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Menzel v. County Utils. Corp.

Citation: 14 ELR 20251
No. No. 82-1677, 712 F.2d 91/19 ERC 2193/(4th Cir., 07/13/1983)

In a citizen suit under the Federal Water Pollution Control Act (FWPCA), the court holds that retroactive application of a permit is no defense to an alleged failure to obtain a national pollutant discharge elimination system (NPDES) permit. Citizens allege that County Utilities was discharging without an NPDES permit from July 1977 to January 1978, a time when it had allowed its permit to lapse, and from August 1978 to June 1979, when a state court stayed County Utilities' permit. The court rules that the discharger is subject to FWPCA penalty liability for operating without a permit during the first period, but not during the second. Although the Virginia State Water Control Board (SWCB) granted County Utilities an NPDES permit retroactively effective over the lapsed permit period, the court holds that the discharger was nevertheless operating without a permit during this time. On the other hand, once the SWCB granted County Utilities a permit, the court stay did not negate the permit issuance. Regardless of the stay, the SWCB reviewed the discharger's process and set discharge limitations, thus satisfying two purposes of the permit program. The court then rules that the citizens are entitled to discharge-monitoring reports over the entire period at issue for the purpose of determining whether County Utilities complied with its permit. In a note, it holds that theretroactive application of the NPDES permit compels County Utilities to file discharge-monitoring reports for the retroactive period. It remands for a determination of whether appellee filed the required reports and otherwise complied with the NPDES permit terms.

Counsel for Appellants
Patrick M. McSweeney
McSweeney, Stutts & Burtch
P.O. Box 1463, Richmond VA 23212
(804) 643-5192

Counsel for Appellee
E. Leslie Cox, Robert R. MacMillan
Breeden, Howard & MacMillan
101 St. Paul's Blvd., Suite 1700, Norfolk VA 23510
(804) 622-1111

Before HALL and PHILLIPS, Circuit Judges, BUTZNER, Senior Circuit Judge.