Member Pipeline - Legal - Alert (Leg 05-05)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | June 22, 2005 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 05-5 |
Printer friendly versionNACWA is pleased to provide the membership with the latest Litigation Report. This Report contains summaries of the Association’s legal initiatives and discusses recent developments in NACWA’s litigation matters.
2005 Law Seminar Planning Underway
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 has begun and the agenda
promises to cover cutting edge, practical topics. Mark your calendars now!
Late Breaking Legal Issues Calls
Over 40 NACWA members participated on the June 15 Late Breaking
Legal Issues Call, which focused on recent sewer overflow enforcement
agreements that have been discussed in the press and among the NACWA membership.
First, W. Brian Bingham, Regulatory Management Services Director, Louisville and
Jefferson County Metropolitan Sewer District (MSD), KY, provided an overview of
MSD’s April 2005 agreement on combined sewer overflows (CSOs) and sanitary sewer
overflows (SSOs). Second, Ted Bromfield, Senior Deputy City Attorney, City of
San Diego, CA discussed San Diego’s May 2005 interim SSO agreement. Both
agreements were posted to the internet in advance of the call for review by
NACWA members, yielding excellent questions during the discussion. Future 2005
calls will be held on September 14 and December 14. Dial-in information and
additional details are posted in the Member Pipeline legal section.
For More Information
New documents are posted regularly in NACWA's active cases in the
Litigation Tracking section of the Member Pipeline. As always, please
feel free to contact NACWA General Counsel Alexandra Dunn at 202/533-1803 or
adunn@nacwa.org with any questions on
NACWA’s legal activities.
CASE BRIEFS
Court Asked to Reconsider Decision on Role of Costs in
NPDES Permitting
On July 1, the California Supreme Court will respond to petitions
seeking a rehearing of its April 4 decision in Cities of Burbank & Los
Angeles (Cities) v. State Water Resources Control Board (Water Board). In
the case, the Cities appealed their National Pollutant Discharge
Elimination System (NPDES) permit limits for toxicity, alleging that the
Water Board failed to consider economic factors when setting the permit
limits as required by California law. The Water Board defended the
permits, asserting that because the permit limits were implementing a federal
toxicity standard, cost considerations are precluded under the Clean Water Act
(CWA). NACWA filed a May 2004 amicus brief to support the Cities,
arguing that states should adopt clear “translators” for converting narrative
water quality standards (WQS) into numeric permit limits, and advocating the use
of compliance schedules to phase in stringent permit limits.
In its April ruling, the Court clarified that the Water Board may consider economic factors when imposing permit limits more stringent than federal WQS, but may not consider economic factors when setting permit limits to meet federal WQS. The Court remanded the case to the lower court to determine whether the permit limits were “more stringent” than federal WQS.
Both the Cities and the Water Board are seeking rehearing of the Court’s decision. The Cities assert that the Court overlooked the fact that California’s narrative toxicity standard was improperly adopted and thus cannot be enforced in permits, and that a remand to determine if the permit limits were “more stringent” than the federal WQS will be problematic because the narrative WQS were not approved by EPA when the permits were adopted in 1998. The Water Board asserts that the decision’s broad discussion of how costs are to be considered in permitting will lead to the reopening of hundreds of water permits for cost reviews. On June 21, NACWA sent a letter to the Court supporting the Cities’ request for rehearing. We will report on new developments in this case in the coming weeks.
CWA-SDWA Interplay Case Placed on Hold
On June 14, the Kentucky Environmental and Public Protection Cabinet
(KEPPC) stayed until mid-December further action in a permit appeal raising
questions on how the CWA and the Safe Drinking Water Act (SDWA) work together.
In City of Cincinnati, OH (Greater Cincinnati Water Works (GCWW)) v.
Sanitation District No. 1, KY (SD No. 1), GCWW appealed the NPDES and
construction permits issued by the KEEPC to SD No. 1’s planned regional
wastewater facility. The facility will consolidate three outdated plants along
the Ohio River. GCWW alleges that the NPDES permit should contain discharge
limits for endocrine disrupters, cryptosporidium, giardia,
viruses, and other pollutants for which no Kentucky WQS exist.
In the June proceeding before the KEPPC, SD No. 1 noted that construction complications may require relocation of the new facility's outfall. This may lead to permit changes, making the appeal moot. Revealing the political overtones of this case, on May 27 Ohio’s senators and Cincinnati’s members of Congress wrote to EPA Assistant Administrator for Water Benjamin Grumbles expressing “concern regarding the continued protection of the Ohio River as a regional drinking water source,” noting that SD No. 1’s permit “will force [GCWW] to install additional disinfection and treatment methods ... at a cost of up to $110 million to neutralize harmful pollutants,” and requesting that EPA review the permit.
In March, NACWA notified the KEPPC of our plans to file an amicus curiae brief in the case. In a favorable development, the KEPPC noted support for NACWA’s participation. Now that the case is on hold, NACWA and the national drinking water associations are discussing creative ways to resolve cross-cutting issues between the two statutes. We will keep the membership apprised of developments in this arena.
Recent Movement in Air Toxics Cases
On June 13, EPA filed a motion for summary judgment with the U.S.
District Court for the District of Columbia in Sierra Club v. EPA,
offering to complete between 2007 and 2010 dozens of overdue Clean Air Act (CAA)
rulemakings to control air toxics. Sierra Club’s May 11 motion for
summary judgment seeks completion of the overdue rulemakings by 2008 – a request
EPA calls “impracticable.” NACWA intervened in the case in 2001 to closely watch
how the schedule fight will impact EPA’s plans to propose regulations, if any,
for urban sewage sludge incinerators (SSIs) under CAA § 112(k). NACWA and the
other groups in the case will not file an optional July 1 intervenors’ brief,
given that there are no issues in dispute other than schedule.
NACWA also intervened in 2001 in another Sierra Club case seeking overdue EPA regulations for other solid waste incinerators (OSWI) under CAA § 129. While in response to significant NACWA input, EPA determined several years ago that SSIs are not covered by CAA § 129 because they are extensively regulated under the CWA, Sierra Club continues to advocate for their coverage under CAA § 129. EPA’s December 2004 proposed OSWI rule does not include SSIs, and not surprisingly, Sierra Club’s February 2005 comments seek SSI coverage. NACWA will carefully review the final OSWI rule, due in mid-September, to ensure that SSIs are not captured by the final rule.
Appeals Court Rejects Challenge to Regional Anti-Blending
Policies
On June 3, the U.S. Court of Appeals for the District of Columbia
Circuit (appeals court) upheld the November 2003 decision of the U.S. District
Court for the District of Columbia (district court) that the anti-blending
policies of EPA regions 3, 4 and 6 are not “final agency actions” reviewable in
court. In its one-page opinion in Pennsylvania Municipal Authorities
Association v. EPA, the appeals court holds that the regions’ policies must
culminate in the denial of a NPDES permit to become court reviewable
“final agency action.” The decision leaves in place several helpful holdings of
the lower court, including that "municipalities denied permits by states or the
EPA regions, or issued permits banning blending, suffer enough tangible legal
injury" to claim "final agency action." As an intervenor in the three-year long
case, NACWA raised points important to clean water agencies nationwide.
Notwithstanding the court’s inability to eliminate the uncertainty surrounding blending, NACWA is continuing to work with EPA and Congress to preserve blending as a wet weather management option. NACWA is seeking information from any community whose permit is denied or objected to because of blending. This information will be important as NACWA continues to seek clarity on blending.
Stormwater Permit Appeal Remains on Brink of Settlement
On June 1, the U.S. Environmental Appeals Board (EAB) granted an
extension until August 18 for EPA region 3 and Friends of the Earth (FOE) to
settle FOE’s appeal of the District of Columbia’s (District’s) August 2004
municipal separate storm sewer system (MS4) permit. In The Matter of D.C. MS4
Permit, FOE asserts that the District’s MS4 discharges should meet WQS and
that the permit should include numeric limits for various pollutants. Under the
anticipated settlement, EPA will propose amendments to the MS4 permit terms.
In November 2004, NACWA, 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) applied to participate in the appeal. NACWA and the other groups were concerned about the potential adverse precedent that would be set if the District’s MS4 discharges were required to meet WQS. Our application to join the case states that the CWA’s standard for MS4 discharges is that cities remove stormwater pollutants to the “maximum extent practicable” using best management practices. Given that that the case may settle before a brief can be submitted, we will seek opportunities to comment on any permit amendments.
May Argument Postponed in NPDES Permitting of Interbasin
Transfer Case
The U.S. Court of Appeals for the Second Circuit was to hear the
Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York case
on May 26, but the court postponed the argument without explanation or a new
date. The case questions whether the water quality impacts of local government
transfers of untreated, natural water should be addressed via NPDES permits.
NACWA’s June 2004 amicus curiae brief supporting member agency the New
York City Department of Environmental Protection asserts that other 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
NACWA’s brief.
NACWA Wins Key Effluent Guidelines Case
On May 20, NACWA won an important case when the U.S. District Court
for the Northern District of California upheld EPA’s recent actions under the
effluent limitation guidelines (ELG) program. NACWA participated in two dynamic
hearings before the California court, most recently on May 11, in Our
Children’s Earth Foundation v. EPA. The opinion relies on many of NACWA’s
legal arguments to dismiss the activists’ challenge. The court holds that EPA
met all the requirements for the annual ELG review, the ELG biennial report, and
five-year ELG reviews, and that EPA has broad discretion in how it conducts
these reviews. The court also holds that the CWA does not require EPA to perform
a technical review of all 450 categories and subcategories of ELGs in its
biennial reports. Rather, EPA is required to establish a schedule for its annual
review, to identify new categories, and to propose schedules for new rule
development. Should the activist groups appeal the decision, NACWA’s Board will
evaluate further participation in the case.
NACWA Seeks Role in CSO Policy Case
On May 12, NACWA filed a motion to participate with the Combined
Sewer Overflow (CSO) Partnership (CSOP) in D.C. Water and Sewer Authority’s (DC
WASA) Phase II CSO permit appeal before the EAB. The permit includes long-term
control plan (LTCP) derived numeric performance standards consistent with the
CSO Policy, but also includes provisions that require compliance with general
narrative water quality standards, total maximum daily load (TMDL) derived
numeric effluent limits, and additional monitoring requirements. In its appeal,
DC WASA questions whether the additional permit conditions conflict with CWA §
402(q)’s requirement that CSO permits, decrees, or orders “conform to” the 1994
CSO Policy; whether EPA has the legal authority to include water quality based
requirements in CSO Phase II permits in addition to LTCP-derived numeric
performance standards; and whether inclusion of a general narrative standard
violates a permittee’s ability to know, in advance, the scope of its compliance
obligations. If the EAB allows NACWA and the CSOP to participate in the case, we
plan to provide a national perspective on these important questions. EPA’s first
response to the permit appeal is due June 27.
NACWA Seeks Continued Role in Key “Daily Load” Case
On May 2, the U.S. Court of Appeals for the District of Columbia
Circuit entered a paperwork order but still has not set a substantive briefing
schedule in this case appealing the 2004 decision holding that the CWA does not
require TMDLs to be expressed as true 24 hour loads. NACWA member agency DC WASA
is a party to the appeal in Friends of the Earth (FOE) v. EPA. In
February, NACWA and the CSOP sought to file an amicus curiae brief in the
appeal to support EPA and DC WASA, as we did in two prior phases of this case.
NACWA and the CSOP’s presence in this case has helped to show that FOE’s
quest for daily loads for total suspended solids and biochemical oxygen demand
is contrary to how many federal and state regulatory agencies interpret CWA
programs and undermines municipal efforts to control such pollutants through
LTCPs.
In March, NACWA and the CSOP objected to FOE’s request that we file a single joint brief with DC WASA, noting that we bring different perspectives to the case. We will report on additional action in the case in the coming months.
Virginia Court Hears Arguments on Nutrients Limits for POTW
Permit
NACWA and the Virginia Association of Municipal Wastewater Agencies
(VAMWA) are awaiting the court’s ruling following the April 27 oral argument in
Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock). The case
raises key questions about the best way to regulate nutrients in permits while
nutrient WQS and TMDLs are under development. CBF argues that
Onancock’s NPDES permit should include nutrient limits based on outdated
state WQS. Given that Virginia is close to issuing new nutrient WQS for the Bay,
as well as a nutrient TMDL, Onancock’s permit requires the Town to monitor for
nutrients, accelerate nutrient removal planning, and maximize current nutrient
removal capability. At oral argument and in our April amicus curiae
brief, NACWA and VAMWA support Virginia’s efforts and emphasize that permit
limits should be set following the development of scientifically based
WQS and TMDLs. We also discuss Virginia’s new nutrient trading program for
wastewater utilities. NACWA will report on the court’s ruling in the case in the
coming weeks.
Groundwater Discharge Permitting Case Still Awaits 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 soon should be scheduled. 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. NACWA, the California Association of
Sanitation Agencies (CASA), and the Association of California Water Agencies
(ACWA) filed an amicus brief in the case in June 2004 to highlight that
the lower court’s decision would expand the NPDES permit program to groundwater,
contrary to Congress’ intent. We will keep the membership informed of
developments in this case in the coming months.
Stormwater Fee Case Continues at Slow Pace
NACWA is participating with other municipal groups as amicus
curiae to support Cincinnati in a stormwater fee dispute with a federal
facility in City of Cincinnati v. U.S. The case concerns a Department of
Health and Human Services facility within the City’s service area that has
refused to pay over $100,000 in past-due invoices for stormwater services. The
federal facility alleges that the service charges are an impermissible “tax” on
the federal government. NACWA 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 in October 2004, slowing progress
in the case. We expect a schedule for activity to be established soon.