ATLANTA (CN) — The 11th Circuit heard arguments Thursday in an appeal from the South River Watershed Alliance, which claims that the U.S. Environmental Protection Agency is not enforcing an order for Georgia officials to repair sewer systems in compliance with the Clean Water Act.
In 2010, the federal government 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.
The 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, or EPD, in 2011 to implement requirements for preventing further sewage spills.
The decree requires DeKalb County to identify, assess and rehabilitate 838 miles of “priority area" sewer lines no later than eight and a half years from its Dec. 20, 2011, entry.
However, the agreement doesn’t state that sewage spills in non-priority areas must be stopped by any specific date or that there needs to be any measurable decrease in the number of spills.
The South River Watershed Alliance, or SRWA, sued in September 2019, claiming that "neither EPA nor EPD is diligently prosecuting" DeKalb County's violations of the Clean Water Act, or CWA.
U.S. District Judge Steven Grimberg granted the county's motion to dismiss the case last year, 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.
"Plaintiffs, understandably, want DeKalb to take more aggressive, effective, and immediate actions to ameliorate the WCTS and eliminate these discharges," the Donald Trump-appointed judge wrote. "This is hardly a controversial or indefensible position. But the court’s agreement with Plaintiffs’ ultimate goals does not change the regulatory scheme enacted by Congress in the CWA."
On appeal to the 11th Circuit, SRWA attorney John Schwartz argues 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.
According to Schwartz's brief to the Atlanta-based appeals court, there have been over 800 reported spills of untreated sewage from the Wastewater Collection and Transmission System into waters of the U.S. and Georgia since July 2014.
"The consent decree is not diligent prosecution. Each sewage spill is a violation of the CWA," Schwartz told the three-judge panel Thursday. "There has to be something to coerce compliance."
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.
"The CWA is not like paying taxes where you pay and it's done, it's an ongoing thing," said Brasher, adding that there are concerns with requiring full compliance because there will always be violations.
DeKalb County's attorney Todd Silliman argued in his brief that "the fact that spills inevitably have occurred as contemplated is not counter to a finding of diligent prosecution," and that "the decree acknowledges that spills from the WCTS would unavoidably continue."
According to the decree, spills are subject to stipulated penalties ranging from $500 to $2,000 per spill, but the EPA and EPD have discretion on whether to demand them.
Silliman said Thursday the county has already paid over $1.2 million in total penalties for not properly reporting spills.
Schwartz expressed his concern with the amount of time the county has taken to rehabilitate its sewage system.
"There's been more time in between the time John F. Kennedy said we'd eventually send a man to the moon, to the time a man did land on the moon," he told the panel.
Newson addressed his concern by asking Silliman what the county "diligently" did during those eight and half years stipulated by the decree.
"There are required steps we must take for assessments and inspections. Miles of piping has been replaced," Silliman said. "Many people are working at great costs to improve the system."
Silliman's brief states that DeKalb County has routinely met with the agencies to discuss the decree's implementation and that they have "evaluated and/or acquired almost 73,000 feet of new pipeline during the last two years."
In his rebuttal, Schwartz argued "routine maintenance was already supposed to be happening."
The judges did not indicate when they would issue a ruling.
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