Member Pipeline - Legal - Alert (Leg01-4)
Privileged & Confidential
Attorney Work Product
| To: | Members, Affiliates, & Legal Affairs Committee |
| From: | National Office |
| Date: | May 25, 2001 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 01-4 |
AMSA is pleased to provide you with the latest Litigation Report. This quarterly report summarizes the most recent activities and developments on the Association's legal front. You can follow AMSA's active cases by reading the Legal Perspectives column in AMSA's Clean Water News and by reviewing the Litigation Tracking section of Member Pipeline where key legal documents from AMSA cases are posted. Significant developments in AMSA's on-going litigations are summarized below.
Overall, AMSA is taking a more proactive approach to evaluating and identifying cases that advance or affect the interests of POTWs. The integration of AMSA's first in-house General Counsel in January has enhanced the Association's ability to respond quickly to ongoing and emerging legal issues. In addition to the slate of cases in which AMSA is a direct participant, the Association is now actively tracking many other cases of critical importance to the wastewater treatment community.
Issues presently affecting AMSA member agencies that may lead to AMSA legal action in the future include interim permitting in impaired waters, sanitary sewer overflow enforcement, potential treatment upgrades for temperature standards, and POTW waste load allocations for mercury and other legacy pollutants.
As always, please feel free to contact AMSA's General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions on AMSA's legal activities.
Testing the Limits of the Clean Water Act: Pronsolino v. Marcus
The Pronsolino v. Marcus appeal continues to be watched as the
next pivotal Clean Water Act (CWA) case. It raises the specific question of whether
impaired waters should be listed under CWA 303(d) and be subject to total maximum daily
loads (TMDLs) without regard to the source of the pollutants-point sources, nonpoint
sources, or a combination of both. AMSA filed a brief as Intervenor-Appellee supporting
the government's position that nonpoint source impaired waters are indeed subject to
listing and TMDLs under the CWA. Oral argument in the case will be held July 9. AMSA will
not participate in oral argument, but will assist the U.S. Department of Justice in
"moot court" preparation sessions. If the lower court's favorable decision is
overturned by the Ninth Circuit, it is expected that Pronsolino will be appealed
to the U.S. Supreme Court.
The Future of TMDLs: American Farm Bureau Federation v. Whitman
The fate of EPA's July 2000 final TMDL rule will be determined in this
large D.C. Circuit case involving AMSA, EPA, environmental groups, industry, and nonpoint
source interests. In response to a March 26 Court Order requesting parties to clarify
their positions and briefing needs, on April 5 AMSA asked the Court for our own brief to
provide the POTW perspective on the TMDL rule. AMSA's request, designed to overcome the
Court's historic requirement that intervenors share a single joint brief, explained that
our interests in the case are unique. We emphasized that the TMDL program must encompass
point and nonpoint sources of water quality impairment, and explained that while we will
file a brief on EPA's side "this does not mean that AMSA fully supports all aspects
of EPA's Final Rule, or that the interests of AMSA's members will be represented
adequately" by EPA. On April 16, the Court ordered all parties to file a joint
proposal for briefing the case by May 15. On May 11, the government filed a request for 60
additional days from the Court. During the extension, DOJ and EPA will hold meetings with
various parties including AMSA to clarify the issues they intend to raise and determine
where overlaps exist. It is unclear as yet how the new Administration and EPA leadership
may affect the Agency's position or defense of the rule. AMSA will continue to pursue our
own independent brief through the meetings with DOJ and EPA, although it is likely the
case will not be briefed until late 2001.
Protecting the "Permit Shield": Piney Run Preservation Assoc. v.
Carroll County
The durability of EPA's "permit shield" policy, which defines CWA
compliance by whether a discharger meets all effluent limitations and standards listed in
the permit and supporting documents, is at issue in Piney Run Preservation Association
v. Carroll County. AMSA and the Water Environment Federation filed a joint amicus
curiae brief with the Fourth Circuit Court of Appeals arguing that the lower
court improperly ignored the permit shield policy when holding a POTW responsible for an
unregulated pollutant. Although the plaintiff environmental preservation group has
acknowledged the validity of the permit shield, the Appeals Court still must decide
whether the lower court judge erred in his statement that the "permit shield" is
a misinterpretation of the CWA. Oral arguments were held on April 5. A ruling is expected
in late Summer 2001.
The Value of Notice and Comment Procedures: City of Anderson v. South
Carolina
On April 18 AMSA filed an amicus brief in South Carolina Circuit
Court in City of Anderson v. South Carolina Department of Health and Environmental
Control (DHEC). This case concerns DHEC's adoption - without any opportunity for
public input or comment - of an index-based numeric translator for determining whether
South Carolina's narrative water quality standard for aquatic life use is impaired due to
phosphorus or pH. AMSA's brief explained that "affected parties (including members of
AMSA) had no opportunity to comment on or participate in the development of a system that
effectively determines the need for imposing more stringent effluent limits on individual
dischargers to waterbodies identified as 'impaired'". AMSA also emphasized that the
"rulemaking procedures established by federal and state administrative procedures
acts are some of the most important procedures for seeking appropriate input to develop
sound policies because they are designed to assure fairness and mature consideration of
rules of general application". Activity in the case will proceed throughout the year,
with a decision expected in late 2001.
Defining Permit Limits for Urban Stormwater: Tualatin Riverkeepers v. Browner
This case, involving an environmental group's challenge of EPA's decision
to approve a municipal stormwater permit without numeric effluent limits, was dismissed on
jurisdictional grounds, refiled by the citizen group, and still remains unlikely to
survive further procedural hurdles. If the case proceeds to briefing, AMSA will submit an amicus
brief to protect the existing stormwater permit and the larger principle that
municipal programs are subject to best management practices, not numeric limits. This will
continue to be a major issue for POTWs as states are pressured to reconcile stormwater
permits with water quality standards and TMDL programs. The next test case for this issue
could be EarthJustice Legal Defense Fund v. EPA, a case in its early stages
before EPA's Environmental Appeals Board, which parallels Tualatin Riverkeepers
in many respects and in which AMSA plans to file an amicus should it proceed.
Effluent Monitoring Requirements: Bishop and Jarrett v. City of Montgomery
The City of Montgomery case settled the day before oral
argument in February. This abrupt ending to the case means the Alabama District Court will
not rule on the merits of the citizen group's argument that a POTW's permit provision
requiring the submission of monthly summaries of discharge data in fact requires reporting
of all individual data points. AMSA believes this unreasonable expectation directly
conflicts with the permit, which is modeled after standard regulatory NPDES provisions.
AMSA filed an amicus brief in December 2000 arguing that the plain language of
the permit requires summaries only. The summary versus individual data point issue is
expected to resurface in Alabama, however, as the same citizen plaintiffs are actively
seeking another test case.
Biosolids: Gearhart v. Whitman
This case involves a 1989 citizen suit in the Oregon District Court which
sought to require EPA to identify toxic pollutants in sewage sludge and set limits and
conditions on such pollutants. AMSA intervened in the original case to ensure our
participation as EPA develops the regulations. A 1996 amendment to the original 1990
Consent Decree governing the case requires EPA to promulgate final Round II rules by
December 15, 2001. EPA notified AMSA on April 23 that an extension of time beyond December
15, 2001 may be needed to complete the dioxin risk assessment and evaluate the results.
EPA lists research and surveying being conducted by AMSA as an important source of data
that EPA needs to evaluate. In early June, EPA will hold a meeting between AMSA, the
Natural Resources Defense Council, and the citizen plaintiffs to discuss EPA's activities
in detail.