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CV 97-2154 (GERSHON, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------------X
UNITED STATES OF AMERICA,
STATE OF NEW YORK and BARBARA DEBUONO, M.D.,
as COMMISSIONER of the NEW YORK STATE
DEPARTMENT OF HEALTH
- against -
CITY OF NEW YORK and NEW YORK CITY
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
CROTON WATERSHED CLEAN WATER
COALITION, INC.; et al,
ANSWERING MEMORANDUM OF INTERVENORS
REGARDING THE ISSUE OF INTERVENTION AS
OF RIGHT UNDER THE SAFE DRINKING WATER ACT
This memorandum is submitted in answer to the memoranda of the plaintiff Environmental Protection Agency (EPA) and the defendant City of New York regarding the issue of intervention as of right under the Safe Drinking Water Act (SDWA). The issue is whether Section 1449 of the SDWA [42 U.S.C. § 300-j(b)(1)(B)] confers upon the Croton Watershed Clean Water Coalition and certain other persons(1) an unconditional right to intervene in this action.
THE ADMINISTRATOR HAS BOTH (1) VIOLATED
A REQUIREMENT OF THE SDWA AND (2) FAILED TO
PERFORM AN ACT OR DUTY UNDER THE SDWA WHICH
IS NOT DISCRETIONARY WITH THE ADMINISTRATOR.
Pursuant to the provisions of Section 1449, the intervenors have served upon the EPA and the other regulatory authorities a notice of intent to sue. [42 U.S.C. § 300j-8(b)]. A copy of that notice is appended to this brief as APPENDIX ONE. In both APPENDIX ONE and their RESTATED ANSWER, intervenors maintain that the Administrator erred in issuing his determination that Croton Water supply must be filtered prior to appropriate public hearings. It is not disputed that the Administrator's determination was based upon a stipulation entered into between the City and State parties to this action dated October 30, 1992 (the "stipulation."). The stipulation appears as Exhibit A of the United States' initial "MEMORANDUM OF LAW IN RESPONSE TO THE MOTION TO INTERVENE OF THE CROTON WATERSHED CLEAN WATER COALITION, INC. ET AL." Exhibit B of that Memorandum is a letter dated January 13, 1993 in which the Regional Administrator of the EPA advised the N.Y. City Commissioner of the Department of Environmental Protection ("DEP") that based upon the stipulation the Administrator had determined "pursuant to Section 1412 (b) (7) (C) (iv) of the SDWA"[42 U.S.C. § 300g-1(b)(C)(iv)] that the City must filter the Croton water supply. Thereafter, the Administrator published his determination in the Federal Register and offered the N.Y. City the opportunity to request a public hearing.
In the stipulation, the State and City recited various provisions of the Surface Water Treatment Rule (SWTR) adopted by the EPA pursuant to the SDWA. The SDWA did provide for primacy of state regulatory agencies under certain conditions and in respect to such states provided specifically as to filtration determinations:
"(ii) In lieu of the provisions of section 1415 [42 U.S.C. @ 300g-4] the Administrator shall specify procedures by which the State determines which public water systems within its jurisdiction shall adopt filtration under the criteria of clause (i). The State may require the public water system to provide studies or other information to assist in this determination. The procedures shall provide notice and opportunity for public hearing on this determination. If the State determines that filtration is required, the State shall prescribe a schedule for compliance by the public water system with the filtration requirement. A schedule shall require compliance within 18 months of a determination made under clause (iii)." [42 U.S.C. §300g-1(b)(7)(C)(ii)] (emphasis supplied).
Because New York State had not demonstrated to the EPA its entitlement to primacy, the stipulation was ineffective to provide for filtration under the SDWA. In fact, the same day that the determination was issued by the Administrator, an internal memorandum of the EPA recommended denial of "primacy" to New York State because of its failure to provide "for notice and opportunity for public hearing on its filtration and avoidance determinations, as required by § 1412 (b) (7) (C) (ii) of the Safe Drinking Water Act ("SDWA"). See Exhibit B-1 of affidavit of Karen Argenti dated July 21, 1997 ("ARGENTI"),
It can not be seriously disputed that the notice and hearing required are prior to final determination. Because New York did not qualify for primacy, the EPA issued its determination pursuant to §1412(b)(7)(C)(iv). That section provides that:
(iv) If a State does not have primary enforcement responsibility for public water systems, the Administrator shall have the same authority to make the determination in clause (ii) in such State as the State would have under that clause. Any filtration requirement or schedule under this subparagraph shall be treated as if it were a requirement of a national primary drinking water regulation. (Emphasis supplied)
In alleging that the Administrator has violated a requirement of the SDWA and/or failed to perform an act or duty under the SDWA which is not discretionary with the Administrator, it is intervenors contention that prior to determination, the Administrator was required to give notice and hearing of his intention to order filtration of the Croton system. It is important to note that neither clause (ii) or (iv) cited above distinguish between decisions to filter or avoid filtration. It appears from the papers of the government regulators that while decisions to avoid filtration are subject to prior notice and hearing, decision to filter are not. However, that distinction simply does not exist in the SDWA. In fact, the requirement for notice and hearing in clause (ii) is relevant to the promulgation of procedures for a state determination of "... which public water systems within its jurisdiction shall adopt filtration" and by Congressional fiat those regulations "shall provide notice and opportunity for public hearing on this determination."
The statute makes it abundantly clear that notice and hearing requirements apply to the determination to filter. Given the disparate environmental impacts of filtration and filtration avoidance, to claim - as the regulators must - that environmental impacts must be closely studied only if filtration avoidance is sought makes no sense at all.
THE NOTICE AND HEARING CONTEMPLATED BY
THE SDWA MUST PRECEDE THE DETERMINATION
TO FILTER. POST-DETERMINATION PROCEDURES
UTILIZED BY THE EPA IN THIS MATTER WERE
NOT A LAWFUL SUBSTITUTE.
The plain meaning of clause (iv) cited above is that there be public hearings and notice prior to the determination which shall include a schedule for compliance. The Administrator purported to act under clause (iv) which gave him the right to act in place of a state which lacked primary regulatory authority but only with the same authority a state would have had. Clearly, that authority is limited by the requirement of pre-determination notice and hearing. The requirement of a pre-determination notice and hearing is not unique to the SDWA. In fact, it is the norm of federal administrative law.
Clause (iv) itself signals the need for such notice and hearing when it states that "[a]ny filtration requirement or schedule under this subparagraph shall be treated as if it were a requirement of a national primary drinking water regulation." The relevant provisions of the statute for promulgation of these requirements all require broad-based notice and hearing and dissemination of information and the receipt and considerations of comments prior to adoption. The SDWA provides:
"(d) Regulations; public hearings; administrative consultations. Regulations under this section shall be prescribed in accordance with section 553 of title 5, United States Code (relating to rule-making), except that the Administrator shall provide opportunity for public hearing prior to promulgation of such regulations. In proposing and promulgating regulations under this section, the Administrator shall consult with the Secretary and the National Drinking Water Advisory Council." SDWA §1412(b)(7)(C)(ii) (42 U.S.C. §300g-1)
While the EPA may have followed these provisions in adoption of its general rules, the application of the rule to a specific location no less requires similar rights of notice and hearing. For example, an action of the EPA Administrator in approving submitted state plans for implementation of ambient air quality standards constituted informal rule-making under 5 USC § 553, and approval of state plans was invalid without compliance with such statute's requirement that participation be permitted by interested parties, including acceptance of data and other comments. Buckeye Power, Inc. v Environmental Protection Agency, 481 F2d 162 (6th Cir. 1973) later app 523 F2d 16 cert den 425 US 934 (1976). See also Sharon Steel Corp. v Environmental Protection Agency, 597 F2d 377 (3d Cir. 1979).
There is no record supporting the EPA action other than the stipulation entered into by the City and the State. Thus, as in Buckeye Power, Inc.:
"The Administrator built no record in approving or disapproving the state plans. He took no comments, data, or other evidence from interested parties, nor did he articulate the basis for his actions. This failure contravenes the explicit dictates of Section 553 of the APA and renders meaningless the judicial review provisions of Section 706." 481 F.2d at 171.
In the instant case, the EPA would substitute for the pre-determination notice and hearing, (1) a notice to the City DEP of its right to a hearing and (2) a notice purportedly sent to rate payers that the DEP had been ordered to filter the Croton water supply. That notice, purportedly sent to rate payers, did not inform them of any rights to challenge the EPA determination and was not in any way a compliance with the notice requirements of both the SDWA and the APA. Period for comments after promulgation of rule cannot be substituted for prior notice and comment required by Administrative Procedure Act, since otherwise an agency could negate at will a Congressional decision that notice and opportunity for comment must precede promulgation. Maryland v. EPA, 530 F.2d 215, 222 (4th Cir. 1975),vacated and remanded on other grounds, 431 U.S. 99, 97 S. Ct. 1635, 52 L. Ed. 2d 166 (1977).(2)
In Maryland, Just as in the matter at bar, the Administrator relied on a deeply flawed record of state proceedings. As a result, the regulation adopted was invalid:
We are, therefore, of opinion that the regulation is invalid as a result of the lack of notice required by Appalachian Power, and [**20] failure to comply with the notice and publication requirements of the Administrative Procedure Act, 5 USC § 553(b)(3), and the statute itself, 42 USC § 1857c-5(c)(1). We emphasize again, as we did in Appalachian Power, that, in light of the "drastic impact" which compliance with regulations such as this will have, adherence to applicable statutory provisions is necessary. 530 F.2d at 222.
As a matter of fact, the process was so flawed, that a petition for certiorari before the Supreme Court was mooted when the EPA withdrew the challenged regulations. 431 U.S. 99 at 103, 104.
The failure of the Administrator to hold appropriate pre-determination hearings and his reliance upon a stipulation entered into by the City and State without notice and hearing to anyone constitutes both a violation of the SDWA and a failure to perform a non-discretionary duty. As a result, the determination must fail.
As previously discussed in intervenors Reply memorandum, the appropriate statute of limitations for claims of failure to comply with APA is 6 years. Thus, the intervenors have valid, live claims against the regulatory parties which are sustainable pursuant to SDWA § 1449(a) were it not for the prohibition of § 1449(b). If § 1449(b) applies, then the right of intervention by that statute would appear to be absolute.
THE PRINCIPAL CASES CITED BY THE EPA AND
THE CITY DO NOT APPLY TO THIS CONTROVERSY.
There is ample precedent for intervention in enforcement actions by concerned persons with a cognizable interest. See Ohio v. Callaway, 497 F.2d 1235 (6th Cir. 1974) and the cases cited in Point Two of intervenor's reply memorandum dated July 21, 1997. There are three cases cited by the City and the EPA in support of their argument that the SDWA does not confer on intervenors an unconditional right to intervene in this action: United States v. Hooker Chemicals & Plastics, 749 F.2d 968 (2d Cir. 1984); Delaware Valley Citizens' Council v. Pennsylvania, 674 F.2d 970 (3d Cir. 1982) and United States v. Metropolitan District Commission, 679 F. Supp. 1154 (D. Mass. 1988). None of them apply to the controversy at bar.
(a) United States v. Hooker Chemicals & Plastic
Hooker was an action commenced by the EPA because of "an imminent and substantial endangerment to the health of persons" under § 1431 of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300i" 749 F.2d at 970. It was not an action that could be brought by a private person. For this specific reason, the District Court and the Court of Appeals found no statutory conferred right to intervention.
" ...Our analysis of the language, structure and legislative histories of these acts leads us to agree with Chief Judge Curtin that neither the CWA nor the SDWA nor the RCRA affords NEA a statutory right to intervene in a government initiated action under the emergency powers provisions of those acts."
In contrast, this action which is commenced pursuant to § 1414(b) of the SDWA is also an action which a private person could have commenced pursuant to § 1449(a)(1) [42 U.S. 300j-8(a)(1)].
(b) Delaware Valley Citizens' Council v. Pennsylvania
Delaware Valley similarly offers little to guide the Court in the instant matter. In that case, the intervenors were a group of Pennsylvania state legislators who sought intervention some four years after the commencement of an enforcement action and some 20 months subsequent to the execution of a consent decree. It was their claim that the consent decree usurped their legislative powers. However, unlike the intervenors in this case, they proffered no cognizable claim of statutory violation by the Administrator and thus were not seeking to enforce the act. In this case, the intervenors have pleaded statutory violations that run to the validity of the order for which enforcement is sought. Here, intervenors' claims are inseparable from the issue of enforcement of the order.
This is a far different matter than the somewhat murky claims of a group of state legislators presented years after resolution of the litigation by consent decree.
(c) United States v. Metropolitan District Commission
The Metropolitan District Commission case is similarly inapplicable to the instant matter. That case involved applications by two communities to intervene in an enforcement action where their concern was that construction of sewage plants might at some future time violate water quality standards. In that case, the claim of statutory violation was not ripe because the decisions upon which the claim would have rested were not yet made.
In contrast, the claims of violations of the SDWA by the intervenors are mature. Indeed, they are so mature that the government regulators claim they are time barred. It is inconsistent to claim that a single claim can be both time barred and unripe.(3)
INTERVENTION BY THE CWCWC INTERVENORS
WOULD NOT FRUSTRATE THE PURPOSES OF THIS
ACTION BUT ADVANCE IT. WHAT INTERVENORS
SEEK IS THE KIND OF EXAMINATION OF THE
FILTRATION QUESTION AS CONGRESS MANDATED
IN SDWA § 1412 (b) (7) (C) (ii) and (iv)
There is no reason why intervention by the CWCWC should in any way interfere with the desire by all parties to preserve the high quality of the Croton water supply. At oral argument, the Court asked counsel what the intervenors sought and counsel replied formalistically rather than substantively. While the dryly logical conclusion of the failure of the Administrator to fulfill his obligation is for the Court to remand the matter to the Administrator for an open predetermination procedure on the issue of filtration, that does not mean that intervenors will insist on a formalistic remand at this time. Rather, CWCWC seeks a true "dual track" approach to the filtration decision that will allow a study and implementation of watershed protection while planning for filtration proceeds. Because Croton water meets all relevant quality standards this dual track approach is in the best interests of public health.
The Massachusetts Water Resource Authority (MWRA) decided to implement a long range non-filtration protection plan, while they designed the filtration plant. Nine months prior to construction, they have the flexibility to evaluate whether watershed protections successfully satisfy federal requirements. If they meet the standards, they will not have to filter
The distinction is that presently, the EIS procedure as now being scoped by the City labors under the burden of the illegal filtration determination and the assertion by the City that filtration avoidance is not a true alternative because of the EPA's regulatory mandate.
Many of the intervenors represent interests - including residents of the watershed - who have never received proper notice of the filtration decision nor been afforded an opportunity to be heard. To deny intervention would be to force them to commence a totally superfluous plenary action that will merely replicate this proceeding and it will ultimately be referred to this Court in any event. By reason of their interests and the cases previously cited to the Court, they are entitled to "a place at the table." In the interests of both judicial economy and the preservation and protection of the watershed, they should receive that place sooner, rather than later.
Because of the EPA's reliance on a flawed City-State stipulation and its failure to provide a pre-determination notice and hearing to interested parties, the determination of the Administrator of January 13, 1993 is unenforceable. The intervenors represent interests which ought to be heard and their intervention ought be granted.
Dated: New York, New York
February 18, 1998
JOHN C. KLOTZ (JK 4162)
Attorney for the Defendants-Intervenors
885 Third Avenue, Suite 2900
New York, NY 10022
1 The proposed intervenors as appear in the Restated Proposed Intervenors Answer are the Croton Watershed Clean Water Coalition, Inc.; HFDC Coalition and the individuals listed on Schedule One of the Answer.
2 There was also a notice published in the Federal Register that additional information would be taken post-determination and evaluated. However, that notice did not meet the requirements of either the APA or the EPA's own rules about pre-detrmination notice to interested parties.
3 The court in Metropolitan District Commission discerned two classes of claims and distinguished among those that were time barred and those that were premature.
APPENDIX ONE: Letter of Intent to Sue
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