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AMSA Legal Alert (Leg04-2)

Member Pipeline - Legal - Alert (Leg 04-2)

To: Members & Affiliates, Legal Affairs Committee
From: National Office
Date: January 16, 2004
Subject: LITIGATION REPORT
Reference: Legal Alert 04-2

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Privileged and Confidential
Attorney-Client Communication

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.

Report on 2003 Developments in Clean Water Law Seminar
AMSA’s Developments in Clean Water Law: A Seminar for Public Agency Attorneys & Managers was a very successful conference with nearly 100 individuals attending the meeting. Extensive feedback from Law Seminar attendees revealed that the program was relevant, interesting, and sophisticated. The attendees particularly noted the high quality of speakers and the enhanced binder of program materials. We already are reviewing suggested topics for the 2004 Law Seminar, which will be held November 10-12 at the Loews Coronado Hotel, San Diego, Calif. Mark your calendars now to attend this excellent AMSA conference!

New TMDL Handbook Effort Underway
With Technical Action Fund (TAF) funds, AMSA has kicked off the effort to produce a Handbook on total maximum daily loads (TMDLs) for release at AMSA's May 2004 National Environmental Policy Forum and Annual Meeting. David A. Katz, Deputy Water Commissioner, City of Philadelphia Water Department, Philadelphia, PA, and author of AMSA's 1999 and 2000 TMDL publications, is chairing a Handbook Working Group of member agency and affiliate representatives from both the legal and water quality community. AMSA affiliate law firm Barnes & Thornburg is already drafting Handbook content with the Working Group’s input. We expect this Handbook to be as popular and timely as AMSA’s past TMDL publications.

Late Breaking Legal Issues Calls
2004 Late Breaking Legal Issues calls will be held on February 18, April 14, June 16, September 15, and December 8. Dial-in information and further details are posted in the Member Pipeline legal section. AMSA wrapped up the 2003 schedule with a well-attended December call focused on use attainability analyses featuring Jodi Perras, Deputy Program Manager, Indianapolis Clean Stream Team, City of Indianapolis Department of Public Works, Ind., and Rosemary G. Spalding, Attorney at Law, Indianapolis, Ind.

For More Information
Members can view documents in 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

U.S. Supreme Court Hears AMSA Water Transfer Case
The U.S. Supreme Court (Court) heard a lively oral argument on January 14 in the critical Clean Water Act (CWA) case that will determine whether local government water transfers should be subjected to National Pollutant Discharge Elimination System (NPDES) permits and U.S. Environmental Protection Agency (EPA) regulation for the first time. South Florida Water Management District (SFWMD) v. Miccosukee Indian Tribe of Florida, No. 02-626 (U.S. 2003). AMSA and member agency the New York City Department of Environmental Protection filed a September 2003 amicus brief in the case supporting the SFWMD’s position that, consistent with three decades of EPA practice, water quality issues arising from the movement of navigable waters should be addressed through federal and state mechanisms other than the NPDES permitting program. In a relatively dramatic turn of events, after arguing against the Court accepting the case in May 2003, the U.S. government ultimately filed a September 2003 amicus brief supporting AMSA’s position that the CWA does not require NPDES permits for pumping stations and related water transfer facilities that “do no more than convey or connect navigable waters.” During oral argument, the Justices asked many questions of the attorneys arguing the case, and appeared to be concerned with the administrative feasibility of issuing NPDES permits to thousands of new facilities, the possibility of using a general permit approach, whether NPDES permits would help to achieve greater environmental results, and what protections presently exist against transferring polluted waters to pristine waters. The Court’s opinion in the case is expected in late-Spring.

AMSA Focused on Securing Final Blending Policy as Lawsuit Ends
A flurry of activity came in the wake of EPA’s November 7, 2003 release of its proposed blending policy. On November 20, 2003 the U.S. District Court for the District of Columbia dismissed the lawsuit over EPA’s actions on blending and sanitary sewer overflows (SSOs), finding the inconsistent regional guidance documents challenged in the suit not "final agency actions" subject to court review. Pennsylvania Municipal Authorities Ass’n (PMAA) v. Horinko, No. 02-1361 (D.D.C.). Not surprisingly, EPA had cited its proposed blending policy to the court as evidence of the non-final nature of its blending deliberations. On December 30, 2003, the court denied the plaintiffs’ December 5, 2003 request to amend and correct various portions of the November opinion.

Although ultimately dismissed, the case successfully kept the blending and SSO issues front and center at EPA over the past years, and was a significant factor behind EPA’s release of the proposed blending policy. The court’s opinion dismissing the case contains several helpful statements for POTWs facing blending and SSO permitting scrutiny, as outlined in Legal Alert 03-9. AMSA’s efforts now are focused on ensuring a final blending policy by mobilizing member agencies to file comments by the February 9, 2004 comment deadline and through related activities on Capitol Hill.

WET Case Set For Briefing
On November 25, 2003, the D.C. Circuit Court set January 30, 2004 as the deadline for AMSA and other parties’ briefs challenging EPA’s November 19, 2002 final whole effluent toxicity (WET) test methods. Edison Electric Institute (EEI) et al. v. EPA, No. 96-1062 and consolidated cases (D.C. Cir.); 67 Fed. Reg. 69,952. Briefing in the case will continue through June 29, 2004 after which the case will be argued before the court. AMSA and other litigants hope to persuade the court that EPA’s promulgation of the final WET test methods was arbitrary and capricious because the methods are too variable to be used reliably in enforcement, and because the methods lack important safeguards against inaccurate results. AMSA plans to highlight WET issues important to municipalities, including numeric versus narrative WET criteria, toxicity in effluent dominated streams, WET test acceptability criteria, and the ramifications of single WET test failures. AMSA also will ask the court to remand the methods to EPA to make appropriate revisions.

AMSA is working on its brief in coalition with the Virginia Association of Municipal Wastewater Agencies (VAMWA), the West Virginia Municipal Water Quality Association (WVMWQA), the Maryland Association of Municipal Wastewater Agencies (MAMWA), the South Carolina Water Quality Association (SCWQA), the California Association of Sanitation Agencies (CASA), and the Texas Association of Metropolitan Sewerage Agencies (TAMSA). The Western Coalition of Arid States (WESTCAS), a group of industrial associations (the WET Coalition), and the American Petroleum Institute also challenged the 2002 methods. All challenges were consolidated with the 1996 WET case started by WESTCAS and EEI.

EPA Meets Deadlines Under Biosolids Settlement with AMSA
On December 31, 2003, EPA met the settlement deadline of January 2004 to publish: 1) its plan to respond to the July 2002 National Research Council recommendations on risks from toxicants and pathogens in land-applied biosolids, and 2) the final results of a CWA § 405(d)(2)(C) review to identify additional pollutants in biosolids that may warrant regulation. EPA's action was governed by an April 1, 2002 consent decree and settlement between AMSA, the Natural Resources Defense Council (NRDC), and citizen plaintiffs in a thirteen-year-old lawsuit over EPA’s Clean Water Act biosolids regulations. Gearhart v. Horinko, Civ. No. 89-6266-HO (D. Or.). In its action, EPA identifies 14 near-term biosolids projects, and 15 chemicals targeted for further review based on a conservative screening process. EPA will conduct a refined risk assessment to determine whether amendments to 40 CFR Part 503 are needed to regulate any of the evaluated pollutants.

EPA also took final action in the Round Two rulemaking for dioxin and dioxin-like compounds in land-applied biosolids on October 17, 2003. As detailed in Regulatory Alert 03-11, EPA found that neither numerical limitations nor requirements for management practices are currently needed to protect human health or the environment from dioxins in land-applied biosolids. EPA’s final decision was published in the October 24, 2003 Federal Register (68 Fed. Reg. 61084).

Now that EPA has met its obligations under the Consent Decree, it is likely that the government will move to dismiss Gearhart in the coming months. We will keep the membership apprised of any concluding developments in the suit.

Texas Cities Seek Supreme Court Review in Phase II MS4 Case
In December 2003, the Texas Cities Coalition on Stormwater (Cities) filed a petition for U.S. Supreme Court review of the U.S. Court of Appeals for the Ninth Circuit’s September 2003 decision in the legal challenge to EPA’s CWA Phase II municipal separate storm sewer (MS4) regulation (Phase II rule). Environmental Defense Center Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003). As detailed in Legal Alert 03-8, the Ninth Circuit handed AMSA member agencies a victory last fall when it made absolutely clear that the maximum extent practicable (MEP) standard for MS4s in CWA § 402(p)(3)(B)(iii) is the only standard with which MS4 NPDES permits must comply – not numeric effluent limitations to meet water quality standards. The opinion reveals that AMSA’s March 2003 amicus brief was instrumental in the court’s analysis.

The Cities are seeking Supreme Court review because they believe the Phase II general permit program violates the 10th Amendment to the U.S. Constitution by allowing EPA to "induce local governments to yield control of their sovereign regulatory powers in exchange for avoiding a noncommandeering alternative [the individual permit option] of indeterminable expense and difficulty." It is unlikely that the High Court will accept the case, given that both the Fifth and Ninth Circuits have rejected 10th Amendment arguments concerning the Phase II program in the past. AMSA will monitor the status of the Cities’ petition, however, and will provide further information if the Court accepts the case.

Short Appeal Concludes West Virginia Antidegradation Case
AMSA and its municipal coalition decided that an appeal of the court’s August 29, 2003 decision in this case concerning citizen challenges to EPA’s approval of West Virginia’s antidegradation implementation procedures would not be fruitful. Ohio Valley Envt’l Coalition v. Horinko, 279 F. Supp.2d 732 (S.D.W.Va. 2003). Although EPA filed a protective appeal in the U.S. Court of Appeals for the Fourth Circuit to be situated to respond to any activist appeals, when the activist appeals did not materialize, EPA voluntarily dismissed the case. The district court decision now stands as the first comprehensive antidegradation precedent in federal court, and should be helpful to POTWs in the future. AMSA’s West Virginia members are working at the state legislative and regulatory levels to address the flaws in their antidegradation implementation procedures identified by the court. A detailed analysis of the court’s decision was distributed via Legal Alert 03-6.

July 2000 TMDL Rule Lawsuit Dismissed as Moot
On November 18, 2003, the D.C. Circuit Court dismissed the case over the ill-fated July 2000 TMDL rule as moot based on the fact that EPA withdraw the rule from the federal books before its effective date. American Farm Bureau Federation v. Horinko, No. 00-1320 (D.C. Cir. 2000). While AMSA has continued to urge EPA to propose its “watershed rule” to develop new ground rules for the TMDL program, little significant activity is expected until after the November 2004 elections. Accordingly, the TMDL program will be governed by EPA’s 1985/1992 regulations for the foreseeable future.

Overdue Urban Air Toxics Deadline Remains Unresolved
EPA has offered to propose by 2009 overdue urban air toxics regulations for a variety of industrial categories under Clean Air Act § 112(k), including for sewage sludge incinerators (SSIs). AMSA intervened in litigation brought by the Sierra Club to set a deadline for the overdue regulations. Sierra Club v. Horinko, No. 01-1537 and consolidated cases (D.D.C. July 2001). Sierra Club has rejected any proposal date beyond 2007, and EPA and Sierra Club are mediating before a magistrate to reach a mutually acceptable deadline. In the interim, AMSA’s Air Quality Committee is beginning work to collect current emissions data on urban SSIs.