloses the nature of its effluent discharges to the permitting authority, the permitting authority analyzes the environmental risk posed by the discharge, and then limits those pollutants that it "reasonably anticipates" could damage the environmental integrity of the affected waterway. The court found that the permit holder may discharge pollutants not expressly mentioned in the permit as long they comply with the CWA’s reporting and disclosure requirements.
The Fourth Circuit noted that the only other limitation on the permit holder’s ability to discharge such pollutants is that the discharges must be reasonably anticipated by, or within the reasonable contemplation of, the permitting authority. Discharges not within the reasonable contemplation of the permitting authority, whether spills or otherwise, do not come within the protection of the permit shield.
The court then addressed the Association’s argument centering on a footnote in the County’s NPDES permit which reads "the discharge of pollutants not shown shall be illegal." The court found this footnote to be ambiguous and refused to read it as prohibiting the discharge of any pollutant in any amounts other than those explicitly listed in the permit. The court noted that "[w]e are not persuaded that MDE either intended or contemplated such consequences when it issued the [County’s] NPDES permit" and explained that the permit addressed much less controversial issues in extensive detail, making it unlikely that an eight-word footnote in a 21 page permit could have such dramatic effect. See Piney Run at 22.
Following this analysis, the court found that the County adequately disclosed the plant’s discharge of heated effluent to the permitting authority both during and after the permit application process. Therefore, the court determined that County was "entitled to the full protection of the permit shield" and "not liable under the CWA." See Piney Run at 23.
For further information, please contact AMSA’s General Counsel Alexandra Dunn at 202/533-1803 or by e-mail at adunn@amsa-cleanwater.org.