AMSA Legal Alert (Leg02-9)

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Attorney-Client Communication

AMSA is pleased to provide you with the latest Litigation Report. This Report provides an update on initiatives designed to enhance AMSA's legal services to member agency attorneys and summarizes recent developments in AMSA’s litigations.

AMSA added a new case to its active litigation portfolio since the May Report. With support from AMSA’s Board of Directors and Technical Action Fund (TAF), AMSA sought permission on June 11 from the U.S. Court of Appeals for the D.C. Circuit to file an amicus brief in Friends of the Earth v. EPA, Nos. 02-1123, 02-1124. Activists are asserting in this suit that total maximum daily loads (TMDLs) can be expressed only in daily load form. If their interpretation prevails, unfavorable precedent would be set for POTWs and their ability to meet TMDLs for many pollutants. AMSA’s position is that TMDLs have been, and must be, allowed to be set in the form appropriate to the pollutant of concern – such as monthly, seasonal, or annual loads. If AMSA's motion is granted, the Association will file a joint brief with member agency the D.C. Water and Sewer Authority. The U.S. Environmental Protection Agency (EPA) has motioned to dismiss the case on the basis that it was improperly filed in the court of appeals rather than district court. The court has not yet ruled on the Agency or AMSA’s motions. However, on June 24, Friends of the Earth indicated to the court that it does not oppose AMSA or WASA’s joint participation as amicus. Additional information on this case is on the Litigation Tracking portion of AMSA’s Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/061102AMSAMotion.pdf.

Recent months yielded exciting developments in a number of AMSA’s active cases. In particular, the Ninth Circuit handed point sources a decisive victory in the long awaited Pronsolino v. Marcus case, regarding the role of nonpoint sources in the TMDL program. And, the U.S. Supreme Court declined to review the Piney Run decision, allowing the Fourth Circuit’s favorable permit shield decision to stand. More details on these and AMSA's other active cases are included under Case Briefs.

Status of 2002 Legal Initiatives
The National Office continues to receive positive feedback on the Legal Perspectives columns, with the two most recent issues addressing the topics of water quality trading and preemption issues. More than 30 member attorneys and outside counsel participated in the third Late Breaking Legal Issues conference call on June 19, which featured guest speaker Jimmy Slaughter of Beveridge and Diamond on innovative legal strategies for responding to biosolids land application bans. Mark Pollins, Director of EPA’s Water Enforcement Division is expected as the guest speaker for the fourth call, on August 14.

The growing Legal Affairs Committee list serve continues to be a valuable tool for distributing information to, and inquiries from, member agency counsel. The growing Member Pipeline Legal e-Library includes new permit language, cases, and several wet weather consent decrees.

Planning is underway for the 2002 Developments in Clean Water Law Seminar (Seminar), to be held November 6-8 in Denver, Colorado. This year’s Seminar will feature a joint session with AMSA’s Water Quality Committee on whole effluent toxicity, and timely and dynamic panels on biosolids legal issues, pretreatment enforcement, storm water, TMDLs, wet weather, and legal ethics.

For More Information
Members can follow AMSA's cases in the Litigation Tracking section of Member Pipeline, where key legal documents are posted. 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

Ninth Circuit Delivers Key Point Source Victory: Pronsolino v. Marcus
Handing AMSA members an unqualified victory, in late May the United States Court of Appeals for the Ninth Circuit upheld the United States District Court for the Northern District of California’s decision that impaired waters should be listed and subject to total maximum daily loads (TMDLs) under Clean Water Act (CWA) § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. Pronsolino v. Nastri, No. 00-16026 (9^th Cir. May 31, 2002). The court’s opinion is crystal clear – nonpoint sources are a part of the TMDL program. The decision is particularly timely as EPA continues its efforts to revise the July 2000 TMDL regulations for public comment this fall. Details of the court’s decision are contained in Legal Alert 02-8, available on the Member Pipeline at http://www.amsa-cleanwater.org/private/legalalerts/leg02-8.cfm.

Using the TAF, AMSA played a key role as an intervenor in Pronsolino in the district court and on appeal supporting EPA. AMSA’s oral argument before the District Court, support of the U.S. Department of Justice (DOJ) in moot court sessions for the Ninth Circuit argument, and persuasive written briefs in both proceedings significantly contributed to the favorable disposition of this pivotal CWA case.

The Pronsolinos still may appeal the case to the U.S. Supreme Court. However, it is unlikely the Court will grant review given the agreement between the District and Circuit court decisions, and the absence of a split of opinion between U.S. judicial circuits on the substantive CWA issues.

Supreme Court Denies Review of Permit Shield Case: Piney Run v. Carroll County
On May 20, the U.S. Supreme Court declined to review the favorable Fourth Circuit permit shield case. Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, 268 F.3d 255 (4th Cir. 2001). The Fourth Circuit’s opinion that National Pollutant Discharge Elimination System permits offer protection from enforcement for the discharge of pollutants listed in the permit, as well as those unlisted pollutants whose discharge is contemplated by the permitting authority when the permit is issued, now stands as solid law. AMSA and the Water Environment Federation (WEF) filed a joint amicus brief in the case in August 2000.

Dioxins in Land Applied Biosolids: Gearhart v. Whitman
After more than six months of negotiations, on April 1, AMSA and other parties to the decade old lawsuit over EPA’s CWA sewage sludge regulations signed a settlement agreement giving EPA until October 17, 2003 to finalize regulations for dioxins in land-applied biosolids. Gearhart v. Whitman, Civ. No. 89-6266-HO (D. Or.). Originally required to finalize the regulations by December 2001, EPA desired the additional time to take public comment new data obtained since EPA proposed the regulations in 1999. These data include AMSA’s 2000/2001 Survey of Dioxin-like Compounds in Biosolids; EPA’s revised risk assessment on dioxins in land-applied biosolids; and EPA’s 2001 dioxins in biosolids survey. Details of the settlement agreement are contained in Legal Alert 02-6.

Under the settlement agreement, AMSA is entitled to recover reasonable attorney fees incurred to negotiate the extension. Accordingly, on June 17, AMSA submitted a request to the government to recover $22,080.00 in time spent by AMSA’s in-house General Counsel on the case. The government’s response to this request is expected mid-July.

On June 12, EPA published a Notice of Data Availability (NODA) in the Federal Register, inviting comment on the new biosolids data. 67 Fed. Reg. 40,554. AMSA has initiated a TAF project to assist us in our review of and comments to EPA on the extensive new data, and has retained outside counsel with both toxicology and dioxin expertise to complement our NODA comment efforts.

Antidegradation: Ohio Valley Environmental Coalition v. Whitman
On April 11, the U.S. District Court for the Southern District of West Virginia granted AMSA’s motion to intervene in Ohio Valley Environmental Coalition, et al., v. Whitman, Civ. No. 3:02-CV-59 (S.D. WV, Jan. 23, 2002). AMSA filed its motion jointly with the West Virginia Municipal Water Quality Association and the West Virginia Municipal League.

On June 13, the West Virginia Department of Environmental Protection (WVDEP) motioned to intervene in the case, asserting that the state’s “interests in defending its rule, maintaining stability in the NPDES permitting process, and ensuring regulatory certainty in its rules” are important interests not represented by the other parties in the case. On June 27, the court granted WVDEP’s motion, noting that the State “has special concern for the citizens of West Virginia which are not shared by the federal agency.” West Virginia will bring to the case the critical perspective of the state agency responsible for developing the antidegradation rule.

In their January 23 complaint, the citizen organizations challenge EPA’s approval of West Virginia’s antidegradation implementation as a violation of the CWA and federal water quality standards regulations. West Virginia’s procedures contain antidegradation exemptions important to POTWs, including: 1) for de minimis activities resulting in less than a 10 percent reduction in the receiving water’s assimilative capacity; 2) for 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) for POTW expansions or improvements. Since West Virginia based its implementation procedures on those developed by other states, a successful challenge to West Virginia’s procedures could raise questions regarding antidegradation practices in other states.

Under deadlines set by the court, the administrative record was filed for review in early July, and discovery will be complete by August 30. Cross-motions for summary judgment are due November 1, and all summary judgment activity should be complete by February 28, 2003. A ruling from the court should come next summer.

Trio of Clean Air Act Sewage Sludge Suits: Sierra Club v. Whitman
On May 31, EPA and Sierra Club jointly proposed that the D.C. District Court consolidate before one judge six, and dismiss one, of the seven cases filed by the Sierra Club last year alleging EPA’s failure to implement provisions of the Clean Air Act (CAA). The documents filed with the court indicate that EPA and Sierra Club indicate are close to settling the majority of the cases. On June 20, the lead judge in the cases granted consolidation and stayed the cases until July 29 to allow EPA and Sierra Club to draft settlement documents. AMSA intervened in three of the suits because they include sewage sludge incineration (SSI). However, EPA and Sierra Club may settle the case without AMSA’s or other industry parties’ consent.

The first case in which AMSA intervened seeks CAA § 129 rules for “other solid waste incinerators” (OSWI), including SSIs. In 2000, EPA determined that § 129 does not apply to SSIs because sludge is not “generated by commercial or industrial sources,” as the CAA requires. 65 Fed. Reg. 23,460. Under the potential settlement, EPA would propose OSWI rules in 2004 and finalize them in 2005. EPA is not committing to details on the OSWI rules’ content, including whether EPA will reverse its decision to exclude SSIs from OSWI. AMSA will track this rulemaking to ensure that SSIs are not reintroduced into the § 129 rulemaking.

The second case seeks technology-based maximum achievable control technology (MACT) standards under CAA § 112(d) for several industrial categories of hazardous air pollutants (HAPs), including SSIs. On February 12, EPA delisted SSIs from the MACT program. 67 Fed. Reg. 6521. In the potential settlement, EPA and Sierra Club will agree to a list of source categories for future MACT regulation. SSIs will not be included given the delisting – a favorable outcome for AMSA.

The third case seeks technology-based standards for urban area HAP sources under CAA § 112(k). The CAA’s urban area source provisions require EPA to identify the 30 HAPs of most concern in urban areas, and to list and regulate the industrial categories responsible for 90 percent of the emissions of those HAPs. In 1999, EPA listed POTWs as an urban area source category. On March 22, EPA proposed CAA § 112(k) regulations of “no control” for new and existing non-industrial area source POTWs. 67 Fed. Reg. 13,496. For area source industrial POTWs, EPA proposed that these facilities should meet the same control requirements as major source industrial POTWs, and be exempt from CAA Title V permit provisions. AMSA supported EPA’s proposals in April comments. EPA is expected to finalize the proposal by October.

In 1999, EPA also indicated it was “considering” listing SSIs as urban area HAP sources. On June 26, EPA added 18 industrial processes, including SSIs, to list of area source categories. 67 Fed. Reg. 43,112. Based on 1990 data, EPA estimates that each of the 18 new categories contributes between four and 16 percent of the urban area emissions for at least one of the 30 HAPs. AMSA has provided EPA with data showing drops in SSI HAP emissions since 1990. While EPA was not able under the CAA to use this information in the listing action, EPA will be able to use AMSA’s data in any subsequent rulemaking activity. In the potential settlement with Sierra Club, EPA has offered to propose area source rules for the 18 categories in October 2009, and to finalize them in December 2010. Sierra Club will not agree to this schedule. Accordingly, it is expected that briefing will occur this fall before the court to set a rulemaking schedule.

July 2000 TMDL Rule Case: American Farm Bureau Federation v. Whitman
This case has been on hold since October 2001 while EPA prepares to repropose the controversial July 2000 TMDL rule as a “watershed rule” this fall. As an intervenor in the case, AMSA attended a litigation meeting in March which revealed that EPA has not resolved many of the most difficult issues. In an April 2 report to the court, EPA states that by July it anticipates completing draft regulatory and preamble language, concluding internal agency review, and submitting the rule to the Office of Management and Budget. EPA is committed to finalizing a new rule before April 30, 2003, which will effectively nullify the July 2000 rule.