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Stoddard v. Western Carolina Regional Sewer Auth.

ELR Citation: 16 ELR 20503
Nos. Nos. 85-1584(L), -1590, 784 F.2d 1200/23 ERC 2105/(4th Cir., 03/05/1986)

In a Federal Water Pollution Control Act (FWPCA) citizen suit, the court holds that discharges by defendant sewer authority in violation of its national pollutant discharge elimination system (NPDES) permit created a nuisance at plaintiffs' lake and surrounding property and constituted a compensable taking in violation of the South Carolina Constitution and that civil penalties must be assessed under the FWPCA. Addressing plaintiffs' pendent state-law claim, the court holds that the district court correctly found that the nuisance caused by defendant's discharges amounted to a taking of plaintiffs' property under the South Carolina Constitution. Although a legitimate sewage discharge can be a proper exercise of a government's police powers, defendant's massive violations of its permit were improper. Further, the district court properly interpreted South Carolina law when it held that the foul odors, sewage, algal growth, and other conditions caused by defendant's discharges constitute a nuisance and that such nuisance amounts to a taking of private property under the state constitution.

The court next rules that South Carolina's regulatory scheme enacted under the FWPCA does not preempt state common law remedies. The South Carolina statute specifically preserves remedies other than those it expressly provides. The court holds that the district court properly decided that the pollution caused by defendant's discharge amounted to a permanent taking. The discharges rendered the lake and surrounding and unusable, a condition that will persist for at least five years after the excessive discharges are eliminated. The court rules that defendant is not entitled to a retroactive modification of its NPDES permit that would apply the less-stringent standards of its current permit to past discharges. Even if the permit were so amended, defendant would still be guilty of many violations, and the statute provides no basis for such a modification. The court rules that defendant was not entitled to an extension of time to comply with its permit under §301(i)(1) because it was not engaged in any construction to achieve its NPDES requirements and never sought federal financial assistance for such construction. The The Court then upholds the district court's determination of the amount of damages for the state-law taking.

Next, the court holds that the district court erred by failing to assess civil penalties against defendant under FWPCA §309(d). In assessing the amount of the penalty on remand, the district court may consider the substantial damage award in the pendent claim and the need to apply available money to correct the plant's problems. Finally, the court holds that the district court properly awarded landowners their costs and attorney fees. In light of its holding that civil penalties must be assessed, the court finds that plaintiffs have substantially prevailed under the FWPCA. Also, the award was "appropriate" under §505(d) because plaintiffs helped ensure that defendant will comply with the Act.

Counsel for Appellees
Bradford W. Wyche
Wyche, Burgess, Freeman & Parham
P.O. Box 10207, Greenville SC 29603
(803) 242-3131

Robert L. Stoddard
Moore, Stoddard, Stoddard & Wood
P.O. Box 7178, Spartanburg SC 29304
(803) 582-5622

Counsel for Appellant
John S. Pachter
Wickwire, Gavin & Gibbs
4th Fl., 8230 Boone Blvd., Vienna VA 22180
(703) 790-8750

O.W. Bannister Jr.
Hill, Wyatt & Bannister
P.O. Box 2588, Greenville SC 29603
(803) 242-5133