(CN) — A 93-year-old judge celebrating his birthday Thursday stole the show at a Ninth Circuit hearing on a years-old Clean Water Act case involving LA County stormwater that may be settled next month.
U.S. Circuit Judge Harry Pregerson asked the tough questions about why a case against Los Angeles County by the Natural Resources Defense Council is still unresolved nearly a decade after being filed. The 2008 lawsuit says the county’s deferred maintenance of storm drains in 84 cities and jurisdictions in LA County violates pollution limits under the Clean Water Act for stormwater runoff that goes into the ocean and bay.
The environmental group and county have signed a settlement agreement — the terms of which are not public and were not made available to the panel hearing the appeal Thursday — which is expected to be approved by U.S. District Judge Beverly Reid O’Connell on either Nov. 17 or 18.
Despite a potential resolution in sight, Pregerson made it clear a settlement would not be the end of the road for ensuring Los Angeles County pays to mitigate and clean-up more than 500 violations over the past decade of its own stormwater permit.
“Well, who’s going to watch over this?” Pregerson asked Natural Resources Defense Council attorney Aaron Colangelo. “Who’s going to be on it every day to see that this thing gets done? This case has been almost 10 years old and that’s a long time.”
Colangelo said if the settlement is approved, both parties would move to dismiss the Ninth Circuit appeal in about six weeks.
He said the council has a “very strong” interest in ensuring the county complies with the terms of the settlement. If the county violates the pollution limits set by its stormwater permit in the future, it would be subjected to state or federal enforcement, Colangelo said.
The council asked the Ninth Circuit to rule on the mootness of injunctive relief it was seeking to require the county to comply with the Clean Water Act.
But Pregerson, apparently dissatisfied by Colangelo’s answer, pressed him on how many state and federal enforcement officers there are who would keep an eye on the county to make sure it complies with the Clean Water Act.
Neither Colangelo nor the county’s attorney, Timothy Coates, knew how many enforcement officers there are.
Although the settlement is expected to be approved, Colangelo told Pregerson the council is challenging the county’s use of the safe-harbor provision of the Clean Water Act as a reason for not having to comply with pollution limits outlined in its own plans.
Circuit Judge Milan Smith wanted to know how the county was using provisions in the Clean Water Act to circumvent pollution limits outlined in the act.
“I guess I’m struggling with what my colleague is here. It seems like the safe-harbor provisions, in effect, allow the county without obligation to say the magic words ‘We’re moving forward,’ but not doing anything and just indefinitely postponing this. Is that correct?” Smith asked.
“They [the safe-harbor provisions] allow the county and the district, in the future, to avoid meeting pollution limits based on their written plans. They may or may not implement, they may or may not follow through,” Colangelo said.
Colangelo said the council would not hesitate to bring new litigation against the county for future violations of the act.
Pregerson didn’t reserve his tough questioning just for Colangelo though. He also asked Coates why it’s taken so long to get the case resolved.
Coates said mitigating stormwater runoff problems involves large public works projects. But he said the county has “political desire for overall better water management” and noted it takes time to get reach the standards outlined in the county’s storm drain permit.
“You cannot halt stormwater pollution by snapping your fingers — you do it as a process. You need time to get to those standards,” Coates said.
But Smith pressed Coates, noting if a state or federal court finds the county is allowing poisons to go into the bay and there are no exemptions in the Clean Water Act that would allow that runoff, then where would the county stand?
The county would have to go back to the drawing board to modify the permit, Coates said, reminding the judges the county is in compliance with the stormwater permit which was approved by the regional and state water boards.
That didn’t go over well with Pregerson, who said the county is not doing a good job of following the permit. Coates told him there are maintenance crews who clean up storm drains, but the judge pointed out he’s observed otherwise when he drives past them.
“Where do they hide at? I’ve never seen one [maintainence worker] and I’ve lived in LA all of my life. I’m concerned about that. You could just drive down the street and you’ll see filth in all the storm drains. It just sits there and it all flows into the oceans, doesn’t it? The county’s known about this for decades, is that right?” Pregerson asked.
Smith tried to interject, but Pregerson continued pressing Coates on who would be responsible for ensuring the county follows its obligations under the Clean Water Act and its own permits to operate stormwater drains.
When Colangelo addressed the judges in his rebuttal, he pointed out the county’s participation in the watershed program is not legally binding, one of the major reasons the council argued injunctive relief is not moot.
Smith told the attorneys he hoped the case would get resolved and “we hope we don’t have to see you again.”
He added, “We realize this has gone on a long time. As Pergerson pointed out, there are millions of people who live in this part of the world who depend on our government to keep the water clean. It has a lot of impacts on people for diseases and all kinds of other problems, so we thank you for working together.”
Pregerson reiterated the sentiment by toasting with what he said was an imaginary glass of reclaimed water.
U.S. District Judge Russel Holland, sitting by designation from the District of Alaska, did not make any comments during the hearing.
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