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To:

Members, Affiliates, & Legal Affairs Committee

From:

National Office

Date:

August 31, 2000

Subject:

LITIGATION UPDATE

Reference:

Legal Alert 00-10

TMDLs - Nonpoint Sources:
Pronsolino v. Marcus

On May 23, the plaintiffs in the case of Pronsolino v. Marcus, including the American Farm Bureau Federation and the American Forest & Paper Association, filed an appeal with the U.S. Court of Appeals in the Ninth Circuit. The appellants hope to reverse a decision by the lower court on March 30 which upheld the U.S. Environmental Protection Agency's (EPA's) authority under the Clean Water Act (CWA) to develop total maximum daily loads (TMDLs) for waters impaired by nonpoint sources. Due to the importance of this case to AMSA's members, the Board of Directors voted on June 30 to support the Association's ongoing participation in this case, in opposition to the nonpoint source appellants. AMSA's continued involvement in Pronsolino v. Marcus will enable counsel to work in collaboration with the U.S. Department of Justice (DOJ) to preserve the favorable lower court decision. Because the appellants' brief is not due until early September, the legal basis for the appeal is not yet known.

At the Legal Affairs Steering Committee meeting on July 20 in Louisville, KY, the Committee considered a recent options memorandum prepared by counsel to map out a briefing strategy for the appeal. The Steering Committee members voted in favor of two potential options directing counsel to file either a supplemental brief to DOJ's main brief or a separate short brief.

According to the Court of Appeals' "Time Schedule Order", which sets out the briefing schedules, the appellants' brief will be due on September 11, 2000. The deadline for the appellee's brief is October 10, 2000. Each party to the appeal is entitled to file a 30-page opening brief. AMSA will be required to request inclusion as a party to the appeal. As an intervener to the original case, AMSA counsel has indicated that this request will be granted.

"Permit Shield":
Piney Run Preservation Association v. Carroll County
On August 7, AMSA and the Water Environment Federation (WEF) filed an amicus brief in an appeal that could have far-reaching implications for the nation's wastewater treatment plants and their National Pollutant Discharge Eliminations System (NPDES) permits. A copy of the brief was distributed to the membership via AMSA Legal Alert 00-8. In early July, AMSA's Board directed the National Office to seek participation in the matter of Piney Run Preservation Association v. Carroll County. The Commissioners of Carroll County, MD are appealing a U.S. district court's decision which holds one of the county's POTWs liable for a pollutant not regulated under its NPDES permit - temperature.

Following a lawsuit by a neighborhood association against a POTW in Maryland, the court ruled to penalize the wastewater treatment agency for past violations of an ambient water quality standard for heat even though the facility's permit did not contain limits for heat, and the County had never been cited for any heat or temperature violation. The amicus brief argues that the ruling directly conflicts with EPA's 1994 "permit shield" policy and the plain language of the Clean Water Act (CWA). "Section 402(k) of the CWA states explicitly that as a matter of law, 'compliance with a NPDES permit' is 'deemed compliance' with all effluent limitations and standards set in accordance with the Act," the brief contends. In 1994, EPA policy clarified that the CWA Section 402(k) "permit shield" provides a shield for discharges from POTWs of pollutants that have been identified in the permit application process. By filing an AMSA-led amicus brief on this case, the Association seeks to protect the integrity of the "permit shield" and to prevent similar suits that hold POTWs responsible for pollutants that are not specifically limited in their NPDES permits.

TMDLs:
Listing Methodologies: City of Anderson v. South Carolina

This case involves a challenge to the South Carolina Department of Health & Environmental Control's (DHEC's) use of unpromulgated "binding norms" for use in the listing of impaired waters for TMDL purposes. The litigation was prompted primarily by DHEC's use of an unpromulgated tropic (nutrient enrichment) index as a uniformly-applied "binding norm" to list water bodies as impaired due to phosphorus under Section 303(d) of the Clean Water Act. AMSA filed an amicus brief in May 1999 arguing that DHEC's actions were contrary to law, regulation and national policy directions, and that waters should be placed on the 303(d) list only if they are currently impaired as determined by properly promulgated numeric criteria or narrative criteria translator methodologies. In a favorable September 1999 ruling, the South Carolina Administrative Law Judge rejected the State's use of the indices due to the State's bypassing the required rulemaking procedures. However, a State Appeals Board reversed this decision.

The City of Anderson has appealed the reversal and has asked AMSA to assist by filing a second amicus brief. Due to the importance of reinstating the original ruling in order to help POTWs challenge listing procedures that are based on flawed or unapproved indices, AMSA's Board of Directors voted on June 30 to support this request. It is likely that AMSA's amicus brief will be due sometime in early this fall. The costs to prepare the brief are expected to be minimized by the efforts of the City's counsel to work on the initial drafting. The draft brief will then be reviewed and finalized by AMSA counsel.

Municipal Stormwater Permits:
EarthJustice Legal Defense Fund v. EPA
AMSA's Board of Directors on July 21 voted in favor of the Association's participation in a lawsuit being brought by the EarthJustice Legal Defense Fund against EPA over the issuance of a stormwater permit to Washington, DC. The case centers around the extent to which numeric effluent limitations can be applied in municipal stormwater permits. The environmental group has appealed the stormwater permit, which already contains a numeric effluent limit for oil and grease, in order to oppose EPA's alleged failure to issue similar limits for all of the city's stormwater outfalls and to place numeric limits on all potential stormwater pollutants. It has long been AMSA's position to oppose the use of numeric effluent limits in stormwater permits in favor of an approach which emphasizes best management practices. Although the D.C. government has decided not to challenge the issuance of the stormwater permit and the EarthJustice appeal, AMSA's D.C. member, the District of Columbia Water & Sewer Authority, has expressed their support for AMSA's involvement in the lawsuit.

AMSA's participation is vital to protect the favorable ruling in last year's Arizona stormwater case, Defenders of Wildlife v. EPA, in the Ninth Circuit Court of Appeals. The September 1999 ruling, a victory for AMSA's stormwater position, indicated that municipal stormwater permits were intended to be based primarily on the "maximum extent practicable" threshold as opposed to strict compliance with water quality standards. EarthJustice was also involved in the earlier Arizona case, and appears to be seeking in this appeal to directly undermine that earlier ruling. If EarthJustice is successful, the door may be open to numerous lawsuits to require EPA and States to impose numeric stormwater effluent limits nationwide. On August 11, EarthJustice refiled their permit appeal directly with the Environmental Appeals Board (EAB). According to EAB's procedural requirements, the Board must within a reasonable time decide whether to hear the case and, if so, determine a briefing schedule. At this point, the EAB has made no decisions with regard to hearing the case or scheduling the deadlines for briefs.

TMDLs, Nonpoint Sources:
American Farm Bureau Federation, American Forest & Paper Association, American Crop Protection
Association, National Pork Producers Council v. Browner
National Corn Growers and National Chicken Council v. Browner

The American Farm Bureau Federation (AFBF) on July 18 filed a petition to the U.S. Court of Appeals for the District of Columbia Circuit challenging EPA's final TMDL rule. This petition was followed by similar petitions from the American Forest & Paper Association (AFPA), American Crop Association (ACA), and National Pork Producers Council (NPPC) on August 1, and the National Corn Growers (NCG) and National Chicken Council (NCC) on August 24. The court consolidated the first two petitions into one case on August 11. AMSA expects the third petition by NCG and NCC to be similarly consolidated in the near future. In addition, a coalition of environmental organizations, including the EarthJustice Legal Defense Fund, Friends of the Earth, and Waterkeepers, on August 30 filed a motion to intervene on EPA's side to defend the TMDL rule. AMSA understands that a separate motion to intervene will be filed in the near future by the Northwest Environmental Advocates and the Southern Environmental Law Center.

The AFBF filed its Statement of Issues on August 21, summarizing the issues it intends to present in the case. Among the concerns raised in the Statement are questions concerning whether EPA's final rule unlawfully requires: listing of waters impaired by nonpoint sources, groundwater, atmospheric deposition, and/or solar input; development of TMDLs for waters impaired by nonpoint sources, ground water, atmospheric deposition, and/or solar input; inclusion of implementation plans with "reasonable assurances"; and allowance for reasonably foreseeable increases in pollutant loads, including future growth. The AFBF Statement also raises issues about whether EPA failed to comply with the Administrative Procedures Act and whether the Clean Water Act, as construed in the TMDL rule, creates an unconstitutional delegation of legislative authority to EPA.

A briefing schedule has not yet been assigned. The National Office will continue to track developments in the case, and consult with counsel and the Legal Affairs Committee on potential scenarios for AMSA's involvement.

Municipal Stormwater Permits:
Tualatin Riverkeepers v. Browner

The Tualatin Riverkeepers (TRK) and a private plaintiff have sued EPA over the issuance of municipal stormwater permit to the Unified Sewerage Agency (USA) of Washington County, Oregon and various other county and state co-permittees. TRK claims that the permit is unlawful due to EPA's failure to include specific water quality standards or to require compliance with the phosphorus TMDL for the Tualatin River Basin. The environmental group also alleges that the defendants have caused or contributed to numerous water quality criteria violations, and that EPA has violated the Clean Water Act by issuing the stormwater permit. The plaintiffs ask the court to require EPA to revoke the permit and to condition its approval upon addressing all alleged deficiencies.

USA has filed a motion to intervene as an interested party as well as a summary judgment motion on August 15 to dismiss the case as a matter of law. In order to demonstrate to the court the potential national impact of this lawsuit, USA has requested that AMSA participate in the lawsuit by filing an amicus brief in opposition to TRK. USA staff briefed the Wet Weather Issues Committee during AMSA's Summer Meeting in Louisville, KY, and the case was discussed during the Legal Affairs Steering Committee on July 20. The Steering Committee gave a favorable recommendation for AMSA to participate in the case, necessitating approval by both the Executive Committee and the Board of Directors. USA's counsel has indicated that an amicus brief would be due sometime in September.

TMDLs - Nonpoint Sources:
Hawes v. State of Oregon

The Hawes plaintiffs, a grouping of private ranch owners, and a county Farm Bureau and Livestock Association, are challenging the State of Oregon's Memorandum of Agreement (MOA) with EPA relating to the TMDL program. The plaintiffs allege that EPA has exceeded its statutory authority under the Clean Water Act by imposing a requirement to develop TMDLs to impose controls for streams impaired "solely due to nonpoint source pollution and are not to impose further controls upon an individual point source discharger." As such, the lawsuit raises issues that are similar in many respects to the Pronsolino case. The plaintiffs ask the court to: (1) set aside the MOA as contrary to law and without probable cause; (2) enter a declaratory judgment stating that the State of Oregon's actions in listing waters solely due to nonpoint source pollution is contrary to law, without probable cause, and will impose substantial and irreparable harm to plaintiffs; (3) issue a decree restraining and enjoining the State of Oregon from implementing TMDLs on streams that are impaired solely by nonpoint source pollution and from maintaining a list of such waters; and (4) award attorney fees.

Originally filed in State court, this case has since been removed to U.S. District Court for the District of Oregon in response to a motion by the State of Oregon. The judge denied the plaintiffs' motion to remand the case back to state court. Discovery is set to be completed by August 29. A motion to intervene was filed by several environmental organizations, including some of the same groups that participated in the Pronsolino case. The National Office will continue to track the progress of the case, and consult with counsel and the Legal Affairs Committee on potential scenarios for AMSA's involvement.

Biosolids:
Gearhart v. Reilly

AMSA is a Plaintiff-Intervenor in this case in the United States District Court in Oregon. This case was filed by a group of citizens who sought to require U.S. EPA to propose rules that would identify toxic pollutants in sewage sludge and place limits and conditions on those pollutants. AMSA intervened in the case in September of 1991. The Court has retained jurisdiction pending performance of the terms and conditions of the Consent Decree, including the promulgation of Round II rules. No pleadings have been filed in this case since the January 1999 Litigation Update.

On December 30, 1998, AMSA sent a letter to the U.S. EPA Assistant Administrator for Water reminding the Agency that AMSA is a party to the Gearhart case and that its consent should be sought for any modifications to the requirements of the Decree or the implementation schedule for those requirements. AMSA specifically requested that it be included in any future discussions with the Natural Resources Defense Council (NRDC) or other interested parties regarding potential policy changes that could affect the settlement of the Gearhart matter. Recently, Randy Benn of LeBoeuf, Lamb, Greene & MacRae has been substituted as counsel for AMSA in the case, and Nancy Stoner has been substituted as counsel for NRDC.