Member Pipeline - Legal - Alert (Leg 04-9)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | August 30, 2004 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 04-9 |
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 To Address Cutting Edge Issues
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. The agenda focuses on recent legal,
policy, and regulatory developments on key water and wastewater topics. The
Seminar begins with an overview of relevant statutory provisions during
breakfast – a session specifically designed for new practitioners as well as for
those seeking a refresher. The Seminar then delves into complex topics
such as the intersection between the Clean Water Act (CWA) and the Safe Drinking
Water Act (SDWA); stormwater management; expansion of the National Pollutant
Discharge Elimination System (NPDES) program; collection system permitting;
minimizing and managing construction claims; reducing the risks of data
collection and research; settlement strategies; and responding to enforcement
investigations. In addition, the Seminar features breakout sessions on
current combined sewer and separate sewer issues. Mark your calendars now to
attend this excellent AMSA conference!
AMSA Adds to Litigation Portfolio
With the Board’s support, AMSA has become involved in several new
cases since the July litigation report. Recently, the Association filed an
amicus brief with California agencies in City of Healdsburg v. Northern
California River Watch. This case questions whether NPDES permits are
required for discharges impacting groundwater, historically a state regulated
activity. AMSA also has sought to intervene in Our Children’s Earth
Foundation v. EPA, a case involving the effluent guidelines program.
Finally, AMSA is now preparing to join our Virginia member agencies in
Chesapeake Bay Foundation v. Town of Onancock. This permit appeal implicates
several core AMSA positions – including whether technology upgrades should be
required before ongoing water quality standards (WQS) updates and total maximum
daily loads (TMDL) are complete. Summaries of these, and AMSA’s other active
cases, are included below.
Late Breaking Legal Issues Calls
AMSA will hold Late Breaking Legal Issues Calls on September 15
and December 8. The September 15 call will focus on enforcement issues for
public agencies. Dial-in information and additional details are posted in the
Member Pipeline legal section.
For More Information
New documents are posted regularly 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 AMSA’s legal activities.
C A S E B R I E F S
Court Grants AMSA Participation in Blending/SSO Case
Appeal
On August 24, the U.S. Court of Appeals for the District of
Columbia Circuit granted AMSA’s pending motion to intervene 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) (PMAA v. Leavitt). Given
that EPA still appears far from releasing a final blending policy, the court
ordered that briefing in the case – which had been stayed – begin in earnest
this fall, with final briefs due in March 2005. The appellants are asking the
Circuit Court to review the District Court’s November 2003 decision that
regional anti-blending guidance documents and policies are not final agency
action subject to legal review. We will keep the membership apprised of
developments in this important appeal.
AMSA Seeks to Enter Key Effluent Guidelines Case
On August 19, AMSA filed papers with the U.S. District Court for
the Northern District of California to participate in Our Children’s Earth
Foundation v. EPA. In this case, the groups allege that EPA has failed to
review its CWA effluent limitations every five years and to evaluate whether
technological advances or changed economic circumstances have made it feasible
to make existing guidelines more stringent. AMSA has a long history of impacting
policy development in the effluent guidelines program, and the Association’s
participation in the case is vital.
The plaintiffs also challenged EPA's failure to publish a mandatory biennial effluent guidelines plan as required by CWA § 304(m)(1). However, on August 11, the court dismissed that portion of the suit, finding that “Congress intended for the EPA to conduct regular reviews of its effluent guidelines, and the EPA is doing so.” The court also noted that the CWA requires that EPA complete the effluent guidelines plans every two years, and “[p]laintiffs thus cannot compel the EPA to produce a report before two full years have elapsed.”
The additional claims raised in the case against EPA will proceed before the court this fall. A case management conference is scheduled with the court for September 9.
AMSA, VAMWA Prepare to Enter Nutrient Permit Appeal
AMSA is preparing relevant paperwork to jointly intervene with
the Virginia Association of Municipal Wastewater Agencies (VAMWA) in
Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock). This NPDES
permit appeal to be heard in the Circuit Court for the City of Richmond, VA
specifically questions a nutrient monitoring program established in the
facility’s new permit. Onancock’s permit requires it to monitor, for the
first time, nutrients released from the plant, to accelerate planning for
nutrient removal technology, and to optimize plant operation to maximize current
nutrient removal capabilities. The permitting authority plans to amend
Onancock’s permit to impose technology upgrade requirements once Virginia
updates its nutrient WQS for the Chesapeake Bay, develops TMDLs, and determines
the required facility upgrades needed to meet the standards.
CBF appealed Onancock’s reissued NPDES permit stating that "Virginia continues to grant permits that sanction the ongoing pollution of the Chesapeake Bay." CBF argues that the court should require Virginia to place strict limits on the amount of nitrogen that Onancock can discharge. CBF’s desired remedy is for Onancock to install technology to achieve the greatest nutrient reduction possible, before the WQS are revised, before the TMDLs are developed, and without the results of the ongoing scientific work in the Chesapeake Bay. The results of this case will set precedent for AMSA’s Virginia members, and could set poor precedent for public utilities in other states. We will keep the membership apprised of further developments in this matter.
AMSA, CASA Brief Argues No Permits for Groundwater
Discharges
On July 22, AMSA, the California Association of Sanitation
Agencies (CASA), and the Association of California Water Agencies (ACWA) filed
an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in
City of Healdsburg (City) v. Northern California River Watch. In this case,
the lower court found that the hydrological connection between the City’s
percolation pond and a nearby river through groundwater made the pond a
“water of the United States” as a “tributary” to a navigable water. The lower
court held that City requires an NPDES permit to discharge to the pond.
This holding now is on appeal.
Our amicus brief argues that a designed element of a wastewater treatment system is not a water of the United States. We also argue that an entire aquifer cannot be a “tributary” to a river, thereby requiring an NPDES permit for any discharge (e.g., disposal through percolation ponds, groundwater recharge basins, or even irrigation of reclaimed water) that might impact that aquifer. Our brief highlights that the lower court’s decision would expand the NPDES permit program to groundwaters, contrary to Congress’ intent. The appellants have sought to strike nearly all amicus briefs in the case; on August 20, AMSA filed papers countering their effort. We will keep the membership apprised of further developments in this case in the coming weeks.
Court Accepts AMSA, CSO Partnership “Daily Load” Amicus
Brief
On July 16, the U.S. District Court for the District of Columbia
accepted AMSA and the CSO Partnership’s (CSOP) joint amicus brief in
support of member agency the District of Columbia Water and Sewer Authority (DC
WASA) in Friends of the Earth (FOE) v. EPA. In this important case, 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. A status
conference in the case has been set for November 29. A decision in the case is
not expected until Spring 2005.
Oral Argument Preparation Underway in WET Case
The District of Columbia Circuit Court will hear oral arguments
in our challenge to the November 2002 final whole effluent toxicity (WET) test
methods on October 15. Edison Electric Institute (EEI) v. EPA. AMSA and
other parties to the case are preparing for oral argument via a series of
conference calls and an all-day moot court session scheduled for September 30. A
decision could be expected in the case as early as Spring 2005.
AMSA’s final briefs in the case, filed July 19 and August 17, assert that the WET methods do not produce evidence reliable enough to establish civil or criminal liability under the CWA, or to be used as evidence in legal or enforcement proceedings. AMSA’s briefs note that “EPA cannot cloak itself in ‘deference’ to avoid complying with procedures required by law and agreed to by EPA itself.”
AMSA is working on this case with a broad municipal coalition, including 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), and the Western Coalition of Arid States (WESTCAS). Several industrial associations (the WET Coalition) and the American Petroleum Institute also are parties to the case.
Court Accepts AMSA, Coalition Participation in
Stormwater Fee Dispute
On July 28, the U.S. District Court for the Southern District of
Ohio granted our motion to participate as amicus curiae in support the
City of Cincinnati (City) in a stormwater fee dispute with the U.S. Government.
In Cincinnati v. U.S., a Department of Health and Human Services facility
within the City’s service area has refused to pay over $100,000 in past-due
invoices for stormwater services, alleging that the service charges are an
impermissible tax on the federal government. AMSA highlighted in its motion to
the court that many cities use formula similar to Cincinnati’s to assess
stormwater service charges, and that the Government’s position would have
sweeping ramifications across the country if adopted. AMSA is joined in this
amicus effort by the National League of Cities (NLC), the National
Association of Flood and Stormwater Management Agencies (NAFSMA), and the
American Public Works Association (APWA). A schedule for future activities in
the case will be established after the court rules on the City’s motion to amend
its complaint in the suit.
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. 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.
EPA has filed a motion to dismiss the case and MCE has sought summary
judgment in its favor. While EPA asserts that it has not failed to undertake any
mandatory actions regarding the State’s WQS, MCE alleges that EPA has
failed to act where WQS are clearly deficient. On July 26, AMSA and the UAC
filed papers with the court supporting EPA’s effort to have the case dismissed.
In addition to the exchange of motions, settlement discussions are ongoing in the case between EPA and MCE. AMSA is not a party to these discussions, but expects to have an opportunity to review the settlement documents soon. We will report on further developments in this case as they occur.
AMSA Granted Role in Important NPDES Odor Case
AMSA’s June 14 motion was accepted by the U.S. Court of Appeals
for the District of Columbia Circuit, allowing us to participate in this 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 (e.g.,
odor, noise, aesthetics, zoning, or other requirements). In American Canoe
Association (ACA) v. District of Columbia Water and Sewer Authority (DC WASA),
ACA alleges that odors from DC WASA’s interceptors are evidence of its
failure to properly operate and maintain the facility under its NPDES permit.
The lower court rejected ACA’s argument, 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 (APWA). Under a briefing schedule set by the court, AMSA’s amicus brief is due November 23 and oral argument will be held on February 7, 2005. Notably, the parties are in settlement discussions that may resolve the appeal before the briefing deadlines occur. We will keep the membership apprised of any developments in this regard.
AMSA Amicus Brief on Interbasin Transfers Under Court
Consideration
On July 2, the U.S. Court of Appeals for the Second Circuit
referred our June 21 amicus brief to a panel of judges for review. Our
brief in Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New
York supports member agency the New York City Department of Environmental
Protection (NYCDEP), and asserts that the water quality impacts from local
government transfers of untreated, natural water should not be addressed via
NPDES permits. AMSA’s brief highlights that several programs 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 U.S. government briefs
filed with the U.S. Supreme Court earlier this year in South Florida Water
Management District v. Miccosukee Tribe of Indians indicate that the federal
government does not want to assume permitting responsibility for such water
management activities. The National League of Cities (NLC), the New York State
Conference of Mayors and Municipal Officials, and the Association of
Metropolitan Water Agencies (AMWA) joined AMSA’s brief. Oral argument will be
held later this year.
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. Oral argument will be held in the
coming months, followed by a decision possibly in Spring 2005. AMSA will keep
our members informed of any activity in the case.
Briefing Needed to Break Urban Air Toxics Stalemate
EPA and the Sierra Club met with a magistrate judge on August 23
to attempt to 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
offered to propose the overdue regulations by 2009; Sierra Club rejected any
date beyond 2007. Because the parties were unable to agree upon a deadline, they
will return to court this fall to litigate the deadline. We will keep the
membership informed of relevant developments in this matter.