AMSA Legal Alert (Leg03-5)

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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.

2003 Developments in Clean Water Law Seminar: Key Biscayne, Miami, FL
We hope you plan to attend AMSA’s Developments in Clean Water Law: A Seminar for Public Agency Attorneys & Managers to be held from November 5-7, 2003 at the Sonesta Beach Resort Key Biscayne, Miami, FL. This year’s dynamic agenda features premiere speakers from across the country on some of the most interesting topics relevant to Clean Water Act (CWA) professionals. The panels will begin with succinct “primer-style” overviews of key CWA issue areas for newer practitioners, followed by in-depth discussions on recent developments, strategies, and practical approaches for all. Topics to be addressed include all aspects of wet weather – sanitary sewer overflows (SSOs), combined sewer overflows (CSOs), storm water, and blending; total maximum daily loads (TMDLs); whole effluent toxicity; antibacksliding and antidegradation; enforcement; citizen suits; the Information Quality Act; and recent CWA cases. Continuing legal education (CLE) credits, including ethics, will be offered for program attendees.

We will take advantage of the Seminar’s beautiful Florida location with a “best ball” golf tournament at the award winning Crandon Park Golf Course, Key Biscayne beginning at noon on November 4. Mark your calendars now for this excellent opportunity to learn, see old friends, and make new contacts! Registration information is coming soon, and you can visit AMSA’s website at http://www.amsa-cleanwater.org/meetings/03law/ for further details.

Other Legal Initiatives
If you have not already, we urge you to review AMSA’s newest legal publication, Wet Weather Consent Decrees … Protecting POTWs in Negotiations: An AMSA Handbook. Developed through AMSA’s Technical Action Fund, the Handbook is a comprehensive resource for publicly owned treatment works (POTWs) who may face negotiations with the federal or state governments regarding sewer overflows. The Handbook assesses ways that the government’s boilerplate CWA consent decree language can be modified via negotiation to be more workable for a municipality and addresses techniques to craft workable standard decree provisions, such as definitions, compliance with law, stipulated penalties, force majeure, dispute resolution, and termination clauses. Complementing the Handbook, the over 30 municipal wet weather decrees and orders discussed in the Handbook are posted on AMSA’s website in a unique reference library. The Handbook can be ordered from AMSA’s home page.

AMSA will host two more Late Breaking Legal Issues conference calls this year – on October 15 and December 10. Dial-in information and other details are posted in the Member Pipeline legal section. We also encourage you to visit the Member Pipeline Legal e-Library at http://www.amsa-cleanwater.org/private/legal_index.cfm where new information is added weekly on new cases and key developments.

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

U.S. Supreme Court to Hear Water Transfer Case
On June 27, the U.S. Supreme Court (Court) handed AMSA an important victory when it granted certiorari in a CWA case that could subject thousands of local government water transfers to National Pollutant Discharge Elimination System (NPDES) permits and U.S. Environmental Protection Agency (EPA) regulation for the first time since the CWA was enacted. South Florida Water Management District v. Miccosukee Indian Tribe of Florida, No. 02-626 (U.S. 2003) (Miccosukee). The Court selected the case for review over the objections of EPA and other federal agencies. AMSA urged the Court to grant certiorari in a November 2002 amicus brief filed with member agency the New York City Department of Environmental Protection (NYCDEP). Both the Eleventh Circuit in Miccosukee (280 F.3d 1364), and the Second Circuit in the Catskill Mountains case involving NYCDEP (273 F.3d 481), reversed past court decisions and historic EPA practice by holding that dams, levees, flood control, and other water management structures “add” pollutants and thus should receive NPDES permits.

Briefing in the case will occur this fall and oral argument will be held in January 2004. The Court will review the following specific question: “Whether the pumping of water by a state water management agency that adds nothing to the water being pumped constitutes an ‘addition’ of a pollutant ‘from’ a point source triggering the need for a [NPDES] permit under the [CWA].” AMSA and NYCDEP will file an amicus brief September 10 highlighting that the Miccosukee court’s analysis will dramatically increase the number of entities to be permitted under the already overburdened NPDES program, and will undermine local government autonomy over water transfer decisions by allowing EPA to micromanage water movement, flood control, irrigation, and related activities. The Association of Metropolitan Water Agencies, the American Water Works Association, the National League of Cities (NLC), and the National Association of Flood and Stormwater Management Agencies (NAFSMA) will join AMSA’s September amicus brief.

EPA Rejects WET Settlement Offer, Case to be Briefed
On July 10, EPA rejected AMSA and other parties’ settlement offer in the challenge to EPA's November 19, 2002 final whole effluent toxicity (WET) test methods. Edison Electric Institute (EEI) et al. v. EPA, No. 96-1062 and consolidated cases (D.C. Cir.); 67 Fed. Reg. 69,952. In EPA’s view, much of the settlement offer focused on WET implementation – such as how WET test methods and results are used and interpreted. Thus, EPA did not believe “it would be fruitful to pursue further settlement discussions over the challenges to the WET methods.”

In briefing this fall, and oral argument next year, AMSA and the other litigants hope to persuade the court that EPA’s promulgation of the final WET test methods was arbitrary and capricious because the methods are too variable to be used reliably in enforcement, and because the methods lack important safeguards against inaccurate results. AMSA will highlight WET issues important to municipalities, including numeric versus narrative WET criteria, toxicity in effluent dominated streams, WET test acceptability criteria, and the ramifications of single WET test failures. AMSA will ask the court to remand the methods to EPA to make appropriate revisions.

AMSA is joined in the case by the Virginia Association of Municipal Wastewater Agencies, the West Virginia Municipal Water Quality Association (WVMWQA), the Maryland Association of Municipal Wastewater Agencies, the South Carolina Water Quality Association, the California Association of Sanitation Agencies, and the Texas Association of Metropolitan Sewerage Agencies. The Western Coalition of Arid States (WESTCAS) and a group of industrial trade associations (the WET Coalition) also challenged the 2002 methods. The various challenges were consolidated with a 1996 WET case filed by WESTCAS and EEI.

Action Heats Up in Blending/SSO Case
Two important developments place the ongoing lawsuit with EPA over blending and SSOs at a critical point. Pennsylvania Municipal Authorities Ass’n v. Horinko, No. 1:02CV01361 (D.D.C. July 8, 2002). On August 14, the plaintiffs sought a preliminary injunction against Regions 3, 4, and 6 taking any further anti-blending actions until EPA issues a final blending policy. EPA will respond to the motion August 28, and AMSA and the parties may appear before the judge in early September for a hearing on the request. The plaintiffs show that the EPA regions do not have the authority to promulgate what are essentially anti-blending regulations; that EPA’s Office of Enforcement and Compliance Assurance has interfered with and delayed a blending policy; and that irreparable harm will occur to POTWs if the regions continue their blending prohibitions. The motion documents the incredible costs that POTWs will incur with a full blending ban – from an average of $69 million per municipality to approximately $300 billion nationwide.

We also await the court’s ruling on EPA’s motion to dismiss the case because the anti-blending and SSO actions by the regions are not "final agency actions." AMSA argued the regional actions are "definitive pronouncements" with "immediate impact” on POTW permits and renewals, and that the regions cannot be shielded "simply by virtue of the fact that [Headquarters] has abdicated its own responsibility to ensure that the [CWA] is administered in a fair and consistent manner” nationwide. The court’s decision is likely to be delayed until a dispute is resolved regarding various documents that EPA withheld from the plaintiffs as privileged or enforcement-sensitive. This dispute was referred to a magistrate judge for resolution in June.

AMSA Victorious as U.S. Supreme Court Declines Further Review of Pronsolino
On June 16, the U.S. Supreme Court granted AMSA members a key victory when it denied further review of the U.S. Court of Appeals for the Ninth Circuit’s decision in Pronsolino v. Nastri, 02-1186 (U.S. 2003); 291 F.3d 1123 (9th Cir. 2002). AMSA filed a brief with the High Court opposing certiorari on May 16. The Pronsolino decision holds that impaired waters should be listed and subject to TMDLs under CWA § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. AMSA participated in the case at every stage to protect its member agencies from nonpoint source efforts to remove themselves from the scope of the TMDL program.

EPA Prepared to Meet Deadlines for Final Round II Biosolids Rule
According to its August 8 status report to AMSA and the Natural Resources Defense Council, EPA is scheduled to take final action in the Round Two rulemaking for dioxin and dioxin-like compounds in land-applied biosolids by the consent decree deadline of October 17. Gearhart v. Horinko, Civ. No. 89-6266-HO (D. Or.). Although EPA has not reported formally on the decision it will announce in the October 17 action, AMSA does not expect EPA to set a regulatory limit for dioxins based upon scientific data and exposure information submitted during the rulemaking.

EPA also reports that it is beginning to review comments received by the July 8 deadline on its plans to follow up on the July 2002 National Research Council study of risks from toxicants and pathogens in land-applied biosolids. Under the decree, EPA must publish a final plan by January 2004.

Finally, EPA reports that to meet CWA § 405(d)(2)(C) biennial review requirements to identify additional pollutants in biosolids that may warrant regulation, it will begin a screening analysis of chemicals for which adequate data are available and for which there is evidence that they may occur in biosolids. In April, three intra-agency subgroups began to identify chemicals to be screened, to determine the scope of the analyses, and to develop the analysis mode. EPA must publish the final results of the biennial review by January 2004.

AMSA Favors Rehearing of Erroneous Phase II MS4 Case
The U.S. Court of Appeals for the Ninth Circuit has not yet acted on petitions to rehear the Phase II municipal separate storm sewer system (MS4) regulation case. Environmental Defense Center Inc. v. EPA, No. 00-70014 (9th Cir. 2003) (EDC). On March 10, the court accepted the amicus brief supporting rehearing filed by AMSA, NLC, the American Public Works Association, and NAFSMA. Our brief shows that the EDC court failed to follow the CWA when it held that that MS4 discharges are subject to the "maximum extent practicable" (MEP) MS4 standard in CWA § 402(p) and also to “general effluent limitations.” We note that the opinion ignores the Ninth Circuit’s 1999 Defenders of Wildlife v. Browner decision – in which AMSA was amicus – which held that Congress clearly intended MEP to be the only MS4 standard, not also effluent limitations to meet water quality standards. Unless EDC’s rationale is corrected on rehearing, citizen groups and regulatory agencies could use the decision to bolster efforts to obtain numeric effluent limitations in MS4 permits.

D.C. Circuit Dismisses “Daily” Load Case Without Reaching the Merits
On June 20, the District of Columbia (D.C.) Circuit Court of Appeals dismissed the case in which Friends of the Earth (FoE) argued that TMDLs may be expressed only as true 24-hour daily loads, without reaching the substantive issues raised in the case. Friends of the Earth v. Whitman, 333 F.3d 184 (D.C. Cir. 2003). AMSA and member agency the D.C. Water and Sewer Authority filed an amicus brief in the case to highlight that requiring TMDLs to be expressed only in 24-hour load form, particularly TMDLs for biochemical oxygen demand (BOD) and total suspended solids (TSS), would conflict with CWA § 402(q) and effectively preclude implementation of EPA’s 1994 Combined Sewer Overflow Policy.

The court, however, dismissed the case as improperly filed in the Court of Appeals and transferred the case to the D.C. District Court. The court rejected FoE’s assertion that EPA’s decision to approve D.C.’s BOD and TSS TMDLs constituted “approval or promulgation of an effluent limitation” – one of the few types of EPA action designated in CWA § 509(b)(1)(E) for direct review in the Courts of Appeals. Noting that Congress did not include CWA § 303 (the TMDL provision) in the CWA list of EPA actions designated to bypass District Court review, the court declined to accept FoE’s arguments in favor of Appeals Court review. In the opinion, the court makes no statements regarding the expression of TMDLs and the “daily” load issue raised in the case.

The court’s decision affirms – to the extent there was any question – that TMDL challenges generally should be filed in the district courts. AMSA will keep the membership apprised of opportunities to participate in this case further as it progresses before the District Court.

AMSA Awaits Decision in W. Va. Antidegradation Case
On July 7, AMSA, the WVMWQA, and the West Virginia Municipal League completed briefing in a case in which citizens allege that EPA’s approval of West Virginia’s antidegradation implementation procedures violated federal water quality standards regulations. Ohio Valley Environmental Coalition v. Whitman, Civ. No. 3:02-CV-59 (S.D. WV, Jan. 23, 2002). The citizens argue that “West Virginia’s procedures illegally create a series of wholesale exemptions to, and limitations on, antidegradation applicability and review, resulting in state standards that fall far below the minimum floor of federal protection of water quality.” They also assert that the state’s antidegradation policy “is so riddled with exemptions . . . that it fails to require dischargers to show that their proposed activities would benefit the communities whose waters would be degraded.”

AMSA’s May 14 Summary Judgment and July 7 Reply briefs rebutted these arguments, noting that the citizens’ concerns that degradation might occur in the future are too conjectural and hypothetical to establish standing. We also urge the court to uphold West Virginia’s antidegradation exemptions for POTWs – for de minimis activities resulting in less than a 10 percent reduction in the receiving water’s assimilative capacity; for CSO projects; and for POTW expansions or improvements. AMSA argues that the procedures “do not in any way threaten compliance with the underlying water quality standards and plaintiffs’ alleged enjoyment of the uses those water quality standards support.” A decision from the court is expected in early 2004.

EPA Motions to Dismiss July 2000 TMDL Rule Lawsuit as Moot
On August 18, EPA took the last procedural step necessary to conclude litigation over the ill-fated July 2000 TMDL rule, when it filed a motion to dismiss the case as moot based on the fact that EPA took final action in March to withdraw the rule from the federal books before its effective date. American Farm Bureau Federation v. Horinko, No. 00-1320 (D.C. Cir. 2000). AMSA does not expect there to be significant objection to EPA’s request to the court. We continue to urge EPA to propose its “watershed rule,” which eventually will provide new ground rules for the TMDL program. Until that time, the TMDL program remains governed by EPA’s 1985/1992 regulations.

Deadline for Overdue SSI Urban Air Toxics Standards Still Unresolved
EPA missed the CAA deadline to develop urban air toxics regulations for a variety of industrial categories under Clean Air Act (CAA) § 112(k), including for sewage sludge incinerators (SSIs). AMSA intervened in litigation brought by the Sierra Club to set the deadline for the overdue regulations. Sierra Club v. Horinko, No. 01-1537 and consolidated cases (D.D.C. July 2001). EPA has offered to propose the regulations in 2009; Sierra Club has rejected any date beyond 2007. EPA and Sierra Club are in mediation before a magistrate to reach a mutually acceptable deadline. As AMSA awaits a regulatory deadline, our Air Quality Committee is beginning work to collect current emissions data on urban SSIs.

In March 2003, EPA committed to propose overdue CAA § 129 regulations for other solid waste incinerators (OSWI) by November 30, 2004, and to finalize them by November 30, 2005. At one time EPA included SSIs in the § 129 OSWI category, but after extensive AMSA advocacy, in 2000 EPA determined SSIs were not covered by § 129 (65 Fed. Reg. 23,460). AMSA will follow EPA’s OSWI activities to ensure that EPA does not reintroduce SSIs into the rulemaking.