RICHMOND, Va. (CN) – An attorney for a West Virginia wastewater treatment plant argued before a Fourth Circuit panel Tuesday that it has standing to challenge federal regulators over how much copper can be put into local waterways.
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 Environmental Protection Agency violated the CWA by not reviewing in a timely manner a site-specific water quality standard for copper discharge into the river.
The West Virginia Department of Environmental Protection develops water quality standards for each local body of water, which must be approved by the Legislature and the governor and then by the EPA.
The sanitary board proposed a permit allowing it to discharge copper into the Kanawha River at a rate of 5.62 times the national copper standard.
But the EPA did not respond in time and the state agency issued the board a permit in 2017 that defaulted to the copper discharge limits recommended by the EPA.
The Department of Environmental Protection said there was no need for a specific discharge limit on copper throughout the operation of the 2017 permit. It “concluded that there is no reasonable probability that the sanitary board would violate the default water quality standard for copper using a…reasonable potential analysis,” according to court records.
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 sanitary board makes no effort to show that an elevated copper sample prompting the imposition of a limitation on the discharge of effluent copper is ‘certainly impending,’” U.S. District Judge Joseph Goodwin wrote.
The judge continued, “Here, the sanitary board makes no persuasive argument that removes the risk of harm from the realm of hypothetical and speculative and into the realm of concreteness.”
On appeal to the Fourth Circuit, the board challenged the mootness determination and argued it has standing the original denial of its proposed copper discharge limits.
“The EPA was trying to avoid our date in court,” said Paul Calamita, chairman of AquaLaw, who represented the sanitary board in Tuesday’s hearing.
He said his client’s argument wasn’t moot because there are general water quality standard conditions, even if they were not specified in the 2017 permit, and those copper standards are still relevant to the treatment facility’s discharges.
But Jeffrey S. Beelaert, a Department of Justice lawyer who argued on behalf of the EPA, said the mootness finding supersedes any of the sanitary board arguments.
“The 2017 permit doesn’t include copper limits, there is no copper permit,” he said, stressing how the lack of limit means there is no need to monitor for copper and the sanitary board is facing no concrete injury.
U.S. Circuit Judge Harvie Wilkinson appeared to agree with Beelaert’s argument. He said the sanitary board was asking the court to imagine a scenario where a new copper limit might create a problem at some point.
“It looks a little futuristic,” he said.
But Calamita, in an interview after the hearing, said this case could have far-reaching implications.
“The district court said unless you have a permit limit that you’re exceeding, you can’t challenge the standard,” the plaintiff’s attorney said, noting if the panel overturns the district court it could allow more challenges from parties who didn’t have standing in the past.
But if the Fourth Circuit upholds the mootness decision, he said “it will significantly narrow who can challenge a state water quality standard.”Follow @@BradKutner
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