# Opposition Brief — Louisville & Jefferson County Metropolitan Sewer District v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 904

## Text

| Supreme Court, U.S.
FILED

No. 92-1635

IN THE SUPREME COURT
OF THE UNITED STATES

October Term 1992

\
LOUISVILLE AND JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT
PETITIONER

UNITED STATES OF AMERICA,

COMMONWEALTH OF KENTUCKY,

NATURAL RESOURCES AND

ENVIRONMENTAL PROTECTION CABINET
RESPONDENTS

On Petition for Writ of Certiorari
to the United States Court of Appeals
For the Sixth Circuit

BRIEF FOR THE RESPONDENT KENTUCKY
IN OPPOSITION TO THE PETITION FOR
WRIT OF CERTIORARI

Brenda Gail Lowe

Department of Law

Natural Resources and
Environmental Protection Cabinet
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601

(502) 564-5576

COUNTERSTATEMENT OF THE
QUESTION PRESENTED
I. Did the District Court abuse
its discretion in setting aside a
consent decree involving three

governmental entities?

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE QUESTION

PREOGNLOW «© + = 2 © © 6 © © eh ehUhhUhlhlU 1
TABLE OF CONTENTS .. «5 © « » » «© « GS
TABLE OF AUTHORITIES ....... 1i1
OPINIONS BELOW ..+s+ + «© = © © 6 @ 8 2
JURISDICTION . 2. «© © © © © © © © © *@ 5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........ . 7
COUNTERSTATEMENT OF THE CASE... . 8
REASONS FOR DENYING REVIEW ..... 13
ARGUNBNE «© © © ss 6 6+ © © © © # @ « 13
CONCLUSION ..»++s++¢«¢vst* © © © «© @ 19
APPENDIX

ii

=” BEST AVAL

TABLE OF AUTHORITIES
Cases: PAGE

Goodman v. Lukens Steel Company,
482 U.S. 656 (1987) at page 665 15

Graver Tank & Mfg. Co., Inc. v. Linde Air
Products, Co.,336 U.S. 271 (1949)15

Hardin v. Kentucky Utilities Company,
seG 0.8. 1 (1968) ... +» 2 + *

wn

Heath v. De urcy,

888 F.2 1105 (6th Cir. 1989) . 18
Rice Vv. Sicux City Memorial Park

Cemetery, 349 U.S. 70 (1955) . .- 16
Rudolph v. United States,

eye 0.8. 2698 71962) .....-. §
United States v. Oregon,

366 U.S. 643 (1961) ce a. @ = % 5
Williams v. Vukovich,

720 F.2d 909 (6th Cir. 1983) . . 17
Statutes:
33 U.S.C. $1251 et seq a on eer ee eee ef
a

iil

ABLE CO?!
Pie es Se Sere

NO. 92-1635

IN THE SUPREME COURT
OF THE UNITED STATES

October Term 1992

LOUISVILLE AND JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT
PETITIONER

UNITED STATES OF AMERICA,

COMMONWEALTH OF KENTUCKY,

NATURAL RESOURCES AND

ENVIRONMENTAL PROTECTION CABINET
RESPONDENTS

On Petition for Writ of Certiorari
to the United States Court of Appeals
For the Sixth Circuit

BRIEF FOR THE RESPONDENT IN KENTUCKY
OPPOSITION TO THE PETITION FOR
WRIT OF CERTIORARI

The Respondent, Commonwealth of
Kentucky, respectfully submits the
Petition for Writ of Certiorari should be

denied for the reasons stated herein.

pa

OPINIONS BELOW

Order entered by Chief Judge,
Thomas A. Ballantine, Jr., of
the United States District
Court for the Western District
of Kentucky at Louisville in
the matter of the United States
of America and City of
Louisville v. Louisville and
Jefferson County Metropolitan
Sewer District, Civil Action
No. C 78-0130-L(B), entered
July 3, 1991.

Memorandum entered by Chief
Judge, Thomas A. Ballantine,
.) oo of the United States
District Court for the Western
District of Kentucky at
Louisville in the matter of the
United States of America and
City of Louisville Vv.
Louisville and Jefferson County

2

Metropolitan Sewer District,
Civil Action No. C 78-0130-
L(B), entered November 8, 1991.

A Order entered by Chief Judge,
Thomas A. Ballantine, Jr., of
the United States District
Court for the Western District
of Kentucky at Louisville in
the matter of the United States
of America and City of
Louisville v. Louisville and
Jefferson County Metropolitan
Sewer District, Civil Action
No. C 78-0130-L(B), entered
November 8, 1991.

4. Mandate entered by the United
States Court of Appeals for the
Sixth Circuit on appeal from
the United States District
Court for the Western District
of Kentucky in the matter of

the United States of America

uw

and City of bLouisville v.
Louisville and Jefferson County
Metropolitan Sewer District and
Commonwealth of Kentucky, Civil
Action No. 91-6461, entered
January 12, 1993.

Entered as Mandate March 23,
1993.

Order denying Petition for
Rehearing and Rehearing En Banc
entered by the United States
Court of Appeals for the Sixth
Circuit in the matter of the
United States of America and
City of Louisville Vv.
Louisville and Jefferson County
Metropolitan Sewer District and
Commonwealth of Kentucky, Civil
Action No. 91-6461, entered

March 12, 1993.

JURISDICTION

Petitioner’s application to invoke
the jurisdiction of this Court has
fulfilled the initial requirements of 28
U.8.C. $2257(3). Respondent submits,
nevertheless, that petitioner’s appli-
cation for writ of certiorari should be
denied since the issues presented therein
do not comply with the prerequisites of
Supreme Court Rule 10.

As stated in Rule 10 of the Supreme
Court Rules, the granting of a review on
a petition for writ of certiorari is
purely within the discretion of the
Court. Ordinarily a writ will be granted
only where there are special and
important reasons therefor. See Hardin
v. Kentucky Utilities Company, 390 U.S. 1
(1968); United States v. Oregon, 366 U.S.
643 (1961); and Rudolph v. United States,

370 U.S. 269 (1962).

In order to fully apprise this Court
as to the nature of the issue involved,
the respondent will demonstrate the rule
has not been satisfied. A review of this
argument by the Court will demonstrate
the validity of the respondent’s
contention that the granting of the
application for writ of certiorari is not

desirable.

et

Ss e +

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Clean Water Act, 33 U.S.C.

|
>

COUNTERSTATEMENT OF THE CASE

This case involves the
interpretation of a particular agreement
entered into among three governmental
institutions, Petitioner, the Louisville
ana Jefferson County Metropolitan Sewer
District, (hereinafter MSD), and the
United States of America and the
Commonwealth of Kentucky, respondents.
(Appendix of Kentucky (A.-K.) B.p.2) At
issue is the Morris Forman Treatment
Plant, the largest sewage treatment plant
in the Commonwealth of Kentucky, which
treats the waste water of Kentucky’s
largest city, Louisville. The effluent
from the plant (105 million gallons per
day) (A.K. p.B.2) is discharged into the
Ohio River and sent on its way to the
drinking water supplies of points south
too numerous to mention. In 1972
Congress passed the Federal Water
Pollution Control Act, now evolved into

8

—_ adel

the Clean Water Act, found at 33 U.S.C.
§1251 et seq. That Act, of course,
regulates the discharge of sewage into
the waters of the United States. In
1978, fifteen (15) years ago, the Morris
Forman Treatment Plant was out of
compliance with the Clean Water Act, and
its permit limits under that Act, and the
United States through its Environmental
Protection Agency sought to bring the
plant into compliance. The mechanism
that was utilized was a i981 consent
decree. (A.K. p.B.4) The focus of this
action is the interpretation of the
consent decree.

This action had been originally
brought in April 1978 seeking civil
penalties against MSD for violation of
effluent limitations imposed by its
discharge permit. Under the consent
decree, MSD was to bring the plant into
compliance with the Clean Water Act

9

through a program of corrective action
and improvements. (A.K. p.B.4,5) The
decree provided for protection to MSD
against exposure to fines for violation
of the Clean Water Act while MSD was
attempting to come into compliance. MSD
came into compliance with the limits in
the permit in 1986, but the plant at that
time was not at full capacity for
treating wastewater. (A.K. p.B./) The
United States then moved to terminate the
protections of the consent decree,
arguing that since the plant was in
compliance, the purpose of the consent
decree had been fulfilled, and the
consent decree protection no longer
applied. MSD argued that it was

protected by the decree until the plant

came into compliance at full Capacity,
even though the capacity was never
mentioned in the decree. (A.K. p.B.13)
The Western District of Kentucky

10

disagreed and terminated the decree.
This ended MSD’s_- protection against
enforcement actions.

The Sixth Circuit agreed with the
district court upholding its decision and
noting of MSD’s argument:

"Under MSD’s proposed analysis
of the consent decree, the
purpose of the decree would not
be achieved, so that it must
remain enforced until
additional measures are taken.
Presumably, in the interim, MSD
could continue to take on more
and more customers thus making

the effluent requirements
harder to attain." fAcK.
p.B.16)

The Sixth Circuit affirmed the district
court in finding that the purpose of the
decree was to bring MSD into compliance
with the law. The Sixth Circuit also
noted that there was no indication in the
consent decree that compliance, only
while processing 105 million gallons of

Sewage per day was required. (A.K.

11

eee ae Sn

p.B.17) MSD has now pe -itioned this
Court to review the decision.

The Commonwealth of Kentucky
disagrees with some of the factual
statements made by MSD in its statement
of the case. For example, the
Commonwealti disagrees that under the
consent decree the EPA was required to
fund all remedial work necessary to
correct the defects at the Morris Forman
Treatment Plant. However, even given the
liberties that MSD has taken with the
facts, accepting what MSD says is true,
it is clear, from MSD’s own brief that
review should not be granted in this

matter.

REASONS FOR DENYING REVIEW
THERE ARE NO SPECIAL OR IMPORTANT
REASONS TO GRANT THE WRIT.

There are several basic reasons why
review should not be granted in this
matter.

his The case is fact specific, and
this Court is not a fact finder.

as This case will have no impact
On general federal law, either on federal
constitutional law or on any
interpretation of the Clean Water Act.

: The lower Court’s decision is
in keeping with the basic principles of
public policy.

ARGUMENT

Rule 10 of the Supreme Court Rules
states:

"A review on writ of certiorari

is not a matter of right, but

of judicial discretion. A

petition for writ of certiorari

will be granted only when there

are special and important

reasons therefor."

13

Even a cursory reading of the Petition
will reveal that the reasons for review
qiven by the Petitioner are very fact
specific. On page 15 of the Petition,
the Petitioner states, "the question is
whether or not all of those conditions of
the consent decree were fulfilled,
thereby justifying its termination." The
Petitioner also notes in the Petition
that the issues focus upon the
interpretation to be given a consent
decree. These are not important federal
issues. They are not issues that are
special or important to the United States
and its citizens. These issues may be
important to the Louisville and Jefferson
County Metropolitan Sewer District, but
the consent decree itself is somewhat
unique and questions of its
interpretation are purely questions of

fact. As this Court is previously noted:

"A court of law, such as this
Court is, rather than a court
for correction of errors in
factfinding, cannot undertake
to review concurrent findings
of fact by two court below in
the absence of some very
obvious or exceptional showing
of error." Graver Tank & Mfg.
Co., Inc. v. Linde Air Products
Co., 336 U.S. 271,275 (1949).

See also Goodman v. Lukens
Steel Co., 482 U.S. 656 at page
665.

In addition, this case will have no
impact on general federal law. As you
read the Petition, it is obvious that no
constitutional questions have been
raised. No questions concerning the
interpretation of the Clean Water Act, 33
U.S.C. §1251 et seq have been raised,
either. We are dealing with the
interpretation of one consent decree
involving three governmental entities.

Supreme Court Rule 10 notes that
special or important reasons may include
conflicts among the various appellate
courts of this nation or _ conflicts

15

between the lower court decison and the
applicable decisions of this Supreme
Court. These reasons are not present
here nor has it been argued that they
are. In Rice v. Sioux City Memorial Park
Cemetery, 349 U.S. 70 (1955), this Court
discussed some of the considerations
utilized in granting a Petition for Writ
of Certiorari. The Court stated that it
does not sit to satisfy scholarly
interest or for the benefits for
particular litigants. Id. at 74. This
Court is looking for cases that have
national impact and this case has none.
While it may be possible that someday,
somehow, Similar issues based on a
similar consent decree might come up
among similar parties, this Court can
read the statement of the case, and see
that it involves one consent decree
involving one plant in one city. It is
unlikely that the issues raised on this

16

appeal would come up again, and if they
did, perhaps in one or two more cities,
the issue is still far from being
"special" or "important" enough to merit
review by this Court.

Finally, the lower courts have made
their decision in keeping with the broad
principles of public policy and there is
no reason to set those decisions aside.
The Western District of Kentucky did not
abuse its discretion in terminating this
consent decree. A consent decree is in
essence and in the nature of equitable
relief. See Williams v. Vukovich, 720
F.2d 909 (6th Cir. 1983) where the Sixth
Circuit stated:

"Once approved, the prospective

provisions of the consent

decree operate as an

injunction. Id. at 920."

The proper standard for review of matters
like this in the circuit courts is the
"abuse of discretion" standard. See

a7

eas nxweeeeereeeeveranenijesiiiilicnininncntaaii ae ee a rT

ne

Heath v. De Courcy, 888 F.2d 1105 (6th
Cir. 1989). The Sixth Circuit in Heath
has disguinished between those consent
decrees that are entered into by private
parties (See Id. at 1109) and those that
involve institutions and a form of
institutions where a more flexible
approach is favored (See Id. at 1109).
In essence, this decree between
governmental entities was an attempt at
the reform of the institution of a sewage
treatment plant owned by the public and
operated in the public’s interest, and
therefore should fall under the Heath
standard. The trial judge should be
given wide latitude in attempting to seek
a solution that meets the interest of the
public. These are public. entities
litigating with each other. The Western
District of Kentucky, as affirmed by the
Sixth Circuit, was a wisely fashioned

remedy that would promote the interest of

2
)

the people of Kentucky and of all other
states down along the Ohio River. There
is no special or important reason to
determine whether or not the District
Court abused its discretion in
terminating the consent decree and
deciding this case, but it is submitted
that the Sixth Circuit Court of Appeals
has taken that action already and upheld
the decision.
CONCLUSION

There are no special and important
reasons to review this case. For the
reasons set forth above, the Petition for
Writ of Certiorari should be denied.
Respectfully submitted,

{ \
Aa I Toye
‘BRENDA GAIL LOWE ~~,

Commonwealth of Kentucky

Natural Resources and
Environmental Protection Cabinet
Department of Law

Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601

(502) 564-5576

COUNSEL FOR RESPONDENT

19

PROOF OF SERVICE
I, Brenda Gail Lowe, counsel for

Respondent, Commonwealth of eater 3

herein, hereby certify that on the i

day of (ag , 1993 I served the

Petitioner, Louisville and Jefferson

County Metropolitan Sewer District and
Respondents with a Brief for the
Respondent Kentucky in Opposition to the
Petition for Writ of Certiorari by
placing three copies of the same in the
United States mail first class postage
pre-paid and addressed to Laurence uP
Zielke, Eeq., Pedley, ROSS, Zielke,
Gordinier & Porter, 1150 Starks Building,
Louisville, Kentucky 40202, (502) 589-
4600; for service on the United States of
America, Solicitor General, Department of
Justice, Washington, D.C. 20530, and
Winston E. King, Esq., Counsel for City
of Louisville, Assistant Director of Law,
Room 200, 601 W. Jefferson ae

20

Loulsville, Kentucky 40202, (502) 625-
2589, courtesy copies provided to the
Office of the United States Attorney,
Bank of Louisville Bldg., Tenth Floor,
510 West Broadway, Louisville, Kentucky
40202, (502)582-5911 and Peter A. Appel,
Esq., Environmental Enforcement Section,
United States Department of Justice, P.O.
Box 23795, L’ ENFANT Plaza Station

Washington, D.C. 20026, (202)514-2774.

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\PBRENDA GAIL LOWE

APPENDIX A

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

UNITED STATES OF AMERICA
Plaintiff

and

CITY OF LOUISVILLE
Intervening Plaintiff

Vv. No. C 78-0130-L(b)

LOUISVILLE AND JEFFERSON COUNTY

METROPOLITAN SEWER DISTRICT and

COMMONWEALTH OF KENTUCKY
Defendants

MEMORANDUM

This matter is before the Court on
the motions of the defendant, Louisville
and Jefferson County Metropolitan Sewer
District (MSD), and the intervening
plaintiff, City of Louisville (City), for
reconsideration of the Court’s Order of
July 3, 1991 terminating a Consent
Decree. The Consent Decree was entered
as a final judgment on November 24, 1981.

The Environmental Protection Agency

(EPA) brought this action in April, 1978,

LLL A

seeking civil penalties ag ist MSD for
violations of effluent limits imposed by
National Pollution Discharge Elimination
System (NPDES) Permit No. KY 0022411 at
the Morris Forman Wastewater Treatment
Plant (MFWTP). Title 33 U.S.C. §1342.
The NPDES permit had been issued to MFWTP
in 1977 pursuant to the provisions of
the Federal Water Pollution Control Act
(the Clean Water Act).' Title 33 U.S.C.
Sections 1251 et seq. Prior to the
execution of the Consent Decree, the EPA
and MSD entered into a Memorandum of
Understanding (MOU) in which the parties
stated their intention to resolve the
litigation and discussed the provisions

subsequently embodied in the Consent

Decree.

NPDES permits are valid for no more

than five years.

MSD stipulated that it had violated
the permit. The Consent Decree provided
that MSD would initiate an Interim
Corrective Action Program (ICAP) and an
Evaluation Program (EP) as the first
steps of a "phased approach" to bring
MFWTP into compliance with “applicable
effluent limitations." Pursuant to those
programs MSD was to implement limited
improvements to the MFWTP and evaluate
the operation of the facility, using
certain tests outlined in Appendix A to
the Consent Decree. MSD was to submit to
EPA written notification of each
corrective action indicated as necessary
during the evaluation period and state
whether the action constituted a major
modification, a minor modification or an
operational improvement. MSD was also to
Submit a "final design report identifying
the performance improvements of minor

modifications and operational improve-

3

B BEST AVAIL

ments, and the cost effectiveness of
major physical modifications that may
improve the performance of the final
settling tanks," along with a summary
report of the test results. Similarly,
MSD was to initiate and complete a
performance test of the oxygen
dissolution capacity of the UNOX reactors
and equipment and submit a summary report
along with recommendations for “any
required structural/equipment modifi-
cations." After completion of the ICAP
and the EP, MSD was to complete a cost
effectiveness analysis of any major
modifications and then submit a Final
Plan and Schedule (FP&S) "for achieving
compliance with all applicable effluent
limitations" to the EPA for its approval.
According to the terms of the Consent
Decree, MSD was to carryout the FP&S only

after i approval | EPA.

BLE COPY

Section V of the Consent Decree
providing for MSD’s interim
compliance states in pertinent part:

(B) The parties recognize that
MSD’s current NPDES-~ permit is
scheduled to expire on June 30,
1982. It is the intent of the
parties that in the NPDES permit
renewal process for the [MFWTP] the
terms of this Consent Decree shall
be taken into account and that, to
the extent permitted by law, the
[EPA] shall propose a renewed
permit, the terms of which are not
inconsistent with those of this
Decree.’

Section VII provides:

The parties have agreed that certain
elements of the current Corrective
Action Program are eligible for
federal funding under the provisions
of the Federal Water Pollution
Control Act, as amended; that they
disagree as to the eligibility of
other elements of the program and
that these elements will be the
subject of an appeal as provided for
under Subpart J, Part 30 of Title 40

-MFWTP’s permit was renewed and the
renewed permit expired in 1987. As of
1990, MSD was still operating under the

expired permit.

of the Code of Federal Regulations;
and that other elements of the
program will be eligible for federal
funding if they are found to be

necessary under the Interim
Corrective Action and _ Evaluation
Progran ..:

The MOU sepa ated into four

categories the items in MSD’s Revised
Corrective Action Program for which
funding was sought. The UNOX reactor
was included in Category C:
"Those items which EPA believes to
be grant eligible, but for which
EPA questions the necessity pending
the evaluations noted above in
Section III. The parties agree
that should the evaluations
indicate that these items are
necessary to meet applicable
effluent limitations, EPA will fund
them promptly, contingent upon the
availability of federal funds."

6

Finally, the Consent Decree provides
that the Court will retain jurisdiction
"for such further orders as may be
necessary or appropriate for the
construction or implementation of this
Decree or for the enforcement or
compliance therewith" and that the Decree
"shall terminate upon application of the
parties."

On June 10, 1983, MSD submitted the
FP&S to EPA for approval and funding.
The FP&S provided for the addition of a
UNOX Battery ("Battery D" or "UNOX") to
the MFWTP. In March, 1985, EPA informed
MSD that it "was not convinced" of the
necessity for Battery D and that its
eligibility would not be considered
"unless its need is demonstrated after
other phases are completed." In
response, MSD retained Camp, Dresser &
McKee, Inc. (CDM), specialists in sewer
plant design, construction and operation

7

to evaluate the need for Battery D. In
June, 1985, CDM’s” report, supporting
MSD’s position, was submitted to EPA. In
August, 1985, EPA notified MSD that it
had “considerable doubt" as to the
necessity of Battery D and that it
believed compliance with effluent limits
could be met with the items already
funded. However, EPA added that it might
reconsider its decision if the funded
items did not bring MFWTP in compliance.
In November, 1988, while the renewed
NPDES permit was still in effect for
MFWTP, MSD received a letter from the EPA
stating:
(T] Final Plan and Schedule (FPS)
developed under Grant No. C210553-03
was conditionally accepted by EPA,
but never officially approved....
Since EPA’s initial receipt and
review of the FPS, the proposed
option to increase the capacity of
unit processes in the plant has been
implemented in accordance with EPA
comments. The implemented plan is
providing wastewater treatment in

accordance with the limits of the
NPDES permit. Therefore, this

letter constitutes EPA approval of
the Final Plan and Schedule.

Only July 20, 1989, Russell Wright, an
EPA representative, contacted William
Gatewood, Manager of the Construction
Grants Branch of the Division of Water
for the Kentucky Department of Natural
Resources and Environmental Protection
Cabinet (KNREPC). Wright informed
Gatewood of a June 29th meeting with MSD
in which the EPA and the Kentucky
Division of Water agreed to MSD’s request
for a "reevaluation of their proposed
project of adding another unox
oxygenation battery, known as Battery D,
to their existing plant." (Emphasis

added) .‘

‘During this time, EPA was

delegating responsibility for wastewater
regulations to the State and a new

discharge permit had been proposed for

9

On November 6, 1989, MSD contacted
KNREPC to set up a time to discuss issues
related to “remaining aspects of the
Final Plan and Schedule Construction
Projects," including Battery D. In the
letter, MSD stated that all necessary
improvements to the MFWTP had been
implemented or were currently under
construction except for Battery D. MSD
also noted that MSD’s service area was
expanding, “additional sludge flows were
not included or anticipated in the
development of the FP& S" and that the
proposed NPDES permit "includes

additional effluent criteria" not

MFWTP by KNREPC. The proposed permit
contained stricter effluent limitations.
MSD asserted to KNREPC that it would not
be able to meet the more stringent
standards in the proposed permit without
the addition of Battery D.

10

provided for or anticipated in the FP&S.

On July 17, 1990, the United States,
on behalf of the EPA and joined by the
Commonwealth of Kentucky, filed a motion
to terminate the Consent Decree on the
basis of MSD’s compliance with its NPDES
permit from 1986 through 1990. On August
17, 1990, MSD submitted to KNREPC for
approval a design for bioroughing towers
to be constructed at MFWTP in lieu of
Battery D and on October 1, 1990, EPA
notified MSD that a federal grant for the
bioroughing towers had been approved. On
July 3, 1991, this Court terminated the
Consent Decree, finding that the
underlying purpose of the Decree had been
satisfied.

The parties agree that a Consent
Decree must remain in effect so long as
its continued enforcement is necessary to
effectuate its purposes. The purpose of
the Consent Decree in the case at hand

11

was to bring MFWTP into compliance with
the law.° The parties’ argument over when
the Consent Decree may properly terminate
stems from conflicting interpretations of
critical terms of the Decree. MSD argues
that all the work identified in the FP&S
has not been completed and therefore, the
Consent Decree may not be terminated.

The United States argues that MFWTP’s

SuPhat authority of a federal
district court to adopt a consent decree
comes only from the statute which the
decree is intended to enforce. If there
is a ‘purpose’ to be effectuated, it is
the purpose of the stature pursuant to
which the government seeks relief.
Within that framework the parties strike

their bargain." United States v. Motor

Vehicle Manufacturers Assoc. of the
United States, 643 F.2d 644, 650 (9th

Cir. 1981).

12

compliance with effluent limitations at
any stage of major modifications, set

forth in the FP&S and approved by EPA,

required termination of the Consent
Decree.

Consent decrees have been recognized
as having attributes of both contracts
and judicial acts. United States v. ITT
Continental Baking Co., 420 U.S. 223, 236
n. 10, 95 S.Ct. 926, 934 nn. 10, 43
L.Ed.2d 148 (1975); United States v.
Armour & Co. 402 U.S. 673, 681-82
S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971).
Principles of contract law are used for
purposes of interpreting the meaning of a
consent decree. Only when the language
of a consent decree is not clear on its
face, have courts been forced to resort
to equitable considerations to define the
limits of a consent decree. Chrysler
Corp. v. United States, 316 U.S. 556, 62
S.Ct. 1146, 86 L.Ed. 1668 (1942).

13

We find that the language of the
decree is quite clear and that its
purposes have been accomplished.

Appendix A of the Consent Decree
provides for MSD to undertake a series of
interim steps to determine whether

limited improvements would bring about

compliance with "applicable effluent
limitations." A cost effectiveness
analysis of suggested major plant

modifications was to be implemented in
the event that the interim steps did not
result in compliance and only then was
the FP&S to be developed by MSD. Nothing
in the language of the Consent Decree or
the Memorandum of ierstanding compels
the conclusion that the EPA was required
to approve the entire FP&S as initially
submitted by MSD. It appears from the
face of the Consent Decree that MSD’s
requirement to implement any of the FP&S

was contingent on EPA’S approval of any

ee

part of the FP&S. The record shows that
MSD formally approved the FP&S and found
MSD to be in compliance with “applicable
effluent limitations" in November of
1988. MSD does not deny that it was in
compliance with the renewed NPDES permit
in November of 1988 and it had been in
compliance until 1990. Therefore, the
duties of EPA and MSD under the terms of
the Consent Decree ended as of November,
1988. The July 20th, 1989, letter to
KNREPC from the EPA does not suggest that
the EPA changed its position as to the
requirements of the Consent Decree.

In addition, Section V_ of the
Consent Decree contemplates that the
"applicable effluent limitations"
referred to throughout the Consent Decree
are those limitations imposed by the

NPDES permit issued in 1977 and the

15

renewed permit which expired in 1987.°
MSD requested approval of Battery D from
the KNREPC based on a projected increase
in effluent flow and the _ heightened
requirements of a proposed NPDES permit.

The City and MSD argue that the
Consent Decree may only be terminated on
the agreement of all parties and
therefore, the Court did not have
jurisdiction to terminate the Consent
Decree.

Section XII provides: "This Decree
shall terminate upon application of the
parties." This provision simply allows
the parties to terminate the Decree by
agreement; it does not divest the Court
of jurisdiction to end the Decree upon
the motion of any party and a finding

that the purposes of the Decree have been

fulfilled.

‘See footnote 2.

16

An appropriate order has been

entered this 8th day of November, 1991.

THOMAS A. BALLANTINE, JR.
Chief Judge, U.S. District Court

kms493/apendx1l1.bgl

APPENDIX B

w
~

NO. 91-6461
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
CITY OF LOUISVILLE

Intervening Plaintiff-Appellee,

On Appeal from the United States
District Court for the
Western District of Kentucky

LOUISVILLE AND JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT

Defendant-Appellant,
COMMONWEALTH OF KENTUCKY,

Defendant-Appellee

Before: MERRITT, Chief Judge; and
GUY and RYAN, Circuit
Judges.
Ralph B. Guy, .) oo Circuit Judge.

Defendant, Metropolitan Sewer District,
appeals the district court’s order
terminating a 1981 consent decree. On

appeal, defendant argues that the purpose

of the consent decree has not been
achieved and therefore the court should
not have terminated the decree. We agree
with the district court that the purpose
of the consent decree has been
accomplished and therefore affirm.

I.

Louisville and Jefferson County
Metropolitan Sewer District (MSD) was
created pursuant to enactments of the
Kentucky Legislature, Ky. Rev. Stat.
§76.010, to develop and operate a
Sanitary and storm sewer system in
Jefferson County, Kentucky. In the late
1970s, defendant contracted with Blount
Brothers to build the Morris-Foreman
Waste Water Treatment Plant (MFWTP) ,
which was completed in 1974. The design
plans, approved by the Environmental
Protection Agency, anticipated sewage
flow of 105 million gallons per day.

MFWTP was issued a National Pollutant

Discharge Elimination System (NPDES)
permit by the EPA in 1977 pursuant to
applicable provisions of the Clean Water
Act. This permit required MSD to meet
specific effluent limitations for
biochemical oxygen demand (BOD) and total
Suspended solids (TSS). Unfortunately,
substantial defects in design caused the
plant’s effluent to exceed its permit
limits. Major litigation ensued between
MSD and Blount Brothers, resulting in a
multi-million dollar settlement. How-
ever, MSD was still faced with a plant
that was not complying with its permit
requirements.

In April 1978, the EPA brought an
enforcement action against MSD for
violating the plant’s permit. MSD faced
Civil penalties of $10,000 per day for
violating its permit. 33 U.S.C. §1319(d)
(1986). Over the next two years, the

parties came to an agreement,

memorialized in a "Memorandum of
Understanding," and entered into a
consent decree. According to appendix A
of the consent decree, MSD was’ to

undertake two steps to bring the plant
into compliance with its permit. MSD was
to conduct an "Interim Corrective Action
Program" to ascertain if limited
improvements to the plant could bring
about compliance with applicable effluent
limitations and an “Evaluation Program"
to determine the relative feasibility and
economic efficiency of alternative
improvements. If these steps showed that
the MFWTP could not achieve compliance
with applicable effluent limitations
without major physical modifications,
then MSD was to submit a "Final Plan and
Schedule" detailing the major physical
modifications and equipment modification
required. According to the consent
decree, "({u]pon approval by EPA Region

4

IV, MSD shall carry out that Final Plan
and Schedule." (App.62). The agreement
also established those items EPA would
fund and would not fund, those items the
parties disagreed upon funding, and those
items the EPA felt were eligible for
funding but would not approve unless
shown to be necessary. The consent
decree provides:

Although §1319(d) OF 33. U.8.€.
provides that penalties may be sought for
violation of applicable effluent
limitations, EPA has elected not to seek
such penalties in this instance in light
of MSD’s substantial efforts including
both studies and physical work to correct
the deficiencies which have prevented
MFWTP from achieving applicable effluent
limitations.

(App.54).

MSD proceeded to undertake the
actions required by the consent decree,
completing the Interim Corrective Action
Program and Evaluation Program. The

Final Plan and Schedule was submitted to

the EPA in 1984. One item MSD felt was

needed was an additional UNOX reactor,
also referred to as Battery D. The EPA
disagreed with the necessity of this
item. In 1985, the EPA approved the
Final Plan and Schedule, except for the
additional UNOX reactor.

While the various studies were being
conducted, events were changing the
volume and quality of the sewage coming
into the plant. In 1981, a substantial
portion of MSD’s sewer system was
destroyed by a series of explosions.
Additionally, industrial sewage began to
diminish in the area. Carl Neumayer, the
director of operations and maintenance of
MSD, stated in his affidavit:

As a result of the decrease in

industrial sewage discharged into

MSD’s system, coupled with the

Interim Corrective Actions

undertaken by MSD in compliance with

the Consent Decree, the quality of

MSD’s discharge effluent began to

consistently meet the BOD and TSS

effluent limitations set forth in
MSD’s EPA-issued discharge permit.

(App.116). The parties agree that, from
1986 until 1989 and for several months in
1990, the plant was meeting the permit
requirements. In July 1990, the EPA
moved for a termination of the consent
decree, "certif[{[ying] that the defendants
have fully complied with the provisions
of the Sonnet Decree." (App.64).

In the meantime, in 1989, MSD had
requested the EPA to re-evaluate the need
for the additional UNOX reactor that the
EPA omitted from its approval of the
Final Plan and Schedule. Under the Clean
Water Act, the EPA can give grants to
assist the construction of wastewater
treatment plants. 33 U.S.C. §1281(g)
(1986 & Supp.1992). But under the
complex procedures for grants, the EPA
must wait until the state has certified a
project and has determined that the
project has priority over other works
within the state. 33 U.S.C. §1284/(a) (3)

5

(1986). On July 20, 1989, the EPA,
following the established procedures for
grants under the Clean Water Act,
authorized the Commonwealth of Kentucky
to review MSD’s' request for a re-
evaluation of the need for the additional

UNOX reactor. On August 17, 1990, after

the EPA file its motion for termination
of the consent decree, MSD submitted a
proposal for bioroughing towers, in lieu
of UNOX reactor, to the Commonwealth of
Kentucky, arguing it was required because
of additional sludge flows that were not
included or anticipated in the
development of the Final Plan. As Carl
Neumayer explained in his affidavit:
MSD has been consistently
expanding its sewer lines throughout

Jefferson County in compliance with
the mandate imposed by KRS 76.010 in

order to accommodate area
development, population expansion
and public’ health needs. In
addition, MSD has assumed
responsibility for treating sewage
previously treated by private

package sewage treatment plants so

8

as to eliminate discharge of
inadequately treated sewage into
Kentucky’s waterways. In the last
several years industrial discharges
into MSD‘s sewer system have

increased. As a result, despite
MSD’s application of its best
efforts, the MFWTP during

Significant portions of 1989 and

1990 has failed to achieve the

effluent limitations imposed by the

EPA-issued discharged permit.

(App. 116-17). Kentucky certified the
bioroughing towers on August 22, 1990,
one month after the government sought to
terminate the consent decree. On Octo-
ber 1, 1990, the EPA approved funding for
the project. MSD projects the
bioroughing towers’ completion date to be
sometime in 1995.

On July 3, 1991, the district court
entered its order terminating the consent
decree. After MSD moved the court to
reconsider its order, the court entered
its final order terminating the consent

decree on November 8, 1991. MSD argued,

as it does on appeal, that until the

bioroughing towers are completed the
Final Plan and Schedule has not been
"carried out" because the UNOX reactor
(substituted with the bioroughing towers)
was in MSD’s proposed Final Plan. In its
memorandum, the court explained:

The parties agree that a
Consent Decree must remain in effect
so long as its continued enforcement
is necessary to effectuate its
purposes. The purpose of the
Consent Decree in the case at hand
was to bring MFWTP into compliance
with the law.’ The parties’ argument
over when the Consent Decree may

properly terminate stems from
conflicting interpretations of
critical terms of the Decree. MSD

argues that all the work identified
in the FP&S has not been completed
and therefore, the Consent Decree
may not be terminated. The United
States argues that MFWTP’s
compliance with effluent limitations
at any state of major modifications,
set forth in the FP&S and approved
by EPA, require termination of the
Consent Decree.

Consent decrees have been
recognized as having attributes of
both contracts and judicial acts.
United States v. ITT Continental
Baking Co., 420 U.S. 223, 236 n. 10,
95 S.Ct. 926, 934 n. 10, 43 L.Ed.2d
148 (1975); United States v. Armour

& Co., 402 U.S. 673, 681-82, 91
S.Ct. 1752, 1757, 29 L.Ed.2dad 256

(1971). Principles of contract law
are used for purposes of
interpreting the meaning of a
consent decree. Only when the

language of a consent decree is not
clear on its face, have courts been
forced to resort to equitable
considerations to define the limits
of a consent decree. Chrysler Corp.
v. United States, 316 U.S. 556, 62
S.Ct. 1146, 86 L.Ed. 1668 (1942).

We find the language of the
decree is quite clear and that its
purposes have been accomplished.

Appendix A of the Consent
Decree provides for MSD to undertake
a series of interim steps’ to
determine whether limited
improvements would bring about
compliance with "applicable effluent
limitations." A cost effectiveness
analysis of suggested major plant
modifications was to be implemented
in the event that the interim steps
did not result in compliance and
only then was the FP&S to be
developed by MSD. Nothing in the
language of the Consent Decree or
the Memorandum of Understanding
compels the conclusion that the EPA
was required to approve the entire
FP&S and initially submitted by MSD.
It appears from the face of the
Consent Decree that MSD’s
requirement to implement any of the
FP&S was contingent on EPA’s
approval of any part of the FP&S.
The record shows that MSD formally
approved the FP&S and found MSD to

11

be in compliance with "applicable
effluent limitations" in November of
1988. MSD does not deny that it was
in compliance with the renewed NPDES
permit in November of 1988 and it
had been in compliance until 1990.
Therefore, the duties of EPA and MSD
under the terms of the Consent
Decree ended as of November 1988.
The July 20th, 1989, letter to
KNREPC from the EPA does not suggest
that the EPA changed its position as
to the requirements of the Consent
Decree.

In addition, Section V of the
Consent Decree contemplates that the
"applicable effluent limitations"
referred to throughout the Consent
Decree are those limitations imposed
by the NPDES permit issued in 1977
and the renewed permit which expired
in 1987. MSD requested approval of
Battery D from the KNREPC based on a
projected increase in effluent flow
anda the heightened requirements of a
proposed NPDES permit.

SuThe authority of a federal
district court to adopt a consent
decree comes only from the statute
which the decree is intended to
enforce. If there is a ‘purpose* to
the effectuated, it is the purpose
of the statute pursuant to which the
government seeks relief. Within
that framework the parties strike
their bargain." United States v.
Motor Vehicle Manufactures Assoc. of
the United States, 643 F.2d

644,650(9th Cir. 1981).

(App. 176-178) footnote 6 omitted).
rT.

On appeal, defendants dispute the
governments’ assertion and the district
court’s conclusion that the purpose of
the consent decree has been met. MSD
argues that the purpose of the consent
decree was to bring the MFWTP into

compliance with its permit limits while

operating at its design capacity of 10:

million gallons of sewage flow per day.

Defendant initially opposed _ the
entering of the consent decree, taking
"the position that the more appropriate
means of resolving the issues would be an
extension of its existing NPDES permit.or
an administrative order." (App. 86).
Thus, we confront the facial anomaly,
recognized by the district court in its
memorandum and order denying defendant’s
request for a stay, issued July 2, 1992,

13

eee CLL LLL LLL LLL LLL LLL LLL

of a defendant arguing it has not

completed all the requirements of the
consent decree and therefore the decree
should not be terminated. Normally,
liability under the Clean Water Act is

strict, regardless of how efficiently an

individual operates a plant. See United
States v. Texas Pipeline Co., 611 F.2d
345 (10th Cir. 1979). Through the

consent decree, defendant was allowed to
avoid penalties so long as it, in good
faith, used its best efforts to run the
plant as efficiently as possible and take
the required steps in
Although defendant did consistently m
its permit requirements

in a row, ;t seeks to maintain tne

completed. '

Defendant argues that the only
reason the plant was able to meet its
permit requirements for those years was
due to decrease in sewage flow and a
concurrent increase in the "quality" of
incoming sewage. MSD asserts that the
government’s position taken to the
extreme is ludicrous: the plant could
have met the permit requirements from day
one be reducing its intake. However, MSD
fails to see the parallel in its
argument; taken to its extreme, MSD’s
position is untenable. What if the

bicroughing towers fail to bring the

‘When this action was first brought,
the civil penalties were $10,000 per day.
The Clean Water Act has_ since been
amended to provide for civil penalties up
to $25,000 per day. 33 U.S.C. $3339 (a)

(Supp. 1992).

plant within its permit limits while
operating at the design capacity? Under
MSD’s proposed analysis of the consent
decree, the purpose of the decree would
not be achieved, so it must remain in
force until additional measures are
taken.2 Presumably, in the interim, MSD
could continue to take no more and more

-

customers, thus making the effluent

oa

requirements harder to attain.

-
Wn
1
a
ct

2uThe whole purpose of the Co
Decree was to correct [the plant’s)

defects. It follows that until all the

defects are corrected, the purpose of
the Consent Decree has not been met."

(Def’s Brief at 16). To counteract the
extremity of their position, defendant,
in response to the government’s motion
to terminate the consent decree, moved

for modification of the decree setting

date certain for

The parties agree that the consent
decree should terminate when the purpose
of the decree has been fulfilled. They
differ significantly on what that purpose
18. The “four corners" of a consent
decree are examined to determine its
scope. Firefighters Local Union No. 1784
v. Stotts, 467 U.S. 561, 574 (1984). We
agree with the district court that the
purpose of the consent decree was to
bring the plant into compliance with the
law; indeed, its violation of the law is
what prompted the EPA to bring the
initial enforcement action. There is no
indication in the consent decree that
compliance while processing 105 million
gallons of sewage was required.

This conclusion is further bolstered
by an examination of the Clean Water
Act’s purposes. A consent decree should
be construed against the background of
the statue under which the action was

17

brought. Las Vegas v. Clark County, 755
F.2a 697, 702 (9th Circ. 1985); United
States v. Motor Vehicle Mfrs. Ass’Nn of
the United States, Inc., 643 F.2d 644,

(Oth Cir. 1981). The Clean Water Act

ON
UI
io

does not contemplate compliance with
NPDES permit while operating at design
capacity; 1t requires compliance with

permits, period. If a plant must reduce

Ww
)

permits have a duration of five years,

ct
9)
\y
a)
(dD

general rule, subsequen perm}

supposed to be no less stringent

one befcre 1t 33 U.S § (1342) (0) (4

(Ss 1a 0% ThHrenr =n om -_ a
upp. 1992 Through continued

enforcement of the consent decree, MSD 1S

seeking to be held to the eff ent
=> 7 —o 4 —
limitations of a permit 1ssuea fifteen

pecause

additional UNOX reactor was in MSD’s
original Final Plan and Schedule and that
because the EPA eventually approved its
construction, MSD should be allowed to
complete it without the risk of civil
penalties. When the parties entered into
the consent decree, the additional UNOX
reactor was in the category of those
items that were eligible for funding but
would not be funded unless their
necessity was shown. It was not until
after the MFWTP has been meeting its
permit limits for several years that an
increase in sewage quantity caused the
EPA, through the Commonwealth of
Kentucky, to find the additional UNOX
reactor (substituted by the bioroughing
towers) necessary. The 1978 consent
decree’s purpose was not to correct the
design problems of the MFWTP for future
increase sewage flow, but to correct the
problems so that the then current

19

effluent met the permit limits. Indeed,
the EPA seemed correct in its evaluation
of the need for the additional UNOX
reactor. The modifications the EPA
approved without the UNOX reactor helped
the MFWTP to finally achieve its permit
limits, and to do so for several years.
Additionally, this litigation 1S
primarily between two institutions -- tne
Environmental Protection Agency and the
Louisville and Jefferson County
Metropolitan Sewer District.

(Cjonsent decrees which regulate
institutional conduct are
fundamentally different from consent
decrees between private parties

(Tjhey affect more than the rights
of the immediate litigants. The
decrees reach beyond the parties

involved directly in the suit and

impact on the public’s right to the

sound and efficient operation of its

institutions.
Heath v. De Courcy, 888 F.2d 1105, 1109
(6th Cir. 1989). Considering the
public’s interest in compliance with the
Clean Water Act, we are not prepared to
say that a plant that was able to comply
with its required effluent limitations
for several years should now be allowed
to again violate its permit with impunity
while constructing new equipment. For 11
years, MSD has been allowed to use its
"best efforts" to fix the problems at the
plant without the fear of stiff civil
penalties, and for several years the
plant was able to comply with its permit.
As the district court recognized, the
purpose of the consent decree was
achieved.

AFFIRMED.

Filed 1/12/93

Issued as Mandate 3/23/93

,
A
UNITED STATES V. METROPOLITAN SEWER

DISTRICT

MERRITT, Chief Judge, dissenting.

The Conser Decree is a contract between
the government and the sewer district I
disagree with the ourt’s holding that
"the purpose of the consent decree was
achieved" and that the decree should,
therefore, be terminated The “effluent
limitations" were met for only a snort

'

?

period at very low levels of discnarge

oxygenation towers to correct the
problem. This work will cause part of
the plant to remain shut down until
ompletion These additions are tne type

of improvements contemplated in the
decree. The decree was entered to give

the sewer district a change to maxe sucn
improvements. While this new

construction lS golng on, the plant

cannot meet effluent Limitations

Although the agreement is more than a
decade old, the plant cannot meed the
standards in the part because the EPA did
not authorize construction of the new
towers until 1990.

There is no suggestion in the record
that the district has not done everything
it can under the consent decree to comply
with the effluent standards. The sewer
district advised EPA years ago that the
towers would be needed, but EPA
disapproved until two years ago. With
construction incomplete, why should the
decree end now? Why now subject the
district to another lawsuit and to
$25,000 a day in penalties. If the
district is breaching the decree, it
should be required to comply, but there
is no such claim. And there is no claim
that the plant has ever met effluent
limitations at its design capacity or at

its present levels of effluent discharge.

23

It may be administratively more
convenient for EPA to have the agreement
terminated now. It may be unfair to some
cities which have no comparable agreement
to require them to pay penalties when
they fail to meet effluent limitations.
It may be that EPA made a bad deal when
it signed this consent decree. But none
of these are reasons: which justify
termination of the settiement agreement.
The only reason the government gives as a
justification for seeking termination --
"the purpose of the decree has_ been
satisfied" --is simply not the case.
There may be other reasons to terminate
the agreement, but this one is a legal
fiction. It sets a bad precedent to
allow the contract to be set aside on
this basis. I would not simply defer to
the government in such matters of
contract construction and enforcement.

24

The government is, after all, a party to

the contract.

kms 493/apendx2.bg1

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2320%3A3. Public record. Not legal advice.