City Loses Fight Over Wastewater Permit in Fourth Circuit

RICHMOND, Va. (CN) – In a case centered on a West Virginia wastewater treatment plant’s discharge of copper, the Fourth Circuit ruled that people can sue the Environmental Protection Agency for dragging its feet on a permit decision but cannot force a particular outcome.

The city of Charleston’s sanitary board operates the facility along the Kanawha River under a Clean Water Act permit that is reissued every five years. It argued that the EPA violated the CWA by not reviewing in a timely manner a site-specific water quality standard for copper discharge into the river.

A federal judge dismissed the sanitary board’s complaint last March, finding that its claims are moot because it is unlikely to violate the limits on copper discharges.

The Fourth Circuit affirmed Tuesday in a 25-page decision, but the court was sympathetic to the board’s argument for standing.

“Citizens can compel the agency to take some action, but cannot dictate the substance of the resulting decision if it involves the agency’s judgment,” U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, wrote for a three-judge panel.

Paul Calamita, an AquaLaw attorney who represented the sanitary board at oral arguments in January, expressed some satisfaction with the ruling despite the panel upholding the lower court’s dismissal.

“That was a significant ruling for regulated entities who otherwise may well have been precluded in the future from having their day in court to challenge EPA water quality standards decisions,” Calamita said in an email to Courthouse News. 

But Calamita was also disappointed with the Richmond, Virginia-based appeals court’s decision on the actual permitting process. He said the judges did not do a “deep dive” into the lower court’s record and if they had, they would have found examples of the EPA allowing similar copper-discharge levels for other sanitary boards while singling out Charleston’s permit.

He also pointed to EPA analysis used to later approve the permit, which he thought didn’t even apply to the Kanawha River. 

“It is comparing an apple with an orange – despite EPA having had plenty of time to collect actual river data for all eleven parameters,” he said.

As for an appeal, Calamita said the sanitary board was evaluating any next steps but “as you can imagine it is hard for a small utility to stand up to EPA and DOJ in federal court for long, even when singled out for grossly unfair treatment.”

U.S. Circuit Judges Albert Diaz and Henry Floyd joined in the opinion.

The EPA did not return a request for comment Wednesday.

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