Hughey v. JMS Development Corp.

United States Court of Appeals,
Eleventh Circuit.
Nos. 94-8402, 94-8855.
Terence D. HUGHEY, Plaintiff-Appellee,
v.
JMS DEVELOPMENT CORPORATION, Defendant-Appellant.
Terrence D. HUGHEY, Plaintiff-Appellee, Cross-Appellant,
v.
JMS DEVELOPMENT CORPORATION, Defendant-Appellant, Cross-Appellee.
April 1, 1996.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:92-CV-2051-RHH), Robert H. Hall, Judge.
Before ANDERSON and CARNES, Circuit Judges, and OWENS*, District
Judge.
OWENS, District Judge:
I. INTRODUCTION
Appellant JMS Development Corporation ("JMS") is the developer
of a 19.2-acre residential subdivision in Gwinnett County, Georgia.
Appellee Terence D. Hughey ("Hughey") is a Gwinnett County
homeowner admittedly opposed to all development in Gwinnett County,
one of metropolitan Atlanta's fastest growing areas. Hughey's
first effort to prevent development of JMS's residential
subdivision was an unsuccessful suit in state court filed during
the course of construction. After the subdivision had been
completed, Hughey sued JMS in United States District Court alleging
that JMS's completed subdivision was continuing to violate the
*
Honorable Wilbur D. Owens, Jr., U.S. District Judge for the
Middle District of Georgia, sitting by designation.
Clean Water Act by allowing storm (rain) water runoff without
possessing a National Pollutant Discharge Elimination System
("NPDES") permit setting forth the conditions under which storm
(rain) water could be discharged.
The undisputed evidence showed that JMS submitted its
subdivision plans and specifications to Gwinnett County for
approval and on March 31, 1992, obtained a county permit to begin
construction. The undisputed evidence further showed that a Clean
Water Act NPDES permit was not then available in the State of
Georgia from the only agency authorized to issue such
permits—Georgia's Environmental Protection Division. The district
court nevertheless found that the Clean Water Act absolutely
prohibited the discharge of any storm (rain) water from JMS's
completed subdivision in the absence of an NPDES permit. Relying
on this finding and rejecting the uncontroverted testimony that
some storm (rain) water discharge beyond the control of JMS would
naturally occur whenever it rained, the district court issued
permanent injunctive relief pursuant to Federal Rule of Civil
Procedure 65(d). The injunction ordered that JMS "not discharge
stormwater into the waters of the United States from its
development property in Gwinnett County, Georgia, known as
Rivercliff Place if such discharge would be in violation of the
Clean Water Act."
The district court also fined JMS $8,500 for continuing
violations of the Clean Water Act and awarded Hughey more than
$115,000 in attorney fees and costs under 33 U.S.C. § 1365(d).
From those orders and judgment of the district court, JMS appeals.
II. BACKGROUND
A. The Clean Water Act
In 1972 Congress passed the Clean Water Act ("CWA")
amendments, 33 U.S.C. §§ 1251-1387, to remedy the federal water
pollution control program which had "been inadequate in every vital
aspect" since its inception in 1948. EPA v. State Water Res.
Control Bd., 426 U.S. 200, 203, 96 S. Ct. 2022, 2024, 48 L. Ed. 2d 578
(1976). The amended CWA absolutely prohibits the discharge of any
pollutant by any person, unless the discharge is made according to
the terms of a National Pollutant Discharge Elimination System
("NPDES") permit. 33 U.S.C. § 1311(a). This "zero discharge"
standard presupposes the availability of an NPDES permit, allowing
for the discharge of pollutants under the conditions set forth in
the permit. Id. § 1342(a)(1). NPDES permits are usually available
from the Environmental Protection Agency ("EPA"); however, 33
U.S.C. § 1342(c)(1) suspends the availability of federal NPDES
permits once a state permitting program has been submitted and
approved by the EPA. Thus, if a state administers its own NPDES
permitting program under the auspices of the EPA, applicants must
seek an NPDES permit from the state agency. See 33 U.S.C. §
1342(c)(1); Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49,
108 S. Ct. 376, 98 L. Ed. 2d 306 (1987).
On June 28, 1974, the State of Georgia was authorized by EPA
to administer an NPDES program within its borders. The Georgia
agency responsible for administration of that program is the
Environmental Protection Division ("EPD") of the Georgia Department
of Natural Resources. EPA-issued NPDES permits are thus not
available in Georgia.
Even though the absolute prohibition in Section 1311(a)
applied to storm water discharges, for many years the discharge of
storm (rain) water was a problem that the EPA did not want to
address.1 The EPA complained that administrative concerns
precluded a literal application of the CWA's absolute
prohibition—if the CWA applied to storm (rain) water discharges,
the EPA would be required to issue potentially millions of NPDES
permits. Years of litigation ensued when the EPA promulgated NPDES
permit regulations exempting uncontaminated storm water discharges
from the CWA. See, e.g., Costle, supra note 1.
The congressional response to this baffling situation was the
Water Quality Act, Pub.L. No. 100-4, 101 Stat. 7 (1987) (codified
as amended in scattered sections of Title 33 U.S.C.), which amended
the CWA to provide specifically that "storm water" discharges were
within the CWA's proscription. See 33 U.S.C. § 1342(p). Because
of the administrative nightmare presented by the inclusion of storm
(rain) water discharges, Congress chose a phased-in approach. "The
purpose of this approach was to allow EPA and the states to focus
their attention on the most serious problems first." NRDC v. EPA,
966 F.2d 1292, 1296 (9th Cir.1992).
The phased-in approach established a moratorium until October
1
Under the CWA, the term "pollutant" is inclusive of "rock,
sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water." Id. § 1362(6). When rain water
flows from a site where land disturbing activities have been
conducted, such as grading and clearing, it falls within this
description. See, e.g., Natural Resources Defense Council, Inc.
v. Costle, 568 F.2d 1369, 1377 (D.C.Cir.1977); 40 C.F.R. § 122.2
(defining pollutant).
1, 1992, on requiring permits for most storm water discharges.
Id.; Water Quality Act, § 402(p), 33 U.S.C. § 1342(p). However,
"discharge[s] associated with industrial activity"2 were excepted
from this moratorium. Water Quality Act, § 402(p)(2)(B), 33 U.S.C.
§ 1342(p)(2)(B). Section 402(p)(2)(B) required the EPA no later
than February 4, 1989, to establish regulations setting forth
permit application requirements for industrial storm water
discharges. Those seeking such permits were to file an application
no later than February 4, 1990, and permit applications were to be
rejected or accepted by February 4, 1991. Id.
EPA failed to meet the statutory timetable, so it extended the
deadline for submitting a permit application until October 1, 1992.
The Natural Resources Defense Council ("NRDC") sued the EPA for
granting this extension. The Ninth Circuit Court of Appeals
granted NRDC's request for declaratory relief, but denied
injunctive relief, stating the "EPA will duly perform its statutory
duties." NRDC v. EPA, 966 F.2d at 1300. On September 3, 1992, the
EPA confirmed the Ninth Circuit's faith by issuing its final
general permits for storm water discharges associated with
industrial activity; applicants were to submit their request for
2
Under EPA guidelines, "storm water discharge associated
with industrial activity" is inclusive of construction activity,
which is in turn defined as "clearing, grading and excavation
activities except: operations that result in the disturbance of
less than five acres of total land area which are not part of a
larger common plan of development or sale." 40 C.F.R. §
122.26(b)(14)(x). This regulation, to the extent it sought to
exempt from the definition of "industrial activity" construction
sites of less than five acres, was invalidated on the grounds
that it was arbitrary and capricious. NRDC v. EPA, 966 F.2d
1292, 1305-06 (9th Cir.1992). Even so, the regulation still
provides that industrial activity is inclusive of construction.
a permit by no later than October 1, 1992.
Since a state agency's action in advance of that taken by the
EPA might be disapproved as inconsistent with the EPA's eventual
position, Georgia EPD has always followed the EPA's lead in the
promulgation of NPDES permits. See generally Georgia EPD's Amicus
Brief, at 5. Consistent with this approach, Georgia EPD began the
public notice portion of the storm (rain) water discharge permit
promulgation process only after the EPA had acted. On September
23, 1992, less than one month after the EPA had issued its general
permits, Georgia EPD issued public notice of its intent to issue
two general permits, one of which would cover storm water
discharges from construction activities involving land-disturbing
activities of five acres or more. An affidavit from the section
chief of Georgia EPD's Water Protection Branch summarized the state
of the law in Georgia up to that time: "[N]o NPDES program for
issuing NPDES permits has been in place [in Georgia] for storm
water runoff from construction activities."
B. The JMS Residential Subdivision
In early 1992—when NPDES permits covering storm (rain) water
were not available in Georgia—JMS planned to develop its 19.2-acre
residential subdivision and for that purpose submitted its plans
and specifications to Gwinnett County. In developing these plans
and specifications, JMS hired a firm of consulting engineers, who
were to supervise the design and control of sedimentation control
measures and help ensure that JMS remained in compliance with
relevant pollution control requirements.
On March 31, 1992, JMS received a permit from Gwinnett County
3
authorizing it to conduct land-disturbing activities. In
accordance with requests from state and county officials, JMS spent
more than $30,000 installing state of the art sedimentation control
devices, including silt fences, check dams, vegetation, sloping,
and a sedimentation retention basin. The erosion and sedimentation
control measures met or exceeded Gwinnett County's requirements.
Prior to beginning construction, JMS had done everything
possible to comply with the legal requirements of building a small
residential subdivision. On the county level, County Inspector
George Michael Fritcher deposed that JMS was in compliance; at the
state level, David Word, Chief of EPD's Water Protection Branch,
stated that EPD would not (could not) have done anything with
respect to an NPDES permit for storm water discharges even if JMS
had applied for one prior to beginning the development; and at the
federal level resort to the EPA was foreclosed to JMS because, as
noted, Georgia's NPDES program exists in lieu of the federal NPDES
program.
With Gwinnett County's blessing, JMS began to clear, grade,
and grub the property for the construction of streets, gutters, and
storm sewers. JMS channelled its discharge of rain water as
dictated by the county permit requirements. The discharges that
3
According to David Tucker, Development Review Manager for
Gwinnett County, this permit served as "authorization for
land-disturbing activity as required by the Development
Regulations of Gwinnett County[, which] has the authority to
administer [Georgia's] Soil Erosion and Sedimentation Control Act
of 1975 in Gwinnett County. As part of this permitting
procedure, JMS Development Corporation submitted a soil erosion
and sedimentation control plan which was approved by the Gwinnett
County Planning and Development." See also Billew Affidavit;
Ballard Affidavit (exh. A).
occurred, as noted by the district court, were minimal and posed
"no threat to human health." Further, much of the damage caused by
the discharges would have been "reversed with the passage of a
relatively short amount of time." Within this 19.2-acre
subdivision, approximately 4.64 acres were disturbed by actual
construction of storm sewers, curb, guttering, and streets.
Once all subdivision construction had been completed and the
storm sewers, curbing, guttering, and streets had been dedicated or
conveyed to Gwinnett County, a plat of the completed subdivision
showing approval by Gwinnett County's various agencies was recorded
in the land records of Gwinnett County on August 6, 1992. JMS was
from this point forward engaged in no further construction or land
disturbing activities.
C. Hughey's Clean Water Act Civil Action
On August 28, 1992, Hughey sued JMS under the citizen's suit
provision of the Clean Water Act, 33 U.S.C. § 1365,4 alleging that
JMS had violated the CWA by discharging storm (rain) water from a
"point source" on its property into "the waters of the United
States" without an NPDES permit. See 33 U.S.C. §§ 1311, 1342.
Hughey alleged that JMS's discharges of storm (rain) water were in
association with industrial activity. See 40 C.F.R. §
122.26(b)(14)(x) (industrial activity includes construction, which
4
Section 1365(a) authorizes any citizen to "commence a civil
action on his own behalf—(1) against any person ... who is
alleged to be in violation of (A) an effluent standard or
limitation under this chapter...." The section further provides
that "effluent standard or limitation" is inclusive of "an
unlawful act under subsection (a) of section 1311 of this title."
Section 1311(a) makes it unlawful to discharge any pollutant
without an NPDES permit.
in turn encompasses clearing, grading, and grubbing). Because
JMS's construction activities were considered "industrial" by EPA
regulations, Hughey contended that JMS was required to have an
NPDES permit. See Water Quality Act, Section 402(p)(2)(B)
(establishing permit deadline for discharges associated with
industrial activities). To the extent JMS had discharged without
a permit, Hughey argued that JMS was subject to the "zero
discharge" standard imposed by Section 1311(a). Hughey's complaint
sought a declaratory judgment that JMS was liable under the CWA, as
well as injunctive relief against JMS in several forms.
Contemporaneously with his complaint Hughey filed a motion for a
temporary restraining order ("TRO"), which the court granted after
hearing from both sides on August 31, 1992.
Hughey's factual allegations were that JMS's activities caused
5
two watercourses to become muddied during rainfall events. The
first of these watercourses is a small stream6 that originates on
JMS's property and traverses neighboring land for close to nine
hundred (900) feet before emptying into the Yellow River, which is
the second flow of water involved. Twenty-eight hundred (2800)
feet below the stream's confluence with the Yellow River lives Mr.
5
The court notes as an aside that a question of fact existed
concerning the degree to which JMS was responsible for increased
turbidity levels in these two watercourses during rainfall
events. This pivotal question of fact was not decided by a jury
as demanded by JMS, but rather by the district judge. See infra
note 13.
6
At least one expert at trial described the stream as a wet
weather flow, and indeed, JMS's consulting engineer stated in his
affidavit that United States Geological Survey Maps do not even
delineate this unnamed tributary as a stream at all. JMS
described the stream as ranging from three to seven feet in
width.
Hughey, who owns and resides on land abutting the Yellow River.
JMS initially responded to the complaint with a motion to
dissolve the TRO and a motion for summary judgment. JMS conceded
that rain water had run off its property and that it did not have
an NPDES permit authorizing discharges under the CWA. However, JMS
showed that no such permit was available from any government agency
and that it had in fact obtained every permit that was available
prior to initiating construction.7 JMS then answered the complaint
denying liability under the CWA and demanding a jury trial.
On November 9, 1992, the district court denied JMS's motions
to dissolve the TRO, to dismiss the complaint, and for summary
judgment. The district court granted Hughey's motion for
preliminary injunctive relief, finding that JMS was potentially
liable for storm (rain) water discharges made subsequent to October
1, 1992. The preliminary injunction prohibited JMS from
7
The consulting engineers hired by JMS, in addition to
seeking (and obtaining) county land disturbing permits,
eventually applied for an NPDES permit from Georgia EPD on
September 28, 1992, after Hughey had filed this action. Georgia
EPD responded by saying no action would (could) be taken with
respect to the notice of intent. David Word, Chief of the Water
Protection Branch of Georgia EPD, commented on the effect of
JMS's application:
EPD has received a notice of intent to comply with the
general permit from JMS Development Corporation for its
subdivision in Gwinnett County, Georgia. No action
will be taken on this notice of intent until a general
permit becomes effective. Therefore, at this time
[10/8/92], no further action is required or necessary
on the part of JMS Development Corporation to be
authorized to discharge storm water into waters of the
State of Georgia from the subject property.
Word Aff., at ¶ 10 (emphasis supplied). Georgia EPD simply
did not have a permit to issue, either before, during, or
after the subdivision's development. JMS presented this
evidence to the district court in its motion to dismiss.
"discharg[ing] storm water into waters of the United States from
its development property in Gwinnett County, Georgia, known as
Rivercliff Place, without a National Pollutant Discharge
Elimination System permit permitting such discharge."
More than one year later, on December 15, 1993, the district
court found JMS liable under the CWA for storm (rain) water
discharges into the stream on thirteen dates in 1992—June 8, 14,
30; July 1, 2; August 13, 16; September 4, 5, 27, 28; and
October 4, 8. The court further found that JMS once, on June 8,
1992, discharged storm water into the Yellow River itself. These
violations according to the district court were continuing (albeit
minimal), see Order of 2/24/94, at 4, 8, and became the basis for
the court's permanent injunction several months later, which issued
on February 24, 1994.8 Defendant in that order was instructed not
to
discharge stormwater into the waters of the United States from
8
Although Georgia EPD stated in its amicus brief to the
district court on October 27, 1992, that it expected to issue
general NPDES permits covering storm (rain) water discharges by
December 1992, such a permit was still not available as of the
date on which the district court granted permanent injunctive
relief.
Georgia EPD did issue its general permit; however, Mr.
Hughey appealed the issuance of that permit in a separate
action to the Board of Natural Resources for the State of
Georgia, alleging both procedural and substantive defects in
the general permit.
The administrative law judge remanded the permit to the
Director of Georgia EPD because of Georgia EPD's failure to
comply with procedural rules. In addition, the ALJ noted
that a remand was also necessary for the Director to
consider turbidity levels for storm (rain) water discharges.
Due to Mr. Hughey's appeal, there was still no NPDES permit
available in Georgia for the discharge of storm (rain) water
when the district court entered the permanent injunction.
its development property in Gwinnett County, Georgia, known as
Rivercliff Place if such discharge would be in violation of
the Clean Water Act.
(emphasis supplied). On account of JMS's specific violations of
the CWA, the district court required JMS to pay $8,500 in civil
penalties to Hughey.9 Lastly, the court ordered JMS to pay Hughey
more than $115,000 in attorney fees and costs pursuant to 33 U.S.C.
§ 1365(d).
III. ISSUES ON APPEAL
JMS argues that the broad, generalized language of the
injunction, which in effect says nothing more than to "obey the
law," is violative of the standard of specificity required by
Federal Rule of Civil Procedure 65(d). JMS's second contention is
that it should not be punished for failing to secure an NPDES
permit when no such permit was available. Finally, JMS objects to
the award of attorney fees and costs.10 JMS has not objected,
however, to the fact that it did not receive a jury trial on the
question of liability.
IV. STANDARD OF REVIEW
Although the grant of permanent injunctive relief is
generally reviewed for an abuse of discretion, "if the trial court
misapplies the law we will review and correct the error without
9
Hughey concedes that requiring payment of civil penalties
to him was clear error by the district court. Civil penalties
under the Clean Water Act can only be paid to the United States
Treasury. Atlantic States Legal Foundation v. Tyson Foods, 897
F.2d 1128, 1131 n. 5 (11th Cir.1990).
10
Hughey filed a cross appeal complaining that $115,000 was
an insufficient award. When JMS was forced into bankruptcy, the
cross appeal was automatically stayed under 11 U.S.C. § 362. See
Appellee's Brief, at xiv n. 1. For the reasons that follow, we
need not consider the merits of that appeal.
deference to that court's determination." Wesch v. Folsom, 6 F.3d
1465, 1469 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct.
696, 126 L. Ed. 2d 663 (1994). See also Guaranty Fin. Svcs., Inc. v.
Ryan, 928 F.2d 994, 998 (11th Cir.1991) ("if the court misapplied
the law in making its decision [to grant the preliminary
injunction] we do not defer to its legal analysis"). We review
questions of law de novo. Bechtel Const. Co. v. Secretary of
Labor, 50 F.3d 926, 931 (11th Cir.1995).
V. DISCUSSION
A. Liability Under the Clean Water Act
As noted, the CWA imposes a "zero discharge" standard in the
absence of an NPDES permit. 33 U.S.C. § 1311(a). The question is
whether Congress intended for this zero discharge standard to apply
in the circumstances of this case.
In interpreting the liability provisions of the CWA we
realize that Congress is presumed not to have intended absurd
(impossible) results. United States v. X-Citement Video, Inc., ---
U.S. ----, ----, 115 S. Ct. 464, 468, 130 L. Ed. 2d 372 (1994);
Towers v. United States (In re Pacific-Atlantic Trading Co.), 64
F.3d 1292, 1303 (9th Cir.1995). Courts will not foolishly bind
themselves to the plain language of a statute where doing so would
"compel an odd result." Green v. Bock Laundry Mach. Co., 490 U.S.
504, 509, 109 S. Ct. 1981, 1984, 104 L. Ed. 2d 557 (1989). For, " "it
is one of the surest indexes of a mature and developed
jurisprudence not to make a fortress out of the dictionary; but to
remember that statutes always have some purpose or object to
accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning.' " Public Citizen v. United States
Department of Justice, 491 U.S. 440, 454-55, 109 S. Ct. 2558, 2567,
105 L. Ed. 2d 377 (1989) (quoting Cabell v. Markham, 148 F.2d 737,
739 (2d Cir.), aff'd, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165
(1945)). Cf. Green v. Bock Laundry Mach. Co., 490 U.S. at 527-30,
109 S.Ct. at 1994-95 (Scalia, J., concurring) ("We are confronted
here with a statute which, if interpreted literally, produces an
absurd, and perhaps unconstitutional, result. Our task is to give
some alternative meaning to the [language] ... that avoids this
consequence....").
Our jurisprudence has eschewed the rigid application of a law
where doing so produces impossible, absurd, or unjust results.
"[I]f a literal construction of the words of a statute would lead
to an absurd, unjust, or unintended result, the statute must be
construed so as to avoid that result." United States v. Mendoza,
565 F.2d 1285, 1288 (5th Cir.1978) (citing Church of the Holy
Trinity v. United States, 143 U.S. 457, 459, 12 S. Ct. 511, 512, 36
L. Ed. 226 (1892)); see also United States v. Castro, 837 F.2d 441,
445 (11th Cir.1988). "[E]ven when the plain meaning did not
produce absurd results but merely an unreasonable one plainly at
variance with the policy of the legislation as a whole this Court
has followed [the purpose of the act], rather than the literal
words." Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S. Ct.
852, 857, 15 L. Ed. 2d 827 (1966) (internal quotation marks omitted).
As is often the case, the legislature will use words of
general meaning in a statute,
words broad enough to include an act in question, and yet a
consideration of the whole legislation, or of the
circumstances surrounding its enactment, or of the absurd
results which follow from giving such broad meaning to the
words, makes it unreasonable to believe that the legislator
intended to include the particular act.
Public Citizen, 491 U.S. at 454, 109 S.Ct. at 2566-67 (quoting
Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12
S. Ct. 511, 512, 36 L. Ed. 226 (1892)) (emphasis supplied). Thus,
this court has found that
[g]eneral terms should be so limited in their application as
not to lead to injustice, oppression, or an absurd
consequence. It will always, therefore, be presumed that the
legislature intended exceptions to its language which would
avoid results of this character. The reason of the law in
such cases should prevail over its letter.
Zwak v. United States, 848 F.2d 1179, 1183 (11th Cir.1988) (quoting
Sorrells v. United States, 287 U.S. 435, 447, 53 S. Ct. 210, 214, 77
L. Ed. 413 (1932)). For instance, common sense says that a law
making it a felony for a prisoner to escape from jail "does not
extend to a prisoner who breaks out when the prison is on fire—"for
he is not to be hanged because he would not stay to be burnt.' "
United States v. Kirby, 74 U.S. (7 Wall.) 482, 487, 19 L. Ed. 278,
280 (1869).
In this case, once JMS began the development, compliance with
the zero discharge standard would have been impossible. Congress
could not have intended a strict application of the zero discharge
standard in section 1311(a) when compliance is factually
impossible. The evidence was uncontroverted that whenever it
rained in Gwinnett County some discharge was going to occur;
nothing JMS could do would prevent all rain water discharge.
George Fritcher, the county inspector charged with monitoring JMS's
compliance with Gwinnett County's development permit, deposed that
it was simply impossible to stop sediment from leaving the
subdivision when there was a rainfall event. "[Z]ero discharge of
storm water will never be achieved because rainfall must find its
way back into the streams and rivers of this state." Georgia EPD
Amicus Brief, at 13 (emphasis supplied). Doug Ballard, president
of JMS, similarly testified on cross-examination by Hughey's
counsel that he could not stop the rain water that fell on his
property from running downhill, and that nobody could. The rain
that fell on his property "is designed to go down those curbs and
designed to go down those pipes and unless you go out there and
collect it in your hand some way or other it's going to have to go
somewhere."
Moreover, JMS obtained from Gwinnett County a development
permit that was issued pursuant to the County's authority under
Georgia's Soil Erosion and Sedimentation Control Act of 1975
("SESCA"), O.C.G.A. §§ 12-7-1 et seq. That Georgia statute, like
the CWA, limited stormwater discharges during the applicable
period. See O.C.G.A. § 12-7-6(18) (1992). Moreover, Georgia EPD's
proposed standards for a general NPDES permit for stormwater
discharges are similar to the standards for stormwater discharges
contained in SESCA. David Word, the Chief of the Water Protection
Branch of Georgia EPD, testified by affidavit that "the general
NPDES permit proposed for stormwater runoff from construction
activities ... will require permitees to perform certain erosion
and sedimentation control practices, [which are] currently required
under authority of the Erosion and Sedimentation Control Act of
1975." Accordingly, the fact that JMS was issued a development
permit by Gwinnett County suggests that JMS would have been able to
obtain an NPDES permit from Georgia EPD, had such a permit been
available.
The facts of this case necessarily limit our holding to
situations in which the stormwater discharge is minimal, as it was
here. The district court found that JMS's "discharges pose no
threat to human health, and that much of the damage [caused by such
discharges] will be reversed with the passage of a relatively short
amount of time."
This was not a case of a manufacturing facility that could
abate the discharge of pollutants by ceasing operations. Nor did
the discharger come to court with unclean hands: JMS made every
good-faith effort to comply with the Clean Water Act and all other
relevant pollution control standards. The discharges were minimal,
and posed no risk to human health. In sum, we hold that Congress
did not intend (surely could not have intended) for the zero
discharge standard to apply when: (1) compliance with such a
standard is factually impossible; (2) no NPDES permit covering
such discharge exists; (3) the discharger was in good-faith
compliance with local pollution control requirements that
substantially mirrored the proposed NPDES discharge standards; and
(4) the discharges were minimal. Lex non cogit ad impossibilia:
The law does not compel the doing of impossibilities. B LACK'S LAW
DICTIONARY 912 (6th ed. 1990).
Practically speaking, rain water will run downhill, and not
even a law passed by the Congress of the United States can stop
that. Under these circumstances, denying summary judgment to JMS
was an error of law. Cf. Menzel v. County Utilities Corp., 712
F.2d 91, 95 (4th Cir.1983) (refusing to impose CWA liability for
discharges during period in which effectiveness of NPDES permit was
stayed by state court, since subjecting discharger to liability
would serve no statutory purpose).
B. The Permanent Injunction—Federal Rule of Civil Procedure 65
In addition to the fact that an injunction based upon an
erroneous conclusion of law is invalid, see United States v.
Jefferson County, 720 F.2d 1511, 1520 n. 21 (11th Cir.1983), Rule
65(d) of the Federal Rules of Civil Procedure mandates dissolution
of the injunction.
Rule 65(d) sets forth the standards of specificity that every
injunctive order must satisfy.
Every order granting an injunction shall set forth the reasons
for its issuance; shall be specific in terms; [and] shall
describe in reasonable detail, and not by reference to the
complaint or other document, the act or acts sought to be
restrained....
Rule 65 serves to protect those who are enjoined
by informing them of what they are called upon to do or to
refrain from doing in order to comply with the injunction or
restraining order. As a result, one of the principal abuses
of the pre-federal rules practice—the entry of injunctions
that were so vague that defendant was at a loss to determine
what he had been restrained from doing—is avoided. The
drafting standard established by Rule 65(d) is that an
ordinary person reading the court's order should be able to
ascertain from the document itself exactly what conduct is
proscribed.
11A WRIGHT, MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D
§ 2955 (1995) (footnotes omitted). In addition to giving those
enjoined "fair and precisely drawn notice of what the injunction
actually prohibits," Epstein Family Partnership v. K-Mart Corp., 13
F.3d 762, 771 (3d Cir.1994), the specificity requirement of Rule
65(d) serves a second important function:
Unless the trial court carefully frames it orders of
injunctive relief, it is impossible for an appellate tribunal
to know precisely what it is reviewing. We can hardly begin
to assess the correctness of the judgment entered by District
Court here without knowing its precise bounds. In the absence
of specific injunctive relief, informed and intelligent
appellate review is greatly complicated, if not made
impossible.
Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 715, 38
L. Ed. 2d 661, 664 (1974).
Consistent with the two foregoing purposes, appellate courts
will not countenance injunctions that merely require someone to
"obey the law." Payne v. Travenol Laboratories, Inc., 565 F.2d
895, 897-98 (5th Cir.), cert. denied, 439 U.S. 835, 99 S. Ct. 118,
58 L. Ed. 2d 131 (1974).11 "Broad, non-specific language that merely
enjoins a party to obey the law or comply with an agreement ...
does not give the restrained party fair notice of what conduct will
risk contempt." Epstein Family Partnership, supra. Because of the
possibility of contempt, an injunction "must be tailored to remedy
the specific harms shown rather than to enjoin all possible
breaches of the law." Id. (internal quotation marks omitted). An
injunction must therefore contain "an operative command capable of
"enforcement.' " Longshoremen's Ass'n. v. Marine Trade Ass'n., 389
U.S. 64, 73-74, 88 S. Ct. 201, 206-07, 19 L. Ed. 2d 236, 244 (1967).
See also United States Steel Corp. v. United Mine Workers, 598 F.2d
363, 368 (5th Cir.1979) (party subject to contempt proceeding may
defend on basis that compliance was not possible).
11
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981), the Eleventh Circuit adopted as precedent the
decisions of the Fifth Circuit rendered prior to October 1, 1981.
Here, the district court's order granting permanent injunctive
relief only stated:
Defendant shall not discharge stormwater into the waters of
the United States from its development property in Gwinnett
County, Georgia, known as Rivercliff Place if such discharge
would be in violation of the Clean Water Act.
(emphasis supplied).
Not only was this an "obey the law" injunction, it was also
incapable of enforcement as an operative command. The court's
order merely required JMS to stop discharges, but failed to specify
how JMS was to do so. Discharges, though not defined by the order,
occurred only when it rained, and any discharge was a violation of
the order. Rain water ran into the subdivision's
government-approved streets and storm sewers; then into the small
stream that started on the subdivision property; on into a
tributary stream; and eventually into the Yellow River. Was JMS
supposed to stop the rain from falling? Was JMS to build a
retention pond to slow and control discharges? Should JMS have
constructed a treatment plant to comply with the requirements of
the CWA?
The injunction's failure to specifically identify the acts
that JMS was required to do or refrain from doing indicates that
the district court—like the CWA, the EPA, Georgia EPD, and Mr.
Hughey—was incapable of fashioning an operative command capable of
enforcement. As such, we must vacate this "obey the law"
injunction.12
12
Hughey contends that the injunction contains the requisite
specificity by reference to the prior orders granting
injunctive-type relief, i.e., that the permanent injunction
merely continued in place what previous orders had already done.
C. Award of Attorney Fees and Costs
A court issuing any final order in a Clean Water Act
citizen's suit "may award costs of litigation (including reasonable
attorney and expert witness fees) to any prevailing party or
substantially prevailing party, whenever the court determines such
award is appropriate." 33 U.S.C. § 1365(d). A prevailing or
substantially prevailing party is one who prevailed "in what the
lawsuit originally sought to accomplish." Washington Public
Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883, 887
(9th Cir.1993).
The district court here awarded Hughey more than $115,000 in
attorney fees and costs. However, for the reasons stated above
Hughey's citizen suit has not accomplished its original objective.
Hughey is not a prevailing or substantially prevailing party and is
thus not entitled to an award of attorney fees and costs. See Save
Our Community v. United States EPA, 971 F.2d 1155, 1167 (5th
Cir.1992) (where district court erred in finding defendant liable
under the CWA, the award of attorney fees based thereon was also
inappropriate).
VI. CONCLUSION
Imposing liability upon JMS under these circumstances was a
miscarriage of justice. It is inconceivable that Congress
intended, let alone foresaw, a result such as this under the Clean
See, e.g., Keyes v. School Dist. No. 1., Denver, Colo., 895 F.2d
659 (10th Cir.1990), cert. denied, 498 U.S. 1082, 111 S. Ct. 951,
112 L. Ed. 2d 1040 (1991). We doubt that such an exception exists,
unless in very rare, exceptional cases. A person enjoined by
court order should only be required to look within the four
corners of the injunction to determine what he must do or refrain
from doing. That was not the case here.
Water Act. Environmentally safe waters are of vital importance to
this nation as is evident from the fact that Congress enacted an
entire statutory scheme to address the problem. Nevertheless,
[t]he inability of [Georgia EPD] to meet its statutory
obligations has distorted the regulatory scheme and imposed
additional burdens which must be equitably distributed. This
task is a difficult one because of the nature of the available
options. Either the affected discharger must be compelled to
risk potential enforcement proceedings in spite of [the
complete unavailability of an NPDES permit], or society must
tolerate slippage of an interim pollution abatement deadline.
Republic Steel Corp. v. Train, 557 F.2d 91, 94 (6th Cir.1977).
Balancing these concerns on the basis of the record before us, we
refuse to place the burden on JMS.
The orders imposing statutory penalties and attorney fees and
costs were premised on the finding that JMS was liable under the
CWA. Because we REVERSE this finding of liability, those orders
are VACATED.
The injunctive relief issued by the district court on February
24, 1994, was improper not only because it was premised on an error
of law, but also for the alternative reasons that the injunction
lacked the specificity required by Rule 65(d), and compliance with
its terms was impossible. Accordingly, the permanent injunction is
DISSOLVED.13
13
Because JMS has not raised the jury trial question, we
will not address it now for the first time, although it would
appear to require summary reversal on the issue of liability.
See Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95
L. Ed. 2d 365 (1987) (defendants under the CWA have Seventh
Amendment right to a jury trial on questions of liability).
Because we have determined that JMS cannot be liable no
matter who files the complaint, we do not discuss JMS's
challenge to the propriety of the citizen's suit. See,
e.g., Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49,
108 S. Ct. 376, 98 L. Ed. 2d 306 (1987) (citizen suits should
IT IS SO ORDERED.
CARNES, Circuit Judge, concurring:
I concur in all of the Court's holdings and opinion except for
Part V.B. What the Court says there about Rule 65(d) and "obey the
law" injunctions may be correct, or it may be incorrect, but it is
certainly dicta. Given our holding that the plaintiff in this case
is not entitled to any relief at all, it matters not whether the
relief he was given would have been in proper form if he had been
entitled to some relief.
be interstitial, not intrusive); Northwest Environmental
Advocates v. Portland, 11 F.3d 900, vacated, 56 F.3d 979
(9th Cir.1995) (initially deciding citizen suits were
unauthorized when challenging water quality standards in an
NPDES permit, latter opinion found citizen suits were not so
limited); Proffitt v. Rohm & Haas, 850 F.2d 1007, 1014 n.
11 (3rd Cir.1988) (refusing to decide whether scope of
citizen suits was limited).
We also decline to address the issues of Hughey's
standing, JMS's substantive due process challenge, and the
fee award's lodestar calculation, as they are rendered
unnecessary by the holding herein.