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AMSA Legal Alert (Leg02-12)

Member Pipeline - Legal - Alert (Leg03-1)

To: Members & Affiliates, Legal Affairs Committee
From: National Office
Date: January 17, 2002
Subject: LITIGATION REPORT
Reference: Legal Alert 03-1

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AMSA is pleased to provide you with the latest Litigation Report. This Report provides an update on AMSA’s legal initiatives and summarizes recent developments in AMSA’s litigations.

2002 Developments in Clean Water Law Seminar
AMSA held its fifth Developments in Clean Water Law Seminar from November 6-8, 2002 at the Westin Tabor Center in Denver, CO. Many of the Seminar’s attendees reported that the 2002 Seminar was the best yet in terms of program content and speaker quality. Other attendees commended AMSA on the sophistication of Clean Water Act (CWA) topics addressed, and the excellent networking opportunities associated with the program. The joint session on Whole Effluent Toxicity (WET), which brought Seminar attendees together with technical experts from AMSA’s concurrent WET workshop, also was highly rated.

We continue to seek ways to increase Member Agency in-house and outside counsel attendance at this excellent Seminar. In December 2002, the National Office conducted an e-mail survey to determine if moving the Seminar to a different time of year or shortening the program might draw additional attendees. The survey responses, however, supported the current timing and length of the program. We now are pursuing locations for the 2003 Law Seminar, tentatively to be held November 5-7.

Status of Legal Initiatives
2002 concluded with the publication of two additional Legal Perspectives, one addressing trends in CWA cases and the other reviewing WET issues. We continue to add new documents almost weekly to the Member Pipeline Legal e-Library. This resource tool for members now includes 13 recent municipal wet weather consent decrees. More than 20 agency attorneys and outside counsel participated in the fifth Late Breaking Legal Issues conference call on December 11, 2002, which included a presentation on combined sewer overflow permitting challenges and an update on Florida total maximum daily load (TMDL) litigation. Late Breaking Legal Issues calls will be held in 2003 on February 19, April 16, June 18, August 20, October 15, and December 10. Dial-in information and further details are posted in the Member Pipeline legal section.

Wet Weather Consent Decree Handbook Underway
At its October 2002 meeting, the AMSA Board of Directors approved our retention of AMSA affiliate Squire, Sanders & Dempsey and Partner David Burchmore to develop a Wet Weather Consent Decree Handbook (Handbook). The Handbook will be a resource for AMSA member agencies facing Clean Water Act (CWA) consent decree negotiations with the government. The Handbook will compare and contrast existing municipal decrees and outline key issues to be considered when negotiating standard consent decree terms such as compliance with law, stipulated penalties, force majeure, dispute resolution, termination, and reopeners. The Handbook also will address compliance schedules, building flexibility into decrees, and retaining municipal autonomy.

We have recruited a team of experienced member agency attorneys to serve as an advisory group for the project. They are: Jan Betz, Portland, OR; Kerry Bruce and Leslie Kovacik, Toledo, OH; Henry Gillman, Miami-Dade, FL; Harold Gorman, New Orleans, LA; Pat Karney, Cincinnati, OH; Nancy Kurtz, Massachusetts Water Resources Authority, MA; Mike McCabe, Milwaukee, WI; Sally Mills, Atlanta, GA; Terry Satterlee, outside counsel to the Little Blue Valley Sewer District, MO; and Tom Woodruff, Orange County Sanitation District, CA. AMSA’s Legal Affairs Committee Chair Chris Westhoff and Vice-Chairs David Katz and Lisa Hollander also are on the advisory group. Our goal remains to have the Handbook ready for an early May release.

For More Information
Members can follow AMSA's active cases in the Litigation Tracking section of Member Pipeline. As always, please feel free to contact AMSA General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions on legal activities.

CASE BRIEFS

Blending/SSO Case Moves Forward
On October 4, 2002, the U.S. District Court for the District of Columbia granted AMSA’s motion to intervene in an important wet weather case. Pennsylvania Municipal Authorities Association, et al. v. Whitman, et al., No. 1:02CV01361 (D.D.C. July 8, 2002). The case seeks answers to several sanitary sewer overflow (SSO), blending, and peak flow treatment issues critical to AMSA members. In the case, the plaintiffs challenge Environmental Protection Agency (EPA) Headquarters’ and Regions III, IV, and VI’s inconsistent positions on blending and permitting of SSO points, and the lack of an appropriate technology-based standard for SSOs. AMSA and the plaintiffs request the court to declare that: 1) blending is not prohibited under the CWA and applicable regulations; 2) EPA lacks authority under the CWA to direct plant design or the use of specific processes to achieve effluent limitations; 3) emergency sanitary sewer outfalls in the collection system can be permitted; and 4) the best available technology economically achievable/best conventional technology (BAT/BCT) standard, not secondary treatment, applies to SSOs.

In October 2002, EPA motioned to dismiss the case and then sought a stay of all other case activity – particularly EPA’s obligation to produce requested documents – until the court ruled on the motion to dismiss. The plaintiffs and AMSA opposed EPA’s request for a stay, arguing that without the requested documents we could not meaningfully respond to EPA’s motion to dismiss. We noted that the documents requested from EPA will show that EPA Headquarters and various regions continue to take essentially final actions to oppose blending, prohibit SSOs, and direct plant design. In late-November, the court ruled in favor of AMSA and the plaintiffs, holding that our response to EPA’s motion to dismiss is due only after EPA produces the requested documents.

EPA has begun to produce documents to the plaintiffs, and will share copies with AMSA. AMSA, the plaintiffs, and EPA agree that the case eventually will be resolved on cross motions for summary judgment. Given the vast scope of documents EPA must evaluate, and anticipated disagreements between EPA and the plaintiffs over documents exempt from disclosure, we expect it will be several months before the case reaches the summary judgment stage.

Supreme Court Asks for EPA’s Views in Key Water Transfer Case
AMSA’s November 25, 2002 amicus brief filed jointly with Member Agency the New York City Department of Environmental Protection (NYCDEP) urges the Supreme Court to accept an important water transfer case for review. Miccosukee Indian Tribe of Florida, et al. v. South Florida Water Management District (SFWMD), 280 F.3d 1364 (11th Cir. 2002) (Miccosukee). On January 13, the High Court deferred making a decision on whether or not to grant certiorari until it receives the views of the United States (EPA) on the case. This represents a critical statement of interest by the Supreme Court, and also means that EPA must take a position on the issues raised in the case – something it has been reluctant to do. In Miccosukee, the Eleventh Circuit held that the SFWMD needs a National Pollutant Discharge Elimination System (NPDES) permit to operate a flood control pump station that moves untreated water through a levee to a water conservation area. For decades, EPA and courts have found these types of water transfers to be outside the NPDES program. Now at the Supreme Court’s invitation, EPA will be able to reaffirm – or change – its position on permitting these transfers.

AMSA’s amicus highlights that Miccosukee’s potentially dramatic expansion of the NPDES program will have an adverse impact on local water management decisions. We show that the decision runs counter to CWA provisions preserving state authority over water quantity issues. Our brief notes that if left to stand, Miccosukee could subject thousands of governmental water management activities to NPDES permits for the first time, including drinking water, water transfers, flood control, and irrigation. The Association of Metropolitan Water Agencies (AMWA), the National League of Cities, and the National Association of Flood and Stormwater Management Agencies (NAFSMA) also joined AMSA and NYCDEP’s amicus brief. An additional brief filed by the Western Coalition of Arid States (WESTCAS) and other western interests highlighted the potentially broad impacts of Miccosukee on western water transfers.

If the Supreme Court eventually decides to take the case, AMSA would seek Board approval to file another amicus brief raising similar points with the Court.

EPA Faces Deadlines Under Biosolids Decree/Agreement with AMSA, NRDC
EPA is obligated under a consent decree with AMSA and the Natural Resources Defense Council to complete its Round Two rulemaking evaluating dioxin levels in land-applied biosolids by October 17. Gearhart v. Whitman, Civ. No. 89-6266-HO (D. Or.). The October deadline will be extended under certain circumstances involving the release of EPA’s Dioxin Reassessment (“Reassessment”), an EPA report 10 years in the making which is expected to recommend a more stringent cancer value for dioxin. First, the deadline will be extended 150 days if EPA releases the Reassessment between May 16 and October 17 and determines that information in the Reassessment does not mandate additional public comment on the Round Two regulations. Or, the deadline will be extended to January 16, 2004 if EPA releases the Reassessment before October 17 and determines that information in the Reassessment does mandate further public comment on the Round Two regulations. Under the second scenario, AMSA, EPA, and NRDC will meet to agree to a new deadline. At this time, the possible Reassessment release date ranges from this summer following inter-agency review, to over two years if it is referred to the National Academy of Sciences for further scrutiny.

Under a separate related settlement agreement with AMSA and NRDC, by April 1 EPA must publish a Federal Register notice explaining how it will respond to the July 2002 National Research Council (NRC) study of risks from toxicants and pathogens in land-applied biosolids. EPA must publish a final plan for responding to the NRC in the Federal Register by December. EPA also is obligated by April 1 to identify additional toxic pollutants, if any, that may warrant regulation under CWA § 405(d). EPA will seek public comment for 60 days on its findings, and six months later will publish a final notice with the results of its review and time frames for any rules.

AMSA will track and participate in the various activities required under the Consent Decree and the settlement agreement in the coming months.

Ninth Circuit Denies Pronsolino Rehearing; Farm Groups May Try High Court
On October 9, 2002, the Ninth Circuit denied the American Farm Bureau Federation and California state and local farm groups’ request that the U.S. Court of Appeals for the Ninth Circuit rehear Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002). Farm groups are expected to petition the U.S. Supreme Court to hear the case on or before the February 9 petition deadline. It is unlikely that the Court will take the case, given that it does not involve a split of opinion among the circuit courts and the definitive nature of the Pronsolino opinion.

The Pronsolino court upheld the finding that impaired waters should be listed and subject TMDLs under CWA § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. AMSA’s August 19, 2002 rehearing opposition emphasized the Ninth Circuit opinion’s consistency with the CWA’s text, structure, and legislative history. EPA also opposed rehearing the case.

AMSA, DC WASA File Amicus in D.C. Total Maximum Daily Load Case
On January 16, AMSA and member agency the D.C. Water and Sewer Authority (DC WASA) filed an amicus brief in a case in which citizen groups assert that TMDLs must be expressed in 24-hour daily load form. Friends of the Earth (FoE) v. EPA, Nos. 02-1123, 02-1124 (D.C. Cir. 2002). Our position is that under EPA regulations, TMDLs may be expressed in any form appropriate to the pollutant of concern – including in monthly, seasonal, or annual loads. Our amicus highlights that FoE’s contention that TMDLs must be expressed 24-hour load form directly conflicts with CWA § 402(q) incorporating EPA’s 1994 Combined Sewer Overflow Policy, and would effectively preclude implementation of the CSO Policy if adopted by the court. We also emphasize that FoE’s position would undermine CSO control planning and implementation under DC WASA’s Combined Sewer System Long Term Control Plan. In effect, a 24-hour load would require complete separation of DC WASA’s combined sewer system, which is neither economically nor technically feasible and would provide less water quality benefits to the receiving water.

Although EPA sought to dismiss the case on the basis that it was improperly filed in the court of appeals, the court still has not ruled on EPA’s motion. AMSA and DC WASA’s brief is available on the Member Pipeline under Litigation Tracking.

W. Va. Antidegradation Case Progresses
AMSA, together with the West Virginia Municipal Water Quality Association and the West Virginia Municipal League, is a party to this case in which citizen groups allege that EPA’s approval of West Virginia’s antidegradation implementation procedures violated federal water quality standards regulations. Ohio Valley Environmental Coalition, et al., v. Whitman, Civ. No. 3:02-CV-59 (S.D. WV, Jan. 23, 2002). West Virginia’s procedures contain antidegradation exemptions important to POTWs, including for: 1) de minimis activities resulting in less than a 10 percent reduction in the receiving water’s assimilative capacity; 2) proposed new or expanded discharges from POTWs to alleviate public health concerns associated with failing septic systems, or untreated or inadequately treated sewage (including combined sewer overflow elimination or reduction projects); and 3) POTW expansions or improvements. As West Virginia based its procedures on those developed by other states, a successful challenge could raise questions regarding other states’ practices.

On January 7, the court ruled that EPA and the plaintiffs may add public comment documents to the rulemaking record, even though EPA did not rely on those comments in its final decision making process. The court denied the plaintiffs’ request to add internal EPA e-mail and correspondence to the record, noting that EPA staff might curtail meaningful discussions if such documents were part of the rulemaking record. Assuming no extensions are sought, the plaintiffs must file their motion for summary judgment by early February. In mid-April, AMSA and EPA will file our oppositions to the plaintiffs’ motion and our own motions for summary judgment. All briefing in the case should be complete by August. We expect the court will issue a decision by early 2004.

July 2000 TMDL Rule Lawsuit Likely to Become Moot
On December 27, 2002, EPA proposed in the Federal Register to withdraw the controversial July 2000 TMDL rule before its April 30, 2003 effective date. Comments on the Agency’s proposal are due January 27. Should EPA finalize the withdrawal, the rule which was the subject of litigation will no longer exist. American Farm Bureau Federation v. Whitman, No. 00-1320 (D.C. Cir. 2000). It is likely that the government then will file a motion to dismiss the case as moot. We do not expect stakeholders, including AMSA, to oppose this motion. EPA continues its work on a watershed proposal, which when eventually finalized, will provide new ground rules for the TMDL program. A new final rule also will provide AMSA and other interests with a fresh opportunity to file litigation if desired. Until that time, the TMDL program remains governed by EPA’s 1992 regulations.

Sewage Sludge Incineration Cases Referred to Magistrate
AMSA is an intervenor in three cases brought by the Sierra Club alleging EPA’s failure to implement provisions of the Clean Air Act (CAA). Sierra Club v. Whitman, Nos. 01-1548, 01-1537, 01-1578 (D.D.C. July 2001). The now consolidated cases are stayed indefinitely while EPA and the Sierra Club attempt to resolve differences before a magistrate judge. The first hearing before the magistrate is scheduled for February 5. The main unresolved issue involves the deadline for EPA to propose and finalize overdue urban air toxics regulations for numerous source categories, including sewage sludge incinerators (SSIs). EPA offered to propose such regulations in 2009 and to finalize them in 2010. Sierra Club rejected this schedule. Urban air toxics standards for POTWs originally also were at issue; however, last fall EPA published final urban air toxics regulations for area source industrial and non-industrial POTWs. 67 Fed. Reg. 64,742 (Oct. 21, 2002).

EPA and Sierra Club have agreed on other issues in the cases, although details have not been memorialized in a formal agreement to date. EPA will propose overdue CAA § 129 rules for other solid waste incinerators (OSWI) in 2004 and finalize them in 2005. At one time, EPA’s OSWI category included SSIs, but EPA determined in 2000 that § 129 does not apply to SSIs (65 Fed. Reg. 23,460). AMSA is involved in this case to ensure that EPA does not reintroduce SSIs into its § 129 rulemaking. EPA also agreed to deadlines for overdue maximum achievable control technology (MACT) standards for several industrial categories. SSIs originally were included in the scope of this suit, however, EPA delisted SSIs from the MACT program in early 2002 (67 Fed. Reg. 6,521).