ELR Citation: ELR 20208
No(s). 00-1283, -1322 (4th Cir. Oct 10, 2001)

The court reverses a district court decision that even though a county waste treatment plant's national pollutant discharge elimination system (NPDES) permit did not prohibit the discharge of heat, the plant violated the Clean Water Act (CWA) when it discharged warm water to a stream since the NPDES permit did not expressly authorize such a discharge. The permit shield defense to an alleged CWA discharge violation applies as long as the NPDES permit holder complies with the express terms of the permit, complies with the CWA's disclosure requirements, and 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. The court first holds that here, the language of the plant's permit does not bar the discharge of heat. Although a footnote to the plant's permit states that "discharge of pollutants not shown shall be illegal," the footnote is ambiguous considering that it can be read to mean either that it is illegalto discharge pollutants not listed or that it prohibits only those pollutants that were not disclosed to the state environmental agency during the permitting process. The court next holds that given this ambiguity, extrinsic evidence must be evaluated, and this evidence reveals that during the NPDES permit issuance, it was contemplated that the plant would discharge pollutants other than those listed. The court further holds that the plant adequately disclosed the plant's discharge of heated water to the state environmental agency and the plant's discharges were reasonably anticipated by the state agency. Therefore, the judgment of the district court is vacated.

Prior decisions in this litigation are published at 29 ELR 21424 and 30 ELR 20350.]

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

King, J. Before Wilkins and Gregory, JJ.