AMSA Legal Alert (Leg02-1)

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Attorney Work Product

AMSA is pleased to provide you with the latest Litigation Report. This Report provides an overview of the upcoming Legal Affairs Committee meeting during AMSA's 2002 Winter Conference, announces several new legal initiatives to enhance AMSA's services to member agency attorneys, discusses the 2001 AMSA Law Seminar and beginning plans for the 2002 Law Seminar, and summarizes the most recent activities and developments on the Association's legal front.

The primary focus of AMSA's litigation activity since the September 2001 Report involved negotiating an extension to the Consent Decree deadline of December 15, 2001 in Gearhart v. Whitman for the Environmental Protection Agency (EPA) to promulgate final regulations for dioxins in land-applied biosolids. Between September 2001 and mid-January 2002, these negotiations involved nearly two dozen conference calls and face-to-face meetings between AMSA, EPA, the Department of Justice (DOJ), the Natural Resources Defense Council (NRDC), and counsel for the original 1989 citizen plaintiffs. On January 11, 2002, these lengthy negotiations resulted in an agreement that would be both beneficial to AMSA and would give EPA nearly two more years to complete this rulemaking. The terms of the agreement remain confidential and privileged as the parties complete final details. Notably, AMSA will be entitled to recover its costs of negotiating the Consent Decree extension from the government. More details on Gearhart, and AMSA's other active cases, are included below under Case Briefs.

Legal Affairs Committee to Meet During AMSA Winter Conference
We hope you will be able to join AMSA's Legal Affairs Committee at its first meeting of 2002 on Thursday, February 7 from 3 to 5 p.m. during AMSA's Winter Conference, Managing & Protecting Wastewater Infrastructure Assets, February 5 - 8, in Orlando, Florida. The Committee meeting will be an exciting opportunity to focus on critical issues facing municipal wastewater treatment plant attorneys and managers. During the meeting we will provide updates on AMSA's legal activities and initiatives, and cover pertinent legal topics on your minds.

We also will have two excellent guest speakers on wet weather. Many of you know that EPA Region IV is a leader on capacity, management, operations and maintenance system tools or "CMOM." To join us in an engaging discussion of the complicated issues surrounding sanitary sewer overflows, CMOM, and EPA's future direction in these areas, we will have with us both J. Scott Gordon, Chief of Permits, Grants and Technical Assistance for U.S. EPA Region IV and Roy A. Herwig, P.E. of Brown and Caldwell. Roy, formerly with Region IV, is known as a "father of CMOM." Additional program information and registration materials for the Winter Conference are available at http://www.amsa-cleanwater.org/meetings/02winter/.

New Legal Initiatives in 2002
AMSA will launch the following initiatives in 2002 to enhance the legal services we provide to our member agency counsel. We hope these initiatives provide additional value to AMSA attorneys and enhance your opportunities both to receive information from the National Office, and to share information with each other.

1. Late Breaking Legal Issue Calls: In 2002 the National Office will host six one-hour conference calls on current legal topics. These calls will include a guest speaker (e.g., from EPA, DOJ, or academia) and provide time following the guest presentation for AMSA lawyers to discuss legal topics, developments, and challenges. Topics for each call will be solicited in advance via the new legal list serve (see below). These calls will offer an efficient opportunity for member agency attorneys to touch base between meetings. It also will make AMSA more tangible to those member agency attorneys who can not attend AMSA meetings and conferences. All calls will be held from 2 - 3 pm EST. A dial-in number of 1-888-307-2149, pass code 775-4131, will apply to all calls. The 2002 Late Breaking Legal Issue Call dates are:

February 20, 2002
April 17, 2002
June 19, 2002
August 21, 2002
October 16, 2002
December 18, 2002

2. Legal List Serve: The National Office has created a Legal Affairs Committee list serve (law@lists.amsa-cleanwater.org). The list serve will allow member agency lawyers to e-mail each other questions or requests for input. The list serve also will be a valuable tool for the National Office to communicate legal developments or to obtain information from member attorneys. We do not have e-mail addresses for many Committee members. Now is the time to check the information we have on file for you! You may view the committee roster in the Member Pipeline at http://www.amsa-cleanwater.org/private/board_index.cfm, and click on Legal Affairs Committee. Please e-mail any updates to Jennifer Burke at jburke@amsa-cleanwater.org. We will continue to work to ensure that each member agency's attorney is included on the list.

3. Monthly Legal Perspectives: Legal Perspectives began in February 2001 as a Clean Water News column. AMSA now will provide these columns as a separate monthly publication e-mailed to members, affiliates, and the Legal Affairs Committee. Non-e-members will receive a hard copy of the column. We hope the membership finds these succinct discussions of important legal topics to be informative, relevant, and thought-provoking.

4. AMSA Legal e-Library: The National Office has created an electronic legal library on the member-only legal section of the AMSA website. We will post in the legal e-library documents voluntarily submitted by AMSA member agencies to serve as resources or templates for other AMSA agencies. The legal e-library initially will include five categories - briefs, contracts, permits, consent decrees, and key cases. Each posted document will include a brief description of why the document is useful. As the legal e-library grows, we expect it to become a valuable resource to member agency attorneys. The National Office will make periodic requests for legal e-library submissions.

5. Legal Publications: AMSA will continue to produce quality legal publications for the membership. We will release the Legal Issues In A Time of Crisis Checklist at the Winter Conference. We are beginning a Wet Weather Legal Guide that we hope to have ready by the Summer Conference. Finally, we will seek Board approval at the February meeting for technical action funds to partner with other organizations on a legal and technical guide to total maximum daily load (TMDL) listing and delisting issues.

Report on 2001 AMSA Law Seminar
The 2001 Law Seminar, Developments in Water & Wastewater Law, held in Savannah, Georgia from November 14 - 16, 2001, was a tremendous success. Attendance at the Law Seminar was consistent with past years, despite the Seminar's proximity in date to the September 11th terrorist attacks and the fact that the Association of Metropolitan Water Agencies (AMWA) chose not to co-sponsor this year's Seminar.

Attendees provided favorable reviews of the Seminar's substance, including the negotiation workshop by Dr. Lawrence E. Susskind of the Harvard Law School Program on Negotiation. The Seminar's dynamic panels on wet weather, TMDLs, and a host of other water and wastewater legal and regulatory topics included solid information and ran smoothly. In addition, a new session on legal ethics was well-received by attendees and will be a regular topic at future Seminars.

We will build on the success of the 2001 Law Seminar to hold an equally compelling and relevant Law Seminar in 2002. In response to member demand, we will continue with a two and a half day format for this year's meeting, scheduled for November 6-8, 2002 in Denver, Colorado. The Legal Affairs Committee will begin planning this year's conference at the February meeting.

For More Information
Members can follow AMSA's active cases by reviewing the Litigation Tracking section of the Member Pipeline where key legal documents from AMSA cases are posted. And, as always, please feel free to contact AMSA's General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions or suggestions on AMSA's legal activities.

CASE BRIEFS

Clean Air Act Biosolids Incinerator Suits: Sierra Club v. Whitman
On October 26, 2001, AMSA moved to intervene in two Clean Air Act (CAA) lawsuits involving sewage sludge incinerators (SSIs) in the U.S. District Court for the District of Columbia. The court has not yet ruled on AMSA's motions. The Sierra Club initiated the suits in July 2001 to require EPA to promulgate certain CAA standards due under that statute by November 15, 2000. One suit seeks performance standards and "other requirements under CAA §129 for "other solid waste incinerators" (OSWI), including SSIs. The other suit seeks technology-based maximum achievable control technology (MACT) standards under CAA §112 for several industrial categories, including SSIs. AMSA's long-standing position is that SSI regulation under CAA §129 or §112 is unnecessary and not supported by the statute. Further, SSIs already are subject to significant air pollution emission limits, monitoring, and recordkeeping requirements under both the CAA and the Clean Water Act (CWA). The outcome of these cases will directly impact AMSA member agencies who incinerate their biosolids.

Many other organizations also motioned to intervene in these cases, including the chemical association, automobile association, and paint and coatings association. Due to the large interest in these deadline suits, DOJ scheduled a face-to-face meeting for potential parties for February 12, 2002.

Notably, the Sierra Club also filed a deadline suit for EPA's failure to promulgate CAA §112(k) urban area source standards. Publicly owned treatment works are one of the source categories EPA plans to regulate under the urban program. AMSA has not yet moved to intervene in this case, as EPA has not proceeded in any significant manner with the §112(k) program and the likely result of this particular deadline suit will be to establish completely new time frames for all affected categories.

Round II Biosolids Regulations: Gearhart v. Whitman
The Gearhart v. Whitman case has been extremely active. The case involves a 1989 citizen suit in Oregon District Court to require EPA to identify toxic pollutants in sewage sludge and set limits for those pollutants. EPA eventually identified only dioxins as the additional toxic pollutants in sewage sludge of concern. In December 1999, EPA proposed a 300 parts per trillion (ppt) standard for dioxins in land-applied biosolids, and to take "no action" for dioxins in landfilled or incinerated biosolids. The Consent Decree governing the case requires EPA to finalize these regulations by December 15, 2001.

On December 21, 2001, EPA published in the Federal Register a notice (signed by the December 15, 2001 deadline) of its decision not to regulate dioxins in landfilled or incinerated sewage sludge. The notice confirms EPA's position that no additional regulations for these biosolids management scenarios are necessary to protect public health or the environment from dioxins. This marks an important victory for AMSA member agencies.

EPA could not meet the December 15, 2001 deadline for finalizing the regulations for dioxins in land-applied biosolids for several reasons. First, significant new information has become available on dioxins and their presence in land-applied biosolids. This information includes AMSA's 2000/2001 Survey of Dioxin-Like Compounds in Biosolids: Statistical Analyses (Final Report); a revised EPA risk assessment to support a final rule; and EPA's own 2001 dioxin in biosolids survey. Second, in Spring 2002 EPA expects to approve a new and significantly more stringent Agency-wide cancer value for dioxin. EPA plans to use this new value in any land-applied biosolids rule. The revised cancer value may impact EPA's assessment of human health and environmental risks from land-applied biosolids.

Accordingly, in November 2001, AMSA, EPA, DOJ, NRDC and the citizen plaintiffs agreed to extend to March 1, 2002 the deadline for EPA to finalize the land-application rules. AMSA and the litigants then continued discussions to agree upon a more realistic, longer deadline for the Agency to finalize these regulations. On January 11, 2002, AMSA and the parties reached agreement on language that will provide EPA nearly two more years to finalize the rules and offer notice and comment opportunities on new information, including AMSA's data, obtained since December 1999.

The above information remains privileged and confidential while the parties finalize the papers setting the new deadline for EPA's completion of the rules. When this process is complete, AMSA will outline for the membership the process for additional notice and comment and AMSA's plans for developing comments. These plans will include comprehensive reviews of EPA's survey data, assessment of the impact of the new dioxin cancer value, and evaluation of EPA's new risk assessment to ensure that the final regulation is realistic and scientifically sound.

The Role of Nonpoint Sources in TMDLs: Pronsolino v. Marcus
We continue to await the decision of the Ninth Circuit Court of Appeals in Pronsolino v. Marcus, undoubtedly one of the next pivotal CWA decisions. The court seemed receptive to oral argument made July 9, 2001 by DOJ that impaired waters should be listed under CWA §303(d), and be subject to TMDLs, without regard to the source of the pollutants - point source, nonpoint source, or a combination. On July 3, 2001, AMSA assisted DOJ with a review of its arguments during a moot court session. These efforts followed on AMSA's December 2000 Intervenor-Appellee brief supporting the government's position that nonpoint source impaired waters are indeed subject to listing and TMDLs under the CWA.

If the Ninth Circuit overturns the lower court's favorable decision that nonpoint source impaired waters are subject to listing and TMDLs - a result described as unlikely by many familiar with the Ninth Circuit's practice - it is expected that Pronsolino will be appealed to the U.S. Supreme Court.

TMDL Suit on Hold: American Farm Bureau Federation v. Whitman
AMSA intervened in this DC Circuit case over the controversial July 2000 final TMDL regulations, with the dual objective of 1) defending the aspects of the TMDL rule that put "teeth" into the TMDL program's requirements for nonpoint sources ("reasonable assurances" and implementation plans), and 2) opposing the rule's provisions that would lead to an overly broad and complicated TMDL list, make delisting difficult, and expand the scope of the TMDL program to "pollution" as opposed to CWA regulated "pollutants."  The case involves several legal challenges raising numerous issues filed by AMSA, EPA, WESTCAS, environmental groups, industry, and nonpoint source interests.

In Summer 2001, EPA announced it would conduct a public review and reproposal of the controversial TMDL rules. DOJ and EPA asked the court to stay the case for 18 months while the Agency conducted this public process. Although some parties opposed EPA's efforts to halt the case and proposed that the court allow the litigation of certain issues, on October 12, 2001, the court ordered that the many TMDL rule challenges be held in abeyance. The court's Order allows any party to seek recourse if EPA fails to "take reasonably prompt action" to reconsider the rule. EPA must file status reports with the court every 90 days.

On October 18, 2001, EPA published a final rule preventing the July 2000 rule from going into effect before April 30, 2003. EPA plans to finalize new TMDL rules prior to that date, effectively nullifying the July 2000 rule. EPA also extended the date for state submission of §303(d) impaired waters lists from April 1, 2002 to October 1, 2002.

Beginning October 22, 2001, EPA held five public listening sessions to receive suggestions on possible regulatory and programmatic changes to the TMDL program. At the final December 11, 2001 session in Washington, DC, AMSA Legal Affairs Committee Vice Chair and Deputy Water Commissioner for the City of Philadelphia David Katz represented the POTW point of view on a panel that included Assistant Administrator for Water Tracy Mehan.

On January 2, 2002, EPA filed its first status report with the court indicating that it now is "focusing its attention on identifying alternative approaches to possible TMDL rule changes, considering their advantages and disadvantages, and drafting regulatory and preamble language."  EPA expects to propose new rules in mid-2002 and to promulgate revised TMDL rules by April 30, 2003.

Numeric Limits in Storm Water Permits: EarthJustice Legal Defense Fund v. EPA
AMSA continues to track environmental group petitions seeking numeric effluent limits in urban storm water NPDES permits. This campaign continues even after the Ninth Circuit confirmed in the August 1999 Defenders of Wildlife v. Browner decision that Congress did not intend for municipal storm sewer discharges to comply strictly with state water quality standards, and that municipal storm sewer discharge controls should reduce pollutants to the maximum extent practicable (MEP).

The next case testing this important issue is EarthJustice Legal Defense Fund v. EPA, Appeal No. 00-14, before EPA's Environmental Appeals Board (EAB). EarthJustice appealed EPA Region III's issuance of the District of Columbia Water and Sewer Authority's storm water permit - which already contains numeric limits for oil and grease - because EPA did not include numeric limits for all storm water outfalls or for all potential storm water pollutants. EarthJustice asserts that the EAB should not follow the MEP approach for municipal storm water.

In an unusual move, on December 18, 2001, the EAB held oral arguments based on the papers filed to date by EPA Region III and EarthJustice. EPA defended its position that numeric limits are not required and that its actions on the permit were consistent with Agency policy and relevant law. EarthJustice argued for numeric limits under a variety of theories, including that numeric calculations are possible because the receiving waters at issue are impaired and listed under CWA §303(d).

The EAB likely will issue a written opinion in the case, which could take several months. Although AMSA's Board has authorized AMSA's participation in a joint amicus effort to support the District of Columbia before the EAB, these recent developments likely foreclose such involvement. Depending on the EAB's ruling, either the District of Columbia or EarthJustice could appeal the decision to the District of Columbia Court of Appeals. This will provide a new, and more prominent, opportunity for AMSA's involvement.

AMSA Wins Permit Shield Case: Piney Run v. Carroll County
Handing AMSA and POTWs across the country a major legal victory, on October 10, 2001, the United States Court of Appeals for the Fourth Circuit endorsed the protections provided by the Clean Water Act's (CWA) permit shield. In Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, 268 F.3d 255 (4th Cir. 2001), the court ruled that the CWA's permit shield protected Carroll County, Maryland (County) from liability for discharging a pollutant - in this case, heat - not specifically listed in the County's National Pollutant Discharge Elimination System (NPDES) permit. The court found the County did not violate the CWA because it had disclosed its effluent temperature to the Maryland Department of the Environment. The decision is of tremendous value to POTWs facing similar permitting challenges from citizen groups in their jurisdictions. AMSA and the Water Environment Federation filed a joint amicus brief in the case in August 2000, successfully arguing that the County should not be liable for unlisted pollutants under the CWA's permit shield.

The Value of Notice and Comment: City of Anderson v. South Carolina DHEC
On October 18, 2001, the parties submitted proposed orders for the court to consider in this case involving the City of Anderson's (City's) challenge to the South Carolina Department of Health and Environmental Control's (DHEC) adoption, without any opportunity for public input or comment, of an index-based numeric translator for determining whether South Carolina's narrative water quality standard for aquatic life use is impaired due to phosphorus or pH. A decision by the court is expected soon.

AMSA's April 18, 2001 amicus brief supporting the City explained that "affected parties (including members of AMSA) had no opportunity to comment on or participate in the development of a system that effectively determines the need for imposing more stringent effluent limits on individual dischargers to water bodies identified as 'impaired'".  AMSA also emphasized that the "rulemaking procedures established by federal and state administrative procedures acts are some of the most important procedures for seeking appropriate input to develop sound policies because they are designed to assure fairness and mature consideration of rules of general application."

DHEC's June 4, 2001 brief argued against AMSA's position, asserting that DHEC's translator was "only one source of information," that it was "never uniformly applied as a permit limit," and that the numeric translator "did not constitute rulemaking."  In a June 14, 2001 reply, the City - assisted by AMSA counsel - rebuffed DHEC's arguments that narrative water quality standards do not require numeric translators to make §303(d) impairment decisions.

Due to the number of state law issues at play in this case, it is unclear whether the court's final opinion will squarely address the administrative law issues that brought AMSA into this case. Depending on the court's ruling, either DHEC or the City are expected to appeal the case to the South Carolina Court of Appeals. At that time, AMSA will have to evaluate whether our presence in the case is still valuable.