PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

SMITHFIELD FOODS, INCORPORATED;
SMITHFIELD PACKING COMPANY,
INCORPORATED; GWALTNEY OF
SMITHFIELD, LTD.,
Defendants-Appellants.

MICHIGAN CHAMBER OF COMMERCE;
PENNSYLVANIA CHAMBER OF
                                                    No. 97-2709
BUSINESS AND INDUSTRY; COLORADO
ASSOCIATION OF COMMERCE AND
INDUSTRY; AMERICAN AUTOMOBILE
MANUFACTURERS ASSOCIATION;
AMERICAN MEAT INSTITUTE;
AMERICAN PETROLEUM INSTITUTE;
INDEPENDENT PETROLEUM ASSOCIATION
OF AMERICA; INTEGRATED WASTE
SERVICES ASSOCIATION; NATIONAL
ASSOCIATION OF MANUFACTURERS,
Amici Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-96-1204-2)

Argued: October 26, 1998

Decided: September 14, 1999
Before ERVIN and HAMILTON, Circuit Judges,
and G.3
in Isle of Wight County, Virginia. The wastewater discharged from
these plants is treated in two of Smithfield's facilities, Outfall 001 and
Outfall 002. From at least August 1991 to August 1997, treated
wastewater was discharged from Outfall 001 into the Pagan River.
From at least August 1991 until June 1996, treated wastewater was
discharged from Outfall 002 into the Pagan River. Smithfield stopped
discharging wastewater into the Pagan River when it successfully
connected its plants to the Hampton Roads Sanitation District
("HRSD") system.

A.

Smithfield's wastewater discharges contained numerous pollutants
that were regulated under the CWA and thus, could not be discharged
into the waters of the United States unless specifically authorized by
permit. Permits are governed by the National Pollutant Discharge
Elimination System ("NPDES"), under which polluters obtain an
NPDES permit to discharge lawfully certain pollutants in specific
amounts. See 33 U.S.C.A.