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Nuisance Ruling Favors Wastewater Industry
Waste News
(c) 2004 Crain Communications, Inc. All rights reserved.
Monday, March 29, 2004
Volume 9 Publication number: 26
Joe Truini Washington --
A federal court ruling this month could make it easier for municipal water and
sewer agencies to protect themselves from lawsuits involving odor and other
nuisances. Judge Henry Kennedy of the U.S. District Court for the District of
Columbia ruled March 2 that citizen lawsuits could not use the Clean Water Act
to enforce complaints about odor, noise or other nonwater issues.
"What is important here is that the court said we can't just use the Clean
Water Act because it's a convenient way to go here," said Alexandra Dunn,
general counsel for the Association of Metropolitan Sewerage Agencies. "What
this opinion does is remind people that there are ways to address these kinds
of concerns."
The Washington-based association represents more than 300 public agencies and
organizations serving the majority of public wastewater treatment agencies.
The American Canoe Association sued the District of Columbia Water and Sewer
Authority in 1999, alleging that odors from a sewer line violated the
authority's 1997 federal National Pollution Discharge Elimination System
permit. The line, known as the Potomac Interceptor sewer line, runs through
Washington's Chesapeake & Ohio Canal National Historic Park.
The canoe association claimed that the water authority had not properly
maintained carbon filters designed to suppress odors, which led to hydrogen
sulfide releases during the summer of 1999. The association alleged that the
authority violated the Maintenance and Operation Clause of its permit because
it failed to fulfill its obligation to the National Park Service to install and
maintain odor control carbon filters on vents on Park Service property.
Kennedy rejected the argument, concluding that the Clean Water Act could not be
used to enforce complaints involving odor, noise or other nonwater issues.
"The problem here, the court was saying, is you've got an issue here, but you
can't just bring it in any place you want under any law you want," Dunn said.
"You've got to be in the right court with the right law."
Citizens and groups should base these types of lawsuits on state nuisance laws
that are in place to handle such issues, Dunn said.
The plaintiffs did not return phone calls seeking comment.
Attorney Benjamin F. Wilson said the ruling will help municipal sewage
authorities and other wastewater dischargers, which environmental groups
seeking attorneys' fees and civil penalties target under citizen lawsuit
provisions of the Clean Water Act. Wilson works for Beveridge & Diamond PC,
which represented the District of Columbia Water and Sewer Authority.
"This decision recognizes that the Clean Water Act citizen suit provisions have
some limitations," he said. "The court chose not to interpret the Maintenance
and Operation Clause language in the permit in a manner that would have opened
the floodgates to claims against the operators of wastewater treatment
facilities."
The water authority is completing a multiyear project costing several million
dollars to significantly reduce the odor, Wilson said.
"Indeed, that's one of the arguments we made to the plaintiffs as to why they
didn't need to go forward with the litigation," he said. "Or they [could] even
stay the litigation while we completed this process if they didn't believe us.
But that was not enough."
The case helps clarify what Clean Water Act permits cover but is unlikely to
have a significant impact on current litigation, because most similar cases are
brought under state nuisance laws, Dunn said. The best way to avoid lawsuits
altogether is to not allow the situation to escalate to that level, she said.
"I don't believe this decision will necessarily lead to numerous cases being
stopped in their tracks," she said. "From a good-neighbor standpoint, you're
going to want to see agencies do what they can to reduce odors."
Contact Waste News reporter Joe Truini at (330) 865-6166 or jtruini@crain.com