Member Pipeline - Legal - March 2004 Legal Perspectives
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Printer friendly versionVolume III, Issue 1 |
Winter 2004 |
“The CWA is already generous to the extent that it allows the EPA and affected citizens to bring suit for violations of any NPDES permit violations . . . to allow the enforcement [via the CWA] of legal obligations not actually contained in a permit would open the floodgates . . .”
American Canoe Ass’n v. District of Columbia Water and Sewer Auth., D.D.C., March 2, 2004On March 2, 2004, the United States District Court for the District of Columbia (court) rendered an important decision holding that citizen suits under the Clean Water Act (CWA) can not be used to enforce complaints about odor, noise, or other non-water issues. The 30-page ruling by Judge Henry Kennedy in American Canoe Association v. District of Columbia Water and Sewer Authority, Civ-A No. 99-02798 (D.D.C. Mar. 2, 2004), reviewed claims brought by three environmental activist groups over intermittent odors from the Potomac Interceptor sewer line, which runs through Washington, DC’s Chesapeake & Ohio Canal National Historic Park.
Notably, AMSA member agency the District of Columbia Water and Sewer Authority (WASA) began upgrading a series of sewer vents with state-of-the-art odor abatement controls before the litigation began. Nonetheless, the activists filed suit alleging that a requirement for carbon filters in a 1960s-era construction permit issued by the National Park Service was enforceable under the CWA’s citizen suit provision as a violation of the WASA’s National Pollutant Discharge Elimination System (NPDES) permit.
In its decision, the court rejected the plaintiffs’ theory, holding that allowing odor control to be implied into CWA permits would “open the floodgates” to citizen suits over matters that should be enforced – if enforceable – under state nuisance laws or by other regulatory authorities. The court’s ruling and analysis will be helpful for municipal wastewater agencies and other dischargers in responding to activist suits seeking attorneys fees and civil penalties under the CWA’s citizen suit provisions.
This issue of Legal Perspectives provides an overview of this important decision and discusses its implications for publicly owned treatment works (POTWs). The court’s opinion is available on AMSA’s Member Pipeline in the Legal e-Library under Key Cases.
Background
The Potomac Interceptor was built in the 1960s to serve Dulles Airport and to support and promote suburban development in the Washington, DC metropolitan area. The interceptor and its several branches transport wastewater from communities in Northern Virginia and Montgomery County, Maryland to the Blue Plains Advanced Wastewater Treatment Plant in Southwest, DC. In order to provide a convenient right-of-way, a large portion of the Potomac Interceptor alignment was run under Great Falls Park and the C&O Canal National Historic Park, which are popular recreation areas for canoeists, kayakers, and other outdoor enthusiasts.The original design provided for a system of vents (typically cast iron pipes terminating in small stone-veneer housings) to allow hydraulic flow and reduce corrosion potential by venting hydrogen sulfide gas. Construction permits issued by the National Park Service in the early 1960s specified carbon filter odor control for vents in the more popular park areas. These passive carbon filters were either never installed or discontinued as impracticable due to concerns about restricted air flow.
During a period of unusual drought in metropolitan Washington, which lowered wastewater flow and exacerbated sulfide production, WASA responded to increased odor complaints by initiating short- and long-term odor abatement strategies in March 1999. Short-term measures included gel deodorizer buckets, temporary passive carbon filters, and sealing selected vents. The long-term abatement strategy, which today is nearing construction after an extensive permitting process with the National Park Service and other agencies, incorporates active venting via strategically placed exhaust blowers coupled with rechargeable carbon canisters, sealing non-critical vents, and providing unidirectional intakes at other locations. The details of the abatement program can be found at WASA’s website at www.potomacinterceptor.com.
Notwithstanding WASA’s plans to upgrade odor control with state-of-the-art technology, three local groups – the American Canoe Association, the Potomac Conservancy, and the Canoe Cruisers Association of Greater Washington, represented by the Sierra Club – sued WASA in October 1999 alleging that failure to maintain the original passive carbon filters violated the operation and maintenance (O&M) clause of WASA’s NPDES permit.
The plaintiffs sued under the CWA’s citizen suit provision, 33 U.S.C. § 1365, which in contrast to state nuisance law, can assign to violators civil penalties and payment of the prevailing party’s attorneys fees. Notably, recent Supreme Court decisions in Bennett v. Spear, 520 U.S. 154 (1997) and Friends of the Earth, Inc. v. Laidlaw Env’tl Servs. (TOC), Inc., 528 U.S. 167 (2000), have expanded citizen standing in CWA and other environmental cases to such an extent that most citizen suits survive municipal motions to dismiss, so long as the plaintiffs allege that the municipality’s actions violate some provision of an NPDES permit. In this case, the O&M provision was held out by the activists as encompassing WASA’s obligations to control odors from the Potomac Interceptor.
The Court’s Decision
After discovery and extensive deposition of experts, the plaintiffs conceded that their case rested on the theory that the court should use WASA’s NPDES permit to enforce the National Park Service’s original request in the 1960s to install carbon filters in the Potomac Interceptor vents. The plaintiffs argued that the boilerplate O&M clause in any NPDES permit required the permittee to abide by any conditions established by other regulatory bodies (such as the National Park Service) or any other legal requirements that were a prerequisite to constructing or operating the sewer system.WASA moved for summary judgment on the basis that the plaintiffs’ theory had neither legal merit nor logical limits. WASA highlighted that the plaintiffs’ theory would distort the CWA by allowing activist groups to sue municipal wastewater agencies over a laundry list of issues, from local zoning ordinances, to nuisance complaints about equipment noise, the color of painted piping, or other aesthetic issues.
The court, agreeing with WASA, held that to allow extrinsic conditions to be “implied” into a NPDES permit through the O&M clause would “open the floodgates” to nuisance claims and other issues that ought to be handled by state law. The district court also noted that the U.S. Environmental Protection Agency (EPA) had expressed intent in the past to “abstain” from regulating odor emissions under the CWA. Given that history, the court also found that odor is not enforceable under NPDES permits.
Implications for POTWs
The court’s decision recognizes that the CWA’s citizen suit provisions have limitations. By interpreting the NPDES O&M clause as it did, the court has dramatically reduced the number of future potential nuisance-type CWA citizen suits against POTWs. Without the threat of civil penalties and attorney fees inherent in a citizen suit, the court’s decision will further the ability of municipal wastewater treatment agencies to respond to community concerns with odor and other non-CWA issues in a more constructive and productive manner. Although the court’s decision is technically binding only in the District of Columbia, the case may be followed in the future by other federal courts, which often look to DC decisions for precedent and guidance in environmental regulatory cases.Next Steps
It is possible that this case will be appealed to the District of Columbia Circuit Court. AMSA will keep its members apprised of further developments. For additional information or to receive copies of briefs in the case, please contact Ben Wilson, with AMSA affiliate law firm Beveridge & Diamond, P.C. at (202)-789-6023 or at bwilson@bdlaw.com.
Legal Perspectives is a publication of the Association of Metropolitan Sewerage Agencies (AMSA).
Founded in 1970, AMSA represents nearly 300 of the nation's POTWs. AMSA members serve the majority of the U.S. sewered population and collectively treat and reclaim over 18 billion gallons of wastewater every day.
We welcome your comments on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, AMSA at adunn@amsa-cleanwater.org 202/533-1803.