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Hughey v. JMS Dev. Corp.

ELR Citation: 26 ELR 20924
Nos. Nos. 94-8402, -8855, 78 F.3d 1523/42 ERC 1449/(11th Cir., 04/01/1996)

The court holds that the zero-discharge standard set forth in §301 of the Federal Water Pollution Control Act (FWPCA) does not apply to stormwater runoff from construction activities when compliance is impossible, there is no national pollutant discharge elimination system (NPDES) permit for the discharge, the discharge is in good-faith compliance with local pollution control requirements that substantially mirror proposed NPDES discharge standards, and the discharge is minimal. A citizen alleged that a developer, who in the absence of an NPDES permit was subject to §301(a)'s zero-discharge standard for stormwater discharges from its industrial activities, caused two watercourses to become muddied during rainfall. The court first holds that the zero-discharge standard did not apply to the developer because compliance was factually impossible. The state environmental agency was the only agency authorized to issue NPDES permits for stormwater, but did not offer such permits during the period of the discharges. Moreover, the developer was in good-faith compliance with local pollution control requirements that substantially mirrored proposed NPDES discharge standards, and the developer's discharges were minimal. The court next holds that Fed. R. Civ. P. 65(d) mandates dissolution of the order enjoining the developer from discharging any stormwater runoff. The order was an "obey the law" injunction that was incapable of enforcement as an operative command since it failed to specifically identify the acts the developer was required to do or refrain from doing. Finally, the court vacates an order imposing attorney fees and costs against the developer. The citizen suit did not accomplish its original objective, and the citizen is not a prevailing or substantially prevailing party.

Counsel for Plaintiff
Ralph L. Taylor III
Webb, Tanner & Powell
Gwinnett Federal Bldg.
750 S. Perry St., Ste. 300, Lawrenceville GA 30246
(770) 962-8545

Counsel for Defendant
Stephen E. O'Day
Smith, Gambrell & Russell
Promenade II
1230 Peachtree St. NE, Ste. 3100, Atlanta GA 30309
(404) 815-3500

Before ANDERSON and CARNES, Circuit Judges, and OWENS*, District Judge.