Member Pipeline - Legal - Alert (Leg 01-02)
To: Members, Affiliates, & Legal Affairs Committee
From: National Office
Date: January 19, 2001
Subject: LITIGATION REPORT
Reference: Legal Alert 01-2
AMSA is pleased to provide you with the latest Litigation Report. The report summarizes the most recent activities and developments on the Association’s legal front. This report is issued quarterly. Cases can be tracked on a more frequent basis through the AMSA website (see explanation below).
AMSA Website Revised to Track Litigation Progress
The Member Pipeline section of the AMSA website http://www.amsa-cleanwater.org has been updated to provide members with instantaneous updates and information on key litigation activities. Members can now easily track AMSA’s litigation by accessing case summaries and copies of all key briefing documents on the web. The site is located within the Member Pipeline in a new "Litigation Tracking" section.
TMDLs - Nonpoint Sources: Pronsolino v. Marcus
On May 23, 2000, the plaintiffs in the case of Pronsolino v. Marcus, including the American Farm Bureau Federation (AFBF) and the American Forest & Paper Association (AFPA), filed an appeal with the U.S. Court of Appeals in the Ninth Circuit. The appellants hope to reverse a March 30 U.S. District Court decision 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 issue 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.
On September 25, the plaintiff-appellants (AFBF) filed their opening brief in the case outlining their arguments as to why the plain language of the Clean Water Act argues against the lower court’s ruling that the TMDL program applies to nonpoint source-only impaired waters. The AFPA, as intervenor-appellants, filed a separate opening brief presenting similar arguments. The federal appellees (the U.S. Department of Justice) filed their response on November 27. The DOJ brief rebutted the claims made in the appellants’ opening briefs, emphasizing the comprehensive nature of the Clean Water Act with respect to sources of pollutants. AMSA, acting as intervenor-appellee, filed a supplementary brief on December 1 in support of DOJ. AMSA’s brief was followed by a separate filing by the other interenvor-appellee, the Pacific Coast Federation of Fishermen’s Association, on December 5, and then by an amicus curiae brief on December 11 by a group of interested states (California, Oregon, Washington, Delaware, Maine, Maryland, and New Jersey) supporting DOJ’s position. The appellants’ reply brief is due on January 11, which will complete the briefing of substantive issues. According to general information provided by the clerk's office, oral arguments typically take place within approximately 9 to 12 months after the completion of briefing. Most cases are, according to this information, decided within three months to a year after oral argument.
TMDLs, Nonpoint Sources: American Farm Bureau Federation et. al. 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. According to the AFBF’s Statement of Issues (filed on August 21), the Farm Bureau will raise 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 petition was followed by numerous other organizations intending to challenge the final TMDL rule as unlawful. The following organizations have petitioned the D.C. Court of Appeals:
American Crop Protection Association
American Forest & Paper Association
National Corn Grower
National Pork Producers Council
Fertilizer Institute
National Chicken Council
National Cotton Council of America
National Cattleman’s Beef Association
TMDL Coalition Water Utility Group
Waterkeepers Alliance
Friends of the Earth
State of Texas
It is worth noting that not only nonpoint source interests are challenging the rule, but also environmental organizations (i.e., Waterkeepers Alliance and Friends of the Earth) and a joint industry and local government group (i.e., TMDL Coalition).
AMSA’s Board voted on August 31 to approve the Association’s intervention in the TMDL lawsuit. AMSA Counsel filed a motion to intervene on September 25, asking the court to authorize the Association to brief issues on both sides of the argument. Despite opposition from several of the nonpoint source petitioners, the court granted AMSA’s motion on December 19.
Numerous groups are intervening on EPA’s side in the TMDL lawsuit, including:
Sierra Club Earth
Justice Legal Defense Fund
Friends of the Earth
Waterkeepers Alliance
Northwest Environmental Advocates
Center for Marine Conservation
Coast Action Group (amicus curiae)
Lake Michigan Federation (amicus curiae)
National Wildlife Federation
Littoral Society
Trout Unlimited
American Canoe Association
Southern Environmental Law Center
The court granted a previous motion by EPA to stay briefing until January 16 or until all dispositive motions have been filed. The briefing schedule will not be assigned until that date at the earliest.
"Permit Shield": Piney Run Preservation Association v. Carroll County
In early July 2000, AMSA’s Board directed the National Office to seek participation in the matter of Piney Run Preservation Association v. Carroll County before the U.S. Court of Appeals for the Fourth Circuit. 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. On August 7, AMSA and the Water Environment Federation (WEF) filed an amicus brief (refer to AMSA Legal Alert 00-8) 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.
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.
The court ruled in favor of considering the AMSA-WEF amicus brief, rejecting a motion by the appellees to exclude any amicus curiae motions. The court will next hear oral arguments which have been scheduled between February 26 and March 2.
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 early in 2001. 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.
Municipal Stormwater Permits: Tualatin Riverkeepers v. Browner
The Tualatin Riverkeepers (TRK) and a private plaintiff sued EPA in the U.S. District Court for the District of Oregon 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 alleged that the defendants have caused or contributed to numerous water quality criteria violations, and that EPA had violated the Clean Water Act by issuing the stormwater permit. The plaintiffs asked the court to require EPA to revoke the permit and to condition its approval upon addressing all alleged deficiencies.
USA 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 requested that AMSA participate in the lawsuit by filing an amicus curiae brief in opposition to TRK. On August 31, the Board approved USA’s request and directed AMSA Counsel to file an amicus brief if the case was not dismissed. On December 21, the court granted EPA’s motion to dismiss citing the lack of jurisdiction over the Agency’s "discretionary" duty to review and object to State permit decisions. The court left open the option for TRK to file an amended complaint under the Administrative Procedures Act if the plaintiffs can allege that EPA failed to consider all relevant factors or that it took improper factors into account when the Agency decided not to review USA’s permit. For the moment, this decision simply leaves the permit in place and makes no change in the law concerning the substantive requirements for municipal separate storm sewer permits. The plaintiffs have until January 19 to file an amended complaint. AMSA will need to file an amicus brief only if TRK decides to file an amended complaint and they withstand further motions to dismiss.
Effluent Monitoring Requirements: Bishop and Jarrett v. Water Works & Sanitary Sewer Board of the City of Montgomery
The Board of Directors voted on December 8 to participate as an amicus curiae in support of the City of Montgomery Water Works & Sanitary Sewer Board’s (City of Montgomery, AL) defense in a lawsuit involving NPDES monitoring and reporting requirements. Under the citizen suit provisions of the Clean Water Act, the plaintiffs in this case sued the City of Montgomery in U.S. District Court for the City’s alleged failure to report "each and every" sampling result in its monthly discharge monitoring reports (DMRs). The City of Montgomery has responded by asking the court as a basic matter of law to rule in its favor based on the clear requirements in its NPDES permit to report only summaries of their monitoring results in its DMR. Therefore, although the City is required to keep records of its sampling results for three years, there is no permit requirement that directs the City to report all monitoring data outside of the summaries it already provides. AMSA’s support for the City’s arguments in an amicus curiae brief is critical to demonstrate to the court the importance of protecting the integrity of existing NPDES permit conditions for all POTWs. AMSA’s amicus brief was filed on December 15, and the court on December 18 granted the Association’s motion to consider the brief. EPA also filed a similar amicus brief in support of the current monitoring requirements. Oral arguments are pending.
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.