Municipal Enforcement Strategies, Consent Decree Developments & Leading CWA Cases Paul Calamita May 4, 2017 Agenda 2  Municipal enforcement strategies under the Trump Administration  Consent Decree Developments  Leading CWA Cases Perspective 3    The Trump Administration offers real opportunity for change Its takes a village of federal bureaucrats to effect change We are already seeing major changes that will accelerate dramatically once President Trump gets the rest of his management team in place  Assistant Administrators  Regional Administrators  New hires and promotions to fill empty positions Perspective 4  Administrator Pruitt and AG Sessions have been overwhelmed  Trying to take the baton  While getting the rest of the team in place  While getting their new approach out Perspective 5      SCOTUS Nominee FY 2017 budget bill Obamacare repeal Syria North Korea All have dominated the DC agenda; very soon they will turn to more mundane matters including sewers and MS4 Departures and New Hires 6  President Trump wants to reduce the # of EPA employees  This will force them to leave lesser issues to the States  EPA buyout announced to help reduce #FTEs  Many EPA staff will take the buyout to avoid working for the Trump EPA  New hires likely to have different outlooks   Protecting the environment/Issuing permits to…. Some EPA staff will remain and try to Municipal Enforcement Strategies 7  DOJ has already stepped back in a number of cases  Agreeing to what was previously a “non-starter”  Declining consent decree referral after starting work on the CD  Withdrawing a six figure stipulated penalty demand in formal dispute resolution (after refusing to do so in the first two rounds last fall)  Agreeing to permitting changes (blending, etc) that they might otherwise have tried to make life difficult Municipal Enforcement Strategies 8  Seek to avoid federal enforcement by working with your State agency  States with new Republican governors are following the Trump approach – providing compliance assistance at the outset to avoid enforcement where the discharger is cooperative  A state that pushes back on EPA is likely to be successful Municipal Enforcement Strategies 9  If federal enforcement is coming seek to:  Use a consent order rather than decree  Limit the scope of the action – press back on “comprehensive relief”  If you are under federal enforcement, figure out what your “ask” is in terms of changes  Approach, time, level of control, IP Consent Decree Changes 10   Be patient if you can Respect chain of EPA/DOJ command  You may well get a “yes” even ahead of the Trump team being in place  If you are told “no” then elevate  Request to meet with your acting Regional Administrator  Dispute resolution is a GREAT way to elevate  Congressional assistance  If no answer and you can be patient, wait Consent Decree Developments 11  EPA enforcement staff may be reduced and embedded back into the program offices  This   means fewer federal actions Make reasonable and well-supported requests for CD changes to give new management a basis for saying “yes” Send EPA your requested changes this summer so the change is teed up for decision this fall when new Trump EPA managers are in place What are we seeing? 12   Many communities are pushing back against EPA and DOJ Not taking CD that imposes a fixed program end date before the program is even developed or approved  “Partial” consent decrees  CDs with no end date (submit plan & schedule)  Proposing iterative program rather than comprehensive long-term program  10 years followed by “final measures plan” What are we seeing? 13  Proposing iterative overflow control program rather than comprehensive long-term program  10 years with “final measures plan” submitted in year 9.5  Several communities are pushing this now.  First 10 years proposed reasonable further progress that will help inform the remaining years (“final measures plan”  We think we can get this under the Trump EPA  Why has EPA resisted this?  States have accepted such iterative approaches Limit CD Scope 14   Ideally, you want as narrow a scope as possible in any CD If EPA insists on including a secondary program (Information Management System, FOG, Nine Minimum Controls) seeks to have the program drop out of the CD after 2-5 years CDs and Regionalization 15  Many CDs have undermined regionalization because of the significant financial burdens imposed  Satellite systems simply leave the core City to avoid subsidizing the control program CDs Facilitating Regionalization 16  Recently, several communities have been successful in getting EPA to modify CDs to support regionalization  Prioritizing new facilities to accommodate growth, which delivers rate payers to pay for the overflow program  Regionalization of responsibility for overall system wet weather capacity  Gives  Press EPA one utility to deal with rather than many risk of CD-driven loss of businesses and satellite customers with EPA to obtain concessions (schedule, level of control, etc) that Integrated Planning 17    This is harder for the feds than we expected They struggle to agree to schedule an environmentally superior project ahead of a legally required project that may deliver little or no real benefit. A CWA amendment authorizing IP-based scheduling would help Integrated Planning 18  That said, several communities are making inroads  Taking into account public water supply issues after Flint  HRSD SWIFT  A number of State enforcement actions have accommodated IP  Energy recovery facilities ahead of completing overflow control work Leading Clean Water Act Cases 19  Chipping Away at CWA Permit Shield  Ohio  Valley Environmental Coalition v. Fola Coal Co. Problematic Expression of Daily Loads in TMDLs  DC Water v. EPA  Anacostia Riverkeeper v. EPA Leading Clean Water Act Cases 20  Maximum Extent Practicable Standard for MS4s: Floor or Ceiling?  Center for Regulatory Reasonableness v. EPA  Frederick County v. Maryland Dep’t of the Environment  What Next for Waters of the United States Rule?  National Association of Manufacturers v. U.S. Department of Defense Leading Clean Water Act Cases 21  When Must EPA Promulgate Nutrient Criteria?  Gulf  Restoration Network v. McCarthy Challenges to EPA Approval of Site-Specific Metals Criteria  Charleston Sanitary Board v. EPA Leading Clean Water Act Cases 22  Renewed Challenge to Water Quality Trading  Food and Water Watch v. Pennsylvania Department of Environmental Protection  Notable Criminal Prosecutions Leading Clean Water Act Cases 23  Written Materials Include Additional Cases Involving: Consent Decrees Blending CWA Permit Shield TMDLs Testing and Monitoring Biosolids WQS Pollutant Trading Water Transfers WOTUS/CWA Jurisdiction MS4/Stormwater Permits Chipping Away at CWA Permit Shield Ohio Valley Envtl. Coalition v. Fola Coal Company 25  Citizen Suit Against WV Coal Mining Company for Violation of NPDES Permit  Elevated Conductivity Levels in Nearby Stream Allegedly Exceeded Narrative State WQS  Allegedly Violated Permit Condition: “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards.” Fola Coal Company 26  Company Asserted Permit Shield Pollutants contributing to elevated conductivity levels identified in NPDES permit application  Permit imposed no effluent limits for conductivity  Cannot be liable for exceeding limits not in permit   District Court: No Permit Shield Defense Permit required company to comply with all numeric and narrative WQS  Any discharge that exceeds narrative WQS is per se violation of permit  Fola Coal Company 27  Fourth Circuit Opinion (845 F.3d 133 (Jan. 4, 2017)) Upheld district court  “Nothing . . . forbids a state from incorporating water quality standards into the terms of its NPDES permits. . . . The terms of Fola’s permit required it to comply with water quality standards. If Fola did not do so, it may not invoke the permit shield.”   Lesson: Never Accept Permit that Mandates Blanket Compliance with WQS Most states don’t include this language  Several are in the process of removing it  Problematic Expression of Daily Loads in DC Water v. EPA 29  Reminder: Friends of the Earth v. EPA, 446 F.3d 140 (D.C. Cir. 2006)    Ruled that every TMDL must express a daily load “If Congress wanted seasonal or annual loads, it could easily have authorized them by calling for ‘total maximum daily, seasonal, or annual loads.’ . . . Instead, Congress specified ‘total maximum daily loads.’ We cannot imagine a clearer expression of intent.” DC Revised Its Bacteria TMDLs in 2014    Switched from fecal coliform to E. coli Expressed a new daily load for E. coli in response to Friends of the Earth Not intended to make allocations stricter DC Water v. EPA 30  Problematic Daily WLA Expressions in TMDLs    WLA for DC Water’s main outfall expresses 30-day geometric mean criteria as a daily maximum WLA WLA for DC Water’s CSO outfall uses mean storm event bacteria concentrations to set daily maximum WLA Compounded by Bad Language in EPA Decision Rationale   “It is an assumption and requirement of the 2014 TMDL Revisions that . . . the daily loads must be achieved.” Reminder: Permits limits must be “consistent with” assumptions and requirements of a TMDL (40 CFR 122.44(d)(1)(vii)) DC Water v. EPA 31  DC Water’s Complaint (November 2015)     NPDES permit limits set as 30-day geometric means $100+ million invested to meet limits WLA improperly would convert 30-day geometric mean into a daily maximum Consistent with EPA’s statement of the TMDL’s assumptions and requirements, next NPDES permit may impose daily maximum bacteria limits to comply with daily maximum WLAs DC Water v. EPA 32  EPA’s Fix: Issue Revised Decision Rationale Jan. 13, 2017     Problematic “assumption and requirement” statement deleted New statement: “NPDES permits . . . should be based on the TMDLs' WLAs and LAs as properly understood in light of the applicable numeric water quality criterion (126 MPN E. coli/100 ml geometric mean over a 30-day period) rather than on the assumption that the TMDLs' WLAs and LAs set a maximum or ceiling on E. coli loads during any given 24-hour period.” In short: It is not an assumption and requirement of the bacterial TMDLs that daily bacteria permit limits be imposed Case Voluntarily Dismissed March 12, 2017 Anacostia Riverkeeper v. EPA 33  Separate Environmental Group Challenge to Revised DC Bacteria TMDL Revisions Discussed in DC Water v. EPA  Claims Single-day elevated bacteria levels in DC rivers violate narrative “free from” criteria - rivers are not safe to recreate in on days with elevated bacteria levels  Daily WLAs must be calculated to meet narrative criteria (swimming); not DC’s 30-day geometric mean criteria  Attainment of daily WLA’s must be an assumption and requirement of the TMDLs  Anacostia Riverkeeper v. EPA 34  Enviro Groups’ Objective: Daily WLAs That Compel Daily Maximum Permit Limits on POTW and CSO discharges   Likely also for MS4s…. Case Status Filed August 2016  Stayed pending resolution of DC Water permit appeal  Amended Complaint filed March 16, 2017 (and stay lifted same day)  Briefing to take place between August and November 2017  Anacostia Riverkeeper v. EPA 35  Follow on case to City of Homedale  2013 NGO challenge to permit EPA issued to small Idaho POTW      Permit did not impose daily total phosphorous loadings despite daily WLA in TMDL for the Snake River WWP/NACWA/et al filed an amicus brief. EPA EAB upheld the permit finding that the non-daily TP limits were consistent with the assumptions of the TMDL WLA for Homedale Anacostia bacteria case is Homedale II WWP/NACWA/ et al will file an amicus brief Maximum Extent Practicable Standard for M843: Floor or Ceiling? Regulatory Background: MEP Standard for MS4s 37  1972 CWA Subjected Stormwater Discharges to Same Requirements as Other Discharges  Congress Fixed Problem with 1987 CWA Amendments  CWA § 402(p): “Permits for discharges from municipal storm sewers . . . require controls to reduce the discharge of pollutants to the maximum extent practicable . . . .”  Envtl. Group Challenges to MEP Standard Consistently Rejected by Courts  EPA Reluctantly Agrees  “The CWA standard for MS4s is that the permit must require controls to reduce the discharge of pollutants to the MEP to protect water quality.” TMDLs to Stormwater Permits Handbook 10 (Nov. 2008). Regulatory Background: MEP Standard for MS4s 38  EPA Reluctantly Agrees  “The CWA standard for MS4s is that the permit must require controls to reduce the discharge of pollutants to the MEP to protect water quality.” TMDLs to Stormwater Permits Handbook 10 (Nov. 2008). 39 Frederick County v. Maryland Department of the Environment  One of Three Challenges to Phase I MS4 Permits Pending in Maryland State Courts  Key Permit Term: 20% Restoration Requirement Requires MS4s to install SW treatment for 20% of the untreated impervious area in the MS4 jurisdiction within a single 5-year permit term  Restoration costs per acre range from $15k - $200k  E.g., Estimated cost to comply with 20% Restoration Requirement was estimated by one medium-sized county to be $126 million  40 Frederick County v. Maryland Department of the Environment  Agency Acknowledged in Fact Sheets that 20% Restoration Requirement Goes “Beyond MEP”  Competing Positions Agency – MEP is a minimum standard  Permittees – MEP is the minimum and maximum standard   Significance: Cases Are One of First PermitteeSide Challenges to Directly Present Question of Whether MEP Is a Maximum or Minimum Compliance Standard Center for Regulatory Reasonableness v. EPA 41  EPA Issued Final General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts on April 27, 2016  Multiple Parties Challenged Permit Appeals consolidated in D.C. Circuit  Briefing suspended until late summer as courts consider whether to consolidate case with appeal of related EPA-issued small MS4 general permit for NH   Significance: Case Likely to Address Whether EPA What Next for Waters of the US Rule? Waters of the US Rule 43  Final Rule Published June 29, 2015 Joint rulemaking by EPA & US Army Corps of Eng.  Defines “Waters of the US” under CWA jurisdiction   Rule Challenged on All Fronts 12 cases filed in U.S. Courts of Appeals (consolidated into one case before the Sixth Circuit)  14 cases filed in U.S. District Courts   Court Suspended Rule Nationwide on Oct. 13, 2015  Pres. Trump Ordered Review of Rule on Feb. 28 National Association of Manufacturers v. U.S. Department of Defense 44  Pending Before the U.S. Supreme Court  Addresses Threshold Issue: Should Challenges Be Filed in Courts of Appeals or District Courts?  Court Rejected Request by Government to Stay Case Pending Review of the Rule by EPA and Corps  Briefing Commenced in Mid April  Prediction: Rule Many Years Away from Resolution  Cases will proceed in parallel with rule revision Implications for Local Governments 45   Whole rule will likely be pulled by the Trump Administration There are very positive aspects of the rule:  Stormwater exemption  Green Infrastructure exemption  Ditches exemption  Sewage treatment exemption  Etc.  Hopefully, jurisdictional expansion will be dropped from the rule and remainder will be adopted. When Must EPA Promulgate Nutrient Criteria? Gulf Restoration Network v. McCarthy 47  Background  Envtl. coalition filed petition in 2008 urging EPA to:  Promulgate numeric criteria for N, P, chlorophyll a, and turbidity for every jurisdictional water in US without such numeric criteria  Develop N and P TMDLs for the entire Mississippi River watershed and Gulf of Mexico  EPA denied petition in 2011  Stated preference for continuing to work with Mississippi watershed states on nutrient reduction programs  Declined to make “necessity determination” under CWA 303(c)(4)(B) as to whether nutrient criteria were needed  Envtl. groups challenged petition denial in Louisiana federal court in 2012 Gulf Restoration Network v. McCarthy 48 Louisiana District Court Ruling (2013)    Remanded petition to EPA to make a “necessity determination” on need for nutrient criteria EPA appealed decision to Fifth Circuit Fifth Circuit Ruling (2015)     EPA not required to make “necessity determination” But, EPA must provide an “adequate explanation, grounded in the [CWA], for why it has elected not to do so.” Case remanded back to district court for determination whether EPA adequately explained its decision (decision expected this summer) Gulf Restoration Network v. McCarthy 49 Louisiana District Court Ruling II (Dec. 2016)     EPA’s “states-first approach” to addressing nutrients is consistent with the CWA’s policy of preserving states’ primary role in reducing pollution . . . for a time: “Presumably, there is a point in time at which the agency will have abused its great discretion by refusing to concede that the current approach—albeit the one of first choice under the CWA—is simply not going to work.” District Court Ruling Was Not Appealed Nutrient Criteria 50  Ensure that your State is addressing waters with eutrophication issues  Otherwise, at some point, the NGOs will pressure the courts to step in Challenges to EPA Approval of Site-Specific Metals Criteria Charleston Sanitary Board v. EPA 52  Background POTW developed site-specific copper criteria using EPA’s water-effect ratio (WER) procedures  Copper WER of 5.6 adopted by WV and submitted to EPA  EPA declined to approve or disapprove copper WER until conclusion of ESA § 7 consultation   POTW Filed Suit in WV Federal Court in March 2016  CWA § 303(c) requires EPA to approve criteria within 60 days if consistent with CWA  ESA § 7 consultation not required for WQS approval  EPA violated nondiscretionary duty by not timely approving the copper WER Charleston Sanitary Board v. EPA 53  EPA Formally Disapproved WER July 2016 WERs >5.0 subject to greater scrutiny  EPA conducted a separate biotic ligand model analysis of data and produced a multiplier of 2   CSB Filed Supplemental Complaint November 2016  Disapproval is arbitrary and capricious  EPA cannot disapprove a site-specific standard derived using its own WER methodology  EPA routinely approves WERs >5 without subjecting them to extra scrutiny  Case May Set Important Precedent on Limits of EPA’s Discretion to Override State WQS Decisions Renewed Challenge to Water Quality Trading 55  Food & Water Watch v. Pa. Dep’t of Environmental Protection Background PA Dep’t of Environmental Protection issued NPDES permit to egg products producer that includes N and P limits to comply with the Chesapeake Bay TMDL  Permit allows N and P limits to be met through trading  Food & Water Watch appealed permit to Pennsylvania Environmental Hearing Board in February 2017   Reminder: Food & Water Watch v. EPA (D.D.C. 2013)  Group challenged water quality trading statements in Chesapeake Bay TMDL  Argued that trading and offsets not allowed by CWA  Case dismissed for lack of standing without 56  Food & Water Watch v. Pa. Dep’t of Environmental Protection Second Bite at the Apple – FWW’s Arguments: No authority in CWA for water quality trading, offsets, or bubbling of multiple facilities  Permit limit that can be met through trading is not an “effluent limit” in the first place  Trading violates CWA’s public participation requirements; must have public notice and comment for each trade  Trading must be limited to same stream segment  A full antidegradation analysis must precede trading  Food & Water Watch v. Pa. Dep’t of Environmental Protection 57  Appeal Drawing Significant National Attention  FWW likely attempting to create a precedent to replicate on a broader scale  WWP/NACWA brief et al to file an amicus Notable Criminal Prosecutions Notable Criminal Prosecutions 59  United States v. Thompson (NY)   United States v. Howard (SC)   Hauler sentenced to 18 months in prison for illegally discharging restaurant grease to sewer system and falsifying records United States v. Brewer (WV)   WWTP operator fined $10,000 for directing crew to pump wastewater from a flooded pump station directly to a creek Lab manager sentenced to 24 months in prison for falsifying water quality sample results and DMRs over 5 years United States v. Ventresca (PA)  POTW operator sentenced to 6 months for falsifying 21 DMRs Other Cases of Interest?