LEGAL UPDATE CSO CASES AND ISSUES

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LEGAL UPDATECSO CASES AND ISSUES

• John Sheehan
• AquaLaw PLC
• Richmond, Virginia

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OVERVIEW

• Cases in the Courts impacting CSO Programs
• Other Emerging CSO Legal Issues

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CSO REQUIREMENTS IN TMDLs

• Landmark case Friends of the Earth v. EPA
• Opinion by DC district court reflects realistic
  understanding of challenges facing municipalities
  when controlling storm events

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TMDL CASE BACKGROUND

• FOE challenged two TMDLs (BOD and TSS) developed
  by the District and approved by EPA for the
  Anacostia River in DC.
• FOE argued that the TMDLs violate the CWA because
  they did not set daily loads, but rather set
  seasonal (TSS) and annual (BOD) loads. 

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TMDL CASE BACKGROUND

• According to FOE, daily means daily and EPA
  cannot vary from that. 
• EPA can only exercise interpretive discretion if
  daily is ambiguous.
• Adverse decision would create great difficulties
  for CSO communities the TMDLs here relate
  largely to discharges of storm water annual
  (BOD) loads and seasonal (TSS) loads

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THE TMDL DECISIONNovember, 2004

• CSO Partnership along with AMSA and WASA came up
  with the winning argument daily may be clear
  within Section 303(d) but not when 303(d) is
  considered with
• 402(p)(stormwater MEP) and
• 402(q)(annual average approach for CSO)
•  
• EPA did not make this argument
• Court was highly unlikely to find it on its own.
• Clear example of where amici played valuable role
•  

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THE TMDL DECISION (cont)

• Court recognized
• If municipalities cannot calculate non-daily
  TMDLs for their sewage overflow programs, they
  cannot implement EPAs CSO Policy.

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THE TMDL DECISION

• Court lectured the plaintiffs
• decision-making process does not have to yield
  to the unlikely aquatic enthusiast who will not
  tolerate anything less than immediate enjoyment
  of river waters after disruptive storm events.
•  
•  

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THE TMDL DECISION

• Great language for CSO/storm water interests
  even a federal judge understands that people
  should not expect perfect WQS compliance after
  disruptive storm events
• Federal judges may well be more reasonable on
  level of control issues than special interest
  groups or certain agency personnel
•  

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THE TMDL DECISION

• While EPA must explain why they believe daily WQS
  may be achieved despite occasional daily spikes,
  EPA does not have to explain precisely how WQSs
  can be achieved despite spikes.
• A conspiracy of circumstances determines
  whether the discharge of BOD polluants causes
  oxygen depletion immediately, much later, or
  never at all.
•  

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THE TMDL DECISION

• Probably goes too far to say that the stars must
  align, but sunlight, temperature, volume, flow,
  and tide must all interact in a precise matter to
  activate the chemical process by which the
  deposited materials deplete oxygen and actually
  become functional pollutants.
•  
• This inherent complexity does not allow EPA to
  throw up its hands and pick a load level based on
  the dart rule but it does demonstrate the
  scientific uncertainty involved in BOD
  calculations.

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THE TMDL DECISION

• First EVER decision to interpret Wet Weather
  Water Quality Act (402(q)).
• It need hardly be said that when Congress acts
  to amend a statute, courts presume it intends
  its amendment to have real and substantive
  effect.
• This supports the view that the Policy
  comprehensively addresses CSO requirements to the
  exclusion of general provisions elsewhere in the
  Statute (such as section 303(d) for TMDLs)

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THE APPEAL .

• Status of Case on appeal to United States Court
  of Appeals for the District of Columbia
•  
• Briefing schedule not yet set
• CSOP/AMSA continuing to participate as the stakes
  remain high
• If municipalities cannot calculate non-daily
  TMDLs for their sewage overflow programs, they
  cannot implement EPAs CSO Policy.
• -Judge Urbina
•  
•  

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• When is a court-ordered LTCP
• Enough?
• Final?
• Milwaukee MSD Case

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PROTECTION FROM CITIZEN SUITS AND THE DILIGENT
PROSECUTION STANDARD

• Friends of Milwaukees Rivers and the Lake
  Michigan Federation v. Milwaukee Metropolitan
  Sewerage District
• Troubling decision by US Court of Appeals here in
  Chicago in October, 2004.
•  
• Last month, United State Supreme Court refused to
  wade in.
•  

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BACKGROUND

• Settlement between State of Wisconsin and
  Milwaukee settling allegations brought by
  environmental groups alleging SSO and CSO-related
  violations.
• Consent agreement by which Milwaukee agreed to
  upgrade its system to the tune of 1 billion
  (already had spent 3 billion to get down to 3-4
  overflows a year).
•  
• Called for new deep tunnels to increase storage
  capacity by 30 to be completed by 2020.

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THE DECISION

• Despite this comprehensive settlement with the
  state, court held citizens suit could proceed
  unless it could be shown the consent agreement
  guaranteed no violations in the future.
•  
• By this standard few citizens suits could be
  cut off.

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THE DECISION

• Unbelievably Court said the settlement was a
  stalling tactic not a compliance strategy.
• Court questions whether this was a diligent
  prosecution and sends the case back to district
  court for a determination.

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THE SUPREME COURT

• MMSD sought Supreme Court review
• CSO Partnership filed a brief urging the Court to
  hear the appeal.
•  
• In March, the SC declined.

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POTENTIAL IMPACT OF DECISION

• If consent orders and decrees are required to
  preclude any realistic prospect of future
  violations this decision will open the door to
  intrusive rather than supplementing citizen suits
• This will make communities less likely to make
  major concessions to settle litigation with only
  federal or state authorities.

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POTENTIAL IMPACT OF DECISION

• Phased or iterative approaches in LTCPs are
  subject to attack for not guaranteeing that no
  future overflows will occur.
• May force agencies to speculate at solutions
  today rather than being able to wait for better
  information

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POTENTIAL IMPACT OF DECISION

• May stifle innovation and cost-effective
  solutions.
• Where do we stand?
• If you are in the 7th Circuit (Illinois, Indiana
  and Wisconsin) or 2nd Circuit (New York,
  Connecticut and Vermont) you cannot sleep well
  always open to potential citizens suit.
• Other circuits defer to agencies and simply
  ensure arms length agreement

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• A Wolf in Sheeps Clothing
• Appeal of DCs MS4 Permit

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APPEAL OF DC STORM WATER MS4 PERMIT

• An appeal that could live in infamy if successful
• Pending before EPAs Environmental Appeals Board

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APPEAL OF DC STORM WATER MS4 PERMIT

• Plaintiffs seek
• Monitoring at all 1000 SW outfalls in DC
• Imposition of WQS compliance language
• Numeric limits for 6-8 pollutants at end-of-(most
  DC storm sewer) pipes
• Finding that the Districts SWMP does not equal
  MEP level of control.
• DAILY loadings for SW outfalls to the Anacostia
  River to implement TMDLs (this is an effort to
  relitigate the loss in FOE v. EPA)

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APPEAL OF DC STORM WATER MS4 PERMIT

• AMSA CSOP have moved jointly to intervene in
  the case on DCs behalf
• We are concerned about (1) daily loading issue
  and (2) the SW WQS compliance issue because it
  could affect CSO control

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APPEAL OF DC MS4 PERMIT

• Settlement negotiations ongoing between EPA
  Plaintiffs
• A decision for Plaintiffs will force a
  clarification of section 402(p) of the CWA

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• Making CSO Bypass/Blending Showings

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BYPASS OR BLENDING?

• CSO community proposes blending of certain wet
  weather CSO flows that are transported to the
  POTW
• EPA/State reply that we note
• the uncertainty over the relationship between
  effluent blending and the bypass prohibition (and
  the improbability of an EPA policy decision in
  the near future) and therefore, request that
  Community demonstrate that there are no
  feasible alternatives to bypassing.

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LEGAL ISSUES Securing CSO Bypass Authorization

• In most circumstances (in NPDES permits for
  treatment plants), bypasses are regulated under
  40 CFR section 122.41(m)
• 40 CFR section 122.41(m) bypasses are
  prohibited unless the permittee makes a
  case-by-case showing of no feasible alternative
  and that the bypass was unavoidable to prevent
  the loss of life, personal property or severe
  property damage

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THE CSO RELATED BYPASS PROVISION

• The CSO policy, however, provides authorization
  for bypasses as part of the LTCP
• The CSO Policy states that for CSO-related
  permits
• The study of feasible alternatives in the control
  plan may provide sufficient support for the
  permit record and for approval of a CSO-related
  bypass in the permit itself, and to define the
  specific parameters under which a bypass can
  legally occur.

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THE CSO RELATED BYPASS PROVISION

• Thus, under this approach EPA allows a permit to
  authorize a CSO-related bypass of the secondary
  treatment portion of the POTW for combined sewer
  overflows in certain identified situations
• The Policy lays out the conditions that must be
  met for a CSO-related bypass provision

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THE CSO RELATED BYPASS PROVISION

• The right time to do the bypass authorization is
  during the LTCP process.
• You may want one showing for bypasses during LTCP
  implementation and a second showing (in the same
  LTCP) for an bypasses anticipated to remain as
  part of the final LTCP.
• Bypass showing should not be revised later unless
  there is a major change in circumstances

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• Conclusions

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Future Decisions by Courts to watch

• Will daily continue to be ambiguous to Judges
  within the beltway?
• Will Courts allow citizens to challenge consent
  decrees which do not ensure against future
  overflows?
• How will EAB decide the issue in WASAs storm
  water permit must EPA set CSO outfall specific
  daily load limits?

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Clarifications Regarding Blending and Bypassing?

• How will EPA and States implement the CSO bypass
  provision in the CSO Policy during the LTCP
  development process?

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• Questions?