Piney Run Preservation Ass'n v. County Commissioners of Carroll County

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

THE PINEY RUN PRESERVATION 
ASSOCIATION,
Plaintiff-Appellant,
v.  No. 07-1348
THE COUNTY COMMISSIONERS OF
CARROLL COUNTY, MARYLAND,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:06-cv-03019)

Argued: January 29, 2008

Decided: April 23, 2008

Before GREGORY and SHEDD, Circuit Judges, and Patrick M.
DUFFY, United States District Judge for the District of South
Carolina, sitting by designation.

Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Judge Gregory and Judge Duffy joined.

COUNSEL

ARGUED: Guerdon Macy Nelson, Towson, Maryland, for Appel-
lant. Linda S. Woolf, GOODELL, DEVRIES, LEECH & DANN,
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Paul N.
2 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS
DeSantis, Towson, Maryland, for Appellant. K. Nichole Nesbitt,
Joseph B. Wolf, GOODELL, DEVRIES, LEECH & DANN, L.L.P.,
Baltimore, Maryland, for Appellee.

OPINION

SHEDD, Circuit Judge:

Piney Run is a small stream with its headwaters near the border of
Carroll and Baltimore counties in Maryland. For the second time, the
Piney Run Preservation Association ("the Association") has filed a
citizen suit under the Clean Water Act ("CWA" or "the Act") alleging
that the County Commissioners of Carroll County ("the County") are
violating the CWA by discharging treated wastewater (i.e., effluent)
from the Hampstead Wastewater Treatment Plant ("the Plant") into
Piney Run. The Association specifically contends that the temperature
of the discharged effluent at times exceeds the thermal limitation set
forth in the County’s National Pollutant Discharge Elimination Sys-
tem ("NPDES") permit.1 On the County’s motion to dismiss pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district
court found that the Maryland Department of the Environment
("MDE") was "diligently prosecuting" a CWA enforcement action
against the County for violating the Permit; consequently, the court
1
The prior CWA litigation between these parties also centered on the
temperature of the Plant’s discharged effluent. In that case, the district
court held that although the County’s permit (as it then existed) did not
contain a thermal limitation, the County was nonetheless liable under the
CWA. Consequently, the court enjoined the County from further CWA
violations and assessed civil penalties of $400,000 against it. We vacated
the judgment on appeal, concluding (inter alia) that the County did not
violate the CWA because it "complied with the discharge limitations and
reporting requirements of [its] permit" and its effluent discharges "were
within the reasonable contemplation of the permitting authority at the
time the permit was issued." Piney Run Pres. Ass’n v. Cty. Comm’rs of
Carroll Cty., Md., 268 F.3d 255, 259 (4th Cir. 2001), cert. denied, 535
U.S. 1077 (2002). As we explain below, the County’s permit has been
modified since that time to include a thermal limitation for the Plant’s
discharged effluent.
 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS 3
held that the Association was barred by 33 U.S.C. § 1365(b)(1)(B)
from maintaining this suit.2 The Association now appeals the order of
dismissal, arguing that the district court erred in its "diligent prosecu-
tion" determination. We affirm.

I

Congress enacted the CWA "to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters." 33 U.S.C.
§ 1251. "To serve those ends, the Act prohibits ‘the discharge of any
pollutant by any person’ unless done in compliance with some provi-
sion of the Act." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of
Indians, 541 U.S. 95, 102 (2004) (quoting 33 U.S.C. § 1311(a)). One
such provision, codified at 33 U.S.C. § 1342, "established a National
Pollution Discharge Elimination System . . . that is designed to pre-
vent harmful discharges into the Nation’s waters." Nat’l Ass’n of
Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2525
(2007). "Generally speaking, the NPDES requires dischargers to
obtain permits that place limits on the type and quantity of pollutants
that can be released into the Nation’s waters." Miccosukee Tribe, 541
U.S. at 102. An NPDES permit "defines, and facilitates compliance
with, and enforcement of, a preponderance of a discharger’s obliga-
tions under the [Act]." EPA v. California ex rel. State Water Res.
Control Bd., 426 U.S. 200, 205 (1976). "The Environmental Protec-
tion Agency (EPA) initially administers the NPDES permitting sys-
tem for each State, but a State may apply for a transfer of permitting
authority to state officials. If authority is transferred, then state offi-
cials . . . have the primary responsibility for reviewing and approving
NPDES discharge permits, albeit with continuing EPA oversight."
Nat’l Ass’n of Home Builders, 127 S. Ct. at 2525 (citations omitted).
The State of Maryland is authorized to administer the NPDES pro-
gram and does so through MDE. See Piney Run Pres. Ass’n, 268 F.3d
at 265.
2
Section 1365(b)(1)(B) provides that a citizen suit may not be main-
tained 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."
4 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS
"Although the primary responsibility for enforcement rests with the
state and federal governments, private citizens provide a second level
of enforcement and can serve as a check to ensure the state and fed-
eral governments are diligent in prosecuting Clean Water Act viola-
tions." Sierra Club v. Hamilton Cty. Bd. of Cty. Comm’rs, 504 F.3d
634, 637 (6th Cir. 2007). Specifically, § 505(a) of the CWA, 33
U.S.C. § 1365(a), authorizes citizens "to bring suit against any
NPDES permit holder who has allegedly violated its permit." Friends
of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149,
152 (4th Cir. 2000) (en banc). We have recognized that this citizen
suit provision is "critical" to the enforcement of the CWA, see id., as
it allows citizens "to abate pollution when the government cannot or
will not command compliance," Gwaltney of Smithfield, Ltd. v. Ches-
apeake Bay Found., Inc., 484 U.S. 49, 62 (1987). However, citizen
suits are meant "to supplement rather than to supplant governmental
action," id. at 60, and the CWA — specifically § 1365(b)(1)(B) —
"bars a citizen from suing if the EPA or the State has already com-
menced, and is ‘diligently prosecuting,’ an enforcement action,"
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 175 (2000). This "statutory bar is an exception to the juris-
diction granted in subsection (a) of § 1365, and jurisdiction is nor-
mally determined as of the time of the filing of a complaint."
Chesapeake Bay Found. v. American Recovery Co., 769 F.2d 207,
208 (4th Cir. 1985).

II

As we explained in the prior CWA litigation between these parties,
MDE has classified Piney Run as a Class III-P stream, meaning that
it is protected as a source of public drinking water and as a body capa-
ble of supporting a self-sustaining trout population. The Plant is sub-
ject to the CWA and since 1975 has operated under a series of
NPDES permits granted by MDE, the most recent one having been
issued in 1990. That permit contains express limitations on the
amount of certain pollutants that the Plant can discharge, but heat —
which is a statutory pollutant — was not originally listed in it. See
Piney Run Pres. Ass’n, 268 F.3d at 260-61.

In March 2000, as part of ongoing administrative litigation involv-
ing the Plant, MDE modified the County’s permit to include a thermal
 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS 5
limitation for the Plant’s discharged effluent and procedures for mea-
suring ambient conditions in Piney Run. The thermal limitation pro-
vides that the effluent cannot exceed the higher of 20°C or the
ambient temperature of the stream. Following contested proceedings
before an administrative law judge, the modified permit became
effective in early 2004. Several months later, the County applied to
MDE for an alternate effluent level ("AEL") — i.e., a less stringent
temperature restriction — and submitted a Study Plan for Alternate
Effluent Limitation for MDE’s review.3 During the pendency of this
application, the County has provided MDE with supplemental reports
and appears to have cooperated with MDE. MDE has not yet made
a final determination on this application.

Apart from its AEL application, the County petitioned the state cir-
cuit court for review of MDE’s decision to modify the 1990 permit.
The County also moved to stay enforcement of the modified permit
pending the outcome of the petition for review. In turn, MDE filed a
complaint seeking injunctive relief and civil penalties against the
County for, inter alia, violating the thermal limitation in the modified
permit ("the MDE enforcement action"). Eventually, the circuit court
denied the County’s petition for judicial review, but it stayed enforce-
ment of the modified permit until a final decision was rendered on the
County’s petition for review or November 20, 2005, whichever came
first. In light of the circuit court’s stay of enforcement of the modified
permit and the County’s appeal of the denial of its petition for review,
MDE and the County jointly moved the circuit court to stay the MDE
enforcement action until the stay of the modified permit was lifted.
The circuit court granted the joint motion and stayed the MDE
enforcement action. On November 20, 2005, the stay of enforcement
3
The applicable regulation provides:
Thermal discharge effluent limitations or standards established
in permits may be less stringent than those required by applica-
ble standards and limitations if the discharger demonstrates to
the satisfaction of the Department that the effluent limitations or
standards are more stringent than necessary to assure the protec-
tion and propagation of a balanced, indigenous community of
shellfish, fish, and wildlife in and on the body of water into
which the discharge is made.
Md. Code Regs. 26.08.03.03E(1).
6 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS
of the modified permit expired, and that permit again became effec-
tive. Subsequently, MDE’s final decision modifying the permit was
judicially affirmed.4

In July 2006, MDE and the County entered into a Consent Judg-
ment in the MDE enforcement action reflecting their "agreement as
to appropriate long-term and interim measures to insure compliance
with the Permit." J.A. 373. The circuit court entered the Consent
Judgment on July 25, 2006, and its terms became the order of the cir-
cuit court. See Long v. State of Md., 807 A.2d 1, 7 (Md. 2002) (noting
that consent judgments have the same force and effect as other judg-
ments).

The Consent Judgment initially mandates that upon its effective
date, the County "shall achieve compliance with the thermal effluent
limitations" set forth in the modified permit. J.A. 374. It also provides
that in settlement of all violations of the thermal limitation that
occurred between November 20, 2005, and July 25, 2006, the County
would pay a civil penalty of $500 for each day that a violation
occurred. Pursuant to this provision, the County paid penalties in the
amount of $13,500.
4
The primary point of contention concerning the appropriate thermal
limitation centers on the effect of the discharged effluent on the Piney
Run trout population, and the parties dispute that effect. According to the
County, the Plant’s purification process does not involve heating the
effluent; rather, it consists of biological and ultraviolet light treatment.
Nonetheless, at times the ambient temperature of outdoor air and sunlight
exposure can affect both the temperature of the stream and of the effluent
before it is discharged. When this occurs, the daytime temperature of the
stream often exceeds the effluent; however, at night, the stream cools
faster than the stored effluent, causing the effluent to exceed the ambient
temperature of the stream. Interestingly, in affirming the administrative
decision to modify the permit, the Maryland Court of Special Appeals
noted that the administrative law judge found "that there was no evidence
the Plant’s discharge had any adverse effect on aquatic life that naturally
occurring conditions would not have" and that he also indicated that "the
discharge may even have a positive effect on the trout population." Cty.
Comm’rs of Carroll Cty. v. Rowland, No. 2338, at 30 (Md. Ct. Spec.
App. 2006) (J.A. 415).
 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS 7
Prospectively, the Consent Judgment also imposes stipulated civil
penalties of $500 for each day that the County fails to: (1) comply
with the thermal limitation of the modified permit; (2) meet any
requirement or complete any required work, plan, or report; or (3)
adhere to any required milestone date or schedule. In recognition of
the County’s AEL request and implementation of an AEL study, the
Consent Judgment provides that the stipulated penalties automatically
begin to accrue on the day after performance by the County is due or
the day a violation occurs, whichever is applicable, and will continue
to accrue until the County satisfactorily completes performance or the
violation ceases. If MDE approves an AEL and that approval is there-
after challenged, then stipulated penalties will continue to accrue;
however, if a final judgment is entered approving an AEL, then stipu-
lated penalties for events that do not exceed the AEL will not be
assessed by MDE. Conversely, if an AEL is ultimately disapproved,
then stipulated penalties from November 20, 2005, to the date of the
final AEL judgment will become due and payable within 30 days
from the final judgment date. Additionally, upon final disapproval of
an AEL, the County will be required to submit to MDE a plan identi-
fying the measures needed to comply with the thermal limit of the
modified permit, and the County will thereafter have 270 days to
implement those measures.5 During that 300-day period, stipulated
penalties will continue to accrue for violations of the thermal limita-
tion.

The Consent Judgment also requires the County to implement a
multi-phase Environmental Project ("EP") to "mitigate any water tem-
perature increases caused by storm water runoff or modifications to
stream buffers in the Piney Run watershed," J.A. 376, and it imposes
on the County various obligations and deadlines associated with the
EP. According to MDE, "implementation of the EP may result in
reduced temperature impacts and related environmental benefits to the
Piney Run watershed." J.A. 268.
5
In the event that an AEL is disapproved, it appears that the County’s
planned means of compliance with the thermal limitation is the installa-
tion of mechanical chillers that will cool the effluent before its discharge.
The County has been reluctant to utilize chillers based on its concerns
that the chillers will impact the area’s air and water quality and will
cause noise pollution.
8 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS
In late August 2006, the Association’s counsel notified the County
and MDE by letter of its intent to file a citizen suit to seek enforce-
ment of the thermal limitation in the modified permit. The Associa-
tion thereafter filed this lawsuit in November 2006. The County
responded by moving under Rule 12(b)(1) for dismissal, arguing that
the Association is barred from maintaining a citizen suit because the
MDE enforcement action constitutes diligent prosecution within the
meaning of § 1365(b)(1)(B). The district court granted the motion and
dismissed the case, finding "that the consent judgment (even though
it does not mandate installation of the chillers that are plaintiff’s pre-
ferred remedy) and its implementation comfortably come within the
relevant standards of ‘diligent prosecution.’" J.A. 765.

III

We review de novo a dismissal under Rule 12(b)(1). Suter v.
United States, 441 F.3d 306, 310 (4th Cir.), cert. denied, 127 S. Ct.
273 (2006).6 The Association, as plaintiff, bears the burden of proving
that subject-matter jurisdiction exists. Evans v. B.F. Perkins Co., 166
F.3d 642, 647 (4th Cir. 1999). For purposes of this case, this means
that the Association bears the burden of proving that MDE has not
diligently prosecuted the County’s violations of the thermal limitation
set forth in the modified permit. A CWA enforcement prosecution
will ordinarily be considered "diligent" if the judicial action "is capa-
ble of requiring compliance with the Act and is in good faith calcu-
lated to do so," and as the Association acknowledges in its opening
brief, diligence is presumed. See Friends of Milwaukee’s Rivers v.
Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 760 (7th Cir. 2004),
cert. denied, 544 U.S. 913 (2005); see also Karr v. Hefner, 475 F.3d
1192, 1198 (10th Cir. 2007) ("Citizen-plaintiffs must meet a high
standard to demonstrate that [a government agency] has failed to
prosecute a violation diligently."). This presumption "is due not only
to the intended role of the [government] as the primary enforcer of the
[CWA], but also to the fact that courts are not in the business of
designing, constructing or maintaining sewage treatment systems."
Friends of Milwaukee’s Rivers, 382 F.3d at 760 (citation omitted).
6
When presented with a Rule 12(b)(1) motion, district courts are per-
mitted to consider materials outside the pleadings, Suter, 441 F.3d at 309
n.2, and the parties presented such materials in this case.
 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS 9
"Section 1365(b)(1)(B) does not require government prosecution to
be far-reaching or zealous. It requires only diligence." Karr, 475 F.3d
at 1197. Thus, a citizen-plaintiff cannot overcome the presumption of
diligence merely by showing that the agency’s prosecution strategy is
less aggressive than he would like or that it did not produce a com-
pletely satisfactory result. Id. Moreover, the fact that an agency has
entered into a consent decree with a violator that establishes a pro-
spective schedule of compliance does not necessarily establish lack of
diligence. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 318
(1982) (noting that "enforcement actions typically result, by consent
or otherwise, in a remedial order setting out a detailed schedule of
compliance designed to cure the identified violation of the Act"
(internal quotation marks omitted)). Indeed, when presented with a
consent decree we must be particularly deferential to the agency’s
expertise, and we "should not interpret § 1365 in a manner that would
undermine the [government’s] ability to reach voluntary settlements
with defendants." Karr, 475 F.3d at 1198. As the Supreme Court has
recognized: "If citizens could file suit . . . in order to seek the civil
penalties that the Administrator chose to forgo, then the Administra-
tor’s discretion to enforce the Act in the public interest would be cur-
tailed considerably." Gwaltney, 484 U.S. at 61.

The Association argues generally that the district court erred in
concluding that MDE has diligently prosecuted the County’s CWA
violations "because the Consent Judgment . . . provided a benefit to
[the] County and failed to ensure that violations would not continue."
Brief of Appellant, at 18-19. As we have noted, a CWA enforcement
action will be considered diligent where it is capable of requiring
compliance with the Act and is in good faith calculated to do so.
Based on the record before us, we hold that the Association has failed
to meet its high burden of establishing that the MDE enforcement
action does not satisfy this standard.

In reaching this conclusion, we initially note that it cannot seri-
ously be said that the MDE enforcement action is incapable of requir-
ing compliance with the Act. Indeed, the evidence establishes the
contrary. MDE modified the County’s permit in 2000 to include the
thermal limitation, and the modified permit only became effective in
2004 at the conclusion of contested administrative proceedings.
Before then, the County’s discharge of effluent did not violate the
10 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS
terms of its NPDES permit. See Piney Run Pres. Ass’n, 268 F.3d at
259. Within several months of the effective date of the modified per-
mit, MDE filed the enforcement action seeking, inter alia, injunctive
relief requiring the County "to take all steps necessary to comply with
all terms and conditions of its NPDES permit, including but not lim-
ited to the limitation on temperature." J.A. 325. Although the MDE
enforcement action was stayed pending resolution of the County’s
petition for review of MDE’s decision to modify the permit, it culmi-
nated in the Consent Judgment. Under the terms of the Consent Judg-
ment, the County is required to comply with the thermal limitation of
the modified permit and is subject to monetary penalties for failing to
do so. In light of these facts, the MDE enforcement action surely is
capable of requiring the County to comply with the Act.

The real question raised by the Association is whether the MDE
enforcement action, and specifically the Consent Judgment, is in good
faith calculated to require the County’s compliance with the Act.7 In
challenging the motivation underlying the MDE enforcement action,
the Association points to, inter alia, an alleged request by the County
for MDE to file the enforcement action, the fact that the daily fine
established in the Consent Judgment is lower than the fine imposed
in the prior CWA litigation, and the fact that the Consent Judgment
does not establish a final deadline for compliance. In our view, these
matters simply do not establish a lack of diligence on MDE’s part.

Even assuming that the County requested MDE to pursue the
enforcement action, "there is no incompatibility whatever between a
defendant’s facilitation of suit and the State’s diligent prosecution —
as prosecutions of felons who confess their crimes and turn them-
selves in regularly demonstrate." Laidlaw Envtl. Servs., 528 U.S. at
211 n.4 (Scalia, J., dissenting).8 Moreover, to the extent that the now-
7
The Association argues that the presumption of diligence arising from
an agency enforcement action can be rebutted "upon a showing that the
agency has engaged in a pattern of conduct in its prosecution that could
be considered dilatory, collusive or otherwise in bad faith." Brief of
Appellant, at 21-22 (internal quotation marks omitted).
8
Although Justice Scalia’s dissenting opinion discussed the merits of
the diligent prosecution question, the Laidlaw majority did not decide the
 PINEY RUN PRESERVATION v. COUNTY COMMISSIONERS 11
vacated prior fine is relevant, MDE’s agreement to accept a lower
daily fine in the Consent Judgment appears to be nothing more than
a concession on the part of MDE in exchange for other obligations
(e.g., the EP) that are imposed on the County. As we have noted, this
is precisely the type of discretionary matter to which we should defer.
Finally, the Association’s complaint about the absence of a final com-
pliance deadline in the Consent Judgment is unavailing for at least
two reasons. First, the Consent Judgment requires the County’s
immediate compliance with the thermal limitation and imposes a
daily fine for its violations. Second, the open-ended nature of the
Consent Judgment reflects the fact that the County is lawfully seeking
an AEL through the state administrative process. Depending on the
outcome of that process, the County’s obligations under the Consent
Judgment may change significantly and may include not only pay-
ment of any accrued fines but installation of the mechanical chillers.
Without legitimate evidence that MDE had no intention of acting
responsibly on the County’s AEL application, we have no basis to
impute an improper motive to MDE in this regard.

IV

Based on the foregoing, we affirm the district court’s order of dis-
missal.

AFFIRMED

issue. Notably, however, the allegation that Laidlaw played a role in
facilitating the enforcement action involved more than a mere request
that the agency file suit; instead, as the majority noted, the district court
found that "Laidlaw drafted the state-court complaint and settlement
agreement, filed the lawsuit against itself, and paid the filing fee." 528
U.S. at 178 n.1 (internal quotation marks omitted).