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AMSA Legal Alert (Leg05-02)

Member Pipeline - Legal - Alert (Leg 05-02)

To: Members & Affiliates, Legal Affairs Committee
From: National Office
Date: April 21, 2005
Subject: Litigation Report
Reference: Legal Alert 05-02

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Privileged and Confidential
Committee Attorney-Client Communication

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

Save the Date for the 2005 Law Seminar
The 2005 Developments in Clean Water Law: A Seminar for Public Agency Attorneys & Managers (Seminar) will be held November 9-11 at the Inn at Loretto, Santa Fe, NM. Planning for the 2005 Seminar will begin in earnest later this year. Mark your calendars now!

Late Breaking Legal Issues Calls
On March 16, AMSA held the second 2005 Late Breaking Legal Issues Call, focused on combined sewer overflow (CSO) long term control plan (LTCP) implementation schedules, Indiana’s new CSO legislation, and AMSA’s Targeted Action Fund (TAF) project to develop a model regulation for sanitary sewer overflows (SSOs) and a comprehensive study of state collection system programs. The call was attended by over 30 agency attorneys and managers. Future calls will be held on June 15, September 14, and December 14. Dial-in information is 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.

CASE BRIEFS

Second Circuit to Hear Interbasin Transfer Case in May
On May 26, the U.S. Court of Appeals for the Second Circuit will hear oral argument in Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York. AMSA filed a June 2004 amicus curiae brief in this case to support member agency the New York City Department of Environmental Protection (NYCDEP), asserting that the water quality impacts of local government transfers of untreated, natural water should not be addressed via National Pollutant Discharge Elimination System (NPDES) permits. Our brief asserts that other Clean Water Act (CWA) and state programs are better tailored to mitigate these impacts. 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. A decision from the court is expected this summer.

D.C. Appeals Court to Hear Blending Argument in May
The appeal of the lower court’s dismissal of the blending case is scheduled for a May 19 oral argument before the U.S. Court of Appeals for the District of Columbia Circuit. In Pennsylvania Municipal Authorities Association v. Environmental Protection Agency (EPA), AMSA and the municipal appellants assert that EPA Region 3, 4, and 6’s anti-blending policies are beyond the Regions’ delegated authorities, inconsistent with Headquarters’ policy, and are therefore illegal actions. We argue that the lower court should have retained jurisdiction over the case rather than dismissing it in November 2003. EPA asserts that the Regions’ policies are not official Agency policy, and are not final actions subject to review in court. AMSA’s March 16 reply brief documents EPA Headquarters’ history of authorizing blending and emphasizes the Regions’ inconsistencies with this history. A decision by the court could come later this year. In addition to our litigation efforts, AMSA is fully engaged in legislative and regulatory efforts toward a final blending policy.

Virginia Nutrient Permit Appeal Progressing
On April 19, AMSA and the Virginia Association of Municipal Wastewater Agencies (VAMWA) filed an amicus curiae brief in Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock). Recognizing that Virginia is in the process of revising nutrient water quality standards (WQS) and developing total maximum daily loads (TMDLs) for the Bay, Onancock’s NPDES permit requires the facility monitor for nutrients, accelerate nutrient removal planning, and maximize current nutrient removal capability. In its March 18 opening brief, CBF argues that Onancock’s permit was improperly issued because it did not include specific concentration based limits for nutrients. Our amicus curiae brief emphasizes that Onancock’s permit properly recognizes that, ultimately, nutrient permit limits should be based on pound reductions and built upon proper WQS and the TMDL. Our brief shows that allowing these pieces to fall into place first will ensure that subsequent facility upgrades will more likely result in measurable water quality improvements. Asserting that CBF’s suit seeks to trump years of focused effort by Bay stakeholders, we note that both the WQS and TMDL processes are nearly complete. Our brief also references new Virginia legislation creating a Virginia General Permit and trading program for nutrients in the Bay watershed. A hearing before the state court is scheduled for April 27.

D.C. Circuit Denies WET Case Rehearing
On April 14, the U.S. Court of Appeals for the District of Columbia Circuit denied the January request by the Western Coalition of Arid States (WESTCAS) and the WET Coalition (comprised of various industry associations and private companies) to rehear its December 2004 decision to uphold EPA’s chronic whole effluent toxicity (WET) test methods (see Legal Alert 04-11). The groups asserted that in the Edison Electric Institute v. EPA opinion, the court made several mathematical errors in its analysis which ultimately downplayed the methods’ unreliability. On March 17, EPA objected to rehearing, noting that the mathematical errors, if any, did not impact the final decision.

AMSA and other municipal groups did not join in the rehearing effort. Instead, we continue to direct our efforts towards ensuring that EPA’s December 2004 draft WET implementation guidance is revised and released in a form that assists municipalities with WET issues. We will report on further developments in this case in the coming weeks.

D.C. Stormwater Permit Case May Settle, Preempting AMSA Involvement
On April 13, EPA Region 3 and Friends of the Earth (FOE) jointly requested an extension until May 18 to continue settlement discussions in this case regarding the District of Columbia’s (District’s) municipal separate storm sewer system (MS4) permit. In The Matter of D.C. MS4 Permit (2004), FOE and other activist groups assert that the August 2004 permit issued by Region 3 fails to require the District’s MS4 discharges to meet WQS and to include numeric limitations for key stormwater pollutants.

In November 2004, AMSA applied to enter the case to support the District, accompanied by the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), the CSO Partnership (CSOP), the West Virginia Municipal League (WVML), and the Virginia Municipal League (VML). AMSA’s position, which has prevailed in other cases, is that the CWA does not require MS4 discharges to meet WQS. Rather, cities must remove stormwater pollutants to the “maximum extent practicable” (MEP) using best management practices (BMPs). In December 2004, AMSA and others rebutted the activists’ objection to our participation in the case.

While EPA Region 3 has not objected to our involvement, if the case settles our participation will be unnecessary. AMSA has requested an opportunity to comment on any contemplated settlement between the parties – which likely will involve changes to the District’s August 2004 permit. We will keep the membership informed of developments in this case as they occur.

California High Court Ruling on Economics & NPDES Permitting Challenged
On April 4, the California Supreme Court ruled in Cities of Burbank & Los Angeles (Cities) v. State Water Resources Control Board (Board), a case questioning whether California permitting authorities should consider economic factors when setting pollutant limits to meet the State’s narrative standard for toxicity in wastewater discharge permits. In its opinion, the Court holds that economic factors may not be considered if the ultimate permit limitation would be less stringent than federal standards. However, if the ultimate permit limitation would meet or exceed federal standards, then the Court holds that economics can be considered. The Court then remands the case to the lower state court to assess whether California’s narrative toxicity standard meets or exceeds federal law.

On April 19, the Cities filed a petition for rehearing, arguing that the Court should have held that California’s toxicity standard is void as a fundamental matter because it was unlawfully adopted. The Cities argue that even in the standard is valid, the lower court will not be able to determine if it meets or exceeds federal law without creating significant confusion. Notably, the Board also filed for rehearing on April 19, asserting that the Court’s opinion makes several erroneous statements on the consideration of economics in permitting and could adversely affect thousands of State permits.

AMSA filed a May 2004 amicus brief in this important case to support the use of compliance schedules to implement stringent permit limits, and the use of “translator” mechanisms adopted through rulemaking to convert narrative water quality standards into numeric permit limitations. A more detailed summary of the Court’s decision will be distributed following its final action on the rehearing petitions.

Prominent Effluent Guidelines Case Moves Toward Hearing
On April 1, AMSA filed two pleadings to support EPA’s actions under the effluent limitation guidelines (ELG) program in Our Children’s Earth Foundation (OCE) v. EPA. In the case before the U.S. District Court for the Northern District of California, OCE asserts that EPA has not: reviewed all ELGs annually; reviewed effluent limitations based on best available technology economically achievable (BAT) and best conventional pollutant control technology (BCT) every five years; issued timely biennial effluent guidelines plans under § 304(m); or adopted a proper 2004/2005 effluent guidelines plan. EPA has argued that the case should be dismissed, as it has not failed to undertake any mandatory actions with regard to the ELG program, and because the case should have been brought in the Court of Appeals. AMSA was granted intervenor status in the case last year, overcoming significant objections by the activist groups. Additional briefs will be filed this month by the parties. The case is set for a May 11 hearing before the court on the various motions.

Briefing Schedule Set in Urban Air Toxics Case
On March 22, the U.S. District Court for the District of Columbia set a briefing schedule in Sierra Club v. EPA. In this case, the activist groups challenge EPA’s failure to promulgate several federal air toxics regulations by their Clean Air Act (CAA) deadlines. The overdue standard of interest to AMSA is for urban sewage sludge incinerators (SSIs) under Clean Air Act § 112(k). AMSA intervened in the case in 2001 to ensure that any schedule for SSI rules established in the case will allow EPA sufficient time to study emissions from urban SSIs, and to develop sound regulations if necessary. AMSA and industry groups in the case plan to file a June motion commenting on the schedules that will be proposed by Sierra Club in late April and EPA in late May. We will provide more information on this case as it progresses.

Supreme Court Declines Review of CWA Citizen Suit Case
On March 7, the U.S. Supreme Court declined to accept for review Milwaukee Metropolitan Sewerage District (MMSD) v. Friends of Milwaukee’s Rivers (FOM). Now that the High Court has declined review, MMSD will respond to the Seventh Circuit’s decision before the lower federal district court. AMSA, along with the California Association of Sanitation Agencies (CASA), filed a February 2 amicus curiae brief urging the Court to accept the case for review. In our brief, we asserted that the U.S. Court of Appeals for the Seventh Circuit took a broad and unprecedented view of the role of Clean Water Act (CWA) citizen suits by allowing a citizen suit to go forward in federal court despite the fact that MMSD had agreed to remedy the overflows of concern in an enforceable State court order. AMSA and CASA stated that “[a]llowing citizen suits where adequate government enforcement exists . . . ultimately results in duplicative liability, needless litigation and waste of finite public resources.” The brief also referenced AMSA and CASA’s 2004 testimony before Congress which expressed concern with duplicative citizen suits. AMSA will report on other CWA citizen suit developments as they occur.

AMSA Seeks Role in CWA-SDWA Interplay Case
On March 2, AMSA filed a motion to participate as amicus curiae in a precedent setting case on the interplay between the CWA and the Safe Drinking Water Act (SDWA). In City of Cincinnati, OH v. Sanitation District No. 1, KY (SD No. 1), the Greater Cincinnati Water Works (GCWW) appealed the NPDES permit issued by the Kentucky Environmental and Public Protection Cabinet (KEPPC) to SD No. 1 for a new wastewater facility. GCWW alleges that the permit is improper because it does not contain limits for endocrine disrupters, Cryptosporidium, Giardia, viruses, and other pollutants for which water quality standards do not exist. Our motion asserts that if adopted, GCWW’s position would allow non-CWA requirements to be enforced without prior notice through the CWA permit system. AMSA also asserts that the SDWA does not require or contain criteria that must be considered during the NPDES permitting process. In a favorable development, on March 10 the KEPPC responded to our motion and did not object to our participation in the case.

Activity in the case recently was placed on hold until early summer due to construction complications. It is possible the complications will require changes to the permit, and could render the case moot. In a related effort, AMSA and the national drinking water trade associations are meeting to discuss how we can work together to creatively resolve conflicts between SDWA requirements and CWA requirements in shared watersheds.

AMSA Seeks Continued Role in Key “Daily Load” Case
On February 17, AMSA and the Combined Sewer Overflow Partnership (CSOP) filed a motion to participate as amicus curiae in the appeal of the November 2004 decision favorably holding that the Clean Water Act (CWA) does not require total maximum daily loads (TMDLs) to be expressed only as true “daily” loads. A summary of the victory for AMSA and all public agencies in Friends of the Earth (FOE) v. U.S. Environmental Protection Agency (EPA) was distributed via Legal Alert 04-10. In the motion, AMSA and the CSOP assert that FOE’s quest for daily loads for total suspended solids (TSS) and biochemical oxygen demand (BOD) is “contrary to how many federal and state regulatory agencies” interpret CWA programs. The motion goes on to state that the FOE’s approach would undermine the efforts of the CSO communities across the country seeking to develop and implement long-term control plans to control pollutants like TSS and BOD. AMSA member agency the District of Columbia Water and Sewer Authority (DC WASA) is a party to the case.

On March 16, FOE responded that AMSA and the CSOP should be required to file a joint brief with DC WASA. On March 17, we objected, noting that we bring a different perspective to the case as national organizations and that the suggestion would compromise our participation and DC WASA’s. We will report on additional action in the case in the coming weeks.

Groundwater Discharge Case Awaiting Argument Date
Briefing is complete before the U.S. Court of Appeals for the Ninth Circuit in City of Healdsburg (City) v. Northern California River Watch, and an oral argument date should be set soon. In the case, the lower court found that the hydrological connection between the City’s wastewater percolation pond – a defined part of its treatment system – and a nearby river through groundwater made the percolation pond a “tributary” to a navigable water and thus a “water of the United States.” The lower court held that City requires an NPDES permit to discharge to its percolation pond. This unusual holding is being challenged in the appeal.

AMSA, the California Association of Sanitation Agencies (CASA), and the Association of California Water Agencies (ACWA) filed an amicus curiae brief in the case in June 2004 to highlight that the lower court’s decision would expand the NPDES permit program to groundwaters, contrary to Congress’ intent. We will keep the membership informed of developments in this case in the coming months.

Stormwater Fee Case Moving Slowly
AMSA is participating with other municipal groups as amicus curiae to 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 was granted amicus status in the case last fall with the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), and the American Public Works Association (APWA). A new judge was assigned to the case in October 2004, and a schedule for activities should be established soon.