Sheryl | 
04 26th, 2008| 
Case & Cite Info
Date of Opinion: April 23, 2008
Court: 4th Circuit
Case Number: 07-1348
Published: Yes
Link: Piney Run Preservation Association v. County Commissioners of Carroll County MD (PDF file)
Facts of Case
Piney Run Stream in Maryland is allegedly being polluted by discharge of effluent (treated wastewater) by Carroll County in violation of the terms of the County’s NPDES permit. The National Pollutant Discharge Elimination System helps monitor compliance with the Clean Water Act by a system of permitting that allows for strict limitations on activities that impact the nation’s waters.
The Preservation Association (hereafter PA, or appellant) brought suit for the second time against the County under the Clean Water Act, alleging the violation of thermal limitations in the permit. The District Court dismissed the suit, finding that the Maryland Department of the Environment was “diligently pursuing” its own CWA suit against the County on these grounds, thus bringing the PA’s suit within the ambit of 33 USC §1365(b)(1)(B) which “provides that a citizen suit may not be maintained if the government enforcement agency “has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.”
Issue
The issue is whether the MDE actions in the matter constituted diligence within the meaning ascribed to the term in §1365(b)(1)(B).
Holding
The Fourth Circuit affirms the dismissal, holding that the MDE actions in regard to the County’s permit constitute diligent enforcement and thus the PA isn’t entitled to maintain its own suit.
Discussion
The NPDES system allows for the placement of limitations and restrictions on discharges such as the one in question in this case and monitoring/enforcement by appropriate state or federal agencies. MDE is the enforcement agency in Maryland; although citizens are also permitted to bring suit, the regulatory system put in place at the federal level encourages and favors enforcement by federal and local agencies over citizen suits. This is the legislative purpose underpinning §1365(b)(1)(B).
As a result, the court finds it necessary to review a somewhat convoluted history of regulatory action and litigation between MDE and the county relevant to this NPDES permit. Those facts are briefly summarized below.
History of the Proceedings Between MDE and Carroll County
The County’s NPDES permit goes back to 1975, in various iterations, the most recent being granted in 1990. MDE decided to modify the permit in 2000, to heighten restrictions and include a thermal limitation on the County’s effluent.
The County sought judicial review of this decision and moved to stay enforcement of the modified permit pending the outcome. In response, MDE filed a complaint seeking an injunction and civil penalties for, among other things, a violation of the thermal restriction.
The petition for review was denied, but the court did agree to stay enforcement until a final decision was rendered, or until November 20, 2005, whichever first occurred. On November 20, 2005, the stay expired, and the permit was again in effect. Thereafter, the final decision on modification was affirmed by judicial decision
The Consent Order
A consent order was entered into by the County and MDE in 2006. It is this order that PA, the appellant, complained of in its suit, alleging that the order did not constitute “diligent enforcement” under the meaning ascribed to that term in §1365(b)(1)(B).
The consent order, entered by the district court into the record and thus transformed into a judgment, calls for future achievement of compliance with the termal limitations, and a civil penalty of $500 for each day that a violation occurred. The Judgment also provides stipulated civil penalties in the event the County does not comply with the thermal limitation, meet any requirement or complete any required work, or adhere to any specified milestone date or schedule.
The PA’s Involvement
A few months after the Consent Judgment was finalized, the PA’s legal counsel notified the County and MDE of the Association’s intent to seek enforcement of the thermal restriction via a citizen suit. The present case was filed in November 2006.
Application of the Law to This Case
The plaintiff alleged that the MDE enforcement action was not diligent because it resulted in a benefit to the County, as the alleged violator, and “failed to ensure that violations would not continue” (from PA’s brief). The Fourth Circuit points out that the standard for diligence is “capable of requiring compliance and calculated in good faith to do so.
Further, “diligence is presumed,” which makes for a high standard for citizens wishing to bring suit in these circumstances. A prospective enforcement order entered into by the consent of both parties (the state agency and the alleged violator) will not per se be deemed a lack of diligence.
As the Supreme Court pointed out in the Gwaltney case: “If citizens could file suit . . . in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator’s discretion to enforce the Act in the public interest would be curtailed considerably.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987)
