Amicus Curiae Brief — City of Portland v. Northwest Environmental Advocates

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No. 95-1732

In the de _|

SUPREME COURT OF THE UNITED STATES

October Term, 1995

CITY OF PORTLAND,

Petitioner,

Vs

NORTHWEST ENVIRONMENTAL ADVOCATES,

A non-profit Oregon corporation and NINA BELL,

Respondents,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE ASSOCIATION OF

METROPOLITAN SEWERAGE AGENCIES IN

SUPPORT OF PETITIONER

Robert C. Weaver

Kelly & Weaver, A

Professional Corporation

11 DuPont Circle, N.W., Suite 700

Washington, D.C. 20036

Telephone: (202) 797-7100

Counsel of Record for

Amicus Curiae

May 24, 1996

TABLE OF CONTENTS

Page

TABLS OF AUTHORITIES ........00c00008. ii

INTERESTS OF AMICUS CURIAE ........... 1

INTRODUCTION AND SUMMARY

Poe saa

I ne eg ee aa ae ce ee wi 3

are a a ar ee 15

ii

TABLE OF AUTHORITIES

Page

CASES

Atlantic State Legal Foundation v. Eastman

Kodak Co., 12 F.3d 353 (2d Cir. 1993),

cert. denied, _ _ U.S. __, 115 S.Ct. 62 (1994) ... 8

Chevron U.S.A., Inc. v. Natural Resources Defense :

Council, Inc., 467 U.S. 837 (1984) ......... 12, 13 |

Cramp v. Board of Public Instruction, |

S08 US. 270 CHM sc: s0 eee eae a os 10

:

Diamond Roofing Co. v. Occupational Safety |

and Health Review Commission, 528 F.2d 645, |

(Sty Gt. Bie ik es 8 eee eee 11, 14

General Electric Co. v. United States

Environmental Protection Agency,

53 F.3d 1324, (D.C. Cir. 1995) .............. 11 |

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ... 10

McClellan Ecological Seepage Situation (MESS) v.

Weinberger, 707 F.Supp. 1182 (E.D. Cal. 1988),

cert. denied, _ _ U.S. __, 116 S.Ct. 51 (1995) ... 8

McElroy Electronics Corp. v. Federal

Communications Commission, 990 F.2d 1351

(D.C. Ge. Se «oe Pe eee 12

A AP ee

niall iil

iii

Mullane v. Central Hanover Bank & Trust Co.,

ee 10

New York State v. United States,

620 F. Supp. 374 (E.D. N.Y. 1985) ............ 8

Northwest Environmental Advocates v. City

of Portland, 56 F.3d 979 (1995) (NWEA II) . passim

Oregon Natural Resources Council v. United States

Forest Service, 834 F.2d 842 (9th Cir. 1987) ..... 8

Radio Athens, Inc. (WATH) v. Federal

Communications Commission,

401 F.2d 398 (D.C. Cir. 1968) .............. 11

Satellite Broadcasting Co. v. Federal

Communications Commission, 824 F.2d 1

a Eo gS ae 12

Save Our Community v. United States Environmental

Protection Agency, 971 F.2d 1155 (5th Cir. 1992) . 8

United States v. Hooker Chemicals & Plastics Corp.,

po & fh Gb Re Re” | %

United States v. Mersky, 361 U.S. 431 (1960)... 11

United States v. National Dairy Products Corp.,

rr Se ke ee whee ween 10

ee a a ee

iv

UNITED STATES CODE

93. U6. 9 Te as ok 3 |

USC. 4k et 4,9 |

33 U.S.C. § 181ie) 6 900 @)). 552... os. 4

33 U.S.C. § 1311(b) (§ 301 (b)) ....-.......... 4

33 U.S.C. § 1311(bX1)(C) (§ 301(b\(1C)) ... . . 4,7

SS UBC. § 1912 GM) Se ces 4

$3 U.S.C. § 1813 (§ 908) 2 205.6..550. 28. 2, 5,9

33 U.S.C. § 1313(d(1XC) (§ 303(d1(C)) ... . . 5, 6

33 U.S.C. § 1314(a(2) (§ 304(aX(2)) ... 2.2.2... 5

33 US.G.§ GON) oo5 oi cs ces 4

SOURCE ISTEM 2 oe iss 4

SIUSC.4 UNG. 2.656. S| 1

2 USL4 GID) 26. Geis 4

$3 U.S.C. § 19096 408) ose Sl ss 1, 2,4

33 U.S.C. § 1342(a)(2) (§ 402(aX2)) ........... 7

33 U.S.C. § 1342(k) (§ 402(k)) .........00.02. 9

oo U.S.C. § 100619 O08) ei.

33 U.S.C. § 1862(11) (§ 502(11))...........

SO. WR S SR ee i ok ow eee:

33 U.S.C. § 1365(a)(1) (§ 505(aX1)) ........

CODE OF FEDERAL REGULATIONS

40 CFS. § TSR AG CISD) «oo ee ee ea

40 C.F.R. § 122.44(d) (1995) ..............

40 C.F.R. § 122.44(d)(1)i) (1995) ..........

FEDERAL REGISTER

EPA Combined Sewer Overflow Control Policy,

59 Fed. Reg. 18688 (April 19, 1994) .......

i, G, 7

1

INTERESTS OF AMICUS CURIAE

The Association of Metropolitan Sewerage

Agencies ("AMSA") represents wastewater treatment

agencies of municipal and county governments and

local separate wastewater agencies. AMSA members,

of which there are one hundred fifty-seven, plus eleven

associate member local governments, are owners and

operators of major wastewater treatment facilities. A

significant number of AMSA members own combined

sanitary and storm sewer overflows ("CSOs") or

stormwater facilities. National Pollutant Discharge

Elimination System ("NPDES") permits issued under

Section 402 of the federal Clean Water Act ("CWA"),

33 U.S.C. § 1342, are required for discharges from

wastewater facilities. AMSA members are issued

NPDES permits for such discharges. Many AMSA

members with CSOs do not have permit effluent

limitations for those discharges. Studies to develop

limitations and planning for compliance with such

limitations is presently proceeding under the

Environmental Protection Agencys CSO Control

Policy, 59 Fed. Reg. 18688 (April 19, 1994).

Failure to comply with the applicable NPDES

permit can subject wastewater agencies to enforcement

under Sections 309 and 505 of the CWA, 33 U.S.C. §§

1319, 1365, resulting in fines and penalties. Allowing

citizen suit enforcement of water quality standards in

the absence of permit effluent limitations or limits

would significantly affect AMSA member agencies.

a |

2

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Local governments with publicly owned sewage

or wastewater treatment facilities (publicly owned

treatment works or "POTWs") are issued permits for

the discharge of these facilities to waterbodies under

the federal Clean Water Act National Pollutant

Discharge Elimination System ("NPDES"). 33 U.S.C.

§ 1342 (§ 402). NPDES permits, issued by the

Environmental Protection Agency ("EPA” or "Agency”)

or states delegated permit responsibility by EPA,

contain numeric effluent limitations for amounts and

concentrations of identified constituents. These

numeric limits are used to plan and design treatment

facilities complying with those permit limitations.

Effluent limits are necessary to implement

water quality standards established by states under §

303 of the CWA, 33 U.S.C. § 1313. Attainment of

water quality standards requires compliance actions

by those sources discharging to a waterbody. POTWs

nationwide as well as EPA and the states, have relied

on this statutory scheme established by Congress, to

comply with the CWA, and thereby avoid enforcement

action.

Citizen suit enforcement of water quality

standards alone, rather than of permit effluent limits,

for CSO discharges: (1) is not authorized by the CWA

regulatory scheme for wastewater discharges, and (2)

would not provide constitutionally required fair notice

to POTWs of what these local agencies must do to

assure that treatment works comply with the law.

aaa i iit

3

The decision of the court below would allow

citizen suit enforcement of water quality standards

alone against local governments with CSOs. The

Association of Metropolitan Sewerage Agencies amicus

curiae, with the consent of the parties, submits this

brief to demonstrate the importance of this question of

federal law to local governments throughout the

United States with POTWs, and to respectfully urge

this Court to grant the City of Portland’s petition.

ARGUMENT

I. UNDER THE CLEAN WATER ACT, LOCAL

GOVERNMENT POTWs RELY ON

EFFLUENT LIMITATIONS TO

DETERMINE THE ACTIONS NECESSARY

TO ATTAIN WATER QUALITY

STANDARDS.

The Clean Water Act’ provides for issuance of

effluent limitations in NPDES permits to implement

water quality standards. Dischargers have relied on

these limitations to conform their compliance actions

to the requirements of the law. To allow enforcement

of water quality standards in the absence of effluent

limitations is a fundamental change which would have

serious consequences for POTWs and create

unnecessary conflict in the law among the circuits.

33 U.S.C. §§ 1251-1376 (§§ 101-517).

4

The CWA establishes the relationship between

water quality standards and wasteload allocations

resulting in enforceable permit limitations to

implement such standards. CWA section 301(a),

establishes the authority for enforcing effluent

limitations in making "unlawful" the discharge of

pollutants

[e]xcept as in compliance with this

section [301 effluent limits], and sections

302 [water quality-related effluent

limits], 306 [national standards of

performance], 307 [toxic and

pretreatment effluent limits], 318

[aquaculture], 402 [National Pollution

Discharge Elimination System], and 404

[permits for dredged or fill material].

33 U.S.C. § 1311(a) (referencing §§ 1312, 1316, 1317,

1328, 1342, and 1344). Section 303 (water quality

standards and implementation plans) is not included

in this list. 33 U.S.C. § 1311(a) (§ 301(a)).

Section 301(b) of the CWA provides in part,

In order to carry out the objective of this

Act there shall be achieved -- ... (1)(C) not

later than July 1, 1977, any more

stringent limitation, including those

necessary to meet water quality

standards....

33 U.S.C. § 1311(b\1\(C) (emphasis added).

5

"Effluent limitation" is defined under § 502(11)

of the CWA as:

... any restriction established by a State or the

Administrator on quantities, rates, and

concentrations of chemical, physical, biological,

and other constituents which are discharged

from point sources into navigable waters, the

waters of the contiguous zone, or the ocean,

including schedules of compliance.

33 U.S.C. § 1362(11) (emphasis added). In

establishing restrictions on "quantities, rates, and

concentrations" in NPDES permits for individual

discharges, these limitations implement ambient water

quality standards. Id.

The authority of states, or EPA under certain

conditions, to establish water quality standards is

provided in Section 303 of the CWA. 33 U.S.C. § 1313.

Section 303(d)(1)(C) provides:

(C) Each State shall establish for

the waters identified in paragraph (1)(A)

of this subsection, and in accordance with

the priority ranking, the total maximum

daily load, for those pollutants which the

Administrator identifies under section

304(a)(2) as suitable for such calculation.

Such load shall be established at a level

necessary to implement the applicable

water quality standards with seasonal

variations and a margin of safety which

takes into account any lack of knowledge

6

concerning the relationship between

effluent limitations and water quality.

33 U.S.C. § 1313(d1C).

While section 505(a)(1) of the CWA authorizes

citizens to bring civil actions against any person:

... who is alleged to be in violation of (A)

an effluent standard or limitation under

this Act [or] (B) an order issued by the

Administrator or a State with respect to

such a standard or limitation,

nothing in this section includes enforcement of water

quality standards alone. 33 U.S.C. § 1365(a)(1).

EPA regulations at 40 C.F.R. § 122.44 (1995)

require NPDES permits to include technology-based

effluent limitations, controls, and standards. Section

122.44(d) (1995) also allows for the application of more

stringent requirements to meet state narrative criteria

for water quality, but that same section references

limitations to achieve these goals. 40 C.F.R. §

122.44(d)(1)(i) (1995).

In addition, the EPA’s Combined Sewer

Overflow Control Policy establishes a:

. . . consistent national approach for

controlling discharges from CSOs to the

Nation’s waters through the National

Pollution Discharge Elimination System

(NPDES) permit program.

7

EPA Combined Sewer Overflow Control Policy, 59 Fed.

Reg. 18688, 18688 (April 19, 1994). While the 1994

Policy was not in existence during the events in the

instant case, it represents EPA’s judgement as to what

is necessary to regulate CSOs under NPDES permits.

The Policy states the relationship between water

quality standards and NPDES permit limits:

Coordinating the development of the

long-term CSO control plan and the

review of the WQS and implementation

procedures provides greater assurance

that the long-term control plan selected

and the limits and requirements included

in the NPDES permit will be sufficient to

meet WQS and to comply with sections

301(b)(1)(C) and 402(a)(2) of the CWA.

EPA CSO Control Policy, 59 Fed. Reg. at 18694. Thus,

the statutory and regulatory authorities, on which

local government POTWs rely, provide for discharge

requirements in the form of effluent limitations in

permits.

If the Ninth Circuit’s ruling in Northwest

Environmental Advocates v. City of Portland, 56 F.3d

979 (1995) ("NWEA IT"), is allowed to stand, the result

would have a significant impact on the cities and

municipalities within that circuit with CSOs and could

be persuasive to other courts. Such result would be

costly to limited local resources and would lead to

regulatory uncertainty for CSOs under the CWA.

8

Courts which have considered the question of

citizen suit enforcement of state water quality

standards apart from numerical effluent limitations in

an NPDES permit, have declined separate enforcement

of those standards. See Oregon Natural Resources

Council v. United States Forest Serv., 834 F.2d 842

(9th Cir. 1987); McClellan Ecological Seepage

Situation (MESS) v. Weinberger, 707 F. Supp. 1182

(E.D. Cal. 1988), cert. denied, _ U.S. ___, 116 S.Ct.

51 (1995); New York State v. United States, 620 F.

Supp. 374 (E.D. N.Y. 1985); Save Our Community v.

United States Envtl. Protection Agency, 971 F.2d 1155

(5th Cir. 1992); United States v. Hooker Chems. &

Plastics Corp., 749 F.2d 968 (2d Cir. 1984).

The ruling in NWEA II is also in conflict with

the Second Circuit Court of Appeals decision in

Atlantic State Legal Foundation v. Eastman Kodak

Co., 12 F.3d 353 (2d Cir. 1993), cert. denied, __ US.

___, 115 S.Ct. 62 (1994), which held that:

. . . State regulations, including the

provisions of SPDES [State Pollution

Discharge Elimination System] permits,

which mandate ‘a greater scope of

coverage than that required’ by the

federal CWA and its implementing

regulations are not enforceable through a

citizen suit under 33 U.S.C. § 1365.

Id. at 359 (citations omitted). The reasoning

encompassed in this line of cases is consistent with the

statutory scheme and should be upheld.

In allowing a citizen suit to enforce water

quality standards, NWEA II also contravenes the

CWA’s "permit as a shield" provision of 33 U.S.C. §

1342(k) (§ 402(k)), on which local government

permitees rely. Permit effluent limitations provide an

objective requirement, violations of which can be

readily determined. By blurring the distinction

between water quality standards (33 U.S.C. § 1313 (§

303)) and effluent limitations (33 U.S.C. § 1311 (§

301)), the decision in NWEA II would allow federal

courts to interpret and enforce water quality

standards.

9

Il. CITIZEN SUIT ENFORCEMENT OF

WATER QUALITY STANDARDS ALONE

VIOLATES CONSTITUTIONAL FAIR

NOTICE REQUIREMENTS.

Permits without effluent limitations do not

provide a discharger with constitutional fair notice as

to the actions necessary to comply with the law.

Water quality standards -- which describe ambient

water quality uses and criteria for the entire water

body -- alone do not provide such notice because they

do not inform individual point sources of the

quantities, rates, and concentrations of constituents

that may be discharged. Without such notice, local

POTWs should be held harmless from penalties.

This Court has stated numerous times that

before a penalty can be assessed, a person must have

notice of the prohibited action(s) which would justify

that penalty. The issue is fundamental, involving the

requirements of due process. Where "the proceeding

10

is one in which [a party] may be deprived of property

rights .. . notice and hearing must measure up to the

standards of due process.” Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

See also Giaccio v. Pennsylvania, 382 U.S. 399, 402-

403 (1966)

(It is established that a law fails to meet

the requirements of the Due Process

Clause if it is so vague and standardless

that it leaves the public uncertain as to

the conduct it prohibits. . . .);

Cramp v. Board of Public Instruction, 368 U.S. 278,

287 (1961)

(‘. . . a statute which either forbids or

requires the doing of an act in terms so

vague that men of common intelligence

must necessarily guess at its meaning

and differ as to its application, violates

the first essential of due process of law.’)

This Court has also stated that in determining

whether a statutory provision is "void for vagueness,"

a court is ".. . permitted to consider the warning...

not only in terms of the statute ‘on its face’ but also in

the light of the conduct to which it is applied." United

States v. National Dairy Prods. Corp., 372 U.S. 29, 36

(1963). In this case, discharge control requires

significant facility engineering and construction

decisions. Therefore, since water quality standards by

their very nature are not limitations on amounts,

rates, and concentrations of constituents for individual

11

discharges, they do not provide fair notice of what is

required to control such discharges.

In the absence of constitutional fair notice, a

party may not be deprived of property by imposing

criminal or civil liability. Although this rule is

commonly applied in the criminal context, it is now a

generally accepted tenet of regulatory law. See United

States v. Mersky, 361 U.S. 431, 441 (1960) (analyzing

a regulation and statute in a criminal prosecution and

holding ". . . businessmen must not be left to guess the

meaning of regulations’).

The direction of this Court has been followed by

the Courts of Appeals in the following cases. See

General Elec. Co. v. United States Envtl. Protection

Agency, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995)

(Due process requires that parties receive

fair notice before being deprived of

property. . . . In the absence of notice --

for example, where the regulation is not

sufficiently clear to warn a party about

what is expected of it -- an agency may

not deprive a party of property by

imposing civil or criminal liability.);

Radio Athens, Inc. (WATH) v. Federal Communications

Comm’n, 401 F.2d 398, 404 (D.C. Cir. 1968) (holding

that ". . . full and explicit notice is the heart of

administrative fairness"); Diamond Roofing Co. v.

Occupational Safety and Health Review Comm’n, 528

F.2d 645, 649 (5th Cir. 1976) (holding that "...a

regulation cannot be construed to mean what an

12

agency intended but did not adequately express");

McElroy Elecs. Corp. v. Federal Communications

Comm’n, 990 F.2d 1351, 1353 (D.C. Cir. 1993)

(An agency cannot ignore its primary

obligation to state its directives in plain

and comprehensive English. When it

does not live up to this obligation, we will

not bind a party by what the agency

intended, but failed to communicate.)

Courts require that upon a "fair reading,” the

regulated party knows or should know what is

expected. McElroy Elecs. Corp., 990 F.2d at 1358.

"Otherwise the practice of administrative law would

come to resemble ‘Russian Roulette.” Satellite

Broadcasting Co. v. Federal Communications Comm'n,

824 F.2d 1, 4 (D.C. Cir. 1987). The standard in CWA

citizen suits should be the same.

The state regulators in the instant case decided

that the issuance of the permit and the decision not to

undertake an enforcement action were proper

regulatory decisions. As this Court has stated in

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844 (1984), "We have long

recognized that considerable weight should be

accorded to an executive department’s construction of

a statutory scheme it is entrusted to administer. .

The Chevron Court went on to say,

In these cases, the Administrator’s

interpretation represents a reasonable

accommodation of manifestly competing

Fe a ee

13

interests and is entitled to deference: the

regulatory scheme is technical and

complex, the agency considered the

matter in a detailed and reasoned

fashion, and the decision involves

reconciling conflicting policies.

Id. at 865 (internal footnote citations omitted). That

is what the state regulators did in the present case in

issuing Petitioner’s discharge permit.

Several factors combined to assure Petitioner

that it was not in violation of the NPDES permit:

(1) The state had approved the NPDES permit which

included CSOs but no effluent limitations; (2) the state

did not seek enforcement of the permit in question;

and (3) the prevailing understanding of the law

surrounding the CWA has been that permit

enforcement actions are based upon violation of

effluent limitations.

In the instant case, the NPDES permit itself set

no effluent limitations on CSOs which would serve as

a basis for planning, designing, and constructing

control facilities. Water quality standards alone do

not inform a discharger of what is needed to conform

their activities to the requirements of the law, such as

construction of facilities or other actions. Therefore,

it is difficult to conclude that Petitioner had fair notice

of what would constitute a violation of the permit so

that it could take necessary measures to avoid a

penalty.

14

To uphold the Ninth Circuit’s decision in NWEA

IT is to turn current principles involving enforcement

of CWA provisions on their heads. As the Fifth Circuit

held in Diamond Roofing Co.,

. [S]tatutes and regulations which allow

monetary penalties against those who

violate them . . . must give... . fair

warning of the conduct it prohibits or

requires, and it must provide a

reasonably clear standard of culpability

to circumscribe the discretion of the

enforcing authority and its agents.

528 F.2d at 649 (emphasis added).

If applied nationwide, NWEA II would threaten

the stability and certainty under the CWA associated

with limiting enforcement actions to violations of

effluent limitations in NPDES permits. Water quality

standards alone do not suffice to provide local

governments fair notice of what they must do to

conform their conduct to the requirements of the law.

Based on the foregoing, the Ninth Circuit’s decision in

NWEA II should be overturned.

15

CONCLUSION

For the reasons set forth above, amicus curiae

respectfully requests that the Court grant the City of

Portland’s petition for writ of certiorari.

Respectfully submitted,

Robert C. Weaver

General Counsel

Association of Metropolitan

Sewerage Agencies

Kelly & Weaver, A

Professional

Corporation

11 DuPont Circle, N.W.

Suite 700

Washington, D.C. 20036

Telephone: (202) 797-7100

Counsel of Record for

Amicus Curiae

May 24, 1996