Washington Suburban Sanitary Commission v. Cae-Link Corp.

ROBERT M. BELL, Judge. We granted certiorari to consider whether, as the Court of Special Appeals held, CAE-Link Corp. v. WSSC, 90 Md.App. 604 , 602 A.2d 239 , cert. granted, 327 Md. 304 , 609 A.2d 312 (1992), the Washington Suburban Sanitary Commission (“WSSC”), 1 the petitioner, is strictly liable for nuisance as a result of its construction, and operation, of a sewage sludge composting facility pursuant to federal court orders. 2 This issue had its genesis in litigation, initiated in the United States District Court for the District of Columbia in 1973, to rectify an environmental crisis at the Blue ¹²⁰ Plains Sewage Treatment Plant, and in consent decrees, to which WSSC was a party, arising out of that litigation. 3 Pursuant to an order entered by the United States District Court for the District of Columbia, Montgomery County reported that it would dispose of its share of the Blue Plains sewage sludge by building a composting facility on a large tract of undeveloped land adjacent to the Montgomery Industrial Park. Petitioner’s brief p. 11. That undeveloped tract of land, which was on the Montgomery County— Prince George’s County border, was known as Site 2. 4 Subsequently, on July 10, 1978, the district court issued an order requiring the user jurisdictions to proceed to develop the designated sites.

Montgomery County was ordered to have the Site 2 composting facility operational by July 1,1979. WSSC thus was required to take all necessary action to accomplish that goal, including acquiring the land and obtaining the necessary permits. Action by Prince George’s County, which opposed development of a composting facility on Site 2, precipitated additional orders. The district court, on April 25, 1980, issued an order compelling WSSC to restore the funds caused to be removed by the WSSC Commissioners from Prince George’s County and to move forward with the project.

It issued a third order on June 27, 1980, in response to two state court suits filed by Prince George’s ¹²¹ County. One of those suits challenged the validity of the state sewage sludge permit and alleged that Site 2 was a prospective nuisance. In the other, which alleged that restrictive covenants benefitting the land made acquisition of the Site 2 property so expensive that the WSSC Commissioners would likely be subject to liability for breach of fiduciary duty if they acquired it, the Circuit Court for Prince George’s County issued an injunction enjoining WSSC from proceeding with development and ordering it to withdraw purchase offers made to the Site 2 owners. United States v. District of Columbia, 654 F.2d 802, 806 (D.C.Cir.), cert. denied sub nom.

Prince George’s County v. United States, 454 U.S. 1082 , 102 S.Ct. 637 , 70 L.Ed.2d 616 (1981). The district court, reiterating the directives set forth in its prior orders, enjoined WSSC from complying with the state court injunction. It also ordered WSSC to proceed expeditiously to obtain the land and build and operate the composting facility. Finally, the court ordered Prince George’s County to withdraw from the state court suits, and all parties to refrain from taking any action which would frustrate or impede the execution of its order.

Pursuant to the district court’s July 10, 1980 order, WSSC filed, in the Circuit Court for Montgomery County, a condemnation action to acquire Site 2. The 115 acres to which it acquired title were burdened by certain restrictive covenants. 5 Consequently, WSSC filed an action against neighboring landowners, including the respondents, CAE-Link Corporation, AT & T Resource Management Corporation, International Fabricare Institute, Erie Indemnity Company and The Washington Post Company, seeking a declaration that the covenants’ beneficiaries need not be compensated ¹²² for their value. The defendants filed counterclaims for inverse condemnation, breach of covenant, nuisance, bad faith, pursuant to' Maryland Rule 1-341, and violation of 42 U.S.C. § 1983 , seeking monetary damages. Concluding that the restrictive covenants, which had been extinguished when WSSC condemned the land, were compensable property interests, the trial court denied WSSC declaratory relief. 6 The trial court granted WSSC’s motion for summary judgment as to the counterclaims alleging violation of § 1983, bad faith, and punitive damages, but denied it as to the inverse condemnation and breach of covenant claims.

WSSC was granted partial summary judgment on the nuisance claim to the extent of requiring the respondents to prove that WSSC negligently created the nuisance. At trial, the breach of covenant claims having been dismissed by stipulation of the parties, 7 WSSC moved for judgment on me inverse condemnation and nuisance claims. Denying the motion as to the former, the trial court ruled, as to the latter: ¹²³ With respect to the nuisance claim, the motion to dismiss is granted for two reasons. The first reason being that right or wrong I have held that in this case, based upon the facts in this case, that in order to recover on the nuisance theory, the Plaintiffs have to show simple negligence in the construction and operation of the facility.

There is no evidence that I can recall to support that theory. The second basis upon which I grant the motion on the nuisance, is that the law is set forth not only in [Maryland Port Administration v.] QC [Corp., 310 Md. 379 , 529 A.2d 829 (1987) ], but language in Electro-Nucleonics [, Inc. v. WSSC, 315 Md. 361 , 554 A.2d 804 , cert. denied, 493 U.S. 854 , 110 S.Ct. 158 , 107 L.Ed.2d 115 (1989) ] in that the court can find no substantial diminution in the use of any of these properties by any of the Plaintiffs as the result of the odor. The inverse condemnation claim was submitted to the jury, which returned a verdict in favor of WSSC. The jury found that “the covenants extinguished on July 8, 1980 [did not] add measurable value to the respondent’s land.” Their motion for new trial having been denied, the respondents appealed.

WSSC cross-appealed. The Court of Special Appeals held that, because of its savings clause, the Federal Water Pollution Control Act does not preempt neighboring property owners’ state law nuisance claims against WSSC for maintaining a facility that emits noxious odors. CAE-Link Corp. v. WSSC, 90 Md.App. 604, 615 , 602 A.2d 239, 244 , cert. granted, 327 Md. 304 , 609 A.2d 312 (1992). It also held that nuisance law in Maryland is a matter of strict liability; hence, negligence is not a prerequisite to recovery.

Id. at 616, 602 A.2d at 244 . Additionally, the intermediate appellate court determined that the trial court erroneously instructed the jury that, in determining the value of the respondents' property, for inverse condemnation purposes, it was appropriate to consider whether extinguishment of the covenants substantially interfered with its use and enjoyment. Id. at 619 , 602 ¹²⁴ A.2d at 245. Moreover, the court concluded, property appraisals prepared at the request of two of the respondents should not have been admitted under the business records exception.

Id. at 623, 602 A.2d at 248 . On WSSC’s cross-appeal, the court reversed the trial court’s rulings on “standing.” It held that the respondents AT & T, BancTec Systems, Incorporated, and CAE-Link Corporation, which purchased their property after the land had been condemned, were “late-takers” and lacked standing to maintain an inverse condemnation action. Id. at 625-26 , 602 A.2d at 249 . Both WSSC and the respondents filed petitions for certiorari.

We granted WSSC’s petition, but denied the respondents’. I. A. The law of nuisance frequently has been discussed in the opinions of this Court. See Eanes v. State, 318 Md. 436 , 455 n. 8, 569 A.2d 604 , 613 n. 8 (1990); Tadjer v. Montgomery County, 300 Md. 539, 552 , 479 A.2d 1321, 1327-28 (1984); Corbi v. Hendrickson, 268 Md. 459, 464 , 302 A.2d 194, 197 (1973); Slaird v. Klewers, 260 Md. 2, 9 , 271 A.2d 345, 348 (1970); Stottlemyer v. Crampton, 235 Md. 138, 143-44 , 200 A.2d 644, 646 (1964); Bishop Processing Co. v. Davis, 213 Md. 465, 474 , 132 A.2d 445, 449 (1957); Gorman v. Sabo, 210 Md. 155, 159 , 122 A.2d 475, 478 (1956); Fox v. Ewers, 195 Md. 650, 658 , 75 A.2d 357, 360 (1950); Meadowbrook Swimming Club, Inc. v. Albert, 173 Md. 641, 645 , 197 A. 146, 148 (1938); Jackson v. Shawinigan Electro Products Co., 132 Md. 128, 136 , 103 A. 453, 455-56 (1918); Northern Cent. Ry.

Co. v. Oldenburg & Kelley, Inc., 122 Md. 236, 244 , 89 A. 601, 605 (1914); Gallagher v. Flury, 99 Md. 181, 187 , 57 A. 672, 675 (1904); Euler v. Sullivan, 75 Md. 616, 618 , 23 A. 845, 846 (1892); Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 276 , 20 A. 900, 901 (1890); Woodyear v. Schaefer, 57 Md. 1 , 11-12 ¹²⁵ (1881); Mayor and City Council of Baltimore v. Radecke, 49 Md. 217, 227 (1878); Adams v. Michael, 38 Md. 123, 126 (1873); Scott v. Bay, 3 Md. 431, 444 (1853). We have held that, “where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done to a neighboring owner for which an action lies____” Meadowbrook Swimming Club, 173 Md. at 645 , 197 A. at 148 . Moreover, “[I]t makes no difference that the business [is] lawful and one useful to the public and conducted in the most approved method.” Bishop Processing Co., 213 Md. at 474 , 132 A.2d at 449 ; Meadowbrook Swimming Club, 173 Md. at 645 , 197 A. at 148 . Virtually any disturbance of the enjoyment of the property may amount to a nuisance so long as the interference is substantial and unreasonable and such as would be offensive or inconvenient to the normal person.

Gorman, 210 Md. at 159 , 122 A.2d at 477 , quoting Prosser on the Law of Torts 406-07 (2nd ed.). In Bishop Processing Co., the defendant, owner and operator of a processing plant, was enjoined from maintaining and operating its plant because the odors emanating from it interfered with the plaintiffs’ lawful use and enjoyment of their properties. 213 Md. at 468-69 , 132 A.2d at 446 . Unreasonable noise from the continuous playing of a radio was the subject of the suit brought by the plaintiffs in Gorman . Although there was no claim for damages to the property, nor for diminution of its value, the Court held that the loud and offensive sounds interfered seriously with the plaintiffs’ ordinary comfort and enjoyment of their property and, thus, constituted a private nuisance, for which actual and punitive damages would lie. 210 Md. at 162-64 , 122 A.2d at 478-79 .

We opined: although the property may not be depreciated in its salable or market value, “it is the discomfort and annoyance in its use for purposes which is the primary consideration in allowing damages.” Id. at 163 , 122 A.2d at 479 , quoting Baltimore & Potomac Railroad Co. v. Fifth Baptist Church, 108 U.S. 317, 335 , 2 S.Ct. 719, 731 , 27 L.Ed. 739, 746 (1883). In Meadowbrook Swimming ¹²⁶ Club, the defendant operated a place of amusement which played amplifier enhanced dance music six nights per week. An injunction against that activity was upheld because the noise alone caused a number of residents and property owners actual physical discomfort and annoyance, thus constituting a nuisance. 173 Md. at 643-44 , 197 A. at 147 . Maryland has long adhered to the rule that proof of nuisance focuses not on the possible negligence of the defendant but on whether there has been unreasonable interference with the plaintiffs use and enjoyment of his or her property.

See Susquehanna Fertilizer Co., 78 Md. at 276, 20 A. at 901 . To prove the existence of a nuisance, therefore, the complained of interference must cause actual physical discomfort and annoyance to those of ordinary sensibilities, tastes and habits, Fifth Baptist Church, 108 U.S. at 335 , 2 S.Ct. at 731 , 27 L.Ed. at 745-46 ; it must interfere seriously with the ordinary comfort and enjoyment of the property. Bishop Processing Co., 213 Md. at 474 , 132 A.2d at 449 ; Gorman, 210 Md. at 159 , 122 A.2d at 478 ; Meadowbrook Swimming Club, 173 Md. at 645 , 197 A. at 148 . B. WSSC concedes that, in Maryland, nuisance is a matter of strict liability and that "liability for nuisance may arise even where there is compliance with applicable laws and regulations or where the offending instrumentality is authorized or permitted (as opposed to mandated) by state statute.” Petitioner’s reply brief at 2.

Nevertheless it contends that it should not be held strictly liable in this case solely because of its good faith, and nonnegligent, execution of emergency and mandatory orders of the district court directing it to build and operate a sewage sludge composting facility at Site 2. It asks this Court to sanction an exception, given the unique circumstances of this case. Under the circumstances of this case, WSSC argues, strict liability for nuisance is inapplicable because its actions ¹²⁷ were not voluntarily undertaken; rather than receive a “mere naked grant of power,” the district court ordered it to build and operate a specific type of sludge composting facility, at a specific location and by a specific date. It relies on Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 213 , 4 A.2d 757, 765 (1939), for the proposition that “[t]he basic concept underlying the rule [of strict liability for maintaining a dangerous condition] is that a person who elects to keep or bring upon his land something that exposes the adjacent land or its owner or occupant to an added danger should be obliged to prevent its doing damage.” (emphasis added).

It also contends that it should not be placed in a position where good faith compliance with one court’s order should cause it to be held strictly liable in another. In Toy , the defendant, a company hired by the federal government to dredge the Chesapeake and Delaware Canal, deposited the dredged material on an embankment constructed for that purpose. That embankment was on the west side of Back Creek and across from the plaintiffs’ land. The plaintiffs used that waterway to transport carp by boat to their land. 176 Md. at 201 , 4 A.2d at 759-60 .

A substantial amount of the dredged material and a portion of the embankment collapsed into the creek and denied the plaintiffs access to their property by boat and interfered with their operation of a pond constructed on their property for raising carp. Id. at 207 , 4 A.2d at 760 . Initially, we note, as did the Toy Court, that the action before it was for negligence, not, as in the case sub judice, nuisance. Id. at 208 , 4 A.2d at 763 , There is, of course, a distinction between nuisance and negligence.

See Sherwood Bros., Inc. v. Eckard, 204 Md. 485, 493 , 105 A.2d 207, 211 (1954). In Toy , the Court did address the “doctrine of liability without fault,” as enunciated in Rylands v. Fletcher, 1866, L.R. 1 Ex. 265, 279, aff'd, 1868, L.R. 3 H.L. 30. Pursuant to that doctrine, [T]he person who, for his own purposes, brings in his lands and collects and keeps there anything likely to do ¹²⁸ mischief if it escapes must keep it at his peril;, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. This doctrine addresses a different situation from that sub judice, see also Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969), as the Court’s discussion of private nuisance reveals: If the defendant had caused the earth and debris to be cast into the channel opposite the shore of the plaintiffs, and so filled it that the plaintiffs’ limited navigable access to their shore and dam had been materially affected or destroyed, so that they had sustained damages which were so special and peculiar to their property as to make them substantially different from those suffered by the public generally, the plaintiffs would have a cause of action against the defendant on the theory of the unlawful creation of a private nuisance, since its existence does not necessarily presuppose negligence but may arise from an unlawful act. 176 Md. at 214 , 4 A.2d at 766 (emphasis added).

The case sub judice is more closely akin to Taylor v. Mayor and City Council of Baltimore, 130 Md. 133 , 99 A. 900 (1917). There, pursuant to state law, the City of Baltimore erected a sewage disposal plant 1500 feet from the plaintiff’s property, on which a hotel and a dance and dining pavilion were located. The plaintiff brought an action for nuisance seeking damages for injuries to her property. Id. at 134 , 99 A. at 901 .

After determining that the city had not “taken” the plaintiff’s property, the Court framed the issue as “Whether the appellee, a municipal corporation, is liable under the facts and circumstances above ..., which would amount to a nuisance if done by a private corporation, or individuals — even if done by legislative authority.” Id. at 143 , 99 A. at 904 . Answering in the affirmative, we said, “[t]he delegation of a power to do an act, whilst conferring full authority to perform the act itself, does not, therefore, without more, essentially and without exception, carry the right to so do it as to inflict ¹²⁹ loss or injury upon an innocent individual.” 130 Md. at 145 , 99 A. at 904 . Accordingly, the Taylor Court held that the City could be held liable for nuisance even though the construction of the sewage disposal plant did not result in a taking of plaintiffs property and was done pursuant to State authority. Id. at 142-43 , 99 A. at 906 .

See Bd. of Educ. v. Riverdale, 320 Md. 384, 388 , 578 A.2d 207, 209 (1990). See also Richards v. Washington Terminal Co., 233 U.S. 546, 556-58 , 34 S.Ct. 654, 658 , 58 L.Ed. 1088, 1092-93 (1914), which addressed a similar issue. There, the plaintiff owned a residence abutting railroad tracks and near a railroad tunnel. That residence, which had been let to a tenant, was damaged by the volumes of dense black or grey smoke, dust and dirt, cinders and gases emitted from the trains while passing over the tracks, going into or coming out of the tunnel, or standing on the tracks.

Vibrations from the train also damaged the house. As a result, the property depreciated in value and the plaintiff, unable then to rent the house, was forced to occupy it himself. Id. at 549-50 , 34 S.Ct. at 655 , 58 L.Ed. at 1089-90 . The Supreme Court held that the plaintiff had not been wholly excluded from the use and enjoyment of his property and, hence, no “taking” occurred in the ordinary sense.

The Court noted, however, that “while the legislature may legalize what otherwise would be a public nuisance, it may not confer immunity from action for a private nuisance of such a character as to amount in effect to a taking of private property for public use.” Id. at 553 , 34 S.Ct. at 657 , 58 L.Ed. at 1091 . (citations omitted). Addressing what is to be deemed a private nuisance that amounts to a taking, the Court referred to Baltimore & Potomac Railroad Company v. Fifth Baptist Church, 108 U.S. 317 , 2 S.Ct. 719 , 27 L.Ed. 739 (1883). In that case, the railroad was immune from a private action by the church based upon inconveniences incidentally and unavoidably related to its operation of a railroad.

Nevertheless, the Court pointed out that the church, in that case, had a cause of action “where a building for housing and repairing locomo ¹³⁰ tive engines was unnecessarily established in close proximity to ... [it] and [was] so used [as to] create[ ] a constant disturbance of the religious exercises.” Richards, 233 U.S. at 555 , 34 S.Ct. at 658 , 58 L.Ed. at 1092 . The Court therefore reasoned: “Grants of privileges or powers to corporate bodies, like those in question, confer no license to use them in disregard of the private rights of others, and with immunity for their invasion.” Id. at 556 , 34 S.Ct. at 658 , 58 L.Ed. at 1092 quoting Fifth Baptist Church, 108 U.S. at 331 , 2 S.Ct. at 728 , 27 L.Ed. at 744 . It further opined that congressional authority could not “be invoked to justify acts, creating physical discomfort and annoyance to others in the use and enjoyment of their property, to a less extent than entire deprivation, if different places from those occupied could be used by the corporation for its purposes, without causing such discomfort and annoyance.” Id. In Fifth Baptist Church , the option of where to locate the repair shop and engine house rested with the railroad, while, in Richards , “the location of the tunnel and its south portal was established pursuant to law, and not voluntarily chosen by defendant.” Id., 233 U.S. at 557 , 34 S.Ct. at 658 , 58 L.Ed. at 1093 .

That distinction was insufficient to require a different result in Richards than in Fifth Baptist Church , however. As to such damage as is attributable to the gases and smoke emitted from locomotive engines while in the tunnel, and forced out of it by means of the fanning system through a portal located so near to plaintiffs property that these gases and smoke materially contribute to injure the furniture and to render the house less habitable than otherwise it would be, Richards, 233 U.S. at 551 , 34 S.Ct. at 656 , 58 L.Ed. at 1090 , the Court explained: ¹³¹ Construing the acts of Congress in the light of the Fifth Amendment, they do not authorize the imposition of so direct and peculiar and substantial a burden upon plaintiff’s property without compensation to him. If the damage is not preventable by the employment at reasonable expense of devices such as have been suggested, then plaintiff’s property is “necessary for the purposes contemplated,” and may be acquired by purchase or condemnation ... and pending its acquisition defendant is responsible. If the damage is readily preventible, the statute furnishes no excuse, and defendant’s responsibility follows on general principles. 283 U.S. at 557, 34 S.Ct. at 658 , 58 L.Ed. at 1093 (citation omitted).

The district court ordered WSSC to build a sewage sludge composting facility in Montgomery County, Maryland. It did not select the site — Montgomery County, one of the two counties for which WSSC has responsibility for sewage, did that, see United States v. District of Columbia, 654 F.2d 802, 804 (D.C.Cir.), cert. denied sub nom Prince George’s County v. United States, 454 U.S. 1082 , 102 S.Ct. 637 , 70 L.Ed.2d 616 (1981) — nor mandate how, as opposed to when, the construction would proceed. WSSC acquired the land, and was solely responsible for the development of the facility. 8 While the district court expedited the construction, it was the petitioner that created the nuisance. A strict liability standard should apply. “[The United States District Court for the District of Columbia] can not be presumed, from general grant of authority, to have intend ¹³² ed to sanction or legalize any acts or any use of property that will create a private nuisance which will injuriously affect the property of another.” Taylor, 130 Md. at 145 , 99 A. at 905 (quoting Mayor and City Council of Baltimore v. Fairfield Impro.

Co., 87 Md. 352, 362 , 39 A. 1081, 1083 (1898)). See also Webb v. Town of Rye, 108 N.H. 147 , 230 A.2d 223 (1967) (statutory duty of town to provide and maintain public facilities for depositing garbage and refuse did not sanction the creating and maintenance of a nuisance); Jones v. Knox County, 205 Tenn. 561 , 327 S.W.2d 473 (1959) (although acting in governmental capacity, county is not authorized to maintain a public nuisance in form of sewage treatment plant).

II

A. The supremacy clause to the United States Constitution, Article YI, clause 2, provides: “This constitution, and the laws of the United States ... shall be the supreme law of the land____” This clause has been interpreted to mean that “state laws which ‘interfere with, or are contrary to the laws of Congress, made pursuant to the constitution’ are invalid.” Wisconsin Public Intervenor v. Mortier, — U.S.-,-, 111 S.Ct. 2476, 2481 , 115 L.Ed.2d 532, 542 (1991) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211 , 6 L.Ed. 23, 73 (1824)). The Supreme Court has identified three situations in which federal law preempts state law. English v. General Electric, 496 U.S. 72, 78-79 , 110 S.Ct. 2270, 2275 , 110 L.Ed.2d 65, 74 (1990). State law is preempted when Congress has explicitly defined the extent to which its enactment preempts state law. 496 U.S. at 78 , 110 S.Ct. at 2275, 110 L.Ed.2d at 74 .

When there is no explicit statement of preemption, state law which seeks to regulate conduct in a field that Congress intended the federal government to occupy exclusively is preempted. Id. at 79 , 110 S.Ct. at 2275, 65 L.Ed.2d at 74. State law is also preempted to the extent that it actually conflicts with federal law, id.; ¹³³ Maryland v. Louisiana, 451 U.S. 725, 747 , 101 S.Ct. 2114, 2129 , 68 L.Ed.2d 576, 596 (1981), as “when compliance with both federal and state regulations is a physical impossibility”. Harrison v. Schwartz, 319 Md. 360, 364 , 572 A.2d 528, 530 , cert. denied, 498 U.S. 851 , 111 S.Ct. 143 , 112 L.Ed.2d 110 (1990); Becker v. Litty, 318 Md. 76, 86 , 566 A.2d 1101, 1106 (1989); Bd. of Trustees v. Mayor & City Council of Baltimore City, 317 Md. 72, 115 , 562 A.2d 720, 741 (1989), cert. denied sub nom., Lubman v. Mayor & City Council of Baltimore City, 493 U.S. 1093 , 110 S.Ct. 1167 , 107 L.Ed.2d 1069 (1990); Hecht Co. v. C & P Telephone Co., 310 Md. 148, 152 , 528 A.2d 474, 476 (1987), quoting Hillsborough County, Fla. v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 , 105 S.Ct. 2371, 2375 , 85 L.Ed.2d 714, 721 (1985).

WSSC posits that the district court orders requiring it to build and operate a composting facility on Site 2 conflicted with, and, therefore, preempted, Maryland’s rule of strict liability in nuisance. Relying on the second and third bases for preemption, it makes two arguments: (1) that the emergency federal court orders issued pursuant to the Water Pollution Control Act, under the unique circumstances of this case, effect the preemption and (2) that Maryland law is preempted because it was impossible for WSSC to comply with both the federal court orders and Maryland law. 1. Underlying WSSC’s first argument is the premise that the savings clause, § 1365(e) 9 applies only to citizens’ suits. WSSC argues that § 1365(e) has no applicability, broadly, to the Water Pollution Control Act and, in particular, to court ¹³⁴ orders issued pursuant to § 1364. 10 Because the district court orders were issued pursuant to the emergency powers, to which the savings clause is inapplicable, WSSC asserts, the Maryland nuisance standard is not saved, but is preempted.

It advises us that this result is mandated by International Paper Company v. Ouellette, 479 U.S. 481 , 107 S.Ct. 805 , 93 L.Ed.2d 883 (1987). Even if we assume, arguendo, 11 that federal district court orders can trigger preemption, no such preemption occurred in this case. In Ouellette , Vermont property owners sued, in a Vermont state court, the operator of a New York pulp and paper mill for nuisance. The property ¹³⁵ owners alleged that pollutants discharged by the New York mill made the water in Vermont “foul, unhealthy, smelly, and unfit for recreational use,” and, thus, constituted a “continuing nuisance.” The action having been removed to federal district court, the mill operator moved for summary judgment, arguing that the Clean Water Act (the Water Pollution Control Act), preempted the state law suit.

Id. at 484 , 107 S.Ct. at 807 , 93 L.Ed.2d at 892 . The district court denied the motion, finding that the Act’s savings clause preserved actions to redress interstate water pollution under the law of the state in which the injury occurred. 602 F.Supp. 264 (D.Vt.1985). The Court of Appeals for the Second Circuit affirmed. 776 F.2d 55 (2d Cir.1985). After analyzing the Act’s regulatory framework and legislative history, the Supreme Court rejected the argument that the savings clause preserved a state’s right to regulate its waters and an injured party’s right to seek relief under any statute or the common law of the state in which the injury occurred. 479 U.S. at 492 , 107 S.Ct. at 811-12 , 93 L.Ed.2d at 896-97 .

It held that the Act precludes a court from applying the law of an affected State against an out-of-state source. Id. at 493-94 , 107 S.Ct. at 812 , 93 L.Ed.2d at 898 . See also Michigan Canners & Freezers Ass’n v. Agricultural Marketing & Bargaining Bd., 467 U.S. 461, 477 , 104 S.Ct. 2518, 2527 , 81 L.Ed.2d 399, 411 (1984). If it were otherwise — if affected states were allowed to impose separate discharge standards on a single point source — the Court explained, serious interference with the achievement of the “full purposes and objectives of Congress” would result: If a New York source were liable for violations of Vermont law, that law could effectively override both the permit requirements and the policy choices made by the source State.

The affected State’s nuisance laws would subject the point source to the threat of legal and equitable penalties if the permit standards were less stringent than those imposed by the affected State. Such penalties would compel the source to adopt different control stan ¹³⁶ dards and a different compliance schedule from those approved by the EPA, even though the affected State had not engaged in the same weighing of the costs and benefits. 479 U.S. at 495 , 107 S.Ct. at 813 , 93 L.Ed.2d at 899 . The property owners were not without a remedy, the Court pointed out, because, even though Congress intended to dominate the field of pollution regulation, the savings clause negates the inference that Congress “left no room” for state causes of action. Id. at 492 , 107 S.Ct. at 812 , 93 L.Ed.2d at 897 .

Indeed, it noted, “[t]he savings clause specifically preserves other state actions, and ... nothing in the Act bars aggrieved individuals from bringing a nuisance claim pursuant to the law of the source State.” Id. at 497 , 107 S.Ct. at 814 , 93 L.Ed.2d at 900 . The Court explained: An action brought against IPC under New York nuisance law would not frustrate the goals of the CWA as would a suit governed by Vermont law. First, application of the source State’s law does not disturb the balance among federal, source-state, and affected-state interests. Because the Act specifically allows source States to impose stricter standards, the imposition of source-state law does not disrupt the regulatory partnership established by the permit system.

Second, the restriction of suits to those brought under source-state nuisance law prevents a source from being subject to an indeterminate number of potential regulations. Although New York nuisance law may impose separate standards and thus create some tension with the permit system, a source only is required to look to a single additional authority, whose rules should be relatively predictable. Moreover, States can be expected to take into account their own nuisance laws in setting permit requirements. Id. at 498-99 , 107 S.Ct. at 815 , 93 L.Ed.2d at 900-01 (footnotes omitted).

In the course of discussing the effect of the savings clause on suits brought under the laws of the affected state, the Supreme Court observed: ¹³⁷ Section 505(e) [the savings clause] merely says that “[n]othing in this section," i.e., the citizen-suit provisions, shall affect an injured party’s right to seek relief under state law; it does not purport to preclude preemption of state law by other provisions of the Act. Id. at 493 , 107 S.Ct. at 812 , 93 L.Ed.2d at 897 . Focusing on these comments, surmising that the district court orders in this case were issued under § 1364, and stressing that the first sentence of § 1365(e) refers only to that section, WSSC argues that “the ‘savings clause’ is inapplicable to actions under § 1364.” It concludes that the federal orders in this case preempted the strict liability standard for nuisance because it “conflicts with, ‘stands as an obstacle to’ or ‘interferes with the methods’ for reaching federal environmental goals.” Petitioner’s brief at 22, quoting Ouellette, 479 U.S. at 494 , 107 S.Ct. at 813 , 93 L.Ed.2d at 898 . As we have seen, the Supreme Court held that the savings clause did preserve other state law remedies when those remedies were sought pursuant to the law of the source state.

Ouellette simply does not stand for the proposition that all actions under the Clean Water Act, except the citizens’ suit section, preempt state law. WSSC reads the savings clause much too narrowly. To the extent that the action does not otherwise thwart the goal of the Clean Water Act, the savings clause does preserve state law remedies. Notwithstanding its inclusion within § 1365, the effect of the savings clause is not limited to that section; it is, rather, a recognition that, in addition to actions under the Clean Water Act, persons injured by pollution may seek additional remedies.

The mere inclusion in the same section, of a statute both a specific remedy and a savings clause does not limit the injured person to the specified remedy only. 2. The next argument that WSSC makes is that the strict liability feature of Maryland’s nuisance law made it impossible, for WSSC to carry out the federal court orders and ¹³⁸ comply with State law at the same time. Compliance with both, it maintains, is a physical impossibility. It offers as the best evidence that this is so, the district court’s June 27, 1980 order and the opinion of the United States Court of Appeals affirming those orders.

See generally United States v. District of Columbia, 654 F.2d 802 (D.C.Cir.), cert. denied sub nom., Prince George’s County v. United States, 454 U.S. 1082 , 102 S.Ct. 637 , 70 L.Ed.2d 616 (1981). WSSC points out that the June 27, 1980 order required various parties to withdraw their complaints; one of which sought a declaration that it was a prospective nuisance, against the Site 2 project in Maryland State courts. The federal court orders, of course, did not expressly prohibit the filing and maintenance of nuisance actions with respect to operation of Site 2, against WSSC in a Maryland court. It is true, however, that, for there to be preemption, the conflict between State and federal laws which makes compliance with both “a physical impossibility,” need not be direct; it may be indirect.

Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 155-56 , 102 S.Ct. 3014, 3023-24 , 73 L.Ed.2d