Member Pipeline - Legal - Alert (Leg 06-06)
| To: | Members & Affiliates, Legal Affairs Committees |
| From: | National Office |
| Date: | July 13, 2006 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 06-06 |
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 developments in NACWA’s litigation matters.
Late Breaking Legal Issues Calls
NACWA’s 2006 Late Breaking Legal Issues call series continued
on June 15, with a discussion of two key topics. First, Robert M. Andersen,
Senior Counsel with NACWA Legal Affiliate LeBoeuf, Lamb Greene and MacRae’s
Washington, DC office, discussed insurance reforms relevant to municipalities in
the years post-September 11, 2001. Mr. Andersen also discussed an evolving area
of law – liability for “failure to secure” a facility. Both topics will be
addressed in more detail in a future Legal Alert, which will partially
update NACWA’s 2002 Legal Issues in a Time of Crisis Checklist.
Second, William A. Anderson II, Partner with the Washington DC office of
Williams Mullen, discussed recent developments associated with the U.S.
Department of Justice’s (DOJ’s) controversial policy of requesting a waiver of
attorney client privilege in a criminal investigation in order to deem an entity
“cooperative.” The call was attended by over 25 public utility attorneys and
managers.
We will continue the 2006 Late Breaking Legal Issues series with calls on September 13 and December 13. All calls are held from 2:00–3:00 pm eastern time. Dial-in information and handouts from recent calls can be found on the legal section of NACWA’s Member Pipeline.
2006 Law Seminar Planning Begins in
Seattle
Members of NACWA’s Planning Committee for the 2006 Developments in
Clean Water Law: A Seminar for Public Agency Attorneys & Managers (Seminar)
will meet on Tuesday, July 18 to begin outlining the agenda for this year’s
conference. The Seminar, NACWA’s ninth annual, will be held November 15–17, 2006
at the Sheraton Boston, Massachusetts. NACWA is pleased that the New England
Water Environment Association (NEWEA) – with membership in Connecticut, New
Hampshire, Maine, Massachusetts, Rhode Island, and Vermont – will co-sponsor
this year’s Seminar. More information will be available about this year’s
Seminar following the July meeting.
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’s General Counsel Alexandra Dunn at 202/533-1803 or
adunn@nacwa.org with any questions
or comments on NACWA’s legal activities.
CASE BRIEFS
Clean Water Act-Drinking Water Act Case Topic
of Summer Conference Panel
At NACWA’s Summer Conference, more information will be
presented on the nature of the June 2004 appeal by Greater Cincinnati Water
Works (GCWW) of permits issued to NACWA member agency Sanitation District No. 1,
KY’s (SD No. 1’s) new regional wastewater treatment facility. The dispute is one
of the first truly cross-cutting clean water/drinking water cases to progress
nationwide. In the case, GCWW has expressed concern that the SD No. 1’s new
wastewater facility will be a source of problematic pollutants at GCWW’s
downstream drinking water plant. Such pollutants include endocrine disrupters,
cryptosporidium, giardia, and viruses. To reduce concerns, SD No. 1 may
relocate the new facility’s outfall. However, in April 5 comments on the
potential new outfall location, GCWW urges that SD No. 1 move its outfall
downstream of GCWW’s drinking water intake – in this case, over 11 miles. On May
9, the Kentucky Environmental and Public Protection Cabinet (KEPPC) extended its
hold on legal activity in the case to November 13, in order to allow the outfall
relocation discussions to continue. NACWA notified the KEPPC in early 2005 that,
if the appeal moves forward, NACWA will file an amicus curiae brief in
the dispute to support SD No. 1.
Sierra Club Continues Efforts to Bring SSIs
Under CAA
On June 28, EPA responded to a February 14 petition from the
Sierra Club to reopen its final regulation for other solid waste
incineration units (OSWI) under Clean Air Act (CAA) § 129 to cover sewage sludge
incinerators (SSIs). EPA will take comments on whether it should reconsider its
December 16, 2005 final OSWI rule which excluded SSIs. 70 Fed. Reg.
74,870. EPA’s announcement is the latest development in response to a decade
long effort by Sierra Club to bring SSIs into CAA § 129 regulations. In
2001, NACWA intervened in Sierra Club v. EPA, which challenged EPA’s
delay in promulgating the final § 129 rules. This case resulted in the December
2005 final OSWI rule deadline. NACWA’s long-standing position, historically
supported by EPA, is that SSIs are not the type of OSWI contemplated by CAA §
129, due to their extensive regulation under the CWA. NACWA will file comments
by the August 14 deadline supporting EPA’s exclusion of SSIs from the final OSWI
rule.
On May 26, EPA appealed a March 31 order of the U.S. District Court for the District of Columbia in another 2001 Sierra Club v. EPA CAA case. In this case, the court directed EPA to promulgate dozens of overdue CAA air toxics regulations between December 2006 and December 2009. EPA’s appeal, if it progresses, likely will focus on the impracticality of EPA developing and finalizing so many technical standards in such a short time. NACWA intervened in this case because one of the overdue regulations will focus on controlling air toxics released from urban SSIs under CAA § 112(k). With the notice of appeal pending, it remains unclear when EPA will begin work on the urban SSI regulation. At one time, EPA tentatively slated the urban SSI rule for action in its last “bin” (those now ordered by 2009). We will keep the membership apprised of further developments.
EPA, DC Gain Time to Sort Out Ramifications of
“Daily” Load Decision
On June 27, the U.S. District Court for the District of Columbia (DC)
ordered a stay of the U.S. Court of Appeals for the DC Circuit’s June 16 mandate
to vacate the “non-daily ‘daily’ loads” developed for total suspended solids
(TSS) and dissolved oxygen (DO) for DC’s Anacostia River. The order to vacate
the total maximum daily loads (TMDLs) was consistent with the Circuit’s April 25
Opinion in Friends of the Earth (FOE) v. EPA. The district court’s
stay follows a June 26 joint motion by EPA and FOE which seizes on the appeals
court’s suggestion in its Opinion that a stay would “give either the
District of Columbia a reasonable opportunity to establish daily load limits
[for the DO and TSS TMDLs] or EPA a chance to amend its regulation declaring
‘all pollutants … suitable’ for daily loads.” See Opinion at 13 (posted
on NACWA’s Litigation Tracker at
http://www.nacwa.org/getfile.cfm?fn=2006-04-25foeop.pdf). The district
court also stayed all activity in the case through July 28 to allow EPA, the
District of Columbia, and NACWA member agency the District of Columbia Water and
Sewer Authority (DC WASA) more time to confer on how best to proceed.
Although neither sought rehearing of the FOE decision before the D.C. Circuit, intervenor DC WASA and the U.S. Department of Justice (DOJ) still have until July 24 to file a petition for a writ of certiorari to the U.S. Supreme Court. Thus, the judicial process still remains a viable option for further evolution of this case. The Supreme Court is interested in resolving conflicts among the federal judicial circuits – and in this case, D.C. Circuit opinion conflicts with a decision of the U.S. Court of Appeals for the Second Circuit (Natural Resources Defense Council v. Muszynksi, 289 F.3d 91 (2d Cir. 2001)). However, it is unlikely that the Court will accept the case given that it takes only a fraction of the cases presented for review. Should DC WASA file a petition for certiorari, NACWA will use Targeted Action Funds (TAF) to support DC WASA’s effort by filing an amicus curiae brief to support their petition.
In recent weeks, EPA has discussed plans to draft memoranda on how TMDLs can be designed to be consistent with the FOE decision. EPA and DC’s actions on the Anacostia DO and TSS TMDLS case may be the first tests of how the FOE decision can be followed while still developing meaningful permit limitations to achieve water quality goals. At this time, it does not appear that EPA plans wholesale changes to the federal TMDL regulations. Further discussions on this important topic will occur at NACWA’s Summer Conference at the Water Quality and Legal Affairs Committee meetings.
EPA Proposes to Exempt Water Transfers from
Permits; Second Circuit Disagrees
On June 27, NACWA member agency the New York City Department of
Environmental Protection (NYCDEP) filed a petition for rehearing and rehearing
en banc of the U.S. Court of Appeals for the Second Circuit’s June 13 ruling in
Catskill Mountains Chapter of Trout Unlimited, Inc. (Catskills) v. City of
New York. The Second Circuit held that NYCDEP requires an National Pollutant
Discharge Elimination System (NPDES) permit for its water transfer tunnel, which
moves untreated natural drinking water between two waterbodies. NYCDEP’s
petition asserts that the Second Circuit “ignored” EPA’s “pending rulemaking
process, in which EPA has proposed to clarify that mere transfers of water,
without intervening industrial, municipal, or commercial use of such water, are
not subject to the” NPDES program. See 71 Fed. Reg. 32,887 (June 7, 2006). EPA’s
proposal, posted to the Member Pipeline at
http://www.nacwa.org/getfile.cfm?fn=2006-06-07prule.pdf, emphasizes that
the water quality impacts of water transfers are better regulated primarily by
the states in cooperation with the federal government. EPA notes that Congress
did not intend for the CWA to interfere with state regulation, and federal
permits for the transfer of water would unnecessarily involve EPA in this arena.
NYCDEP’s petition asserts that the Second Circuit “inappropriately substituted
its judgment for that of EPA, the agency with authority to administer and
interpret” the CWA. NYCDEP urges the court to withhold a final decision until
after the EPA rulemaking is complete.
If finalized, EPA’s rule would codify its longstanding position that water transfers do not require NPDES permits, a position effectively challenged in Catskills and in the 2004 Supreme Court case South Florida Water Management District (SFWMD) v. Miccosukee Tribe of Indians (Miccosukee). In conjunction with NYCDEP and other municipal groups, NACWA filed amicus curiae briefs in Miccosukee and Catskills. NACWA’s briefs and related submissions highlighted the administrative difficulty of adding thousands of sources to the already backlogged NPDES permit program, the importance of maintaining local government autonomy over water management and allocation decisions, and in response to a question from the Second Circuit, the inability of regulators to “waive” water quality standards to mitigate the adverse impacts on water transfer activities.
NACWA’s next steps on the water transfer issue will follow two paths. First, based upon NACWA’s historic advocacy on this issue, NACWA plans to file comments supporting EPA’s proposed water transfer rule by the July 24 deadline. NACWA encourages member agencies impacted by EPA’s proposal to provide input to the National Office for NACWA’s comments and to file their own individual comments as well. Comments may be sent by e-mail to NACWA’s General Counsel Alexandra Dunn at adunn@nacwa.org. Second, NACWA will work with NYCDEP and other organizations interested in the water transfer issue to explore other remedial possibilities in the court system – possibly before the U.S. Supreme Court.
Stormwater Fee Case Assigned to New Judge;
Still Awaits Action
On June 26, a new judge was assigned to the case of City of
Cincinnati (City) v. U.S., which 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. No activity has occurred in this case since October 2004, when the
case was assigned to yet a different judge. Given the long period of inactivity,
NACWA expects a schedule for the case to be set soon. NACWA was granted
amicus curiae status in the case in Fall 2004 to support the City with the
National League of Cities (NLC), the National Association of Flood and
Stormwater Management Agencies (NAFSMA), and the American Public Works
Association (APWA).
Favorable MS4 Permit Appealed and Placed On
Hold ... Again
On May 25, EPA’s Environmental Appeals Board (EAB) placed on hold,
until August 4, the April 17 appeal by Friends of the Earth (FOE) and Defenders
of Wildlife (Defenders) of the March 2006 Final Modification to the
District of Columbia’s (District’s) municipal separate storm sewer (MS4) permit.
The EAB also placed on hold the April 12 technical appeal of the Final
Modification by the District and NACWA member agency DC WASA.
In their appeal, FOE and Defenders cite the permit’s failure to “contain effluent limits adequate to assure compliance with water quality standards.” The groups allege that “pollutant specific, numeric limits” are “presumptively required” by the CWA. Contrary to the CWA’s legislative history, NACWA’s long-standing positions, and prior federal court decisions, the activists assert that CWA § 402(p)’s specific standard for MS4s – that cities remove stormwater pollutants to the maximum extent practicable (MEP) using best management practices – allows BMPs only where numeric limits are infeasible and where it is shown that other limitations will assure compliance with water quality standards. 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) plan to continue our multi-year involvement in this case to protect the MEP standard for MS4 discharges.
Central CSO Policy Questions Raised by
Utility’s Phase II Permit Appeal
On May 11, EPA’s EAB stayed until July 17 NACWA member agency DC
WASA’s appeal of its Phase II combined sewer overflow (CSO) permit appeal. The
EAB has noted NACWA and the Wet Weather Partnership’s mid-2005 motion to
participate in the appeal should it progress. DC WASA’s appeal raises several
precedent setting CSO issues, including whether EPA has the legal authority to
include water quality based requirements in CSO Phase II permits in addition
to long-term control plan (LTCP) derived numeric performance standards, and
whether inclusion of a general narrative standard violates the permittee’s
ability to know, in advance, the scope of its compliance obligations. NACWA will
report on further developments in this important appeal as they occur.
Minnesota Supreme Court Hears Key Pre-TMDL
Permitting Case
On May 3, the Minnesota Supreme Court heard the case of Cities of
Annandale and Maple Lake (Cities) NPDES Permit Issuance. The case concerns
the Minnesota Court of Appeals’ 2005 holding that the Minnesota Pollution
Control Agency (MPCA) improperly determined that an NPDES permit for the Cities
would not cause or contribute to a violation of water quality standards in a CWA
§ 303(d) listed water. MPCA specifically found that the new discharge would be
effectively “offset” by decreased discharges of the pollutant of concern by
other entities in the waterbody. NACWA’s December 2005 amicus curiae
brief supported the ability of permitting authorities like MPCA to undertake
such analyses. NACWA emphasized that MPCA’s decision promotes a facility upgrade
that will maximize the protection of public health and the achievement of water
quality goals, while prohibiting the permit will serve to enhance efforts to
remediate phosphorus loadings in the area and to promote area-wide management of
NPDES discharges. A decision in this case is expected soon.
Bay Foundation Seeks Reversal of Key NACWA
Victory
On April 3, the Chesapeake Bay Foundation (CBF) filed a motion asking
the Circuit Court for the City of Richmond, Virginia to reverse its favorable
November 3, 2005 decision in CBF v. Town of Onancock (Onancock). In the
decision, the court agreed with the position expressed by NACWA and the Virginia
Association of Municipal Wastewater Agencies (VAMWA) in an April 2005 amicus
curiae brief – that the Virginia Department of Environmental Quality (VDEQ)
had the discretion not to impose numeric water quality-based effluent
limitations when reissuing Onancock’s NPDES permit pending TMDL
development. The court’s decision is valuable to NACWA members in Virginia, and
helpful precedent for agencies facing pre-TMDL permitting and phased TMDL
implementation issues in other states.
In the coming months, NACWA and VAMWA will file a brief statement supporting the November decision and urging the court to reject the new motion. We will report on further developments in this case as they occur.
Effluent Guidelines Case Awaits Oral Argument
Date
Between January and March 2006, Our Children’s Earth Foundation (OCEF)
filed a series of ultimately unsuccessful motions seeking a significant number
of extra pages for its final brief before the U.S. Court of Appeals for the
Ninth Circuit in OCEF’s appeal of the May 2005 federal court order
affirming EPA’s recent activities to implement the CWA’s effluent limitations
guidelines (ELG) program. As an intervenor in the case in support of the Agency,
NACWA urged the appeals court in November 2005 to affirm the finding that EPA is
implementing the ELG program properly and consistent with Congress’ intent.
NACWA plans to continue its support for the Agency by participating in oral
argument before the appeals court, which will be held in California in early
2007.
NACWA Weighs in on Inappropriate Attorneys Fee
Award
On February 15, NACWA filed an amicus curiae brief before the U.S.
Court of Appeals for the Sixth Circuit to support member agency the Metropolitan
Sewer District of Greater Cincinnati (MSDGC). In the case of U.S. v. Board of
County Commissioners of Hamilton County, Ohio, the U.S. District Court for the
Southern District of Ohio held that the Sierra Club was a “catalyst” to MSDGC’s
settlement and awarded Sierra Club $1 million in attorneys’ fees under the CWA’s
citizen suit provision(§ 505(d)). NACWA’s brief highlighted that the catalyst
theory has been soundly rejected by the U.S. Supreme Court and that the Sierra
Club could not be found as a “prevailing or substantially prevailing party”
under the CWA where it opposed entry of the decrees and was not a party to the
ultimate consent decrees settling the litigation. NACWA’s amicus curiae brief
states that the court order “greatly enlarges the scope of the fee-shifting
provisions in the CWA and significantly alters the balance intended by Congress
when it incorporated the citizen suit provision into the Act’s overall
enforcement scheme.” Oral argument will be held in this key case in the coming
months.
Decision Awaited in Groundwater Discharge
Permitting Case
A decision is expected soon from the U.S. Court of Appeals for the
Ninth Circuit in California in City of Healdsburg v. Northern California River
Watch. Oral argument was held on November 16, 2005. In the case, the lower court
held that a hydrological connection through groundwater between the City’s
wastewater percolation pond (part of its treatment system) and a nearby river
made the percolation pond a “tributary” to a navigable water and thus a “water
of the United States.” Therefore, the lower court held that the City requires an
NPDES permit to discharge to its percolation pond. NACWA’s June 2004 amicus
curiae brief filed with the California Association of Sanitation Agencies (CASA)
and the Association of California Water Agencies (ACWA) highlighted that
expanding the NPDES permit program to cover groundwater discharges is contrary
to Congress’ intent.