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December 06, 2012
Justices focus on responsibility in stormwater case

In one hour of oral arguments in a case that is being closely watched by water utilities nationwide, a number of U.S. Supreme Court justices wondered why the county of Los Angeles should be held liable for pollutant discharges released by other upstream municipalities into the county’s municipal separate storm sewer systems (MS4).  In Los Angeles County Flood Control District v. Natural Resources Defense Council (NRDC), the NRDC alleges that discharges from the MS4 resulted in pollutant exceedances in four rivers in Southern California.  A U.S. district court found that the NRDC did not present evidence sufficient to prove that the county’s MS4 was responsible for the pollution.  But the U.S. Court of Appeals for the 9th Circuit overruled the district court, finding that readings at the county’s self-monitoring stations revealed persistent violations of the county’s National Pollutant Discharge Elimination System (NPDES) permit. 

What the permit says

Timothy Coates, who argued before the Supreme Court for LA County, said the NRDC is attempting to prove that the defendants are responsible for all discharges unless they can prove otherwise, which, Coates asserted, is not how the permit reads.  Justice Ginsburg countered by asking what is the purpose of having a monitoring station if nothing can be done. 

Coates replied that the permit terms themselves are not written in that fashion. “Again, it says we are only responsible for our own discharge,” he said. “Could you write a permit that way? Perhaps.  But this permit was not written that way.”

Enhanced monitoring

Aaron Colangelo, representing the NRDC, countered that the county’s permit specifies that once a violation is detected, “each permittee has to go back upstream, conduct enhanced monitoring to identify the particular sources of pollution within its jurisdiction, control those sources, but only those within its jurisdiction, and continue that process until the problem is resolved.”

Colangelo also said there is no question that there are other contributors, but that the permit doesn't impose a violation  on only the entity that is the sole cause.

Justice Kennedy saw it from a different angle.  “What I'm taking away from your argument is that once there is a violation, all the permittees are liable,” said Kennedy. “That just can't be.”

Colangelo replied, “It can be, Your Honor, and that's the solution that the permit works out and that the permittees negotiated for in advance.”

Burden to demonstrate

Justice Scalia requested further clarification by asking if each one of the dischargers is liable for all of the pollution.

“No,” replied Colangelo.  “Each one is liable for what they put in and bears the burden to demonstrate and limit what it puts in. That's explicit in the permit.”

“So,” said Justice Kennedy, “your theory is that if the district is permitted to, on a scale of 1 to 10, discharge up to 2, but that if the monitoring station in the river shows an 8, then it is automatically liable for the increase, even though other dischargees might have made this?”  Kennedy suggested that he did not see this requirement in the regulations quoted by Colangelo.

Colangelo responded, “If the permittee has done its own monitoring in addition to what the permit requires and can demonstrate that it did not put anything in, then it is not liable.  If not, then yes. Two dischargers into the same river who agree in advance to be measured by a single monitoring station in the river are liable for what's measured there, and then they sort it out.”

Water transfer

In contrast to the high interest of the court in the matter apportioning liability, the justices did not engage in discussions about the county’s primary defense–that it was simply transferring water from parts of the rivers to other parts of the same rivers and that, in such cases, there can be no addition of pollutants.  Thus, based on the oral arguments, it appears that a decision will ride on the strength of NRDC’s argument that the county bears the bulk of responsibility for unquantified releases by other entities.

Click here for the transcript of the oral argument.

Click here to read a review of the case.

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