AMSA Legal Alert (Leg02-12)

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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.

AMSA added two cases to its litigation portfolio since the July Report. First, with support from AMSA’s Board of Directors and Technical Action Fund (TAF), AMSA sought permission on August 16, 2002 from the U.S. District Court for the District of Columbia to intervene in a new wet weather case. Pennsylvania Municipal Authorities Association, et al. v. Whitman, et al., No. 1:02CV01361 (D.D.C. July 8, 2002). The court granted AMSA’s motion on October 4, 2002. The case seeks answers to several sanitary sewer overflow (SSO) and peak flow treatment issues critical to AMSA members. In the case, the plaintiffs challenge U.S. Environmental Protection Agency (EPA) Headquarters’ and Regions III, IV, and VI’s inconsistent positions on blending and permitting of SSO points, and the lack of an appropriate technology-based standard for SSOs. AMSA and the plaintiffs request the court to declare that: 1) blending is not prohibited under the Clean Water Act (CWA) and applicable regulations; 2) EPA lacks authority under the CWA to direct plant design or the use of specific processes to achieve effluent limitations; 3) emergency sanitary sewer outfalls in the collection system can be permitted; and 4) the best achievable technology/best conventional technology (BAT/BCT) standard, not secondary treatment, applies to SSOs.

Second, in mid-September AMSA’s Board endorsed the Association’s filing of an amicus brief in support of the U.S. Supreme Court granting certiorari in, and reversing, Miccosukee Indian Tribe of Florida, et al. v. South Florida Water Management District (SFWMD), 280 F.3d 1364 (11th Cir. 2002). TAF resources will not be required, as AMSA will file the amicus brief jointly with member agency the New York City Department of Environmental Protection (NYCDEP), and NYCDEP appellate attorneys will draft the brief based on their experience with a similar Second Circuit case.

In Miccosukee, the Eleventh Circuit held that the SFWMD needs a National Permit Discharge Elimination System (NPDES) permit to operate a pump station that moves water through a levee to a water conservation area for flood control. The court’s decision is counter to CWA provisions preserving state authority over water quantity issues, and those categorizing dams, levees, channels, and flow diversion facilities as nonpoint sources. If left to stand, the decision has the potential to subject thousands of governmental water management activities to NPDES permits for the first time, including drinking water, water transfers, flood control, and irrigation.

The SFWMD must file its certiorari petition by October 21, 2002. AMSA and NYCDEP’s amicus brief is due November 19, 2002. Other groups are seeking approval to join AMSA’s effort, including the Association of Metropolitan Water Agencies, the National Association of Flood and Storm Water Management Agencies, and the Western Coalition of Arid States. With broad interest in the case, it is possible that the Supreme Court will select Miccosukee as one of the cases it reviews this term.

2002 Law Seminar Approaches
We hope to see you at the 2002 Developments in Clean Water Law Seminar, to be held November 6-8 at the Westin Tabor Center in Denver, Colorado. Registration information and the program have been mailed and are available on AMSA’s website. Lawyers attending the Seminar can receive continuing legal education credits. The agenda covers key AMSA issues, such as total maximum daily loads (TMDLs), sewer overflows, and storm water. An enforcement roundtable features attorneys from EPA, national activist groups, and citizen coalitions discussing how they set enforcement priorities and how POTWs can reduce their risk of becoming enforcement targets. Other panels will go in depth on legal developments in the areas of biosolids, antidegradation, and pretreatment. Briefings are scheduled on CWA permitting trends and on new CWA cases. A prominent professor will lead a discussion of legal ethics for public agency attorneys using hypothetical fact patterns.

The Seminar also dedicates an afternoon to whole effluent toxicity (WET). EPA is expected to finalize 15 WET test methods in November. Implementation of the new methods will raise legal and technical issues for wastewater agencies. Seminar attendees will join with individuals attending AMSA’s concurrent technical meeting, Whole Effluent Toxicity . . . What You Don’t Know Can Hurt You, creating a unique forum where lawyers and technical professionals together can improve their understanding of WET issues, and discuss techniques to protect their agencies.

Status of 2002 Legal Initiatives
AMSA continues to receive positive feedback on Legal Perspectives, including the most recent issue addressing NPDES permitting issues. New documents are added almost weekly to the Member Pipeline Legal e-Library. This resource tool for members now includes 10 of the most recent wet weather consent decrees. More than 25 agency attorneys and outside counsel participated in the fourth Late Breaking Legal Issues conference call on September 19, 2002, featuring Steve Chabinsky, Principal Legal Advisor for the Federal Bureau of Investigation’s National Infrastructure Protection Center. Chabinsky discussed protection of sensitive POTW information such as vulnerability assessments. Mark Pollins, Director of EPA’s Water Enforcement Division, is the speaker on the next call, scheduled for October 16, 2002.

For More Information
Members can follow AMSA's 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 Recovers $14K for In House Work on Biosolids Case
AMSA was entitled to recover the value of the time expended by the Association’s in-house General Counsel to negotiate an extension of EPA’s deadline to finalize regulations for dioxins in land-applied biosolids. Gearhart v. Whitman, Civ. No. 89-6266-HO (D. Or.). On July 23, 2002, AMSA and the government reached a settlement for litigation costs in which the U.S. agreed to pay AMSA $14,125. AMSA received these funds in September 2002.

On September 10, 2002, AMSA commented on the Notice of Data Availability (NODA) regarding EPA’s new biosolids data. 67 Fed. Reg. 40,554 (June 12, 2002). The NODA found low observed dioxin concentrations, declining dioxin levels, and low risks to human health. AMSA’s comments conclude that no federal regulatory action is necessary based upon this information.

AMSA Opposes Farm Group Efforts to Obtain Pronsolino Rehearing
On August 19, 2002, AMSA filed a strong opposition to the American Farm Bureau Federation and California state and local farm groups’ July request that the U.S. Court of Appeals for the Ninth Circuit rehear Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002). The court’s opinion upheld the district court’s finding that impaired waters should be listed and subject TMDLs under CWA § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. AMSA’s rehearing opposition emphasizes the Ninth Circuit opinion’s consistency with the CWA’s text, structure, and legislative history. EPA also opposed rehearing the case.

If the Ninth Circuit denies rehearing, the case could be appealed to the U.S. Supreme Court. It is unlikely that the Court would grant review if the Ninth Circuit declines to revisit the case, given the absence of a split of judicial opinion on the CWA issues.

AMSA to File Amicus in D.C. Total Maximum Daily Load Case
In January 2003, AMSA and member agency the D.C. Water and Sewer Authority’s (DC WASA) will file a joint amicus brief in a case in which citizen groups assert that TMDLs can be expressed only in daily load form. Friends of the Earth v. EPA, Nos. 02-1123, 02-1124 (D.C. Cir. 2002). If the citizens’ interpretation prevails, wastewater treatment agencies would be unable to meet TMDLs for many pollutants, especially in wet weather. AMSA’s position is that under EPA’s regulations TMDLs may be expressed in any form appropriate to the pollutant of concern – including in monthly, seasonal, or annual loads. EPA has sought to dismiss the case on the basis that it was improperly filed in the court of appeals, however, the court has not ruled on EPA’s motion.

AMSA Intervenes in Challenge to W. Va. Antidegradation Procedures
AMSA, together with the West Virginia Municipal Water Quality Association and the West Virginia Municipal League, is a party to this case in which citizen groups allege that EPA’s approval of West Virginia’s antidegradation implementation procedures violated federal water quality standards regulations. Ohio Valley Environmental Coalition, et al., v. Whitman, Civ. No. 3:02-CV-59 (S.D. WV, Jan. 23, 2002). West Virginia’s procedures contain antidegradation exemptions important to POTWs, including for: 1) de minimis activities resulting in less than a 10 percent reduction in the receiving water’s assimilative capacity; 2) proposed new or expanded discharges from POTWs to alleviate public health concerns associated with failing septic systems, or untreated or inadequately treated sewage (including combined sewer overflow elimination or reduction projects); and 3) POTW expansions or improvements. As West Virginia based its implementation procedures on those developed by other states, a successful challenge to its’ procedures could raise questions regarding other states’ practices.

There is disagreement between the plaintiffs and EPA on the documents in the administrative record, which will form the basis of all motions in the case. Under a September 2002 order, the court will rule on record issues after motions are filed in December 2002. Following this ruling, summary judgment motions and various replies will be due. All briefing in the case should be complete by August 2003. The court then would issue a decision in late 2003 or early 2004.

Lawsuit over July 2000 TMDL Rule Still on Hold
The litigation over EPA’s July 2000 TMDL rule remains stayed while EPA prepares a replacement proposed watershed rule. American Farm Bureau Federation v. Whitman, No. 00-1320 (D.C. Cir. 2000). EPA states in a September 30, 2002 status report to the court that in September 2002 it circulated a final draft proposal to regional and headquarters staff and held a final review meeting. EPA plans to provide the Office of Management and Budget with a copy of the proposal for interagency review soon. EPA is required to finalize a replacement rule by April 30, 2003. Given the status of review efforts, it is likely that EPA will need to extend this date.

AMSA a Party in Three Sewage Sludge Incineration Cases
AMSA is an intervenor in three of seven separate cases brought by the Sierra Club alleging EPA’s failure to implement provisions of the Clean Air Act (CAA). Sierra Club v. Whitman, Nos. 01-1548, 01-1537, 01-1578 (D.D.C. July 2001). The now consolidated cases are stayed through October 30, 2002 while EPA and Sierra Club draft a consent decree and case management schedule.
In one case, Sierra Club seeks CAA § 129 rules for other solid waste incinerators (OSWI), including sewage sludge incinerators (SSIs). EPA determined in 2002 that § 129 does not apply to SSIs. 65 Fed. Reg. 23,460. Under the potential consent decree, EPA would propose OSWI rules in 2004 and finalize them in 2005. AMSA will have to follow EPA’s actions to ensure that SSIs are not reintroduced into the § 129 rulemaking.

In a second case, Sierra Club seeks overdue maximum achievable control technology (MACT) standards for several industrial categories of hazardous air pollutants (HAPs). While Sierra Club included SSIs in the complaint, EPA delisted SSIs from the MACT program earlier this year. 67 Fed. Reg. 6,521. EPA’s action renders moot the issue of MACT standards for SSIs.

In a third case, Sierra Club seeks technology requirements to control urban area HAP sources under CAA § 112(k), including POTWs and SSIs. EPA has proposed “no control” for new and existing non-industrial area source POTWs, and reasonable requirements for area source industrial POTWs. 67 Fed. Reg. 13,496. EPA is expected to finalize the regulations this month. EPA has offered to Sierra Club that, if they are needed, it will propose regulations for area source SSIs in 2009 and finalize them in 2010. Sierra Club has not agreed to this schedule. Briefing may occur to establish a rulemaking schedule for SSIs and several other area source categories.