ELR Citation: ELR 20350
No(s). CIV. Y-98-3124 (D. Md. Feb 10, 2000)

The court holds that a county-run sewage treatment plant is liable under the Clean Water Act (CWA) for discharging effluent into a stream in violation of state water quality standards for heat. The court first holds that the citizen group that sought to enforce the state water quality standards has standing. The testimony of two landowners whose property is crossed by the stream, as well as the testimony of three landowners whose properties run along or are near the stream, demonstrate that the group's members have suffered a particularized injury traceable to the CWA violations involved in this case. The court also refuses to strike the testimony of the group's expert witness. The expert's testimony relating to the effects of water temperatures below, rather than above, the state standard is relevant to the plant's discharges. Moreover, while the expert's testimony on damage to trout is not conclusive, the testimony is supported by facts in the record and, therefore, is admissible.

The court next holds the plant liable for 290 CWA violations. In addition to the 183 violations previously identified at summary judgment, the undisputed temperature data for the period between July 1, 1999, and November 4, 1999, indicate that the temperature of the plant's effluent violated the standard on 107 additional days. The court, however, refuses to impose a penalty for each instance that the plant's effluent exceeded the heat standard on the same day because only one-parameter-heat was violated on any given day. The court then imposes a $400,000 civil penalty against the plant. Although the economic benefit the county gained by delaying the plant's compliance with the Act totaled $1.2 million, the court adjusted this penalty downward, taking into account the county's municipality status, its removal of a concrete channel on the stream, and its prior understanding of the permit shield doctrine. Last, the court holds that injunctive relief is appropriate and enjoins the plant from future violations of the heat standard.

[A previous decision in this litigation is published at 29 ELR 21424.]

Counsel for Plaintiff
G. Macy Nelson
Law Offices of G. Macy Nelson
401 Washington Ave., Ste. 803, Towson MD 21204
(410) 296-8166

Counsel for Defendant
Linda S. Woolf
Goodell, DeVries, Leech & Gray
One South St., Ste. 2000, Baltimore MD 21202
(410) 783-4000