To: Members, Subscribers and Legal Affairs Committee From: National Office Date: December 8, 1997 Re: Legal Alert 97-1 Court Decision Regarding Atlanta CSOs
On November 17, 1997, a federal judge ruled that the City of Atlanta is liable for water quality standards violations due to discharges from its combined sewer overflow (CSO) treatment facilities. The facilities are designed to screen combined storm and sanitary wastewater and provide disinfection prior to discharge into tributaries of the Chattahoochee River. The decision is a culmination of a suit brought against the City of Atlanta by two environmental groups, the Upper Chattahoochee Riverkeeper Fund, and the Chattahoochee Riverkeeper, and several downstream cities and counties. The plaintiffs had asserted claims for trespass and public nuisance (both denied), and claimed violations of the Clean Water Act associated with the City's CSO permits. Attached is a copy of the November 17, 1997 court decision.
The major aspect of the case which AMSA members may wish to note is the judge's ruling that the open culverts into which the CSOs discharge prior to reaching the receiving streams, can be considered "waters of the State." This ruling, coupled with the City's CSO permit language which states that "the discharge must not cause violations of the water quality standards," effectively required the City to meet water quality standards at the end-of-pipe, which it could not demonstrate. The judge dismissed the plaintiff's claim that violations of metals standards in the receiving stream were caused by the treated CSO discharges, but did rule that the treated CSO discharges caused violations of fecal coliform limits in the receiving stream. Additionally, he ruled that the City was responsible for water quality standards violations of both fecal coliform and metals in the treated CSO discharge culverts.
Though not detailed in the court decision, AMSA members should also note that the judge considered analytical results which were reported as numeric levels below detection, but above water quality standards as violations. The City reported numeric concentrations on monitoring reports instead of "BDL" or "less than..." when results were below analytical detection levels. In addition, the judge compared instantaneous total recoverable metals monitoring results with water quality standards based on chronic criteria.
The City is planning its next steps and will be meeting with U.S. District Court Judge Thomas Thrash, U.S. EPA and Georgia Environmental Protection Division (EPD) on December 10, regarding this case and on additional pending legal actions against the City within the next few weeks.
ATTACHMENT: Court Decision Regarding Atlanta CSOs (Please contact AMSA's National Office at 202/833AMSA for a copy of this document).
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