To:
Members, Affiliates, & Legal Affairs Committee
From:
National Office
Date:
July 17, 2000
Subject:
AMSA Litigation Report
Reference:
Legal Alert 00-7
The National Office is pleased to provide you with the most recent summary report of recent and potential future litigation involving AMSA. These reports are prepared quarterly to update the AMSA membership on litigation activities.
Pronsolino v. Marcus
On May 23, the nonpoint source plaintiffs in the case of Pronsolino v. Marcus, including the American Farm Bureau Federation and the American Forest & Paper Association, filed an appeal with the U.S. Court of Appeals in the Ninth Circuit. The appellants hope to reverse a decision by the lower court on March 30 which upheld the U.S. Environmental Protection Agency's (EPA's) authority under the Clean Water Act (CWA) to develop total maximum daily loads (TMDLs) for waters impaired by nonpoint sources. Due to the importance of this case to AMSA's members, the Board of Directors voted on June 30 to support the Association's participation in opposition to the nonpoint source appellants. AMSA's continued involvement in the Pronsolino v. Marcus case will enable counsel to work in collaboration with the U.S. Department of Justice (DOJ) to preserve the favorable lower court decision. Because the appellants' brief is not due until early September, the legal basis for the appeal is not yet known.The earlier decision represented a landmark decision and a major victory for AMSA and its membership which risked being held solely accountable for cleaning up impaired waters if nonpoint sources were excluded. AMSA intervened in the lawsuit on the side of EPA to protect the interests of POTWs in the TMDL process. The critical issue to be decided was “whether listing and TMDLs are required for rivers and waters polluted only by logging and agricultural runoff and/or other nonpoint sources.” The court flatly rejected the arguments of the nonpoint source plaintiffs and determined that Congress had spoken directly to the precise issue at hand. Judge Alsup held that under the CWA's “comprehensive scheme” enacted in 1972, “[n]o substandard river or water was immune [from the requirements of Section 303(d)] by reason of its sources of pollution.” The Judge reiterated that “as to whether TMDLs were authorized in the first place for all substandard rivers and waters, there is no doubt. They plainly were and remain so today — without regard to the sources of pollution.” In Section 303(d)(1)(A), “Congress called for a list of the unfinished business expected to remain even after application of the new [technology-based] cleanup strategy ... Any polluted waterway — whether its sources were point, nonpoint or a combination — had to be listed if it would not be cleansed by the new approach. To have excluded the large number of rivers and waters polluted solely by agricultural and logging runoff would have left a chasm in the otherwise 'comprehensive' statutory scheme.” (emphasis added)
Piney Run Preservation Association v. Carroll County
The Board of Directors has also voted to support AMSA's involvement in Piney Run Preservation Association v. Carroll County, involving an appeal to a hostile court ruling on the accountability of a POTW for pollutants not regulated under its NPDES permit. Following a lawsuit by a neighborhood association against a POTW in Maryland, the U.S. District Court ruled to penalize the wastewater treatment agency for past violations of an ambient water quality standard for heat even though the facility's permit did not contain limits for heat, and the County had never been cited for any heat or temperature violation. This ruling conflicts with EPA's 1994 “permit shield” policy. The policy clarified that the Clean Water Act Section 401(k) “permit shield” provides a shield for discharges from POTWs of pollutants that have been identified in the permit application process. By filing an AMSA-led amicus brief on this case, the Association seeks to protect the integrity of the “permit shield” and to prevent similar suits that hold POTWs responsible for pollutants that are not specifically limited in their NPDES permits. AMSA plans to seek contributions from other municipal organizations to help offset the cost of participation. This case has also stirred the interest of industrial point sources, several of which plan to file similar amicus briefs. Based on the court's current briefing schedule, all non-party briefs, including AMSA's amicus brief, are due by August 9.City of Anderson v. South Carolina
This case involves a challenge to the South Carolina Department of Health and Environmental Control's (DHEC) use of unpromulgated "binding norms" for use in the listing of impaired waters for TMDL purposes. The litigation was prompted primarily by DHEC's use of an unpromulgated trophic (nutrient enrichment) index as a uniformly-applied "binding norm" to list water bodies as impaired due to phosphorus under Section 303(d) of the Clean Water Act. AMSA filed an amicus brief in May 1999 arguing that DHEC's actions were contrary to law, regulation and national policy directions, and that waters should be placed on the 303(d) list only if they are currently impaired as determined by properly promulgated numeric criteria or narrative criteria translator methodologies. In a favorable September 1999 ruling, the South Carolina Administrative Law Judge rejected the State's use of the indices due to the State's bypassing the required rulemaking procedures. However, a State Appeals Board reversed this decision. The City of Anderson has appealed the reversal and has asked AMSA to assist by filing a second amicus brief. Due to the importance of reinstating the original ruling in order to help POTWs challenge listing procedures that are based on flawed or unapproved indices, AMSA's Board of Directors voted to support this request. It is likely that AMSA's amicus brief will be due sometime in the early fall.EarthJustice Legal Defense Fund v. EPA
AMSA's Executive Committee has preliminarily recommended that AMSA participate in a lawsuit being brought by the EarthJustice Legal Defense Fund against EPA over the use of numeric pollutant limits in Washington, DC's stormwater permit. The environmental group has appealed the stormwater permit, which already contains a numeric effluent limit for oil and grease, in order to oppose EPA's alleged failure to issue similar limits for all of the city's stormwater outfalls and to place numeric limits on all potential stormwater pollutants. It has long been AMSA's position to oppose the use of numeric effluent limits in stormwater permits in favor of an approach which emphasizes best management practices. Although the D.C. government has decided not to challenge the issuance of the stormwater permit and the EarthJustice appeal, AMSA's D.C. member, the District of Columbia Water & Sewer Authority, has indicated their support for AMSA's involvement in the lawsuit. AMSA's participation is vital to protect the favorable ruling in last year's Arizona stormwater case, Defenders of Wildlife v. EPA, in the Ninth Circuit Court of Appeals. The September 1999 ruling, a victory for AMSA's stormwater position, indicated that municipal stormwater permits were intended to be based primarily on the “maximum extent practicable” threshold as opposed to strict compliance with water quality standards. EarthJustice was also involved in the earlier Arizona case, and appears to be seeking in this appeal to directly undermine that earlier ruling. If EarthJustice is successful, the door may be open to numerous lawsuits to require EPA and States to impose numeric stormwater effluent limits nationwide. The Environmental Appeals Board has not yet established a schedule for hearing the case. The extent of AMSA's participation in this case will most likely be put to a Board vote at its July 21 meeting in Louisville, KY.Gearhart v. Reilly
AMSA is a Plaintiff-Intervenor in this case in the United States District Court in Oregon. This case was filed by a group of citizens who sought to require U.S. EPA to propose rules that would identify toxic pollutants in sewage sludge and place limits and conditions on those pollutants. AMSA intervened in the case in September of 1991. The Court has retained jurisdiction pending performance of the terms and conditions of the Consent Decree, including the promulgation of Round II rules. No pleadings have been filed in this case since the January 1999 Litigation Update.On December 30, 1998, AMSA sent a letter to the U.S. EPA Assistant Administrator for Water reminding the Agency that AMSA is a party to the Gearhart case and that its consent should be sought for any modifications to the requirements of the Decree or the implementation schedule for those requirements. AMSA specifically requested that it be included in any future discussions with the Natural Resources Defense Council (NRDC) or other interested parties regarding potential policy changes that could affect the settlement of the Gearhart matter. Recently, Randy Benn of LeBoeuf, Lamb, Greene & MacRae has been substituted as counsel for AMSA in the case, and Nancy Stoner has been substituted as counsel for NRDC.