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OVERVIEW. Cases in the Courts impacting CSO ProgramsOther Emerging CSO Legal Issues. CSO REQUIREMENTS IN TMDLs. Landmark case

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1. LEGAL UPDATE CSO CASES AND ISSUES John Sheehan AquaLaw PLC Richmond, Virginia

2. OVERVIEW Cases in the Courts impacting CSO Programs Other Emerging CSO Legal Issues

3. 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

4. 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. 

5. 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

6. THE TMDL DECISION November, 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  

7. THE TMDL DECISION (con’t) Court recognized: “If municipalities cannot calculate non-daily TMDLs for their sewage overflow programs, they cannot implement EPA’s CSO Policy.”

8. 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.”    

9. 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  

10. 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.”  

11. 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.”

12. 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)

13. 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 EPA’s CSO Policy.” -Judge Urbina    

14. When is a court-ordered LTCP: Enough? Final? Milwaukee MSD Case

15. PROTECTION FROM CITIZEN SUITS AND THE DILIGENT PROSECUTION STANDARD Friends of Milwaukee’s 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.  

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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

22. 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 citizen’s suit. Other circuits defer to agencies and simply ensure arms length agreement

23. A Wolf in Sheep’s Clothing: Appeal of DC’s MS4 Permit

24. APPEAL OF DC STORM WATER MS4 PERMIT An appeal that could live in infamy if successful Pending before EPA’s Environmental Appeals Board

25. 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 District’s 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)

26. APPEAL OF DC STORM WATER MS4 PERMIT AMSA & CSOP have moved jointly to intervene in the case on DC’s behalf We are concerned about (1) daily loading issue and (2) the SW WQS compliance issue because it could affect CSO control

27. 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

28. Making CSO Bypass/Blending Showings

29. 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.”

30. 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

31. 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.”

32. 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

33. 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

34. Conclusions

35. 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 WASA’s storm water permit – must EPA set CSO outfall specific daily load limits?

36. Clarifications Regarding Blending and Bypassing? How will EPA and States implement the CSO bypass provision in the CSO Policy during the LTCP development process?

37. Questions?

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