Member Pipeline - Legal - Alert (Leg 04-5)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | May 6, 2004 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 04-5 |
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Attorney-Client Communication
AMSA is pleased to provide you with the latest Litigation Report. This Report provides an update on AMSA’s legal initiatives and summarizes recent developments in AMSA’s litigations.
TMDL Handbook to be Released; Residuals Handbook Underway
AMSA is pleased that our new total maximum daily loads (TMDL) legal and
regulatory publication will be released at the National Environmental Policy
Forum and Annual Meeting. Developed with Technical Action Fund (TAF) funds,
Creating Successful TMDLs . . . An AMSA Handbook, is the most comprehensive
assessment of TMDL issues affecting publicly owned treatment works (POTWs) in
many years. The Handbook provides practical suggestions to POTWs for creatively
addressing the most challenging TMDL issues – such as TMDLs and combined sewer
overflows (CSOs), TMDLs and stormwater, and toxicity and bacteria TMDLs. The
Handbook includes a straightforward and yet comprehensive overview of the TMDL
process from start to finish, references key guidance documents, and highlights
strategies for POTWs to impact the outcome of their TMDLs. An on-line library of
TMDL guidance documents and sample TMDLs from across the country complements the
Handbook. AMSA extends sincere appreciation to David A. Katz, Deputy Water
Commissioner, City of Philadelphia Water Department, Philadelphia, PA, for
chairing the Handbook Working Group of member agency and affiliate
representatives from the legal and water quality communities.
AMSA is already hard at work on the next TAF publication to be released to the membership this fall on residuals management. This unique document will address legal, scientific, regulatory, and policy developments affecting POTW residuals – including biosolids land application and incineration, as well as the management of grit, screenings, and other residuals. Robert Dominak, Residuals and Air Emissions Manager, Northeast Ohio Regional Sewer District, OH, and Co-Chair of AMSA’s Biosolids Management Committee, is chairing the Working Group of legal and technical members and affiliates assisting with Handbook content. Further discussion regarding the scope and content of this new project will take place during the Biosolids Management Committee’s May meeting.
AMSA Active in Several New Cases
Since the February 2004 Litigation Report, AMSA has been extremely busy on the
litigation front. As described in more detail below, AMSA recently filed an
amicus curiae brief in support of member agency the City of Los Angeles
Department of Public Works in the California Supreme Court, a motion to
intervene with AMSA Missouri POTWs in a case challenging the state’s water
quality standards (WQS), and a motion to intervene in the appeal of the blending
and sanitary sewer overflow (SSO) case. Summaries of the important issues raised
in these cases are included below.
Late Breaking Legal Issues Calls
AMSA held Late Breaking Legal Issues calls on February 18 and April 14. These
calls respectively addressed enhanced nine minimum controls for CSO communities
and preserving blending options during uncertain times. Each call was attended
by 30 or more member agency and affiliate members, and offered a forum for
dynamic group discussion. Future calls will be held on June 16, September 15,
and December 8. Dial-in information and additional details are posted in the
Member Pipeline legal section.
2004 Developments in Clean Water Law Seminar
AMSA’s 2004 Developments in Clean Water Law: A Seminar for Public Agency
Attorneys & Managers will be held November 10-12 at the Loews Coronado Hotel,
San Diego, Calif. Planning for this high-level Seminar will begin in earnest
following the May meeting. Mark your calendars now to attend this excellent AMSA
conference!
For More Information
Members can view documents in AMSA's active cases in the Litigation Tracking
section of Member Pipeline. As always, please feel free to contact AMSA General
Counsel Alexandra Dunn at 202/533-1803 or
adunn@amsa-cleanwater.org with any
questions on legal activities.
* * * CASE BRIEFS * * *
AMSA Files Brief Supporting City of Los Angeles in California Court
On April 26, AMSA filed an amicus curiae brief supporting our member agency the
City of Los Angeles Department of Public Works in the California Supreme Court.
In the case, Cities of Burbank & Los Angeles (the Cities) v. State Water
Resources Control Board (Board), the Cities are challenging wastewater treatment
National Pollutant Discharge Elimination System (NPDES) permits issued to them
which place strict limits on many substances and unrealistically require their
discharges to concrete-lined channels to be of drinking water quality. The
Cities are seeking a finding from the California Supreme Court that the Board
must assess the reasonableness of pollutant limits before including them in
California POTW permits.
AMSA’s amicus brief focuses on two specific issues in the case relevant to AMSA member agencies nationwide. First, AMSA argues that permitting authorities like the Board should maximize their authority to include compliance schedules in POTW NPDES permits to allow stringent limits to be achieved over time. The legal authority for compliance schedules has been endorsed many times by EPA, particularly by its Environmental Appeals Board in Star-Kist Caribe (NPDES Permit Appeal 88-5, May 26, 1992). Second, AMSA asserts that when permitting authorities “translate” narrative water quality standards into numeric permit limits, the translator mechanism must be developed through public notice and comment rulemaking. AMSA has argued this position in past cases. Many other groups filed amicus briefs in the case, including the Western Coalition of Arid States (WESTCAS), the California Association of Sanitation Agencies (CASA), and the California League of Cities. Oral argument will be held before the California Supreme Court in the coming months, followed by a decision, possibly as late as Spring 2005. AMSA will keep our members apprised of developments in this important case.
AMSA, Missouri POTWs Seek to Enter Water Quality Standards Case
On April 16, AMSA and the Urban Areas Coalition (UAC), comprised of AMSA member
and non-member Missouri POTWs, filed a joint motion to intervene in Missouri
Coalition for the Environment (MCE) v. Leavitt, No. 03-4217-CV (W.D. Mo. 2003).
In MCE, activist groups challenge EPA’s failure to correct the deficiencies that
it identified in the state’s water quality standards (WQS). The groups want EPA
to change the state WQS and requirements for: dissolved oxygen, dissolved
metals, cadmium, copper, lead and zinc; bacteria; POTW discharges to Outstanding
National Resource Waters; waters designated for whole body contact recreation;
site specific standards; implementation of the state’s antidegradation policy;
establishment of mixing zones; and bacteria standards for streams affected by
stormwater runoff. AMSA asserts that if successful, MCE’s challenge to the WQS
will impair the ability of Missouri POTW to treat and discharge wastewater, and
will require local budget reallocations among police, fire, social, and health
services. We also show that our participation in the case will provide the court
with a broader perspective on the impacts of MCE’s claims and the relief sought.
On April 30, MCE opposed AMSA’s motion to intervene, citing it as untimely and failing to demonstrate how POTW interests will be affected by the case outcome. AMSA and the UAC are responding to MCE’s motion. We will keep our members informed of additional developments in this new matter.
Interbasin Water Transfers May Require NPDES Permits
On March 23, the U.S. Supreme Court (Court) ruled in South Florida Water
Management District (SFWMD) v. Miccouskee Tribe of Indians (Miccosukee), No.
02-626, a case reviewing whether NPDES permits should be issued to operators of
dams, levees, and similar flood control and water transfer structures to control
their water quality impacts. AMSA’s amicus brief in the case, filed with member
agency the New York City Department of Environmental Protection (NYCDEP) and
other municipal groups, emphasized the complexity of adding thousands of new
structures to the already backlogged NPDES permit program, the need to preserve
local government autonomy over water management, and that other Clean Water Act
(CWA) programs are designed to address the water quality impacts of transfer
activities.
In vacating and remanding the SFWMD decision to the lower courts for factual clarification, the Court’s analysis suggests that pumping or moving water within a single water body generally will not require a permit, while pumping or moving water between separate water bodies will require a permit. The Court’s discussion reveals the Justices’ underlying suspicion that the Everglades pumping at issue in SFWMD occurs within a single, albeit human altered, water body.
As discussed in Legal Alert 04-4, the SFWMD decision does not immediately impact any sources, although it further empowers any state that wants to begin permitting water transfer structures. The conclusion of SFWMD before the Supreme Court also reactivates NYCDEP’s water transfer case. Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F.3d 481 (2d Cir. 2001) (New York). The Second Circuit held in 2001 that NYCDEP needs an NPDES permit to control the water quality impacts of the discharge from a City tunnel that transfers drinking water supply between reservoirs. Like SFWMD, the outcome of further proceedings before the Second Circuit in New York will be of importance to AMSA members that transfer water for a variety of purposes. On May 4, AMSA and the amici associations that participated in SFWMD, including the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), and the National Association of Flood and Stormwater Management Agencies (NAFSMA) met with NYCDEP attorneys to discuss amicus participation in New York. AMSA will report soon on additional developments in this arena.
Blending/SSO Case Appealed; On Hold While EPA Considers Comments
On February 26, the Pennsylvania Municipal Authorities Association (PMAA)
appealed the November 2003 dismissal of their suit challenging EPA Headquarters’
and Region 3, 4, and 6’s inconsistent actions on blending and sanitary sewer
overflows (SSOs). PMAA v. Horinko, No. 02-1361 (D.D.C. 2003); PMAA v. Leavitt,
No. 04-5073 (D.C. Cir.). PMAA is asking the Circuit court to determine whether
regional prohibitions and dictates can ever be reviewable final agency action;
whether the lower court should have exercised jurisdiction over EPA Regional
actions that were outside their authority; and whether EPA Headquarters’
knowledge of the Region’s inconsistent approaches constitutes judicially
reviewable “agency action unlawfully withheld or unreasonably delayed.”
On March 26, AMSA motioned to intervene in the appeal, citing our historic involvement in the case before the lower court and the importance of the issues to our members. Shortly thereafter, on April 12, EPA and PMAA asked the circuit court to hold the case in abeyance while EPA deliberates over the blending policy comments, noting that PMAA’s concerns could be addressed by EPA’s ultimate action on the blending policy. On April 13, the court agreed, and placed all activity in the appeal on hold – including its consideration of AMSA’s motion to intervene. EPA must report on its progress by June 30, and motions governing future action in the appeal are due by July 30. We will report on new developments in this case as they occur.
AMSA Files WET Brief; Oral Argument Set for October
On January 30, AMSA and the other parties’ challenging EPA’s November 19, 2002
final whole effluent toxicity (WET) test methods filed our opening briefs.
Edison Electric Institute (EEI) v. EPA, No. 96-1062 and consolidated cases (D.C.
Cir.); 67 Fed. Reg. 69,952. The briefs make a compelling case for vacating EPA’s
non-lethal WET test methods, particularly because the methods are unreliable,
variable, and unsuitable for use in an enforcement context. AMSA’s brief asserts
that while non-lethal WET tests can be excellent informational tools, their use
cannot be mandated given that there is no way to prove that particular
measurements are erroneous. EPA’s response brief is due on June 1; AMSA’s reply
is due July 6; and final briefs are due August 3. Oral argument has been set
before the D.C. Circuit Court of Appeals for October 15.
The broad coalition working together on this case includes the Virginia
Association of Municipal Wastewater Agencies (VAMWA), the West Virginia
Municipal Water Quality Association (WVMWQA), the Maryland Association of
Municipal Wastewater Agencies (MAMWA), the South Carolina Water Quality
Association (SCWQA), the California Association of Sanitation Agencies (CASA),
the Texas Association of Metropolitan Sewerage Agencies (TAMSA), the Western
Coalition of Arid States (WESTCAS), a group of industrial associations (the WET
Coalition), and the American Petroleum Institute. The present suit was
consolidated with a 1996 WET case started by WESTCAS and EEI.
Texas Cities Seek Supreme Court Review in Phase II MS4 Case
The U.S. Supreme Court has extended until May 7 the deadline for the U.S.
Government to respond to the petition filed by the Texas Cities Coalition on
Stormwater (Cities) seeking U.S. Supreme Court review of U.S. Court of Appeals
for the Ninth Circuit’s September 2003 decision on EPA’s CWA Phase II municipal
separate storm sewer (MS4) regulation (Phase II rule). Environmental Defense
Center Inc. (EDC) v. EPA, 344 F.3d 832 (9th Cir. 2003); Texas Cities Coalition
on Stormwater v. EPA, No. 00-70822 (U.S. Feb. 5, 2004). The Cities assert that
the Phase II rule’s general permit program violates the 10th Amendment to the
U.S. Constitution because it induces “local governments to yield control of
their sovereign regulatory powers” in order to avoid the onerous and expensive
individual permit option. The Supreme Court may decline to accept the case,
given that both the Fifth and Ninth Circuits have rejected 10th Amendment
arguments concerning Phase II.
As detailed in Legal Alert 03-8, the EDC case is important to AMSA members because the decision clarifies that removing pollutants to the maximum extent practicable (MEP) using best management practices (BMPs) is the only federal standard with which MS4 NPDES permits must comply under CWA § 402(p)(3)(B)(iii). MS4 permits are not required to contain numeric effluent limitations to meet water quality standards (WQS). AMSA’s March 2003 amicus brief was instrumental in the EDC court’s analysis. It is important to remember, however, that some states, such as New York and California, are including WQS compliance requirements in MS4 permits using their authority to be more stringent than federal law.
In addition to confirming the MEP standard for MS4s, the EDC court identified flaws in other parts of the Phase II rule and vacated those rule provisions – taking them off the books. In particular, the court found that the rule lacks a clear process for public review, comment, and if requested, hearings, on city Notices of Intent (NOIs) (as the functional equivalent of NPDES permits), nor does it include permitting authority review of the BMPs cities select. On April 14, EPA released a memorandum addressing how permitting authorities should proceed in the wake of the vacature. EPA states that prior to authorizing the stormwater discharge, permitting authorities should explain how NOIs will be made available for public review, and the time period for public comment (at least 30 days), and specify in objective terms what Phase II cities must show to meet the MEP standard. While formal approval of NOIs is unnecessary, EPA urges permitting authorities to deny cities permission to discharge stormwater if they find a proposed stormwater management plan (SWMP) does not meet MEP. In such a case, a city would submit a revised SWMP, but would be exposed to citizen suits in the interim for discharging without an MS4 permit – an inevitable circumstance in wet weather. Members can view the April 14 memorandum on the Litigation Tracker under the EDC case heading.
No Progress on Deadline for Overdue Urban Air Toxics Standards
EPA has offered to propose by 2009 overdue urban air toxics regulations for a
variety of industrial categories under Clean Air Act § 112(k), including for
sewage sludge incinerators (SSIs). AMSA intervened in the litigation brought by
the Sierra Club to set a deadline for the overdue regulations. Sierra Club v. Horinko, No. 01-1537
and consolidated cases (D.D.C. July 2001). Sierra Club has
rejected any proposal date beyond 2007, and EPA and Sierra Club continue to
achieve a mutually satisfactory deadline before a magistrate judge. In the
interim, AMSA’s Air Quality Committee continues to collect new data on urban
SSIs emissions.