ATLANTA (CN) — The 11th Circuit issued an opinion Wednesday affirming a district court's dismissal of a suit that argued the U.S. Environmental Protection Agency is not "diligently prosecuting" Georgia officials for violations of the Clean Water Act.
The suit was filed in 2018, eight years after the agency and the Georgia Department of Natural Resources found that DeKalb County was violating the law by repeatedly spilling wastewater — including untreated sewage containing bacteria, viruses and other pathogens — from its wastewater collection and transmission system into waters of the United States "on hundreds of occasions."
Dekalb County, which includes a small portion of the city of Atlanta, was required to enter into a consent decree with the EPA and the Georgia Environmental Protection Division in 2011 to implement requirements for preventing further sewage spills. It contains numerous provisions requiring the county to remediate its wastewater collection and transmission system and establishes certain timelines for it to submit certain program plans to the EPA for approval.
But the consent decree doesn't state that the spills must be stopped by a specific date or requires any measurable decreases in the number of spills, argued the South River Watershed Alliance, “a non-profit membership organization” that advocates “to protect and restore the water quality and biodiversity” of the South River and Chattahoochee River watersheds and Jacqueline Echols, a South River member who enjoys these watersheds for their “aesthetic, recreational, ecological, and biological values" in their complaint.
"Since July 25, 2014, there have been over 800 reported spills of untreated sewage from DeKalb County’s Wastewater Collection and Transmission System into waters of the United States and waters of the State," Attorney Jon Schwartz wrote in the complaint.
U.S. District Judge Steven Grimberg granted the county's motion to dismiss the case in August 2020, finding the SRWA didn't have standing to sue because it couldn't prove that the EPA or EPD aren't doing enough to enforce the decree.
On appeal to the 11th Circuit, Schwartz argued that the priority areas in the consent decree only constitute approximately 31% of the system's sewer lines and that without a formal deadline for the other areas, there is no way to ensure that the county is trying to rehabilitate most of the system.
DeKalb County's attorney Todd Silliman claimed that the county had already paid over $1.2 million in total penalties for not properly reporting spills. He also argued that it was routinely meeting with the agencies to discuss the decree's implementation and that they had "evaluated and/or acquired almost 73,000 feet of new pipeline during the last two years."
After hearing arguments from both parties in 2021, the panel of all Trump appointees — U.S. Circuit Judges Elizabeth Branch, Kevin Newsom and Andrew Brasher — were left to contemplate the ambiguity of the decree's use of the phrase "diligently prosecuting" to decide if the SRWA's citizen suit is barred by the government prosecution.
Ultimately they agreed with the district court's finding that the suit is barred, concluding that "the EPA and GDNR have done more than enough to meet the diligence threshold" as "evidenced by their continued penalization" for noncompliance.
"The EPA and GDNR have been diligent in monitoring DeKalb County’s progress and assessing sizeable fines to compel DeKalb County to comply with the consent decree," wrote Branch in Wednesday's ruling.
She added that the assessed penalties totaling nearly one million dollars against the county for its reported spills from 2012 to 2018, show the "government's continued diligence."
"At bottom, South River wants the current consent decree discarded in favor of a more muscular alternative. The fact that South River disagrees with the prosecution strategy undertaken by the EPA and GDNR, however, is not enough to prove that the EPA and GDNR have failed to diligently prosecute DeKalb County’s CWA violations," wrote Judge Branch.
"To the contrary, the record shows that the EPA and GDNR have been diligent which means that South River’s suit is barred... Accordingly, we affirm the district court’s grant of DeKalb County’s motion to dismiss."
Legal counsel for the parties did not immediately respond to a request for comment.
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