To:
Members, Affiliates, & Legal Affairs Committee
From:
National Office
Date:
August 22, 2000
Subject:
AMSA/WEF Defend “Permit Shield” Policy in Fourth Circuit Court of Appeals
Reference:
Legal Alert 00-8
AMSA Enters Lawsuit to Preserve “Permit Shield” Policy
On August 7, AMSA and the Water Environment Federation (WEF) filed an amicus brief (see attached copy) in an appeal that could have far-reaching implications for the nation's wastewater treatment plants and their National Pollutant Discharge Eliminations System (NPDES) permits. In early July, AMSA's Board directed the National Office to seek participation in the matter of Piney Run Preservation Association v. Carroll County (United States Court of Appeals for the Fourth Circuit, Nos.: 00-1283, 00-1322). The Commissioners of Carroll County, MD are appealing a U.S. district court's decision which holds one of the county's POTWs liable for a pollutant not regulated under its NPDES permit — temperature.Following a lawsuit by a neighborhood association against a POTW in Maryland, the 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.
The amicus brief argues that the ruling directly conflicts with EPA's 1994 “permit shield” policy and the plain language of the Clean Water Act (CWA). “Section 402(k) of the CWA states explicitly that as a matter of law, 'compliance with a NPDES permit' is 'deemed compliance' with all effluent limitations and standards set in accordance with the Act,” the brief contends. In 1994, EPA policy clarified that the CWA Section 402(k) “permit shield” provides a shield for discharges from POTWs of pollutants that have been identified in the permit application process.
AMSA's Technical Action Fund will support AMSA's involvement in this crucial NPDES issue. 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 members will be kept apprised of developments in the case as they occur. If you should have any questions about this case, please call Greg Schaner at 202/296-9836.
ATTACHMENT:
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