Member Pipeline - Legal - Alert (Leg01-6)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | August 21, 2001 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 01-6 |
A Busy Summer for AMSA Litigations
In recent months developments occurred in nearly each of AMSA's active cases, making this a busy summer on the litigation arena. The primary subject of AMSA's litigation focus was the American Farm Bureau Federation v. Whitman case concerning the Environmental Protection Agency's (EPA) final total maximum daily load (TMDL) regulations. After initial meetings among the litigants in the case in June, EPA announced in early August that it will take the next 18 months to conduct a public process to review the rule, and is seeking to put the lawsuit on hold during this time. AMSA's Legal Affairs Committee, in partnership with the Water Quality Committee, released a timely White Paper on EPA's July 2000 TMDL Rule to provide EPA and Capitol Hill with an overview of the critical policy stances of the nation's POTWs on the TMDL rule. AMSA's activity on Pronsolino v. Marcus also expanded as we assisted the Department of Justice (DOJ) in its preparation for the case's oral argument on July 9 before the Ninth Circuit Court of Appeals. More details are provided in this Legal Alert on both of these important cases, which will fundamentally shape the future direction of the TMDL program.
AMSA continues to scan the horizon for important, precedent setting cases that require AMSA involvement. Since the May 25, 2001 Legal Alert, AMSA evaluated and declined to participate in a legal challenge to EPA's final mercury TMDL for the Savannah River, GA. The case was filed in the Eleventh Circuit Court of Appeals by the Federal Water Quality Coalition (formerly the TMDL Coalition), a group of industry and municipal interests. The challengers assert 1) that EPA improperly created its own water quality standard for mercury instead of using the EPA-approved state standard, and 2) that point source reductions generally should not be required where studies show point sources are in fact de minimis contributors to the impairment. AMSA's views diverge slightly from the challengers on the second issue, as in some cases wastewater agencies could accept reasonable pollution prevention requirements even where we are de minimis contributors. In the final analysis, AMSA determined that the primary issues of concern to us would be adequately addressed by the challengers and that AMSA's litigation resources would be better applied in other matters.
We presently are evaluating a legal challenge filed by Sierra Club against EPA for its failure to promulgate certain Clean Air Act ยง129 performance standards by the November 2000 deadline. The performance standards are for several categories of commercial and industrial incineration, including sewage sludge incineration. According to EPA Federal Register notices and EPA staff, the Agency has no intent to regulate sewage sludge incineration under the Clean Air Act. AMSA is exploring various options to respond to the lawsuit, including communication with both Sierra Club attorneys and EPA. Intervention in the lawsuit may become necessary with AMSA Board of Directors' approval. We will report on these developments in the coming weeks.
As always, we closely watch issues affecting AMSA member agencies that may lead to AMSA legal action in the future. Please feel free to contact AMSA's General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions or suggestions on AMSA's legal activities.
Mark Your Calendars for the 2001 AMSA Law Seminar!
The 2001 Law Seminar, Developments in Water & Wastewater Law, will take place at the Savannah Marriott Riverfront Hotel in beautiful Savannah, Georgia from November 14-16. Registration information and a detailed agenda for the Seminar are coming via Legal Alert 01-7 and will be easily accessible on the AMSA website at www.amsa-cleanwater.org.
The 2001 Law Seminar will provide attendees a unique opportunity to examine critical environmental legal and regulatory developments and hone practical legal skills. Attendees will hear the latest thinking from legal practitioners, engineers, and other agency leaders on the impact of these recent developments on water and wastewater utilities. This year's Law Seminar brings one of the nation's premiere environmental mediators and negotiation trainers to conference attendees, Dr. Lawrence E. Susskind, Senior Fellow with the Harvard Law School Program on Negotiation. Professor Susskind will provide a dynamic workshop on key tools and approaches to improve the tenor and success of all types of negotiation situations encountered by water and wastewater practitioners, including permit negotiations, enforcement actions, and watershed coalitions. Seminar attendees will return to their agencies with new ideas and resources for negotiating more effectively and successfully. In addition, the Law Seminar will feature dynamic panels focused on wet weather, TMDLs, and a host of other water and wastewater legal and regulatory topics. Individuals attending the Law Seminar are eligible to receive Continuing Legal Education (CLE) credits. A new legal ethics session this year will make ethics CLE credits available for the first time.
AMSA Offers Legal Gathering During WEFTEC
AMSA also will host a Legal/Regulatory Hot Topics Meeting on October 16 from 8:00 to 10:00 a.m. during the WEFTEC exposition in Atlanta, Georgia. AMSA's Legal Affairs Committee members and other members in attendance at WEFTEC are invited to join us for an informal exchange of issues with key EPA regulators in attendance at the conference. Watch your e-mail for more information on this gathering.
The Role of Nonpoint Sources in TMDLs: Pronsolino v. Marcus
The Ninth Circuit Court of Appeals in San Francisco seemed receptive to oral arguments made July 9 by the U.S. Department of Justice (DOJ) that impaired waters should be listed under Clean Water Act (CWA) 303(d) and be subject to TMDLs without regard to the source of the pollutants - point sources, nonpoint sources, or a combination of both. The case, Pronsolino v. Marcus, is undoubtedly one of the next pivotal CWA decisions. On July 3 AMSA assisted DOJ with a review of its arguments and presentation during a moot court preparation session for the oral argument. AMSA's moot court effort followed on AMSA's December 2000 Intervenor-Appellee brief supporting the government's position that nonpoint source impaired waters are indeed subject to listing and TMDLs under the CWA.
A decision from the Ninth Circuit may take several months. If the Ninth Circuit overturns the lower court's favorable decision that nonpoint source impaired waters are subject to listing and TMDLs - a result described as unlikely by many familiar with the Ninth Circuit's practice - it is expected that Pronsolino will be appealed to the U.S. Supreme Court.
New TMDL Rules Delayed: American Farm Bureau Federation v. Whitman
AMSA intervened in this D.C. Circuit case over the Clinton Administration's July 2000 controversial final TMDL regulations, with the dual objective of 1) defending the aspects of the TMDL rule that put "teeth" into the TMDL program's requirements for nonpoint sources ("reasonable assurances" and implementation plans), and 2) opposing the rule's provisions that would lead to an overly broad and complicated TMDL list, make delisting difficult, and expand the scope of the TMDL program to "pollution" as opposed to Clean Water Act regulated "pollutants". The case involves AMSA, EPA, environmental groups, industry, and nonpoint source interests.
On June 12, DOJ and EPA held a meeting of all parties to the litigation to initially determine which issues might be raised in briefing and which might be amenable to settlement. During that meeting, it became clear that EPA was considering a delay of the October 30, 2001 effective date of the new TMDL rules to undertake a renewed public process to consider additional information and to evaluate changes to the rule. One of the pieces of information EPA wished to consider is the National Research Council's (NRC) June 2001 report, Assessing the TMDL Approach to Water Quality Management. Given that the Agency would likely make changes to the TMDL rule, DOJ and EPA subsequently recommended that the litigation be put on hold so that all parties could focus their efforts on the ensuing public dialogue. Although AMSA believed that significant progress could be made to resolve issues with a small group of litigants, AMSA eventually agreed to this path forward.
Accordingly, on July 16, DOJ and EPA filed a request with the Court to stay the case for 18 months, with EPA providing regular status reports on the progress of the public discussions. In timely fashion, on July 18 during the Summer Conference, AMSA issued a document entitled AMSA's White Paper on EPA's July 2000 TMDL Rule to provide the Agency and Capitol Hill with an overview of the critical policy stances of the nation's POTWs on the TMDL rule. The White Paper can be found on AMSA's website at http://www.amsa-cleanwater.org/advocacy/7-18-01tmdlwhitepaper.pdf.
Some parties to the case opposed EPA's effort to halt the case and proposed that the Court allow certain issues, such as the applicability of the TMDL program to nonpoint sources, to be separated from the rest of the case and litigated. On August 13, the Government opposed this approach, suggesting that "[b]ecause this reconsideration process may resolve at least some of the issues in the litigation, EPA believes it is inappropriate to proceed with the litigation until EPA completes its consideration of the rule." The D.C. Circuit has not yet ruled on EPA's request, but it is likely that the Court will approve the stay of litigation and prevent piecemeal litigation of the issues.
Demonstrating an expectation that the Court will grant its wishes, EPA proposed an 18-month delay of the effective date of the new TMDL rules in the August 9 Federal Register. Comments on the proposal to extend the effective date are due September 10 and AMSA will provide supportive comments. EPA already has begun to publicly outline the changes it plans to explore, some of which are contrary to AMSA's positions, such as making implementation plans voluntary. EPA has been careful to assert that no final decisions have been made, and that the Agency plans to meet with AMSA and other stakeholders this fall.
Also on August 9 EPA published in the Federal Register for review and comment by December 7, 2001 a Draft Report entitled The National Costs of the Total Maximum Daily Load Program (TMDL). See AMSA Regulatory Alert 01-13. The full Draft Report, its two accompanying technical documents, and EPA's Fact Sheet can be found at http://www.epa.gov/owow/tmdl/. EPA uses three broad scenarios to estimate costs to pollutant sources to implement the TMDL program. Under the "least flexible" scenario, which increases controls on all sources, point and nonpoint, that contribute to the impairment of a listed water, EPA estimates costs as high as $4.3 billion a year. Under the "moderately cost-effective" scenario, which includes "non-uniform and flexible allocation among sources to achieve cost effective reductions," EPA estimates costs of between $1 billion and $3.4 billion per year. Under the "more cost-effective scenario," which recognizes "the possibility of reducing TMDL costs to point source dischargers through either additional cost-effective wasteload allocations or through trading, or both," EPA estimates costs between $900 million and $3.2 billion per year. The results of the final TMDL cost study will further inform EPA's deliberations on the TMDL program.
AMSA will continue to update the membership on developments in the TMDL litigation, and on the broader TMDL policy discussions, as they evolve this fall.
Numeric Limits in Storm Water Permits: Tualatin Riverkeepers & EarthJustice
AMSA continues to track a relatively steady stream of environmental group petitions seeking numeric effluent limits in urban storm water National Pollutant Discharge Elimination System (NPDES) permits. This campaign continues even after the Ninth Circuit confirmed in the August 1999 Defenders of Wildlife v. Browner decision that Congress did not intend for municipal storm sewer discharges to comply strictly with state water quality standards and that municipal storm sewer discharge controls should reduce the discharge of pollutants to the maximum extent practicable (MEP). See the August Legal Perspectives column on this topic in AMSA's Clean Water News.
On May 21, one of the storm water cases AMSA was tracking, Tualatin Riverkeepers v. Browner, was dismissed by the U.S. District Court in Oregon for the second time on procedural grounds, effectively ending the case. In Tualatin, an environmental group asserted that EPA violated the CWA when it approved a municipal storm water permit without numeric effluent limits because the permit "[would] not, in any way whatsoever, ensure that the permitted discharges will comply with the current TMDLs for the Tualatin River" and "NPDES permits (including storm water discharge permits) must ensure that the permitted discharges are in compliance with the CWA, and any other limitations, including TMDLs, necessary to implement the applicable water quality standards". AMSA was prepared to file an amicus brief on behalf of the municipalities affected by the complaint to argue against this assertion and emphasize that Congress did not intend to hold municipal storm water permittees subject to numeric criteria.
The next test case for this important AMSA issue could be EarthJustice Legal Defense Fund v. EPA, Appeal No. 00-14, a case submitted to the Environmental Appeals Board (EAB) and ripe for acceptance for review in EAB's discretion. In EarthJustice, the environmental group appealed the District of Columbia Water and Sewer Authority's storm water permit - which already contains a numeric effluent limit for oil and grease - because EPA did not include similar limits for all of the City's storm water outfalls or place numeric limits on all potential storm water pollutants. The environmental group asserts that the Defenders of Wildlife endorsement of the MEP approach for municipal storm water was wrong and should not be followed by the EAB. Should the EAB accept the appeal, and set a briefing schedule, AMSA plans to file an amicus brief to advance the POTW community's position and to support the Defenders of Wildlife rationale. AMSA will keep members updated on developments in this case as they arise.
Round II Regulations for Biosolids: Gearhart v. Whitman
This case involves a 1989 citizen suit in Oregon District Court which sought to require EPA to identify toxic pollutants in sewage sludge and set limits and conditions on such pollutants. A 1996 amendment to the original 1990 Consent Decree governing the case requires EPA to promulgate final regulations to accomplish this end (now Part 503, Round II regulations) by December 15, 2001. AMSA intervened in the original case to ensure our participation as EPA develops these regulations. In 1999, EPA proposed regulations that would set a 300 ppt standard for dioxin in land applied biosolids, and take no action for dioxin in landfilled or incinerated biosolids. Adverse comments on this proposal led EPA to undertake additional risk assessment and data collection activities at POTWs to inform final regulations.
With the December 15 deadline for final regulations fast approaching, on June 6 EPA held a meeting between AMSA, the Natural Resources Defense Council, and the citizen plaintiffs to provide a status report on their activities. EPA reported that its risk assessment and data collection activities will continue through the summer, and that EPA will share its survey data with AMSA in early fall. AMSA reported on the status of our 2000 Dioxin in Biosolids Survey (Survey) effort of POTWs in 31 states, the results of which EPA plans to use to inform its final decision.
AMSA presented the preliminary Survey findings to EPA on July 12, and released them during the AMSA Summer Conference on biosolids. The preliminary findings show that the average dioxin in biosolids level is well below EPA's proposed Part 503 limit and that biosolids dioxin levels are on the decline. AMSA plans to release final Survey results this Fall.
EPA attorneys have contacted AMSA to schedule another litigation meeting this fall. Given that the completion of survey work is falling close to the December 15, 2001 deadline, it is possible that AMSA, EPA, and the other litigants will need to negotiate an extension of the Consent Decree deadline.
The Value of Notice and Comment : City of Anderson v. South Carolina DHEC
Oral argument was held on July 17 in this South Carolina Circuit Court case. The parties will submit proposed findings for the court's consideration this fall, and a decision from the court is expected in late 2001 or early 2002. The case involves the City of Anderson's challenge to the South Carolina Department of Health and Environmental Control's (DHEC) 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 April 18 amicus brief supporting the City's position 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 water bodies 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."
DHEC's June 4 brief argued against AMSA and the City's position, asserting that DHEC's translator was a "tool" and "only one source of information," that it was "never uniformly applied as a permit limit" and that the numeric translator "did not constitute rulemaking." In a June 14 reply to DHEC, the City of Anderson, assisted by AMSA counsel, roundly rebuffed DHEC's arguments that narrative water quality standards do not require numeric translators to make 303(d) impairment decisions. DHEC's brief and the City's reply are available in the Member Pipeline on AMSA's website under Legal - Litigation Tracking.
Protecting the Permit Shield: Piney Run Preservation Assoc. v. Carroll County
Oral argument was held April 5, and a ruling is expected in Fall 2001, in Piney Run Preservation Association v. Carroll County. This case involves the validity 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. In August 2000, AMSA and the Water Environment Federation filed a joint amicus curiae brief with the Fourth Circuit Court of Appeals in support of Carroll County, arguing that the lower court improperly ignored the permit shield policy by holding the POTW responsible for an unlisted pollutant - in this case, temperature. Although the appellant environmental preservation group acknowledged the validity of the permit shield in briefs, 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.
Notably, during the course of the litigation the County's permit has been under review and modification by the Maryland Department of Environment (MDE) to address temperature. MDE's issuance of a final revised permit before the Fourth Circuit issues its opinion could open various avenues to the County to return to the Court. We will keep the membership abreast of developments in this case as they occur.