Amicus Curiae Brief — Milwaukee Metropolitan Sewerage District v. Friends of Milwaukee's Rivers
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MOTION FILED (3)
FEB 2 - 2005 _ 04-889
a
In The
Supreme Court of the Gnited States
vv
MILWAUKEE METROPOLITAN
SEWERAGE DISTRICT,
Petitioner,
v.
FRIENDS OF MILWAUKEE’S RIVERS
AND LAKE MICHIGAN FEDERATION,
Respondents.
3
vv
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit
fe
_
MOTION FOR LEAVE TO FILE BRIEF AND
BRIEF AMICUS CURIAE OF THE ASSOCIATION
OF METROPOLITAN SEWERAGE AGENCIES AND
THE CALIFORNIA ASSOCIATION OF SANITATION
AGENCIES IN SUPPORT OF PETITIONER
4
_
Of Counsel: DAVID W. BURCHMORE*
ALLEN A. KACENJAR
ALEXANDRA D. DUNN SQUIRE, SANDERS &
General Counsel, Deurery LLP
ASSOCIATION OF METROPOLITAN 4900 Kev Tower
SEWERAGE AGENCIES . y
1816 Jefferson Place, NW 127 Public Square
- Cleveland, OH 44114-1304
Washington, DC 20036
(202) 533-1803
ROBERTA L. LARSON
General Counsel,
CALIFORNIA ASSOCIATION OF
SANITATION AGENCIES
813 Sixth Street
Sacramento, CA 95814
(916) 446-7979
(216) 479-8500
*Counsel of Record
Counsel for Amici
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
MOTION FOR LEAVE TO
FILE AMICUS CURIAE BRIEF
| Pursuant to Rule 37 of this Court, the Association of
Metropolitan Sewerage Agencies (‘AMSA”) and the Cali-
fornia Association of Sanitation Agencies (“CASA”) re-
spectfully request leave to file the attached amicus curiae
brief in support of Petitioner. Consent for participation
was requested of all parties, but was denied by Respon-
dents Friends of Milwaukee’s Rivers and Lake Michigan
Federation.
AMSA is a trade association that represents the
interests of nearly 300 publicly-owned wastewater treat-
ment agencies nationwide. Collectively, AMSA member
agencies serve the majority of the sewered population in
the United States, and treat and reclaim more than 18
billion gallons of wastewater each day. CASA is a Califor-
nia non-profit Public Benefit Corporation created to
further the common interests of 110 small, medium and
- large publicly-owned wastewater collection, treatment and
reclamation agencies located within the State of California
in their effort to provide the cost-effective treatment,
disposal, reclamation and reuse of wastewater. AMSA’s
and CASA’s members are dedicated to preserving public
health and promoting sound environmental stewardship.
The primary question before the Court is whether a
state court order reflecting the agreed resolution of Clean
Water Act (“CWA”) violations is subject to independent
- review through a separate citizen suit brought in federal
court. AMSA’s and CASA’s members have a substantial
interest in the correct resolution of this issue because it
will directly impact the integrity of settlements that they
enter into with their regulators. As public wastewater
treatment agencies, AMSA’s and CASA’s members are
entrusted with the responsibility of protecting public
a a ee
2
health through effective environmental management.
However, despite their regulatory role, these entities are
simultaneously governed by the many rules and restric-
tions of the CWA and required to hold CWA discharge
permits. These public entities are subject to enforcement
under the CWA and frequently resolve these enforcement
matters through agreements with state regulators. AMSA
and CASA are concerned that the Seventh Circuit’s failure
to give the proper degree of deference to state enforcement
actions, and state court orders implementing those ac-
tions, seriously undermines their viability as a means of
resolving CWA violations and will, in turn, impact the
ability of AMSA’s and CASA’s member agencies to protect
public health and the environment.
The attached amicus curiae brief will-assist the Court
in evaluating the complex legal and technical issues pre-
sented in the petition for certiorari. This brief also draws on
the decades of experience gained by AMSA and CASA
through the representation of their members to provide the
Court with a unique perspective on the practical concerns
created by the Seventh Circuit’s alteration of the basic
relationship between enforcement and citizen suits under
the CWA. Given the ramifications of this case for their
members, AMSA and CASA respectfully request leave to file
the attached brief amicus curiae in support of Petitioner.
Respectfully submitted,
DAVID W. BURCHMORE
Counsel of Record
ALLEN A. KACENJAR
SQUIRE, SANDERS & DEMPSEY L.L.P.
4900 Key Tower
127 Public Square -
Cleveland, Ohio 44114-1304
Attorneys for Amici Curiae
TABLE OF CONTENTS
Page
MOTION FOR LEAVE TO FILE AMICUS CURIAE
IIIT nll fr cibid san sane s na-sienasiennepabnniiinisinacinnaeniitinigandanabestin 1
I I I sais cicascnnich pitthibindninenigueddinndiadatinséon 1
STATEMENT OF THE CASE. .........cccccccssesscsecccccccesssees 2
SUMMARY OF THE ARGUMENT ...............cccceeeeeeeeeee 2
IEE sterii osidcniSaarsineceinialteiienthanindinaniiainéigemdancuionniban 4
I. THE SEVENTH CIRCUITS FAILURE TO
EXTEND THE REQUISITE DEFERENCE TO
STATE ENFORCEMENT ACTIONS CON-
TRADICTS THE CLEAN WATER ACT'S
TEXT, DISREGARDS CONGRESS’ INTENT
AND EXACERBATES AN EXISTING CON-
FLICT AMONG CIRCUIT COURTG................. 4
A. Congress Granted Citizen Suits Only a
Limited, Supplemental Role In Clean Wa-
Re BIE so cacccscesscocacccsssenscoscecsenss 4
B. The Majority of Circuit Courts Limit Citi-
zen Suits to Their Proper Role by Viewing
Governmental Enforcement Efforts with
Substantial Deference ......................ccceeeeeee 5
C. The Minority View Adopted by the Sev-
enth Circuit Impermissibly Expands the
Role of Citizen Suits by Failing to Give
Proper Deference to Prior Governmental
INIT oiccnicsssnssnncnsinpadéueninnnismeiuinesiivnens 8
II. THE DECISION BELOW AND THE ASSOCI-
ATED CONFLICT AMONG’ CIRCUIT
COURTS WILL INTENSIFY THE ABUSE OF
GD PENEIIEP nctnsincsscesvencensssecontenbenstansmnenieneses 12
TABLE OF CONTENTS - Continued
Page
Ill. THE SEVENTH CIRCUITS FAILURE TO
EXTEND THE REQUISITE DEFERENCE TO
STATE ENFORCEMENT WILL LEAD TO
THE INEFFICIENT ENFORCEMENT OF
THE CLEAN WATER ACT.............cccccsssseeseeeees 15
A. The Seventh Circuit’s Decision Will Dis-
courage Settlement and Thus Increase
NE i icasisnctnatnninsnnsicennsneninmieceniions 15
B. The Seventh Circuit’s Decision Will Delay
Needed Improvements................cccccccsceeeeeees 17
C. The Seventh Circuit’s Decision Will Stifle
RISE E ILE AP CSAS RENE AOE 17
CT ccntbinscctiinsinincsnnncmntenisshdaneininigminigniinininanasunn 18
ili
TABLE OF AUTHORITIES
Page
CASES
Arkansas Wildlife Federation v. ICI Americas, Inc.,
BD FBG BIG Cis Cae, NIG sivnisicsansccesisscercccasssscsvssniicccenes 6
Atl. States Legal Foundation, Inc. v. Eastman
Kodak, 933 F.2d 124 (2d Cir. 1991)......... eee 10
Atl. States Legal Foundation, Inc. v. Hamelin, 182
F. Supp. 2d 235 (N.D. N.Y. 2001)..................cccssssssssees 7,8
Citizens fo. a Better Environment v. Union Oil Co.,
83 F.3d 1111 (Sth Cir. 1906)..............0...essss000 10, 11, 13, 14
Coastal Fisherman’s Ass’n v. Remington Arms Co.,
777 FF. Grate. 17S CD. Cammmn. BBD) viccsccssccsseccsncnescscsareassonss 8
Comfort Lake Assoc., Inc. v. Dresel Contracting,
Ine., 138 F.3d SG1. (Otis Cir. 1GGB)......ccinssccssqecsvecssnccscesscces 6
Comm. of Cambridge v. City of Cambridge, 115
F. Supp. 2€°650 (D. Bid. 2000) ....0...ccccsssrssccrscrsccescscsssseceee 8
Connecticut Fund for the Env’t v. Contract Plating
Co., 631 F. Supp. 1291 (D. Conn. 1986)... eee 9
Ellis v. Gallatin Steel Co., 390 F.3d 461 (6th Cir.
SD vin eiistestekiensitntasnlseniebcbcabcacsilediginassenidgiiatba iam peddle 7
Gwaltney v. Chesapeake Bay Foundation, 484 U.S.
BF COED scisssinndissnasstctadianiaieenniem acai 4, 5, 6, 15, 18
Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d
06 Cs Ce Fi sist ckcitnnininntinenniacnnnanciibaniaticnnets 13, 14
New York Coastal Fisherman’s Ass’n v. New York
City Dep't of Sanitation, 772 F. Supp. 162 (S.D.
Ee BD nes nicsniiicdieida sonitaalahidbaninsl aabahin aiendadoins da decminnaces 10
North and South Rivers Watershed Ass’n v. Town of
Scituate, 949 F.2d 552 (1st Cir. 1991)........... ee. 5,6
iv
TABLE OF AUTHORITIES -— Continued
Penn. Envt’l Defense Foundation v. Borough of
North East, 1997 U.S. Dist. LEXIS 23865 (W.D.
Pome. 108. Bi, BOG TP scnscssssvctetsricinasenstiigsinitindustatinnunancnnss 8
Supporters to Oppose Pollution, Inc. v. Heritage
Group, 973 F.2d 1320 (7th Cir. 1992)...........ccccccceeees 9,10
Washington Public Interest Research Group v.
Pendleton Woolen Mills, 11 F.3d 883 (9th Cir.
BODE) nccccecincaqscccsnneccsnisestininscntacnsedansiaisiiniammnitimidamadeniasalidass 10
Williams Pipeline Co. v. Bayer Corp., 964 F. Supp.
ROOD GET. I BEGG) cevicstinsnintsasscsstnsieentenptninieananiad 8
STATUTES
TB UBC. GID acccscscetssctivetnnmniusennaaniamemmiial 15
833 U.S.C. $1251(D)...........cccccccrccceees sniiiddeinandiinmmateedibaeaiael 4,7
BB UDG. SRI ve sesressccsssnsecntnnnincnnicisinistnsdaniininmnadiaaniieas 10
9B UDG. SIDE scccsiissscsssrsansnistniisiniimmoniniaminmaiaiaae 4
ABU BL. GEBTE cconssscvviinnsaigienneimiamadalenal 15
4B ULES. GIG ccsccsesicieccsiisissiniiatssetiniimmamanamaiie 7, 15
GB UB Ka: GEOG ansanccccuccsssiisnnsaenientanietainnnnaieniinaniieiabmense 15
OTHER AUTHORITIES
Are Citizen Suit Provisions of the Clean Water Act
Being Misused? Before the House Comm. on Wa-
ter Resources and Environment, 108th Cong.
(Sept. 30, 2004) (Amicus App. 1-40) .0............cccccceeeeeeeee: 13
ENVTL. L. INST., CITIZEN SuITs: AN ANALYSIS OF
CITIZEN ENFORCEMENT ACTIONS UNDER EPA —-
ADMINISTERED STATUTES (1984).............cccccccccseceeeeeeeeeeee 12
TABLE OF AUTHORITIES -— Continued
Page
Fed. Water Pollution Control Act Amend. of 1972:
Hearing on S. 75 et seq. Before the S. Subcomm.
on Air and Water Pollution, 92nd Cong. 69 (1971)......... 5
James May, Now More Than Ever: Trends in Envi-
ronmental Citizen Suits at 30, 2003 WIDENER L.
Sin: MINED 1h <sscinicknsencaistn ticandisiisdtallenndisinehinabiisiiadandantmindebitntindins 12
he BP, Ses PaO Ct Ei Paxecccenenncsnncssnensenianintiiiodsscsanebiiat 5,17
BRIEF OF THE ASSOCIATION OF
METROPOLITAN SEWERAGE AGENCIES
and THE CALIFORNIA ASSOCIATION OF
SANITATION AGENCIES AS AMICI
CURIAE IN SUPPORT OF PETITIONER’
INTEREST OF AMICI
As detailed in the attached motion, AMSA and CASA
represent the interests of several hundred small, medium
and large wastewater treatment agencies throughout the
United States. These public entities are entrusted with the
crucial service of collecting, treating and reclaiming
wastewater while simultaneously protecting the environ-
ment.
A central function of AMSA and CASA is the represen-
tation of their members’ legislative, regulatory and envi-
ronmental interests. As a result, AMSA and CASA actively
participate in litigation that raises important CWA im-
plementation and policy issues. The case before the Court
involves sewer overflows, an issue which AMSA’s and
CASA’s members take very seriously. Their collective goal
is to provide the highest level of treatment available
thereby maximizing the protection of public health and,
ultimately, eliminating such overflows entirely. The
primary legal question before the Court is whether a state
court order reflecting the agreed resolution of CWA viola-
tions is subject to independent review through a separate
citizen suit brought in federal court.
* Pursuant to Rule 37.6 of this Court, amici represent that counsel
for amici authored this brief in its entirety and that no person or entity
other than amici and their representatives made any monetary
contribution to the preparation or submission of this brief.
2
AMSA’s and CASA’s members have a substantial
interest in the correct resolution of this issue because it
will directly impact the integrity of settlements that they
enter into with their regulators. As public wastewater
treatment agencies, AMSA’s and CASAs members hold
National Pollutant Discharge Elimination System
(NPDES) permits and are governed by the many other
rules and restrictions of the CWA. These public entities
are subject to enforcement under the CWA and frequently
resolve CWA enforcement matters through agreements
with their state regulators. AMSA and CASA are con-
cerned thut the Seventh Circuit’s failure to give the proper
degree of deference to state enforcement actions and
related court orders will undermine their viability as a
means of resolving CWA violations.
ry
Vv
STATEMENT OF THE CASE
Amici adopt the statement of the case contained in
Petitioner’s brief.
,%
Vv
SUMMARY OF THE ARGUMENT
Congress expressly entrusted states with the primary
authority to enforce the CWA. It then granted citizens
supplemental enforcement rights. Consistent with this
structure, this Court and the majority of circuit courts
have carefully limited citizen suits to their proper role by
providing substantial deference to state enforcement
efforts. In sharp contrast, the minority position adopted by
the Seventh Circuit below would replace this deferential
standard with a “detailed examination” of state-selected
3
remedies through federal court hearings regarding
whether there is a “realistic prospect” of continuing
violations. This enables citizen suits to challenge the
enforcement decisions of state agencies — a direct contra-
diction of Congress’ intent that they play a strictly sup-
plemental role.
In addition to contradicting Congress’ plan, the
Seventh Circuit’s failure to give state enforcement the
requisite deference will expand the already alarming
abuse of citizen suits. Recent Congressional testimony by
AMSA, CASA and others establishes that the dramatic
increase of citizen suits comes at a huge cost to the public
and the environment. Abusive citizen filings thrive in
jurisdictions where courts fail to grant the requisite
deference to government enforcement. Allowing citizen
suits where adequate government enforcement exists, as
the Seventh Circuit would, ultimately results in duplica-
tive liability, needless litigation and waste of finite public
resources. Further, allowing citizens to collaterally
undermine state enforcement efforts in federal court will
actually delay needed improvements and discourage
necessary wastewater treatment innovation. Thus, the
conflict among the circuits exacerbated by the Seventh
Circuit’s opinion below presents an issue of national
import that warrants proper resolution by this Court.
&
v
4
ARGUMENT
I. THE SEVENTH CIRCUIT'S FAILURE TO EX-
TEND THE REQUISITE DEFERENCE TO STATE
ENFORCEMENT ACTIONS CONTRADICTS THE
CLEAN WATER ACT’S TEXT, DISREGARDS
CONGRESS’ INTENT AND EXACERBATES AN
EXISTING CONFLICT AMONG = CIRCUIT
COURTS.
A. Congress Granted Citizen Suits Only a Lim-
ited, Supplemental Role In Clean Water Act
Enforcement.
Congress intentionally vested the states with primary
enforcement authority under the CWA, explicitly stating
that: “It is the policy of Congress to recognize, preserve,
and protect the primary responsibilities and rights of
States to prevent, reduce and eliminate pollution. ...” 33
_U.S.C. §1251(b). The relationship between this primary
enforcement authority and the alternate role to be played
by citizen suits is established in 33 U.S.C. §1365 which
bans citizen suits (1) prior to the provision of 60-days
notice and (2) where the federal or state government is
“diligently prosecuting” an enforcement action. As recog-
nized by this Court, Congress crafted these restrictions to
ensure that citizen suits would play a secondary role in
CWA enforcement. See Gwaltney v. Chesapeake Bay
Foundation, 484 U.S. 49, 60 (1987) (“The bar on citizen
suits when governmental enforcement action is under way
suggests that the citizen suit is meant to supplement
rather than to supplant governmental action.”).
This basic relationship is borne out in the legislative
history. As this Court has acknowledged:
5
The legislative history of the Act reinforces this
view of the role of the citizen suit. The Senate
Report noted that “[t]he Committee intends the
great volume of enforcement actions [to] be
brought by the State,” and that citizen suits are
proper only “if the Federal, State, and local agen-
cies fail to exercise their enforcement responsibil-
ity.”
Gwaltney at 60 (quoting S. REP. No. 92-414, p. 64 (1971)).
This same Senate Report quoted in Gwaltney further
provides that the restrictions on citizen suits were actually
crafted “to further encourage and provide for agency
enforcement. ...” Jd. at 79. Similarly, the U.S. EPA testi-
fied to Congress that these restrictions on the filing of
citizen suits were needed to “discourage unnecessary or
abusive use of the citizen suit device.” Fed. Water Pollution
Control Act Amend. of 1972: Hearing on S. 75 et seq. Before
the S. Subcomm. on Air and Water Pollution, 92nd Cong.
69 (1971) (Letter from William Ruckelshaus, Administra-
tor, U.S. EPA).
B. The Majority of Circuit Courts Limit Citi-
zen Suits to Their Proper Role by Viewing
Governmental Enforcement Efforts with
Substantial Deference.
Most circuit and lower courts have adopted deferential
interpretations of the CWA’s citizen suit provision that fit
with Congress’ plan to put primary enforcement authority
squarely in governmental hands. For example, in North
and South Rivers Watershed Ass’n v. Town of Scituate, 949
F.2d 552 (1st Cir. 1991), the State of Massachusetts
ordered a town to: (1) prohibit new connections to its sewer
system, (2) take all steps necessary to construct new
6
wastewater treatment facilities and (3) begin upgrading
their facility. Jd. at 553-54. While the town was in the
process of complying with this order, a citizens’ group
brought suit arguing that this was “diligent non-
prosecution.” Id. at 557. The First Circuit rejected this
invitation to second-guess Massachusetts’ chosen enforce-
ment scheme, instead indicating that it was entitled to
substantial deference, stating that, “[w]here an agency has
specifically addressed the concerns of an analogous citi-
zen’s suit, deference to the agency’s plan of attack should
be particularly favored.” Id.
Two Eighth Circuit opinions similarly give the requi-
site deference to state enforcement efforts. In Arkansas
Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376 (8th
Cir. 1994), a citizens’ group challenged the diligence of
enforcement where the State of Arkansas required a
herbicide manufacturer to take remedial actions through
an administrative order. Specifically, the citizen plaintiffs
argued that Arkansas had “repeatedly and unnecessarily
abandoned all of its enforcement powers, failed to address
ICI’s violations, gave ICI repeated extensions for compli-
ance, and assessed insignificant amounts of civil penal-
ties....” Id. at 380. The Eighth Circuit rejected these
arguments because “such suits are proper only when the
federal, state, or local agencies fail to exercise their en-
forcement responsibility [and] should not considerably
curtail the governing agency’s discretion to act in the
public interest.” Jd. at 380-81 (citing Gwaltney, 484 U.S. at
60-61 and Scituate, 949 F.2d at 557).
Similarly, in Comfort Lake Assoc., Inc. v. Dresel
Contracting, Inc., 138 F.3d 351 (8th Cir. 1998), a conserva-
tion group sued a contractor for alleged permit violations.
In finding that these claims were barred by the settlement
of a state administrative action, the court noted that “as a
final agency enforcement action, that Agreement is entitled
to considerable deference if we are to achieve the Clean
Water Act’s stated goal of preserving ‘the primary responsi-
bilities and rights of States to prevent, reduce, and elimi-
nate pollution.’” Jd. at 357 (citing 33 U.S.C. §1251(b)).
Precedent under the parallel citizen suit provisions in
other environmental statutes further confirms that sub-
stantial deference to government enforcement is required.
For example, in Ellis v. Gallatin Steel Co., 390 F.3d 461
(6th Cir. 2004), citizens sued a steel manufacturer under
the Clean Air Act, alleging violations that were resolved in
a government consent decree.’ The district court endorsed
the decree but also provided additional injunctive relief to
the citizens. Id. at 469. On appeal, the Sixth Circuit
resoundingly rejected this collateral attack on the gov-
ernment’s remedial strategy:
Such second-guessing of the EPA’s assessment of
an appropriate remedy — a mere three months af-
ter the entry of the decrees — fails to respect the
statute’s careful distribution of enforcement au-
thority among the federal EPA, the States and
private citizens, all of which permit citizens to
act where EPA has “failed” to do so, not where
EPA has acted but has not acted aggressively
enough in the citizens’ view.
Id. at 477 (citing Gwaltney, 484 U.S. at 61).°
* The citizen suit provision in the Clean Air Act is identical to the
one before the Court here in all material respects. See 42 U.S.C. §7604.
* A substantial number of lower courts have also endorsed the
majority position that the CWA mandates deference to public enforce-
ment efforts. See, e.g., Atl. States Legal Foundation, Inc. v. Hamelin,
(Continued on following page)
8
C. The Minority View Adopted by the Seventh
Circuit Impermissibly Expands the Role of
Citizen Suits by Failing to Give Proper
Deference to Prior Governmental Enforce-
ment.
The Seventh Circuit opened its analysis in the present
case by stating that “diligence on the part of the State is
presumed” and reciting two of the well-accepted reasons
for that rule: (1) “the intended role of the State as the
primary enforcer of the Clean Water Act” and (2) that
“courts are not in the business of designing, constructing
or maintaining sewage treatment systems.” Appendix to
Petition (“Pet. App.”) 24a. However, its ultimate decision
discarded these concepts entirely. The Seventh Circuit
first characterized Wisconsin’s chosen remedy as “the
potentially self-serving statements of a state agency and
the violator with whom it settled.” Id. This characteriza-
tion suggests a highly skeptical, rather than a highly
182 F. Supp. 2d 235, 246 (N.D. N.Y. 2001) (“[t]he standard for evaluat-
ing the diligence of the state in enforcing its action is a low one which
requires due deference to the state’s plan of attack”); Comm. of Cam-
bridge v. City of Cambridge, 115 F. Supp. 2d 550, 554 (D. Md. 2000)
(Plaintiffs’ burden of proving that a state’s prosecution is not diligent “is
a heavy one because diligence on the part of the enforcement agency is
presumed”); Penn. Envt'l Defense Foundation v. Borough of North East,
1997 U.S. Dist. LEXIS 23865 at *34 (W.D. Penn. Dec. 31, 1997) (“a
State may choose to forgo heavy penalties and immediate compliance in
lieu of requiring costly long-term improvements to a polluter’s facili-
ties”); Williams Pipeline Co. v. Bayer Corp., 964 F. Supp. 1300, 1324
(S.D. Iowa 1997) (“the CWA calls for a more deferential approach that
does not circumscribe the administrator’s discretion”) (internal quota-
tions omitted); Coastal Fisherman’s Ass’n v. Remington Arms Co., 777
F. Supp. 173, 183 (D. Conn. 1991) (“court[s] must presume the diligence
of the state’s prosecution of a defendant absent persuasive testimony
that the state has engaged in a pattern of conduct in its prosecution
that could be considered dilatory, collusive or otherwise in bad faith”).
9
deferential, approach. The Seventh Circuit ultimately
mandated that the lower court, after giving “some” defer-
ence to the judgment of the state, perform its own “de-
tailed examination” to prove that Wisconsin’s enforcement
plan leaves no “realistic prospect” of “violations due to the
same underlying causes.” Pet. App. 33a. This result places
citizens squarely in the middle of the state’s enforcement
case thus failing to preserve the state’s role as “primary
enforcer.”
The Seventh Circuit’s approach also contradicts its
own advice that courts should avoid entering the “business
of designing, constructing or maintaining sewage treat-
ment systems.” Pet. App. 24a. Instead, its decision to
conduct an after-the-fact “detailed examination” of Wis-
consin’s enforcement plan does just that. At the Seventh
Circuit’s direction, a federal court would be required to
evaluate the technical soundness of Wisconsin’s settlement
with the Milwaukee Metropolitan Sewerage District to
determine whether it will conclusively solve the problems
addressed. In other words, it would require that court to
determine whether the State agency’s engineering deci-
sions (which are based on its substantial expertise and
long experience with the system at issue) were wrong.
This goes far beyond the limited role that the Seventh
Circuit conceded should apply — determining whether
state enforcement activity was “dilatory, collusive, or
otherwise in bad faith.” Pet. App. 23a (quoting Connecticut
Fund for the Env’t v. Contract Plating Co., 631 F. Supp.
1291, 1293 (D. Conn. 1986).*
* This effectively reverses, without any explanation, the Seventh
Circuit’s much more deferential analysis under RCRA’s substantively
identical citizen suit provision in Supporters to Oppose Pollution, Inc. v.
(Continued on following page)
10
The Seventh Circuit is not alone in conducting an in-
depth reexamination of state enforcement proceedings in
contravention of Congressionally-mandated deference to
the states. The Second Circuit has also expressed a similar
view that advanced inquiry into state enforcement actions
is warranted to determine “whether violations will con-
tinue notwithstanding the polluter’s settlement with the
government.” Atl. States Legal Foundation, Inc. v. East-
man Kodak, 933 F.2d 124, 127-28 (2d Cir. 1991).* The
Ninth Circuit has also espoused a narrow reading of the
citizen suit bar in CWA §309(g) on at least two occasions.
See Washington Public Interest Research Group v. Pendle-
ton Woolen Mills, 11 F.3d 883 (9th Cir. 1993) (narrowly
construing the requirement in 33 U.S.C. §1319(g)(6)(A)(i)
that a preclusive enforcement action must be brought
“under this subsection”); and Citizens for a Better Envi-
ronment v. Union Oil Co., 83 F.3d 1111 (9th Cir. 1996)
(adopting an extremely narrow reading of the “comparable
state law” requirement in 33 U.S.C. §1319(g)(6)(A)(iii)). In
doing so, like the Second and Seventh Circuits, it rejected
the deferential approach reflected in the First Circuit’s
Scituate opinion, “which was grounded in that court’s
concern that the discretion of enforcement authorities to
choose enforcement methods be preserved.” Washington
Heritage Group, 973 F.2d 1320 (7th Cir. 1992). In that case, the Seventh
Circuit held that “public agencies’ litigation decisions may not be
second-guessed by the device of filing an independent suit,” and
confirmed that “[p]rimary responsibility lies with public enforcers.” Id.
at 1324.
* A distinct minority of lower court opinions supports this theory.
Many of those are from lower courts in the Second Circuit and, there-
fore, bound by its decision in Atlantic States. See, e.g., New York Coastal
Fisherman's Ass’n v. New York City Deptt of Sanitation, 772 F. Supp.
162, 168 (S.D. N.Y. 1991).
11
Public Interest Research Group, 11 F.3d at 885; Citizens for
a Better Environment, 83 F.3d at 1117.
The Second and Seventh Circuits’ interpretation of the
“diligent prosecution” requirement, and the Ninth Circuit’s
narrow construction of the other elements of the citizen
suit bar, stand in marked contrast to the deferential
standard adhered to in the First, Sixth and Eighth Cir-
cuits. The latter effectively gives state remedies the time
and opportunity they need to work. While this does re-
quire some patience by citizen groups, by no means does it
deny them their ultimate right to ensure that violations
cease. Rather, these groups are simply kept from “jumping
the gun” before it is known whether the state’s selected
remedy will be effective. If the violations continue after
the remedy has been implemented, then the need for
enforcement action resumes and citizen suits may be
brought. In contrast, the less deferential approach would
allow citizen suits to challenge the efficacy of the often
complex fixes to water quality problems immediately —
before they are given the chance to work. This is, conse-
quently, a clear and direct conflict among the circuits
which demands this Court’s attention. Unless corrected by
this Court, the Seventh Circuit’s recent decision will
undermine the intent of Congress that citizen suits should
“supplement” rather than “supplant” governmental action
and will further contribute to the disturbing trend towards
protracted and duplicative litigation described below.
12
II. THE DECISION BELOW AND THE ASSOCI-
ATED CONFLICT AMONG CIRCUIT COURTS
WILL INTENSIFY THE ABUSE OF CITIZEN
SUITS.
In recent years, there has been an alarming growth in
the rate of citizen suit filings. Between 1978 and 1983, the
Environmental Law Institute identified an annual average
of 100 notices of intent to sue under all environmental
statutes combined. ENVTL. L. INST., CITIZEN SUITS: AN
ANALYSIS OF CITIZEN ENFORCEMENT ACTIONS UNDER EPA —
ADMINISTERED STATUTES III-10 (1984). In contrast, accord-
ing to a recent survey:
Statistical trends show more citizen suits than
ever. Since 1995, citizens have filed 426, or about
one lawsuit a week ... under the CWA and CAA
alone. During the same period, under all envi-
ronmental statutes, citizens have submitted
more than 4,500 notices of intent to sue, includ-
ing more than 500 and 4,000 against agencies
and members of the regulated community, re-
spectively. This is an astonishing pace over eight
years of about two notices of intent to sue every
business day.
James May, Now More Than Ever: Trends in Environ-
mental Citizen Suits at 30, 2003 WIDENER L. REV., Issue 1
at 4. While many of these threatened and filed citizen
suits presumably play the legitimate supplemental role
that Congress envisioned, the vast experience of AMSA’s
and CASA’s members shows that duplicative citizen
litigation is commonplace.
On September 30, 2004, AMSA, CASA and others
were invited to testify before the House of Representatives’
Subcommittee on Water Resources and Environment to
13
address the concern “that some citizen suits do little or
nothing to enhance water quality, because the suits
involve violations that are already being addressed in an
enforcement action with government regulators. ...” Are
Citizen Suit Provisions of the Clean Water Act Being
Misused? Before the House Comm. on Water Resources and
Environment, 108th Cong. (Sept. 30, 2004) (Amicus App.
at 7). The Subcommittee explained that “the basis for
these concerns are that such citizen suits have little or no
economic or environmental value added, and the substan-
tial transaction and settlement costs associated with such
suits would divert funding from necessary infrastructure
and environmental projects.” Jd.
The resulting testimony confirmed that the abuse of
citizen suits is a real problem. Abusive citizen filings
thrive in jurisdictions where courts fail to grant the
| requisite deference to government enforcement. Much of
| this recent activity has occurred in California under
insufficiently deferential interpretations by the Ninth
Circuit. See, e.g., Citizens for a Better Environment, 83
F.3d at 1117-19 (9th Cir. 1996) (refusing to recognize the
equivalency of an EPA-approved California law for citizen
suit preclusion purposes and requiring that a fiscal pen-
alty has been assessed); Knee Deep Cattle Co. v. Bindana
Inv. Co., 94 F.3d 514 (9th Cir. 1996) (same).
AMSA's testimony regarding the recent problems in
‘ Los Angeles provides a perfect example. In that instance,
the City of Los Angeles experienced several overflows
during the Winter of 1998. Amicus App. at 16-19. The
City’s regulators initiated enforcement regarding these
overflows and, during September of 1998, resolved the
enforcement action with a Cease and Desist Order requir-
ing the City to pay an $850,000 penalty and construct
RL ee ee aE ee en eee:
14
major sewer projects costing more than $600,000,000. Id.
at 17. However, despite this settlement, an activist group
filed suit the very next month. Jd.
This suit was held not to be precluded by the govern-
ment’s ongoing enforcement action because the citizen
group alleged that future spills would occur. Jd. at 17-18;
see also Knee Deep at 516 (categorically deeming prior
enforcement efforts insufficient to address ongoing viola-
tions); Citizens for a Better Environment, 83 F.3d at 1117-
19 (9th Cir. 1996) (same). This overlapping enforcement
“did not yield additional environmental benefit to the
citizens of Los Angeles.” Jd. at 19. Rather, it cost the City:
(1) almost $5,000,000 in attorneys’ fees; (2) $2,000,000 in
citizen attorneys’ fees; (3) $800,000 in duplicative cash
penalties and (4) $8,500,000 for supplemental projects. Id.
Thus, the City of Los Angeles was forced to divert more
than $16,000,000 in limited resources from needed im-
provement work.°
The Seventh Circuit’s ruling below constitutes a
significant step towards the creation of similar problems
in Indiana, [Illinois and Wisconsin. Instead of clearly
informing potential citizen plaintiffs that state enforce-
ment efforts will be honored absent proof of bad faith, they
are now invited to initiate a collateral federal challenge
* The other testimony described similar incidents impacting
smaller California public bodies that were ultimately obligated to
expend substantial sums on private litigation in lieu of providing public
services. See Amicus App. at 21-32 (Testimony of CASA before Congress
regarding citizen suit abuse against the Lake County Sanitation
District, the City of Pacific Grove, the E] Dorado Irrigation District, the
City of Healdsburg and the City of Santa Rosa), and Amicus App. at 33-
40 (Testimony of the City of Fort Bragg before Congress detailing the
history of citizen suit abuse against the City of Fort Bragg).
15
questioning the factual sufficiency of state settlements.
This will tend to move citizen suits in this area even
further from the “interstitial” role proclaimed in Gwaltney
and more squarely into the “potentially intrusive” role
which the CWA and this Court have forbidden. Gwaltney,
484 U.S. at 61. This concern is not limited to the bounds of
the CWA. Rather, as this Court recognized in Gwaltney,
most of the principal environmental statutes contain
nearly identical citizen suit provisions, including several
that are remarkably similar to the one at issue here.’ The
Seventh Circuit’s decision in this case, therefore, has the
potential for a far-ranging impact on state enforcement
activities across the entire spectrum of environmental law.
lil. THE SEVENTH CIRCUIT’S FAILURE TO EX-
TEND THE REQUISITE DEFERENCE TO
STATE ENFORCEMENT WILL LEAD TO THE
INEFFICIENT ENFORCEMENT OF THE CLEAN
WATER ACT.
A. The Seventh Circuit’s Decision Will Dis-
courage Settlement and Thus Increase
Litigation Costs.
One fundamental concern is that the Seventh Circuit’s
new “detailed examination” standard will impair the
ability of regulators and regulated parties alike to reach
CWA settlements. As an initial matter, states will be less
inclined to settle violations because every settlement —
even those that are approved in a final judgment entered
" Gwaltney, 484 U.S. at 57; see, e.g., 42 U.S.C. §6972 (Resource
Conservation and Recovery Act); 42 U.S.C. §7604 (Clean Air Act); 15
U.S.C. §2619 (Toxic Substance Control Act); 42 U.S.C. §11046 (Emer-
gency Planning & Community Right to Know Act).
16
by state courts - will be open to independent factual
review in federal court. The natural reaction of state
regulators, particularly in large high-profile enforcement
actions, will be to simply take settlement off the table as
an optien. The disincentive to settle that this lack of
finality creates will similarly deter settlement by those
regulated under the CWA because they cannot secure a
firm agreement. Rather, even the most final settlement
agreement will be at risk of subsequent revision by a
federal court in response to a redundant citizen suit.
The inability to rely on settlements will have real
costs. In many cases, regulators will be forced to pursue
final court judgments through extended litigation. This
additional litigation will come at the high cost described in
AMSA's testimony before the House of Representatives.
See Amicus App. at 19. Importantly, this increase in costs
will not be borne exclusively by regulated entities but will
also tap state resources as they either bear the burden of
obtaining judgment or defending their settlements from
collateral attack. Further, federal and state courts will be
forced to handle this additional litigation despite increas-
ingly clogged dockets.
As noted above, many of those regulated under the
CWA are public entities entrusted with providing services
essential to public health and the environment to their
constituents. Subjecting these entities to the additional
costs of increased iitigation and needless attorneys’ fees
will necessarily result in the increased cost of basic ser-
vices. In these situations, the additional expenditure of
state funds will often find local taxpayers paying twice to
fund litigation that otherwise could have been resolved
more efficiently through settlement.
17
B. The Seventh Circuit’s Decision Will Delay
Needed Improvements.
The primary benefit of citizen suits is their ability to
force action where there is true environmental need but no
enforcement activity. In that context, they can serve as a
useful vehicle to help accomplish the CWA’s goals. Ironi-
cally, allowing citizen suits to continue after the entry of
final state settlements will have exactly the opposite
effect. Upon entering a settlement agreement, the settling
party is typically obligated to begin its remedial work in
keeping with an approved schedule. However, a Seventh
Circuit citizen suit that triggers a “detailed review” of an
approved settlement’s factual adequacy would necessarily
forestall the needed improvements — perhaps for quite
some time. Similarly, in those many instances where the
parties choose litigation over a settlement that lacks
finality, the conditions at issue will persist while litigation
continues. This cannot be what Congress intended when
creating the citizen suit right “[i]n order to further encour-
age and provide for agency enforcement... .” S. REP. No.
92-414, p. 79 (1971).
C. The Seventh Circuit’s Decision Will Stifle
Innovation.
The state and federal enforcement agencies tasked
with the primary responsibility of ensuring CWA compli-
ance have significant legal expertise gained through
hundreds of enforcement actions under the CWA. Even
more importantly, they have decades of experience with
the complex dynamics of the specific wastewater systems
that they regulate. Because of this expertise, these regula-
tors should be entrusted with the crucial decision of
setting optimal enforcement strategy. Protection of the
18
enforcement flexibility necessary to use this expertise was
at the heart of this Court’s warning that citizen suits may
not “seek the civil penalties that the Administrator chose
to forgo” where it instead required the installation of
“particularly effective but expensive machinery.” Jd. at 61.
Requiring federal courts to conduct a “detailed exami-
nation” of state-ordered remedial plans and requiring a
factual showing that these plans leave “no realistic pros-
pect” of “violations due to the same underlying causes”
substantially damages this scheme by forcing regulators to
dramatically revamp their tactics. They will lose the
flexibility to select innovative remedies which may well be
effective, but are not yet proven. Similarly, they will not be
able to use iterative approaches which allow the requisite
flexibility to address the ever-evciving needs of growing
communities. Instead, regulators would be limited to the
subset of complete and traditional fixes which citizen
groups believe satisfy the “no realistic prospect” standard.
Thus, the Seventh Circuit’s position will stunt the evolu-
tion of treatment technology and wastewater engineering
practices and result in the less efficient provision of public
services. In contrast, the appropriately deferential ap-
proach adopted by the majority of circuit courts encour-
ages regulators to explore innovate solutions with the aim
of improved effectiveness and efficiency.
@
v
- ; CONCLUSION
This case presents a clear conflict between the Circuit
Courts of Appeals regarding the level of deference owed by
federal courts to state-approved resolutions of CWA
liability. Additionally, for the above reasons, it represents
19
an issue of substantial importance to all parties involved
in the implementation of the CWA. It is thus appropriate
for this Court to resolve the confusion created by the
discordant opinions on this important issue.
For all the foregoing reasons, amici respectfully
request that the petition for certiorari be granted.
Respectfully submitted,
Of Counsel: DAvID W. BURCHMORE*
ALLEN A. KACENJAR
ALEXANDRA D. DUNN
General Counsel, ss, -onsdaanmpageged &
ASSOCIATION OF METROPOLITAN 4900 Key Tower
SEWERAGE AGENCIES cy iower
127 Public Square
1816 Jefferson Place, NW
Washington, DC 20036 Cleveland, OH 44114-1304
‘ (216) 479-8500
(202) 533-1803
ROBERTA L. LARSON
General Counsel,
CALIFORNIA ASSOCIATION OF
SANITATION AGENCIES
813 Sixth Street
Sacramento, CA 95814
(916) 446-7979
_ *Counsel of Record
FEBRUARY 2005
App. 1
The Subcommittee on Water
Resources and Environment
Hearing on
Are Citizen Suit Provisions of the
Clean Water Act Being Misused?
PURPOSE
On Thursday, September 30, 2004, at 10:00 a.m., in Room
2167 of the Rayburn House Office Building, the Subcom-
mittee on Water Resources and Environment will hold a
hearing on whether citizen suit provisions of the Federal
Water Pollution Control Act (the “Clean Water Act” or the
“Act”) are being misused. The Subcommittee will receive
testimony from representatives of two small communities
in Northern California and from the City of Los Angeles
about their experiences with lawsuits filed under the
Clean Water Act’s citizen suit provisions, and possibly
from a representative of a public interest group.
BACKGROUND
The Federal Water Pollution Control Act (the “Clean
Water Act” or the “Act”) makes unlawful the discharge of
pollutants into navigable waters, unless the discharge is
authorized by, and in compliance with, a National Poilu-
tion Discharge Elimination System (NPDES) permit
issued by the U.S. Environmental Protection Agency (EPA)
or by a State under a comparable State program. Most
States have been authorized under the Act to issue such
permits, which typically contain effluent standards and
limitations, and monitoring and reporting requirements.
App. 2
The holder of a Federal NPDES or a State-issued permit is
subject to an enforcement action by EPA or a State for
failure to comply with the conditions of the permit. A
Federal enforcement action may include administrative,
civil, or criminal penalties. State enforcement programs
may include civil and criminal penalties, and may include
other means of enforcement. In the absence of Federal or
State enforcement, a citizen who has an interest that is or
may be adversely affected may commence a civil action,
under “citizen suit” provisions included in the Clean Water
Act, against any person (including the United States and
any other governmental instrumentality) alleged to be in
violation of, among other things, the conditions of a
Federal or State NPDES permit or a Federal or State
order.
While the citizen suit provisions in the Clean Water Act
serve as a safety net in instances where the regulatory
agency does not enforce the water quality laws, the provi-
sions have resulted in allegations of misuse in a number of
lawsuits and out of court settlements.
CITIZEN SUITS
Section 505 of the Clean Water Act grants “any citizen” the
right to commence a civil action on his own behalf against
“any person” who is “alleged to be in violation of” its
NPDES permit. A “citizen” is “a person or persons having
an interest which is or may be adversely affected.” (Clean
Water Act § 505(g).) A “person” is “an individual, corpora-
tion, partnership, association, State, municipality, com-
mission, or political subdivision of a State, or any
interstate body.” (Clean Water Act § 502(5)) Section 505
also allows for a citizen to commence a suit against EPA,
App. 3
where EPA has failed to perform a duty under the Act that
is not discretionary. The Act requires would-be citizen
plaintiffs to provide, to the alleged violator, the State in
which the violation is alleged to be occurring, and EPA, an
advance notice of intent to file a suit, at least 60 days prior
to filing the suit.
Actionable ongoing violations exist when a defendant’s
violations have continued after the date the plaintiff files
suit, or there is a reasonable likelihood that the defendant
will violate the Act again in the future. A citizen may not
commence a suit under the Act for one-time, or “wholly
past,” violations.
The relief sought by a citizen plaintiff may include an
injunction requiring compliance with a permit limitation,
the assessment of civil penalties, and the costs of litiga-
tion, including attorney and expert witness fees, where
appropriate. No compensatory damages are authorized
under the Act. Penalties are paid to the U.S. Treasury.
However, settlements between citizen plaintiffs and
defendants requiring defendants to pay funds for other
purposes are not prohibited. As a result, in settlements of
litigation, citizen plaintiffs routinely seek and defendants
pay funds for other purposes, including for “supplemental
environmental projects” or environmental trust funds
administered by an environmental group, as well as
attorney fees. (Supplemental environmental projects may
also be an element of settlements in enforcement cases
brought by Federal or State regulators.)
Sections 505 and 309 of the Act set out certain instances
where citizen suits are barred. Generally, dismissal of a
citizen suit is required where the defendant can demonstrate
that either the State or EPA is concurrently maintaining an
App. 4
action over the same alleged violations. A citizen may not
bring a citizen suit to enforce the Act where either EPA or
the State is “diligently prosecuting” a civil or criminal
action regarding the same violations. Enforcement actions
in a court of law will bar a citizen suit, as will some
administrative enforcement proceedings. A citizen may not
bring a citizen suit for violations for which EPA or' the
State has commenced and is diligently prosecuting an
administrative action to assess penalties, or for which
either EPA or the State has issued a final order not subject
to further judicial review and the alleged violator has paid
a penalty assessed under the Act or comparable State law.
The determination of what constitutes diligent prosecution
of a government enforcement action sufficient to bar a
citizen suit is based on a number of factors. These factors
include whether compliance has been or will be achieved,
whether the enforcement activity has resulted or will
result in installation of the necessary pollution control
equipment or upgrades, whether the initial enforcement
action has been followed up as necessary, and, in some
cases, whether penalties were sought or paid.
The U.S. Supreme Court has observed that the bar on
citizen suits when government enforcement action has
been taken or is under way “suggests that the citizen suit
is meant to supplement rather than to supplant govern-
mental action.” (Gwaltney of Smithfield v. Chesapeake
Bay Foundation, 484 U.S. 49 (1987) (““Gwaltney”).) Citizen
suits are proper only “if the Federal, State, and local
agencies fail to exercise their enforcement responsibility.”
(Id., citing S. Rep. No. 92-414, at p. 64 (1971)).
The Federal Circuit Courts of Appeals are not uniform in
determining whether a State’s enforcement action and
issuance of an enforcement order bars a citizen suit under
App. 5
the Clean Water Act. In some Circuits, a State’s enforce-
ment action and issuance of an enforcement order bar_a
Clean Water Act citizen suit. (See, e.g., North and South
Rivers Watershed Association v. Town of Scituate, 949 F.2d
552 (1st Cir. 1991) (“Scituate”); Ailor v. City of Maynard-
ville, Tennessee, 368 F.3d 587 (6th Cir. 2004) (“Ailor”).)
The U.S. Court of Appeals for the First Circuit has said
that the “focus of the statutory bar to citizen’s suits” is “on
whether corrective action already taken and diligently
pursued by the government seeks to remedy the same
violations as duplicative civilian action.” (Scituate.) “Du-
plicative enforcement actions add little or nothing to
compliance actions already underway, but do divert State
resources away from remedying violations in order to focus
on the duplicative effort” (Id.) Duplicative actions “are, in
fact, impediments to environmental remedy efforts,” “so
long as the provisions in the State Act adequately safe-
guard the substantive interests of citizens in enforcement
actions.” (Id.) The Sixth Circuit similarly has observed
that a citizen suit, which has been filed where a State is
already diligently prosecuting an enforcement action for
the same violations, changes the “nature of the citizens’
role from interstitial to potentially intrusive.” (Ailor.)
This, however, is not the case in States such as California,
which are within the jurisdiction of the Court of Appeals
for the Ninth Circuit. Under the Act, a citizen may not
bring a citizen suit for violations for which EPA or the
State has commenced and is diligently prosecuting an
administrative action to assess penalties, or for which
either EPA or the State has issued a final order not subject
to further judicial review and the alleged violator has paid
a penalty assessed under the Act or comparable State law.
(Clean Water Act, § 309(g)(6).) The Ninth Circuit has
App. 6
interpreted this language strictly and has held that the
existence of an enforcement action, alone, will not bar a
citizen suit for the same violations unless EPA or the State
has commenced and is diligently prosecuting a judicial
action or an administrative action to assess penalties, or
the alleged violator has actually paid an administrative
penalty.
In Citizens for a Better Environment, et al. v. Union Oil
Company, 83 F.3d 1111 (9th Cir. 1996) (“Union Oil”), the
Ninth Circuit determined that an administrative settle-
ment with the State was insufficient to bar a citizen suit
under the Clean Water Act. (Union Oil.) In Union Oil, the
court said that, before a State administrative action can
preclude a citizen suit under the Clean Water Act, it must
be commenced under a provision of State law comparable
to Section 309(g) of the Act, including notice and comment
procedures and penalty assessment factors. (Id.) According
to the Court, unless a penalty is assessed according to a
provision of state law that is comparable to Section 309(g),
there is no guarantee that the public will be given the
requisite opportunity to participate or that the penalty
assessed is of the proper magnitude. (Id.) The Union Oil
court declined to follow the First Circuit’s Scituate case, as
it concluded the Scituate nolding could lead to an anoma-
lous conclusion that State administrative enforcement
actions would more broadly preclude citizen suits than
would EPA enforcement actions. (Id.)
POTENTIAL FOR MISUSE OF CITIZEN SUITS
Congress envisioned that citizen enforcement of the Clean
Water Act would be a useful supplement to government
agency oversight, given limited resources at both the State
App. 7
and Federal levels and the potential that some States
might not be sufficiently vigorous in implementing the
| law. Many citizen lawsuits have been filed since enact-
ment of the Act in 1972, and have played a positive role in
addressing water quality issues in a number of instances.
Concerns have been raised, however, that some citizen
suits do little or nothing to enhance water quality, because
the suits involve violations that are already being ad-
dressed in an enforcement action with government regula-
tors and/or that they focus on what can be characterized as
minor, sporadic, or technical violations. Concerns also
have been expressed that citizen suits are subject to being
misused, for example, when a citizen suit and the threat of
very substantial litigation costs and penalties associated
with it, is used to exact payment of significant settle-
ments, including sizeable plaintiffs’ attorney fees. The
bases for these concerns are that such citizen suits have
little or no economic or environmental value added, and
the substantial transaction and settlement costs associ-
ated with such suits would divert funding from necessary
infrastructure and environmental projects.
Recent experiences reported in the State of California
illustrate some of these problems. Numerous third party
citizen lawsuits have been brought against communities in
California alleging Clean Water Act violations, even
though State regulators already may have taken enforce-
\ ment action against the communities. Some of the com-
munities include Lake County, Fort Bragg, Los Angeles,
Cotati, Covelo, Crescent City, E] Dorado, Eureka, Fall-
brook, Fortuna, Healdsburg, Occidental County, Pacific
Grove, Petaluma, Redding, Santa Rosa, Sonoma County,
and Willits, California. Sixty-day notice letters have been
sent to additional communities, including Forestville,
ES ee Te Ee
App. 8
Occidental, Russian River, Santa Rosa, Sea Ranch, So-
noma County, and Wikiup, California. Many of the suits
have been brought by the same plaintiff, who has sought
significant settlement payments and attorney fees from
the communities. It is in part the prevalence of citizen
suits by the same plaintiff that has created a sentiment on
the part of some California communities that the law is
being misused.
A State, including California, could institute a timely
action to bar a citizen suit under the citizen suit provisions
of the Clean Water Act, which would stay the citizen suit
until the State action is completed, but in the case of the
communities listed above, it appears the State did not do
so. Some communities, including some of those listed
above, that are faced with the threat of very substantial
litigation costs and penalties if they lose, decide to reach
settlements rather than litigate the issues. The terms of
these settlements are reviewed by the presiding judge, the
attorney general, and EPA.
Regulators sometimes decline to assess administrative
penalties against a municipality, particularly if they are
fairly small and have only limited financial resources. The
regulators often prefer to allow the community’s limited
resources to be directed at improvements that will prevent
future violations and improve water quality. However,
even though the regulators have exercised their enforce-
ment powers in these cases, citizen suits are still allowed
to proceed in the Ninth Circuit when penalties were not
sought.
In several cases, the State has placed the community's
wastewater facility under one or more enforcement orders
that direct the local agency to take steps to correct violations
App. 9
within a specified timeframe prior to the filing of a citizen
suit. For example, the Lake County Sanitation District has
been subject to ongoing enforcement, including cease and
desist orders, by the State regulatory agency at two of the
District’s treatment plants and associated sewer collection
systems. As a result of the State enforcement, the District
has implemented several new programs to address the
community's compliance issues. Because the District had
not paid a monetary penalty as part of the State enforce-
ment actions, under Ninth Circuit case law, the plaintiff’s
suit was not barred under the Act. Subsequently, the State
issued a complaint for monetary penalties against the
District for what the community has said are many of the
same violations cited by the plaintiff, and the District is
now faced with defending both a citizen lawsuit and an
administrative enforcement action. A witness at the
hearing, from Lake County, is expected to discuss the
enforcement actions the State has brought against his and
other communities in Northern California, steps the
communities are taking to address their compliance
issues, and their experiences in being sued under the Act’s
citizen suit provisions, despite being subject to ongoing
enforcement over the same issues.
In the City of Fort Bragg, the State issued a series of
enforcement orders requiring the City to upgrade certain
of its wastewater infrastructure in order to meet its
effluent limitations. The State also had proposed changes
to the Citys permit to more accurately reflect limits
applicable to the technologies used at the City’s treatment
plant. Here, too, the City remained vulnerable to a citizen
suit because it had not yet completed resolving all of its
alleged compliance issues, and had paid no penalties. The
City received a 60-day notice letter, alleging violations
App. 10
that the community has said had been addressed'in the
State’s enforcement orders. A citizen suit was subse-
quently filed. The City settled the suit prior to litigation,
with a settlement agreement and order in which the City
agreed to, among other things, pay attorney fees and costs
to the plaintiffs lawyer, and additional money to a public
education fund. The full cost of the suit to the City was in
the order of $150,000, much of which was directed to
actions not required for or related to compliance with the
City’s permit requirements. Another witness, from Fort
Bragg, is expected to describe the enforcement actions the
State brought against his community, the steps his com-
munity has taken to come into compliance, and the com-
munity’s experiences in dealing with the threat of a citizen
suit involving what the community has said were the same
issues.
The State also had already issued administrative com-
plaints or orders to other small and larger communities,
including Los Angeles, when they were sued by citizen
plaintiffs. A witness from Los Angeles is expected to
discuss the City’s long-standing case that was only re-
cently settled with citizen plaintiffs, the State, and EPA.
The case stemmed from a number of wastewater overflows
that occurred between 1993 and 1998, including from the
record-breaking El Nino rainy season in 1998. In the case,
the State originally sought to enforce against the City for
the overflows as well as other small spills caused by root
and grease blockages. In September 1998, the City and
State agreed to settle the enforcement action by agreeing
to a cease and desist order and well over a half billion
dollars worth of major sewer projects to be completed on
an accelerated schedule, and paying an $850,000 civil
penalty. Despite the settlement, however, a month and a
ee ee ee :
App. 11
half later, in November of the same year, the citizen
plaintiffs filed a citizen suit against the City concerning
the same sewer outfalls that were recently addressed by
the State’s Cease and Desist Order. Here, the plaintiffs’
suit was allowed to proceed, despite the City’s prior
settlement, because the plaintiffs had alleged that the City
would have future overflows, while the remedial projects
were underway. The plaintiffs demanded $550 million in
penalties be paid to the United States.
After six years of litigation and millions of dollars of
litigation costs, the City reached a settlement with the
citizen plaintiffs, and with the State and EPA (both of
whom joined the lawsuit in 2001). The witness is expected
to testify that the settlement addressed the same viola-
tions already dealt with in the 1998 settlement between
the City and State, and imposed much the same require-
ments that the City had already agreed to in the 1998
settlement. The witness also is expected to testify that the
citizen suit did not yield additional water quality benefits
beyond what the State’s 1998 enforcement action had
achieved, and cost the citizens of Los Angeles millions of
dollars in litigation costs.
Congress envisioned that citizen enforcement of the Clean
Water Act would be a useful supplement to government
agency oversight, but was not intended to supplant gov-
ernmental action. It remains appropriate, where a regula-
tor is not diligently enforcing the Clean Water Act, that
citizen suits be available to fill the gap. However, there are
questions whether all citizen suits under the Clean Water
Act are serving that function.
App. 12
-~ WITNESSES
PANEL I
City of Fort Bragg
Honorable Jere Melo
Mayor Fort Bragg, California
California Association of Sanitation Agencies
Mr. Mark Dellinger
Special Districts Administrator
Lake County, California
Association of Metropolitan Sewerage Agencies
Mr. Christopher M. Westhoff
Assistant City Attorney
Department of Public Works General Counsel
Los Angeles, California
App. 13
amsa
Association of
Metropolitan
Sewerage Agencies
TESTIMONY OF THE
ASSOCIATION OF METROPOLITAN
SEWERAGE AGENCIES (AMSA)
September 30, 2004,
Presented by
CHRISTOPHER M. WESTHOFF
Assistant City Attorney
Public Works General Counsel
Los Angeles, California
Submitted to the
SUBCOMMITTEE ON WATER
RESOURCES AND ENVIRONMENT
in
WASHINGTON, DC
1816 Jefferson Place, NW
Washington, DC 20036-2505
202.833.AMSA
202.833.4657 FAX ;
info@amsa-cleanwater.org
Testimony of Christopher Westhoff
Assistant City Attorney,
Public Works General Counsel,
Los Angeles, California
on behalf of the
Association of Metropolitan Sewerage Agencies
App. 14
Introduction
Good morning Chairman Duncan, Congressman Costello,
Congressman Thompson, and members of the Committee,
my name is Chris Westhoff. I am an Assistant City Attor-
ney for the City of Los Angeles and I have served as
General Counsel to the City’s Department of Public Works
for over 20 years. I am also a Board member of the Asso-
ciation of Metropolitan Sewerage Agencies (“AMSA”) and
serve as AMSA’s Secretary and as Chair of AMSA's Legis-
lative Policy Committee. AMSA represents nearly 300
clean water agencies across the country. AMSA’s members
treat more than 18 billion gallons of wastewater each day
and service the majority of the U.S. sewered population.
On behalf of AMSA and the City of Los Angeles, I would
like to thank you, Chairman Duncan, and the members of
this Committee for your continued commitment to clean
water issues — in California and nationwide. Your dedica-
tion to solving the challenges our communities face across
the nation, including in Los Angeles, is essential to achiev-
ing the goals of the Clean Water Act.
Our nation’s streams, rivers, lakes and oceans are cleaner
today than they have been in over half a century. This has
been accomplished by the unparalleled efforts of the many
cities, special districts, municipalities, and industries that
discharge treated effluent into the waters of the United
States. The backbone of the transformation of America’s
waters has been the Federal Clean Water Act.
Hundreds of billions of dollars have been spent by the
federal government, states, industries, and cities around
the country to bring our nation’s waters to their current
condition. And, we must continue to spend billions more to
maintain the improvements we have achieved to date and
App. 15
to continue moving forward in the pursuit of improving
the quality of our receiving waters.
Without question, the efforts of the governmental regula-
tors entrusted with enforcement authority under the
Clean Water Act — and in cases, the actions of citizens and
environmental organizations stepping in when govern-
mental regulators neglected to act — have contributed to
our national water quality improvements. However, the
natural tension between appropriate governmental regula-
tory action and citizen enforcement frequently has placed
permitted entities like my City in a losing battle.
The drafters of the Clean Water Act clearly saw govern-
mental enforcement against permitted dischargers as the
critical element in the ultimate success of the intent of the
Act. In the Act itself, citizen enforcement was designed to
play a secondary, supplementary role, allowed only when
the appropriate governmental regulators failed to dili-
gently prosecute a permit holder for violations.
Yet today, the combination of court precedent and the U.S.
Environmental Protection Agency’s (“EPA’s”) narrow
interpretation of its own regulations has skewed the intent
of Congress concerning citizen enforcement. Today, permit-
ted dischargers like my City, in California and across the
country, routinely suffer the indignity, negative publicity,
and substantial financial burden of having to respond to
third party lawsuits brought by environmental activist
groups for substantially the same violations addressed in
prior enforcement actions by our regulators.
The concept of “double jeopardy” is fundamental in Ameri-
can jurisprudence. While not rising to the level of actually
violating this foundational cornerstone, when a permitted
discharger has already answered to its governmental
GR ana aig sci RY
App. 16
regulator in an enforcement action, it is patently unfair for
the permit holder to be required to address the same
issues in a third party lawsuit filed under the citizen suit
provisions of the Clean Water Act. When regulators
diligently enforce, citizen suits should be precluded.
Nonetheless, Los Angeles just finished six years of litiga-
tion initially filed in 1998 by a third party citizen group,
the Santa Monica Baykeeper, and ultimately joined years
later by the EPA and the U.S. Department of Justice. This
citizen suit was brought notwithstanding the fact that the
City had settled an enforcement action for the same viola-
tions with our state permitting entity in the month imme-
diately prior.
Because of its size and reputation, Los Angeles may not
engender a lot of sympathy when it finds itself as the
victim of a lawsuit filed by an environmental group.
However, if it can happen to Los Angeles, it can happen to
any other permitted discharger - industrial, special
district, or municipality — large or small across this nation.
Los Angeles has a municipal wastewater collection system
that consists of close to 7,000 miles of pipe ranging from
six inches to over 12 feet in diameter. In the winter of 1998
Los Angeles experienced an “El Nino” climatic condition
which resulted in one of the wettest winters in 120 years
of recording such statistics. In the month of February 1998
alone, we received over 14 inches of rain, the rainiest
February on record. To put this in perspective, the average
total rainfall for a year in Los Angeles is just over 15
inches.
Needless to say, the City’s wastewater collection system
was overtaxed and experienced overflows during this rainy
winter. Close to 50 million gallons of wastewater spilled
App. 17
from the City’s pipes in Winter 1998. The good news in
this experience was that even with the incredible amount
of rain we experienced, the wastewater that spilled from
the system was confined to six distinct locations in the
City — and projects to remediate these six locations were
already underway. I know 50 million gallons seems like a
large number, but to give you a frame of reference, Los
Angeles transports close to 190 billion gallons of wastewa-
ter a year — so even in this extraordinarily wet year, the
City still only spilled less than '/% of one percent (.005
percent) of all the wastewater collected that year, and kept
99.995 percent of the wastewater in the pipes.
The City’s permitting regulator sought to enforce against
the City for these spills as well as other small spills caused
by root and grease blockages. In September 1998, the City
agreed to settle the enforcement action by agreeing to a
Cease and Desist Order from the regulator and paying an
$850,000 penalty ($200,000 in cash and $650,000 in
environmental projects). Further, Los Angeles agreed to
construct major sewer projects totaling over $600 million
on an accelerated schedule of just over six years. One
project alone was the largest single public works project
ever awarded by the City of Los Angeles at just over $250
million for a 12 foot diameter mainline sewer tunnel. This
project was built in a compressed timeframe through the
simultaneous use of four tunnel boring machines, the first
time this was ever done.
In October of the same year, the Santa Monica Baykeeper
held a press conference and announced their lawsuit
concerning the exact same sewer spills addressed by the
Cease and Desist Order issued by the City’s permitting
regulator just one month before. You may wonder why the
Baykeeper’s suit was not precluded by our prior settlement.
App. 18
Because all they had to allege is that the City would have
future spills — while our remediation projects were under-
way — and their case could proceed. To complicate matters,
in January 2001, the EPA, through the Department of
Justice, filed yet another lawsuit — this one covering the
same spills as the Cease and Desist Order and the
Baykeeper lawsuit, and adding on small spills that had
occurred between 1998 and 2001.
It is important to note that in the six years since the 1998
“El Nino” winter, Los Angeles has had only four wet
weather related spills. All other spills during that time
frame have been caused by root and grease blockages.
Also, in the six years since 1998, the average yearly
volume of wastewater spilled out of the Los Angeles
collection system has been one ten thousandth of one
percent (.000001%) of the total volume collected. That is a
pretty good batting average in any league except the Clean
Water Act. You see, EPA’s interpretation of its own Clean
Water Act regulations is that all spills from a separate
sanitary sewer collection system are flatly prohibited,
regardless of volume, cause, or impact on water quality.
Even with our comprehensive maintenance program, a
municipal wastewater collection system works at its heart
like your pipes at home — only our systems are dramati-
cally larger with more potential spill points. When do you
call Roto Rooter® out to your house, before or after you
have a backup? And, unlike a homeowner who can stop
running water when they have a blockage in their line to
prevent a spill out of a toilet, sink or bathtub; the waste-
water in our pipes keeps coming 24 hours a day, seven
days a week, and 52 weeks a year.
App. 19
EPA has publicly documented that even the best run, best
maintained separate City sewer systems will overflow. And
yet, using a strained regulatory and legal analysis, EPA
and enforcement authorities take a strict liability ap-
proach to these inevitable overflows. This makes every
community with separate sewers an easy target for en-
forcement by third party plaintiffs.
The hard dollar cost to my City of our recent citizen suit
experience — and let me reiterate that we were sued after
we had been diligently enforced against by our regulator —
reads like this: City’s outside attorney fees, almost $5
million; Baykeeper attorney fees, $1.6 million; other
citizen intervenors attorney fees, over $400,000; penalties,
$800,000 (cash), $8.5 million (environmental projects). And
this figure does not account for the incredible amount of
staff time spent supporting the litigation effort and divert-
ing staff from their core responsibilities. I can attest that
this duplicative citizen suit did not yield additional envi-
ronmental benefit to the citizens of Los Angeles — although
it is the citizens’ money that ultimately pays for needless
litigation and attorneys fees through rising sewer rates.
Let me be clear. No one is asking that citizen suits go
away. As responsible environmental stewards, we realize
that the citizen suit provision of the Clean Water Act is a
powerful and necessary tool — to fill enforcement gaps.
Where a regulator is not diligently enforcing the Clean
Water Act, citizen suits are a critical and important
secondary source of Clean Water Act enforcement. How-
ever, where Congress’ intended prime Clean Water Act
enforcer has done or is doing its job, municipalities need
protection from redundant third party lawsuits that will
raise the cost of the clean water services we provide.
App. 20
Let me conclude by stating that AMSA would welcome the
opportunity to work with this Subcommittee to discuss
ways to focus future third party lawsuits against munici-
palities where Congress intended them — where there is an
enforcement gap. I note that some of the witnesses today
will offer the Subcommittee specific reforms to begin this
dialogue. We will be pleased to contribute to the process.
Again, I thank you for your attention to this important
issue. At this time, I would be happy to answer any ques-
tions.
App. 21
CALIFORNIA ASSOCIATION
[LOGO] of SANITATION AGENCIES
925 L Street, Suite 140% Sacramento, CA 95814
PH: (916) 448-4808 www.casaweb.org
TESTIMONY OF THE
CALIFORNIA ASSOCIATION
OF SANITATION AGENCIES
Presented by
MARK DELLINGER
SPECIAL DISTRICTS ADMINISTRATOR
LAKE COUNTY, CALIFORNIA
Submitted to the
SUBCOMMITTEE ON WATER
RESOURCES AND ENVIRONMENT
COMMITTEE ON TRANSPORTATION
AND INFRASTRUCTURE
U.S. HOUSE OF REPRESENTATIVES
WASHINGTON, DC
September 30, 2004
Ensuring Clean Water For California
Good Morning, Mr. Chairman and Members of the Sub-
committee:
I am Mark Dellinger, Special Districts Administrator for
the Lake County Sanitation District in Northern Califor-
nia. It is my privilege to address the Subcommittee today
on behalf of the California Association of Sanitation
Agencies (CASA). CASA is a statewide nonprofit associa-
tion of over 100 local public agencies that provide waste-
water collection, treatment, disposal and water recycling
services to millions of Californians. Lake County Sanita-
tion District is a member of CASA.
App. 22
There is no question that citizen enforcement has played
an important role in the implementation of the Clean
Water Act and other environmental statutes. Congress
envisioned that the role of the citizen lawsuit would be to
supplement, not supplant, the primary enforcement
function of the States and the federal government. In
recent years in California, however, we have seen a cottage
industry develop in which plaintiffs’ attorneys file citizen
suit after citizen suit against numerous local agencies
without regard to the magnitude or the environmental
impact of the alleged violations, and despite the fact that
communities may already be taking steps to rectify their
situations, either voluntarily or because the State or
USEPA has already undertaken administrative enforce-
ment action.
The Clean Water Act imposes strict liability upon regu-
lated entities. Local public agencies are required to con-
duct thousands of analytical tests each year, so it is not
surprising that there may be a few exceedances. The
results must be reported in the form of public records.
Thus, establishing a Clean Water Act case is generally
very simple. And no matter how strong a showing the local
agency can make that it is doing everything it can to
comply with its permit and protect water quality, proof of
even a handful of violations over a five year period is
sufficient to render the plaintiff a “prevailing party”
entitled to payments of attorneys fees and costs. As local
agencies strive to comply with ever changing, increasingly
stringent reguiatory requirements, every violation, how-
ever minor, is accompanied by the specter of possible
administrative enforcement and citizen litigation.
I would like to briefly discuss the Lake County Sanitation
District’s experience, summarize the experiences of several
2 tN Lideasin PARIS EN le raailo Ch eid 2 eR adic “
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4
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App. 23
other communities around the State, and close by offering
the Subcommittee some suggestions for reform that we
believe will help to reinforce the original intent that
citizen litigation serve as a “gap filler,” to provide a safety
net for the enforcement of real environmental violations
where the government fails to step in.
The Lake County Sanitation District manages and
operates four wastewater treatment plants and is respon-
sible for 200 miles of sewer collection pipes. We serve a
large geographic area that is relatively rural, with a low
population density, which makes it more difficult and
costly to manage. The median household income in the
communities we serve is 62% of the statewide average. In
recent years, the District has undertaken a number of
capital improvement projects, implemented an enhanced
spill response program and made staffing changes to
reduce overflows of treated effluent from our treatment
facilities as well as to control overflows from our sewer
system. Our Board recently approved a series of rate
increases to raise revenues to improve our entire system.
In addition, the District has received federal and state
grant funding for our Full Circle project, which involves
supplying our treated effluent to recharge the Geysers
steam field. We see this as a win-win situation; water
quality is improved due to the beneficial reuse of our
effluent as an alternative to discharge, and the Geysers
project generates clean energy for California residents and
businesses.
These types of improvements do not happen over night, of
course, and unfortunately, as the District has worked to
implement its long-range plans, violations of its state
discharge permits have occurred, some of which may also
be violations of the Clean Water Aci. The State regulatory
App. 24
agency, the Regional Water Quality Control Board, placed
one of the District’s two largest treatment systems under
an enforcement order, which requires that certain actions
be taken by specified dates. The Regional Board was
contemplating taking similar enforcement action for the
District’s Southeast Regional system, but had not yet
issued an administrative order when a so-called “citizen
group,” Northern California River Watch, sued the District
in October 2003 for alleged violations of the Clean Water
Act at both of the treatment plants and the associated
sewer collection systems. Because the District had not
paid a monetary penalty as part of the State enforcement
and compliance actions, under Ninth Circuit case law,
River Watch’s suit was not barred by Clean Water Act
Section 1319(g). After River Watch’s suit was filed, the
Regional Board issued a complaint for monetary penalties
against the District for some of the same violations, and
the District is now faced with the worst of both worlds:
expending its limited resources to defend a citizen lawsuit
and paying potentially duplicative penalties in a parallel
administrative enforcement action. This is surely not what
Congress envisioned.
Other witnesses you will hear from today will tell their
similar stories. I would just like to mention a couple of
other examples of citizen lawsuits against public agencies
to assist the Subcommittee in understanding that Lake
County’s experience is not unique.
In January 2000, in response to a significant sewer over-
flow from the City of Pacific Grove’s collection system
into surface waters, the Regional Board levied a $70,000
fine, required payment toward a supplemental environ-
mental project, and set forth specific directives to upgrade
and enhance Pacific Grove’s sanitary sewer collection
App. 25
system. The City paid the fine and began implementing
the programs and asset improvements as directed. In
June, 2003, the Ecological Rights Foundation filed a
citizen suit against Pacific Grove for alleged violations of
the Clean Water Act based on very small sewer overflows,
overflows that most likely did not reach navigable waters,
and the 2000 overflow in response to which Pacific Grove
had already undertaken several new programs to address
the prevention of sewer overflows. The resulting consent
decree largely memorialized the work the City was already
undertaking and did not measurably enhance water
quality protection. All but two of the overflows alleged in
the complaint were less than 100 gallons. The majority of
the alleged violations were less than 20 gallons and did
not make it to the Bay. Pacific Grove will pay plaintiffs
$300,000. The amount of fees and costs the plaintiff
requested were over $400,000, all of which were allegedly
incurred within one year and without going to trial. The
aggressive pursuit of litigation versus meaningful settle-
ment negotiations was the major factor in the large fees
incurred.
The El Dorado Irrigation District, located in the Sierra
foothills, experienced a series of wastewater compliance
issues caused by growth in the local service area, vom-
bined with a wastewater treatment facility which — un-
known to the District until it was too late — was not
capable of functioning to its designed capacity. The facility
discharged treated water into a seasonal stream that would
not have existed without the facility's discharge. Despite the
facility's difficulty in meeting all of its permit requirements,
the water it discharged into the stream had allowed a
thriving ecosystem of native fish, plants, animals, and birds
App. 26
to develop and to survive and flourish through the dry
summer months.
In order to meet its permit requirements more consis-
tently, the District embarked on a fourteen million dollar
treatment plant upgrade project. The project was proceed-
ing under the oversight of the Regional Water Quality
Control Board, which was also processing an enforcement
order for penalties for past violations, when the California
Sportfishing Protection Alliance filed a citizens’ suit
seeking penalties for exactly the same permit violations.
Even after the District paid a $105,000 penalty to the
Regional Board, the Sportfishing Protection Alliance
refused to dismiss its suit. The District was ultimately
compelled to pay an additional $140,000 for a supplemen-
tal environmental project in lieu of penalties and $160,000
in costs and attorneys fees to settle the citizens’ suit
simply to avoid the continued cost of litigation. Although
supplemental environmental projects are supposed to bear
some relationship to the harm caused by the violations,
the project selected by the citizen’s group was for river-
bank restoration tens of miles away from the wastewater
treatment facility in an area that had never been affected
by the District’s facility.
The City of Healdsburg, located in the Northern Cali-
fornia wine country, instituted a state-of-the-art sewer
maintenance program to eliminate any risk of sewer
system overflows. Although it had no sewer system over-
flows for over three years, and there had been only two
overflows in the two years before that (each of which was
due to blockages in private laterals, not in the public
system), Northern California River Watch filed a notice of
intent to file a citizens’ suit seeking affirmative injunctive
App. 27
relief and penalties for sewer system overflows. Healds-
burg met with River Watch’s attorney and made their
entire set of public records available for review to demon-
strate the effectiveness of their program. Nonetheless, the
citizen group filed the lawsuit and, after Healdsburg had
defended itself for over a year and spent tens of thousands
of its taxpayers dollars on it own attorneys, the citizen’s
group settled for no penalties and only $7,500 in attorneys
fees.
In 1995, a citizen group filed its first lawsuit against the
City of Santa Rosa. The City won the first lawsuit at
trial and on appeal. The same citizen group sued the city
again in 1998 and then settled after the city agreed to pay
for environmental remediation and a portion of the attor-
neys’ fees and costs. The citizen group agreed not to sue
the city for violations that might occur before a date in the
future. In 2000, the City of Santa Rosa was sued for a
third time by the same attorney representing substantially
the same plaintiffs. Throughout the time all three lawsuits
were initiated and pending, the City was under a Cease &
Desist Order issued by the Regional Water Quality Control
Board, under which the City was required to develop and
implement a reclaimed water disposal project within a
specific time schedule. That project was later implemented
in compliance with the state-issued enforcement order.
Prior to the filing of the third lawsuit, the State com-
menced a comparable enforcement action (seeking mone-
tary penalties) against the City by publishing notice and
scheduling a hearing regarding the issuance of a com-
plaint for administrative penalties against the City.
However, because the penalty order was not issued until
after plaintiffs’ lawsuit was filed, the Federal District
App. 28
Court found that the state’s comparable enforcement
action did not bar the plaintiffs’ lawsuit.
The City was not only fined $98,350 by the RWQCB for
violations alleged in the third lawsuit but also settled the
third lawsuit for a total of $195,000 ($75,000 in attorneys
fees and $120,000 to fund a grant program). Under the
terms of the settlement of the third lawsuit, plaintiff
Northern California River watch agreed not to sue the
City pursuant to the Clean Water Act for a period of four
years. On July 15, 2004 — exactly two months after the
expiration of the stipulated moratorium on litigation —
River Watch filed a Notice of Intent to Sue Santa Rosa for
what can best be described as “creative” interpretations of
the Act and the City’s permit. This will be the fourth Clean
Water Act lawsuit against the City in less than 10 years.
There are many more examples like these. I want to
emphasize that none of these communities were “perfect,”
in that each of them had experienced compliance problems
and did not have spotless records. The important point is
that in each case, either the community was already
acting by itself or the State had already stepped in and
programs were being implemented to guard against
similar future violations. Just as the citizen suit was
intended to supplement government action, it was also
intended to be “forward looking.” Citizens may not sue for
wholly past violations. Given the length of time it takes to
plan, finance and construct improvements, many agencies
find themselves in a gray area where even though they
have committed to a specific set of improvements, they
cannot avoid occasional violations while these upgrades
are being made.
App. 29
From CASA’s point of view, reform is needed to ensure
that citizen suits serve their intended purpose of supple-
menting limited government enforcement resources and
preventing future violations. I would like to briefly men-
tion several potential reforms for the Subcommittee’s
consideration.
Clarify Availability of Attorneys Fees:
The availability of attorneys fees is without question a
significant motivation for some third party plaintiffs to
bring or threaten lawsuits. Under the Clean Water Act, a
“prevailing” citizen plaintiff is entitled to attorneys fees
and costs; a prevailing defendant may only recover fees if
it can demonstrate that the plaintiff’s suit was frivolous or
entirely without merit. Thus, except in the most ill advised
cases, there is very little downside to pursuing litigation
for a third party plaintiff. Contrast that with the circum-
stance of a local public agency defendant that knows it has
a strong case against sizeable penalties but nonetheless
has some exposure because of a few minor violations. If
the defendant goes all the way through trial, even if it
significantly reduces the penalty assessed, it may find
itself on the hook for not only its own attorneys’ fees,
expert fees, and costs, but also similar costs and fees
incurred by the plaintiff. These facts place the plaintiff’s
attorney in a very strong bargaining position with regard
to settlement.
Of all of the possible reforms, revisions to the attorneys’
fees provisions of the Act are most likely to bear fruit, as
the availability of these fees is what is motivating many of
the abuses. With that in mind, CASA recommends that the
Subcommittee consider the following:
App. 30
e Limit attorney fee awards to the degree of success
on the claims included in the complaint. For ex-
ample, if a plaintiff alleges 100 violations and
proves 10, plaintiff should able to recover only a
proportionate amount in fees.
e Issue a clear statement of congressional intent
that the attorney fee provision of the Act be read
as reciprocal, so that attorneys’ fees are available
to the prevailing party — period. The language of
the Act supports this reading, but the Courts have
interpreted the language to allow prevailing
plaintiffs to recover fees while prevailing defen-
dants are held to a much more difficult standard.
e Place a cap on the amount of fees that may be ob-
tained in a lawsuit against a public agency. The
cap could be set as either an absolute cap or as a
percentage of any penalties assessed. In the latter
case, a proportionate cap would insure fees are
not disproportionate to the nature of the viola-
tions actually proven. While these steps may not
prevent “nuisance” suits, they would limit a com-
munity’s potential exposure to exorbitant fees and
make it less of a target.
Reinforce Primary Role of the States
Congress specified that no citizen suit could be maintained
where the State or the USEPA is “diligently prosecuting”
an action against the alleged violator. Given the time it
takes to process a State enforcement action, the fact that
the State is already “diligently prosecuting” is not enough
to bar a citizen suit. In addition, the Ninth Circuit has
determined that only a State enforcement action requiring
the payment of monetary penalties will serve as a defense
to a citizen lawsuit. Because achieving compliance rather
+ am Oh silt alee tine Pad ate P er nealent IY ee At alia, Ais UY ad, ge aallty.
a
ttyl Wee
App. 31
than punishment is generally the goal of water quality
enforcement actions, the State or USEPA will often choose
not to require payment of monetary penalties preferring to
allow the agency to spend its limited resources on fixing
the problem. In light of this, we ask the Subcommittee to
consider:
Requiring courts to consider the improvements
and actions already being undertaken by the com-
munity either on its own initiative or pursuant to
an enforcement order, a capital improvement pro-
gram, or master plan, etc. The citizen suit should
not go forward unless it can be shown it is likely
to “trigger” further, significant and necessary im-
provement or redress the violations in a manner
supplemental to those already underway. Courts
could be authorized and encouraged to stay citizen
litigation while the improvements already contem-
plated by the community are developed and im-
plemented.
Clarifying that where the State has already
taken, or is in the process of taking, an enforce-
ment action for violations, citizen litigation for
the same or similar violations is barred, whether
or not the State action is complete or included the
assessment of monetary penalties. The 60 day
window within which government is supposed to
act is simply not adequate time for a state regula-
tory agency to investigate alleged violations,
evaluate the appropriate enforcement approach,
issue a complaint, provide an opportunity for pub-
lic notice and comment, hold any required hearing
and complete the action. It should be sufficient for
the State or USEPA to make a determination as
to whether it intends to enforce within a specified
number of days. If the government decides to
bring an action, the citizen suit should be stayed
App. 32
pending initiation and resolution of the agency
enforcement action. If the State enforcement ac-
tion is not completed within a reasonable period
of time, the third party plaintiff could then pro-
ceed with its suit.
There may be other reforms suggested here today. CASA is
very appreciative of the Subcommittee’s interest and
leadership in finding solutions to the citizen suit abuses.
We urge the Subcommittee to consider carefully the
various options for improving the law and ensuring that
citizen suits against local government only proceed where
they will promote real environmental solutions. Local
agencies want to be partners with the federal government
and the states in achieving water quality improvements.
Diverting attention, limited resources, and energy to
defend third party lawsuits where compliance solutions
are already underway is counterproductive and disheart-
ening.
Thank you for your time. Melissa Thorme, an Attorney
with the Sacramento law firm of Downey Brand, LLP, and
a Member of CASA’s Attorneys Committee, is here with me
and we would be pleased to answer any questions that the
Subcommittee may have.
App. 33
[LOGO}
CITY OF FORT BRAGG
Incorporated August 5, 1889
416 N. Franklin St.
Fort Bragg, CA 95437
Phone: (707) 961-2823
Fax: (707) 961-2802
ci.fort-bragg.ca.us
TESTIMONY PRESENTED BY
JERE MELO
MAYOR
CITY OF FORT BRAGG, CALIFORNIA
Submitted to the
SUBCOMMITTEE ON WATER
RESOURCES AND) ENVIRONMENT
COMMITTEE ON TRANSPORTATION
AND INFRASTRUCTURE
U.S. HOUSE OF REPRESENTATIVES
WASHINGTON, DC
September 30, 2004
; Mr. Chairman and Members of the Subcommittee:
; Thank you and your staff for the invitation to present
testimony to the Subcommittee today.
My name is Jere Melo, and I am the Mayor, City of Fort
Bragg, California. The City is located about 150 miles
north of San Francisco, right on the Pacific Ocean. Fort
Bragg is a city of about 7,000 residents, and it serves a
population of 18,000 to 20,000 persons who live and work
| along about 65 miles of the California coast.
App. 34
I refer you to the details in the “City of Fort Bragg Case
Study”, which is attached hereto. My presentation will be
as a small town mayor, not as an NPDES permit or Clean
Water Act legal expert.
“Are Citizen Suit Provisions of the Clean Water Act
Being Misused?”
To get right to the point of this hearing, I believe the
citizen suit provisions of the Clean Water Act are being
misused. The City of Fort Bragg has been damaged by the
provisions for citizen suits. We were faced with the uncer-
tainty and expense of a threatened citizen lawsuit against
the discharges from our waste water treatment plant. We
believe we were in compliance with our NPDES permit for
nearly all of the alleged violations listed in the citizen
complaint, but the time and cost to defend the charges was
beyond the diminished return. And so, we came to a
settlement with the citizen group in order to cut our
losses.
I believe it is important to state that in our case, the
citizen group was not made up of local, concerned citizens.
The group was from a city about 100 miles from Fort
Bragg and located in a different county.
Citizen Suits Have Been Used Against Many Cities,
Sanitation Districts and Businesses in the Redwood
Empire and Across California.
Fort Bragg’s experience is not unique. Nearly all of the
cities in our part of California have encountered citizen
suits. One particular, larger city, Santa Rosa, has been
challenged several times, all with the same result. Each
city, or sanitation district, settled before the matter went
to court. The potential cost of defending the suit and the
A te rm.
App. 35
uncertainty of prevailing on all points raised makes a
settlement the most cost-effective solution.
Businesses are also not exempt from citizen suits. There
are some manufacturing operations that have an NPDES
permit and a waste water treatment process. The same
group that challenges publicly-owned treatment plants is
the group that threatens suit against business. To some
degree, the citizen suit can be a job-killer, in that the cost
to settle makes the cost of production rise, and plants
become marginal with increases in costs.
I am very active in environmental! policy matters through
the League of California Cities. I tell you that the experi-
ence I relate to you about Fort Bragg and its neighboring
cities is becoming more frequent throughout California. As
more plaintiff’s attorneys see the possibility of easy money
in settlements, there are more threats of citizen suits. It is
a matter that deserves at least the attention this subcom-
mittee is giving. <A
Citizen Suits Come From Small Groups
Earlier I indicated that the group that threatened our city
with a citizen suit is located about 100 miles away. It is
also a very small group. The membership of this group,
Northern California Riverwatch, seems to consist of less
than 10 persons. Riverwatch has threatened and col-
lected settlements from all of the cities in our area. In one
case of the larger city being challenged multiple times,
Riverwatch changed its name, but the persons involved
were the same. And so, the citizen suit provisions of the
Clean Water Act have been co-opted as a new business of
threatened litigation and a real goal of extracting money
from entities that treat waste water.
App. 36
Riverwatch Does Not Promote Water Quality Im-
provements
Once a settlement is complete, there is little interest from
our so-called citizen group. The “book” on a Riverwatch
threat is to suggest a settlement as soon as possible. While
the first reaction to a settlement is a rejection, no one has
waited long for the settlement negotiations to begin. And
they always begin with discussion about their cost to
prepare the threat, some costs for their board members to
review your plant and process and some other funding for
public groups or pet projects.
In Fort Bragg’s case, we paid $12,000 to a Riverwatch
selected consultant to review our plant. In an unmitigated
promotion of his private business, his recommendation
was to purchase his brand of water treatment chemicals,
the “ Vhite Knight” brand, as I recall. Now this consultant
is a Riverwatch board member.
Another provision was to set aside $35,000 in an educa-
tional fund, which we did. A group known locally as “Noyo
Watershed Alliance” (the Noyo River is the primary water
source for Fort Bragg) was given control of the funds for
education or land use improvement. The group has
unanimously agreed to work to relocate a county road in
three locations where very substantial amounts of sedi-
ment are now placed in the river. Riverwatch is objecting
to the use of funds for this work. My best guess is that
Riverwatch wants the $35,000 to end up in someone’s
pocket of its choosing, rather than eliminating three
substantial sources of sediment to a stream providing
habitat for coho salmon and steelhead trout.
App. 37
RECOMMENDATION
The citizen suit provisions of the Clean Water Act need
amendment to prevent misuse. The current system, as
applied in the Redwood Empire of California, essentially
allows allegations of water quality violations to lead to
cash settlements, even where the public agency is already
subject to a compliance order and has made commitments
toward better operation and maintenance or constructing
new facilities or processes. There is no consideration for a
record of otherwise good performance, no consideration for
a record of investment for improvements, and no consid-
eration for working with regulatory agencies to achieve
consistent compliance and to make continued improve-
ments. Some additional burden of reason and proof needs
to be placed on those who threaten a federal suit, prior to
filing the 60-day notice, and such suits should be forbidden
where a city or other permittee is already under a compli-
ance order, notwithstanding that penalties were not paid.
We look forward to any help you can provide to us in this
regard.
Thank you,
Jere Melo
Mayor of Fort Bragg (CA)
City of Fort Bragg Case Study:
The City operates a small trickling filter sewage treatment
plant rated for 1 million gallons per day in dry weather,
but can reach as high as 5-7 million gallons per day in wet
weather due to large rain events.
State Action: On January 23, 1997, the Regional Water
Quality Control Board issued Cease and Desist Order No.
App. 38
97-2, which required repairs to the City’s collapsed biofil-
tration process. The secondary biofilter was repaired in
September, 1997.
On December 10, 1998, another Cease and Desist Order
(“CDO”) No. 98-126 required the preparation of a plan to
meet the City’s effluent limitations, which were not based
on the type of treatment plant operated by the City. The
City submitted the plan in February, 1999 and included a
time schedule for proposed improvements.
On March 22, 2001, the City’s permit was scheduled to be
renewed by the Regional Water Quality Control Board,
including proposed changes to reflect limits for “treatment
equivalent to secondary treatment” applicable to the City’s
trickling filter plant. However, following comment by
RiverWatch, the Board took no action on the permit, but
rescinded CDO No. 98-126 and adopted CDO No. R1-2001-
23, which modified the time schedule for improvements.
Because the permit was never changed, the City remained
subject to permit limits not appropriate for the type of
treatment plant it operated and made the City vulnerable
to citizen suits for permit violations.
The Citizen Suit: In February of 2001, after the Regional
Water Board had already issued enforcement orders,
RiverWatch sent a 60-day notice letter alleging continuing
violations of effluent limits, failure to comply with NPDES
permits and reporting requirements, and discharge of raw
sewage and pollutants into the Pacific Ocean. The case,
which was settled prior to litigation, resulted in a Consent
Decree issued July 9, 2002.
Case Results: As a result of the citizen suit filed by River
Watch, the City of Fort Bragg:
App. 39
As part of the RiverWatch requirements during
the settlement process, the City had to retain Bob
Rawson, selected by Jack Silver, to conduct an
audit/evaluation of Fort Bragg’s collection system
and treatment facility at a cost of $12,000. Bob
Rawson proceeded to review and make recom-
mendations for treatment plant improvements.
One of his recommendations was that the City
use a biological product that Rawson just hap-
pened to sell. Mr. Rawson is a current member of
the RiverWatch Board.
Paid $25,000 in attorneys fees and costs to Jack
Silver plus an equivalent amount in fees to the
City’s own attorneys.
Set up a Public Education fund in the amount of
$35,000, currently being overseen by the Noyo
Watershed Alliance, and now being disputed by
Jack Silver.
The City developed and implemented a grease
trap ordinance and inspection program to reduce
the risk of improper disposal of grease by restau-
rants in the City.
Hired Nute Engineering to complete a pre-
chlorination study of the wastewater treatment
facility for a cost of $5,000.
Began the process of addressing inflow and infil-
tration (I/I) issues. The City has authorized ex-
penditures of $50,000, which was necessary to
secure grant funding totaling nearly $720,000 to
perform the work. Complete by May 30, 2007, all
sewer line repairs identified in a report prepared
by the City in 2000.
Nute Engineering nearly completed the design of
the Sand Filter Project as required by the Cease
App. 40
and Desist Order at a cost of approximately
$35,000. This project is no longer necessary be-
cause of the City’s implementation of a permanent
chemical feed process that has brought the City
into compliance.
The full cost of the suit was in the range of $150,000 to
upwards of $200,000 and required the City to do things
already obligated to do under the Cease and Desist Order
or to do things not required or not related to compliance
with the City’s permit requirements.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.