AMSA Legal Alert (Leg02-4)

On February 4, 2002, the South Carolina Court of Common Pleas issued its opinion in a case involving the City of Anderson, South Carolina's (City's) challenge to the state Department of Health and Environmental Control's (DHEC's) adoption of a Trophic State Index (TSI) without public notice or comment. City of Anderson v. State of South Carolina Board of Health and Environmental Control (Docket No. 00-CP-40-1255, Feb. 4, 2002). DHEC used the TSI to determine whether waterbodies were impaired by nutrients under South Carolina's narrative water quality standard for aquatic life use, and then to place waters on the state's Clean Water Act (CWA) §303(d) list. In April 2001, AMSA filed an amicus brief supporting the City's challenge to the TSI. AMSA's brief argued that notice and comment procedures for the TSI were essential because listing a water as impaired under §303(d) can result in more stringent effluent limits in individual National Permit Discharge Elimination System (NPDES) permits. Therefore, the participation of permittees like publicly owned treatment works (POTWs) in the development of tools such as the TSI is critical.

As an initial matter, the court found the City's TSI challenge to be moot due to several events that transpired in South Carolina as the case progressed. These events included the state's creation, and EPA's approval, of South Carolina's year 2000 §303(d) list, which rendered moot the City's challenge based on the 1998 list; a February 2000 DHEC Board (Board) Order prohibiting exclusive use of the TSI in listing decisions; and the state General Assembly's June 2001 approval of numeric nutrient standards, which replaced the narrative standards at issue in the case.

However, after finding the case moot, the court still rendered its views on the merits of the City's challenge. The court asserted that in its view, the proper time for a permittee to challenge a §303(d) listing is when the permittee receives effluent limitations based on a TMDL for that waterbody. The court also believed the Board correctly found the TSI was not a rule, given that it was one of several factors the state used in §303(d) listings. The court's statements beyond the mootness finding are in fact non-binding "dicta." However, it will be important to keep this court's views in mind as additional TMDLs are developed, as the body of judicial opinion grows around §303(d) listing issues, and as permittees continue to seek ways to challenge problematic §303(d) listings.

Background
In 1998, AMSA member agency Western Carolina Regional Sewer Authority, several other utilities, and the City of Anderson challenged DHEC's use of the TSI to list waterbodies on the state's §303(d) list as impaired for aquatic life use. In September 1999, a South Carolina administrative law judge (ALJ) issued a favorable ruling for the utilities and found that the TSI was a rule that should have been developed through public notice and comment procedures.

DHEC appealed the ALJ's Order to its Board. In February 2000, the Board overturned and reversed the ALJ Order in its entirety. In taking this action, the Board clarified that DHEC would not use the TSI as "a sole determinant in §303(d) listings." Opinion at 16. Just prior to the Board's action, the original utility challengers entered into a settlement agreement, ending their participation in the case. As the only challenger remaining, the City of Anderson appealed the Board's overturning of the favorable ALJ decision to the South Carolina Court of Common Pleas.

Again, the court's found the City's case to be moot. However, as described below, the court's written opinion includes several statements about the proper time for an NPDES permittee to challenge a §303(d) listing and about the effect of the state's use of the TSI.

The Court's View on When and Where to Challenge §303(d) Listings
In the court's view, the City did not show what immediate effect the §303(d) listing would have on it, especially in light of the uncertainties of the TMDL process. The court stated "the listing of waterbodies on a §303(d) list simply sets in motion a process of future development of TMDLs for a listed waterbody segment." Opinion at 20. Even if the state began immediately to develop a TMDL for the waterbody at issue, it would be difficult to predict the impact of that TMDL on point and nonpoint sources. In fact, while the City was concerned the listing would result in more stringent effluent limitations for its wastewater plant, in the end, the court noted that the TMDL could dictate more stringent controls for non-point sources than for point sources. Thus, in the court's mind, the City's asserted injuries from the §303(d) listing were "speculative." The court viewed the "legal and technical issues surrounding any such possible injury . . . at this juncture, completely unformed and not amendable to adjudication." Id.

The court also asserted "the proper forum for challenging a negotiated permit limit, or a denial of a request for effluent limit modifications, is through a direct appeal of any such decision, when or if it ever occurs." Id. at 20-21. In short, the court noted that the City "has complained about a claimed policy that has not yet affected it in any quantifiable or justiciable way." Id. at 21.

The Court's View on the TSI as a Rule
The court also noted that it did not believe DHEC engaged in "rulemaking" activities by using the TSI. Id. at 22. The court acknowledged that DHEC exercised case-by-case discretion when using TSI values to decide whether to list waterbodies under §303(d), and did not apply the TSI as a "binding norm." Id. at 23. The court also noted that the TSI "information was never held out by the agency as a cut and dry standard, and the DHEC Board never adopted the TSI as a standard to be used by the Department in determining impairment." Id. at 24.

Next Steps
It is unlikely that the case will be appealed to a higher South Carolina court, thus concluding AMSA's role in the City of Anderson case. The court's opinion and AMSA's April 2001 amicus brief are posted on the Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm. AMSA will continue to seek opportunities to participate in legal cases that give POTWs the opportunity both to advocate for sound §303(d) listings and to challenge problematic §303(d) listings.

AMSA also is developing a document for the membership to be released in the coming weeks which will address many of the issues raised by the City of Anderson case and §303(d) listings generally. The document will outline the technical, regulatory, and legal issues surrounding state waterbody listing methodologies, based on the new EPA Integrated §303(d) and §305(b) Report Guidance (described in AMSA Regulatory Alert 01-21). The document, among other things, will highlight scientifically sound listing approaches already in use in some states, data quality, quantity, and evaluation issues, discuss the determination of "threatened" waters, and recommend procedures for delisting waters. AMSA hopes this forthcoming tool will be useful to members across the country as states continue to work on their 2002 §303(d) lists and their listing and delisting procedures and regulations.

If you have any questions regarding the City of Anderson case, AMSA's legal activities, or the forthcoming §303(d) listing document, please feel free to contact AMSA's General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.