Member Pipeline - Legal - Alert (Leg 04-8)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | July 13, 2004 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 04-8 |
Privileged and Confidential
Committee Attorney-Client Communication
Printer friendly versionAMSA 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.
2004 Law Seminar Planning Underway
AMSA’s 2004 Developments in Clean Water Law: A Seminar for
Public Agency Attorneys & Managers will be held November 10-12 at the Loews
Coronado Bay Resort, San Diego, Calif. A Planning Committee has been put
together to build the agenda for this excellent Seminar. The Committee will meet
in conjunction with AMSA’s Summer Conference on July 20 in Denver, Colo.
We encourage you to mark your calendars now to attend this key AMSA conference!
AMSA Case Load Continues to Increase
Since the May Litigation Report, AMSA has been extremely
busy on the Clean Water Act (CWA) litigation front. As described in more detail
below, AMSA recently filed an amicus curiae brief in support of member
agency the New York City Department of Environmental Protection (NYCDEP) in an
important water transfer case, an amicus brief supporting our member
agency the District of Columbia Water and Sewer Authority (DC WASA) in a key
total maximum daily loads (TMDL) case, and motions in cases involving stormwater
fees and collection system odors. Since the last report, AMSA also successfully
intervened with Missouri member agencies in a critical case challenging the
state’s water quality standards (WQS), and continued technical work in the whole
effluent toxicity (WET) case. Two new matters are before the Board for approval
at its meeting on July 21 during AMSA’s Summer Conference. Summaries of
AMSA’s active cases are included below.
Late Breaking Legal Issues Calls
AMSA held a well attended Late Breaking Legal Issues call
on June 16, 2004. Nearly 30 Legal Affairs Committee members joined the
call to get up-to-date information on the regulatory status of water transfers
and the management of construction claims. Hilary Meltzer, Senior Counsel for
NYCDEP, reported on developments in the Catskills inter-basin water
transfer case (described below). George Vila, an attorney, engineer, and
construction contracts manager at member agency the Metropolitan Sewer District
of Greater Cincinnati, outlined techniques to reduce controversial construction
claims, minimize change orders, and achieve a successful outcome for all
parties.
Future calls will be held on September 15 and December 8. Dial-in information and additional details are posted in the Member Pipeline legal section.
For More Information
New documents are posted almost daily in AMSA's active cases in
the Litigation Tracking section of the 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 the Association’s legal activities.
CASE BRIEFS
Court Grants AMSA, Missouri POTWs Role in Key Standards
Case
On June 4, the U.S. District Court for the Western District of
Missouri granted the motion to intervene filed by AMSA and the Urban Areas
Coalition (UAC) (comprised of AMSA member and non-member Missouri utilities) in
Missouri Coalition for the Environment (MCE) v. Leavitt. The court
rejected MCE’s opposition to our participation, recognizing that the case
could result in changes to the state’s WQS and impact our members’ annual
budgets and long term planning. The court also recognized that WQS changes could
impact utility National Pollutant Discharge Elimination System (NPDES) permits,
and lead to increased water and sewer rates charged to Missouri citizens. MCE
wants EPA to change the state WQS and requirements for numerous pollutants,
streams affected by stormwater runoff, Outstanding National Resource Waters, and
waters designated for whole body contact recreation. MCE also seeks
changes to State policies on antidegradation and mixing zones.
On June 22, EPA filed a motion to dismiss the case and MCE filed a motion for summary judgment. EPA asserts that it has not failed to undertake any mandatory actions regarding the State’s WQS and that court action in the case is unwarranted. MCE alleges that EPA’s has violated the CWA by failing to act where the State’s WQS are clearly deficient. In addition, settlement discussions are ongoing in the case. However, EPA and the U.S. Department of Justice have excluded AMSA and the UAC from these discussions. In late June, we sought the court’s assistance to assure our equitable participation in the case. On July 9, however, the judge ruled that she could find no law mandating an intervenors’ participation in settlement discussions. Accordingly, we now will express our views to the DOJ and the plaintiffs, and the parties have agreed to provide us with a copy of the settlement agreement before it is finalized. We will report on further developments in this case as they occur.
AMSA, CSO Partnership File TM”D”L Amicus Brief
On July 1, AMSA and the CSO Partnership (CSOP) filed a joint
amicus brief in the U.S. District Court for the District of Columbia to
support member agency DC WASA. In Friends of the Earth (FOE) v. EPA, AMSA
and the CSOP rebut FOE’s position that TMDLs can only be expressed as
"daily" limitations. Our brief demonstrates that such an interpretation is in
direct conflict with CWA programs for municipal stormwater and combined sewer
overflows (CSOs), and inconsistent with decades of program implementation by EPA
and delegated states nationwide. We note that FOE’s interpretation would
undermine hundreds of TMDLs already developed for various pollutants.
On July 2, FOE objected to AMSA’s amicus brief, asserting that the Association has no separate interest from DC WASA. On July 6, AMSA and the CSOP responded to the objection. We will provide further details on the case as it progresses.
AMSA Weighs in on Stormwater Fee Dispute
On June 30, AMSA filed a motion in the U.S. District Court for
the Southern District of Ohio in City of Cincinnati v. U.S., noting our
plans to support the City in its stormwater fee dispute with the U.S.
Government. A federal facility within the City’s service area has refused to pay
over $100,000 in past-due invoices for stormwater services. AMSA's motion, filed
jointly with the National League of Cities, the National Association of Flood
and Stormwater Management Agencies, and the American Public Works Association,
highlights that many cities use similar formula to Cincinnati’s to assess
stormwater service charges and the Government’s position, if adopted, would have
sweeping ramifications across the country. AMSA’s amicus brief will be
filed later this year.
AMSA to Play Key Role in Odor Case
On June 14, AMSA filed a motion in the U.S. Court of Appeals for
the District of Columbia Circuit in a case in which activist groups allege that
the NPDES permit program, and the CWA’s citizen suit provisions, can be used to
enforce non-CWA requirements, such as odor, noise, aesthetics, zoning or other
requirements. In American Canoe Association (ACA) v. DC WASA, ACA
alleges that odors from DC WASA’s interceptors are evidence of failure to
properly operate and maintain the facility under its NPDES permit. The lower
court rejected ACA’s arguments, asserting that reading requirements like
odor control into NPDES permits would open the floodgates to nuisance suits that
are better brought under state law, and could lead to abuse of the CWA’s
powerful citizen suit provision. ACA appealed the case.
AMSA filed our motion jointly with the U.S. Chamber of Commerce and the American Public Works Association. By court order dated July 7, AMSA’s amicus brief will be due November 3.
AMSA Asserts Permits Not Required for Interbasin
Transfers
On June 21, AMSA filed an amicus brief with the U.S. Court
of Appeals for the Second Circuit supporting member agency NYCDEP in Catskill
Mountains Chapter of Trout Unlimited, Inc. v. City of New York. AMSA asserts
that the water quality impacts associated with local government transfers of
untreated, natural water should not be addressed via NPDES permits. Rather,
AMSA’s brief highlights several programs that are better tailored to mitigate
such impacts and notes EPA’s 30-year plus history of not subjecting these
transfers to permits. AMSA also points out that EPA’s briefs filed with the U.S.
Supreme Court earlier this year in South Florida Water Management District v.
Miccouskee Tribe of Indians indicate that the Agency does not want to assume
permitting responsibility for these water management activities. Joining AMSA on
its brief were the National League of Cities, the New York State Conference of
Mayors and Municipal Officials, and the Association of Metropolitan Water
Agencies.
On June 23, Trout Unlimited opposed AMSA’s amicus brief, asserting that we are improperly attempting to relitigate legal issues previously decided by the Appeals Court. On July 2, AMSA filed a response, noting that we do not ask for a prior holding of the Court to be reconsidered or overturned. We acknowledge that the Appeals Court held in 2001 that NYCDEP’s water transfer constituted the “addition” of a pollutant and was a “discharge” subject to regulation under the CWA. Our amicus brief accepts this result – regardless of accuracy – and questions the District Court’s subsequent decision to assess NYCDEP millions in civil penalties for failure to operate with a permit, particularly where permits have never before been issued for such activities. We will provide additional information on this case, and the status of our amicus brief, as the matter progresses.
EPA Status Report Reveals Final Blending Policy Still
Under Review
On June 29, EPA filed a status report with the U.S. Court of
Appeals for the District of Columbia Circuit in the appeal of the case
challenging EPA Headquarters’ and Region 3, 4, and 6’s inconsistent actions on
blending and sanitary sewer overflows (SSOs). In PMAA v. Leavitt, EPA
reports that it is reviewing comments filed on the November 2003 blending policy
and that review will extend beyond August 2004.
Under the court order staying the case, motions governing the future of the litigation are due July 30. It is likely that the parties will seek a further stay of activity in the case to allow EPA to complete comment review and to make a final decision on the blending policy. AMSA has sought to intervene in the case, however, the court has deferred action on our motion during the stay.
California Supreme Court Accepts AMSA Brief Backing Los
Angeles
On May 6, the California Supreme Court accepted AMSA’s amicus
brief supporting our member agency the City of Los Angeles Department of Public
Works. In the case, Cities of Burbank & Los Angeles (the Cities) v. State
Water Resources Control Board (Board), the Cities are challenging wastewater
treatment NPDES permits issued to them that place strict limits on many
substances and require their discharges to be of drinking water quality. AMSA’s
brief argues that permitting authorities like the Board should maximize their
authority to include compliance schedules in NPDES permits to allow stringent
limits to be achieved over time. AMSA also asserts that when permitting
authorities “translate” narrative water quality standards into numeric permit
limits, the translator mechanism must be developed through public notice and
comment rulemaking. Many other groups filed amicus briefs in the case, including
the Western Coalition of Arid States (WESTCAS), the California Association of
Sanitation Agencies (CASA), the California League of Cities, and environmental
activist groups.
On June 25, the Cities responded to the amicus briefs, noting that while all amicus support public involvement in the water quality regulatory process, the activist groups provide the court with a distorted view of publicly owned treatment works (POTWs). Also on June 25, the Board responded to AMSA and other amici, noting that a polluter’s economic circumstances should not determine the level of ambient water quality that should be achieved. Oral argument will be held in this case before the California Supreme Court in the coming months, followed by a decision, possibly as late as Spring 2005. AMSA will keep our members apprised of developments in this matter.
EPA Responds to AMSA’s WET Brief; Court to Hear Case in
the Fall
On June 8, EPA responded to AMSA and other parties’ challenge to
the November 2002 final whole effluent toxicity (WET) test methods. Edison
Electric Institute (EEI) v. EPA. EPA argues that it “applied its technical
expertise and judgment’ in developing the WET methods and that its
determinations “are entitled to the highest degree of deference.” Noting the
“enormous administrative record,” the “massive Interlaboratory Study,” and “two
notice-and-comment rulemakings,” EPA asserts that our petition should be
dismissed. AMSA and the parties to the case are preparing a careful reply to
EPA’s brief, and plan to emphasize that no amount of process and procedure can
overcome the methods’ fatal flaws. AMSA’s reply is due July 19; and final briefs
are due August 17. Oral argument has been set before the D.C. Circuit Court of
Appeals for October 15.
Working together on this case are 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), the Texas Association of Metropolitan Sewerage Agencies (TAMSA), the Western Coalition of Arid States (WESTCAS), industrial associations (the WET Coalition), and the American Petroleum Institute.
Supreme Court Preserves AMSA Victory in MS4 Case
On June 7, the U.S. Supreme Court declined to accept the Texas
Cities Coalition on Stormwater’s request for review of the U.S. Court of Appeals
for the Ninth Circuit’s September 2003 decision on EPA’s CWA Phase II municipal
separate storm sewer (MS4) regulation (Phase II rule). Texas Cities Coalition
on Stormwater v. EPA leaves as solid law the Court of Appeals’ decision in
Environmental Defense Center Inc. (EDC) v. EPA, 344 F.3d 832 (9th Cir.
2003), which clarified that removing pollutants to the maximum extent
practicable using best management practices is the only federal standard
with which MS4 NPDES permits must comply under the CWA. AMSA’s March 2003
amicus brief was instrumental in the EDC court’s analysis.
Settlement Conference May Break Urban Air Toxics
Stalemate
EPA and the Sierra Club will meet on August 23 to see if they can
reach agreement, after more than two years, on a deadline for overdue urban air
toxics regulations, including for sewage sludge incinerators (SSIs) under Clean
Air Act § 112(k). AMSA intervened in Sierra Club v. Leavitt to weigh in,
when necessary, on any schedule the parties may establish. EPA has offered to
propose the overdue regulations by 2009; Sierra Club has rejected any date
beyond 2007. We will report on any schedule agreed to by the parties in the
coming weeks.