ENVIRONMENTAL FOIA REQUEST HAS LIMITATIONS

USEPA initiated enforcement litigation against several companies that allegedly discharged polychlorinated biphenyls ("PCBs") into certain waterbodies. To prepare for this CERCLA litigation, the government hired an environmental consultant to make a report estimating the amounts of PCBs allegedly discharged into the water by each of the companies.

One of the companies sought discovery of the report by challenging a consent decree between the government and one of the other companies. When such discovery was denied, the company filed a Freedom of Information Act ("FOIA") request with the government for the report. When the government refused the request, asserting that the report was privileged as "attorney work product", the company sued in federal court.

On December 26, 2012, the US Circuit Court of Appeals, 7th Circuit, affirmed the District Court decision upholding denial of the FOIA request. (Appleton Papers, Inc. v. Environmental Protection Agency, et al, NO. 12-2273)

The Court of Appeals acknowledged that FOIA generally requires federal agencies to disclose records to the public. However, FOIA provides certain exemptions from this requirement. One of these exemptions, the Court stated, is for attorney work product: the exemption prevents a party from discovering material prepared in anticipation of litigation or for trial. (See Federal Rules of Civil Procedure 26(b)(3)(A)). While a party in litigation generally can discover information relevant to a claim or defense, exception is made for attorney work product, and that exemption also applies to FOIA, the COurt held.

In ordinary civil federal civil litigation, the work product privilege sometimes can be overcome by a showing of need for the information or if the author of the information plans to testify. But,in the case of FOIA requests, such specific exceptions to the exemption would be hypothetical and, therefore, do not apply.

This decision suggests a couple of additional points: first, although it involves the federal FOIA, most states have FOIA laws of their own; therefore, this case may provide some guidance in state enforcement matters. Second, the decision illustrates potential procedural issues facing an environmental defendant in attempting to learn what information the federal or state EPA may have against it.

BELIEVING IN SANTA

As a young child, age 5 or 6, I was conflicted about Santa Claus. Shortly before one Christmas, my parents took me to the magical kingdom (in my eyes) of the Sears, Roebuck & Co. headquarters store on Homan Ave. in Chicago. It was a massive complex, stretching for blocks and soaring several stories high, complete with a tower.

The toy department seemed never ending. But at one end, there was Santa on his throne, with a long line of hyper kids waiting to sit on his knee and whisper their wants. As my parents pushed me toward the line, I resisted and began to cry. I refused to join! I was afraid of Santa! He frightened me! I tried to run and hide behind a nearby display. My parents gave up embarrassed, and Santa did not get my wants.

On Christmas morning, I sneaked down the stairs. I immediately saw that overnight Santa had been to the house! There was a fully decorated tree, circled by Lionel trains, and surrounded by brightly wrapped gifts. Surely, Santa knew exactly what would please me and was very generous, even though I had refused to talk to him.

So, what to believe? Santa in person sitting before me or circumstantial evidence of Santa--no body but surely he had visited and brought gifts. As a "grown-up, I have come to reinforce my belief in Santa Claus--not as a visible person in the flesh such as the Sears Santa, but belief in the Santa that lives within each of us, a Santa that unselfishly gives gifts of friendship, hospitality, love and and generosity.

I hope that this Christmas, and through out the new year, you are able to reinforce your belief in Santa and let your Santa within come out to visit others.

Merry Christmas to all...

MAKING BUBBLES ON THE WATER

A water utility hired a man as the distribution superintendent of its drinking water treatment plant. The utility agreed to rent to the employee a house owned by the utility located on a portion of the treatment plant site. The house apparently was not separated from the plant by fencing. Visitors to the house had to enter the plant site through the single gated entry, which was monitored by a plant operator and security cameras.

During a family gathering at the house, hosted by the employee, one of the guests was bitten by a dog that another guest had brought. The injured guest sued both the utility and the employee. On appeal, the court affirmed the trial court's ruling that the utility was not liable. The court reasoned that the utility did not own or have control over the dog, and did not have control over the residence. (Howle v. Aqua Illinois, Inc., 2012 IL.App(4th)120207)

This October, 2012 court decision got me thinking that I have not seen much recent discussion about security in the water and waste water utility industry. The events of 9-11 caused water utilities to rush into place various security measures, ranging from armed guards to electronic monitoring and fencing. Then utilities were required to prepare and submit vulnerability assessments of their facilities. Subsequently, utilities became aware that many of enacted and proposed security measures came with high capital or operating costs, not easily recoverable in rates.

Recently, a television documentary featured the life story of a man who as a young boy loved to go fishing with friends at a rural river. His pals would catch loads of fish. But, he never caught any. All he did, he said, was to make bubbles on the water with his line.

I wonder whether, and to what extent, water utility security measures really are effective or are utilities merely making bubbles on the water with their efforts. Even where fences, gates, locks, cameras and monitors have been installed, are all vulnerabilities realistically addressed? Even when access to facilities is screened, nevertheless such access can create security risks by reason of information about a facility that a visitor receives, whether visual or in the form of documents.

By analogy to the Illinois decision discussed above, a utility could enhance its security with old fashion "junk yard dogs." If such dogs were to bite an invited visitor, a court likely would reach a different conclusion. However, if a utility relied primarily on dogs for security, the person bitten might wind up to be the utility itself, who had only made bubbles on the water.

ODE TO A FLU SHOT

The government says the flu season has arrived. We all know that the government is always correct. Nevertheless, I have resisted getting a flu shot for some time. Finally, after much pressure from the wife, and much hacking, horking and sneezing wherever I go in public, I finally acknowledged that my time had come for the annual jamming of the flabby arm. So, I journeyed to my local "emergency medical clinic" for the ritual.

Now, was I naive to assume that an emergency medical clinic implies speedy attention? Well, just the opposite. One must first sign in on a form calling for a multiple choice answer to why one bothered to come there. The choices ranged from "flu shot" to "immediate surgery", and my mind flashed back to the horrors my SAT test. My first choice was "flu shot" and I wisely resisted changing my answer.

Then one sits in the waiting room with dozens of hacking, horking and sneezing patients all waiting for relief from the flu because they waited to long to get a flu shot. After 15 minutes, but it seemed longer than a super bowl halftime, one is called forth for the ordeal of the PAPERWORK. Form after form requiring signature, waiving and releasing everything except my body fluids--I think I still have those. Then came the verbal questions, such as why are you here, why do you have insurance. are you allergic to the world, do you have or want the flu?

Back to the waiting room hacking, horking and sneezing for another 15 minutes. Finally, I was summoned to a closet where a nurse larger than life was salivating to do the deed. But first, she asked the same questions that blotted my mind at the check-in desk, and added are you allergic to chicken, do you like chicken, what about eggs, omelets, eggs benedict, etc. Then, as the needle attacked my flabby arm, she announced that I could not get the flu from the shot, but I may experience flu-like symptoms. So, what is the difference, I wondered. All in all, it took an hour to get a 10 second flu shot.

Upon reflection, I wonder if I would have been better off just drinking 8 glasses of water every day coupled with I-V chicken soup. Or, maybe all that sitting time with hacking, horking and sneezing immunized me from the flu anyway.

On the way home, I heard on my car radio that a science laboratory was asking the general public to send it their stool samples. It seems that scientists there want to accumulate an inventory of all the bacteria, good and bad, found in human intestines. What a great idea! This will reduce loading at the local sewage treatment plants. And, since my flu shot does not protect me from intestinal flu, I may have plenty to send the laboratory in the future.

THE POST-ELECTION FUTURE OF WATER--PART II

Two powerful forces likely will define both the near term future as well as the longer term future of water in this country. First, an increasing awareness is probable that fresh water is a very limited resource and is becoming more so due to demand and to environmental change. This acknowledgement, in turn, will drive efforts to limit water uses to protect the resource. The second powerful force may be the federal government, which under the guise of protecting water resources, can be expected to more strictly regulate water use and quality.

Here are some of the potential future trends that may develop:

1. Water Allocation. The federal government may seek to regulate the allocation of water sources of supply as between regions of the country. Such allocation could involve ground water as well as surface water river and lake sources. Allocations could be effected by use of pipelines as well as by limits on withdrawals.

2. Cap and Trade. As one feature of allocation, the government could initiate a broad cap and trade program for all water utility sources of water supply. By analogy, there already is a water quality trading program called the "Ohio River Basin Interstate Water Quality Trading Project," designed to reduce agricultural nutrient load runoff.

3. Expanded Metering. Also related to allocation and conservation of water, the future may see universal required metering of private residential and commercial wells, with penalties for exceeding permitted withdrawals. For customers of water utilities, there could be corresponding mandatory inverse rate block structures with surcharges for excess water use.

4. Limited Fracturing. It is likely that more strict regulation of hydraulic fracturing water will be imposed--not only to protect water sources but more importantly to promote political desire for alternative sources of energy and to discourage reliance on oil.

5. New Water Sources. The federal government will continue to promote, through loans, grants and guarantees, development of alternative or non-traditional sources of water supply. Beside desalination, these could include mandatory reuse of highly treated wastewater and mandatory collection and use of rain water.

6. Regulation, Regulation, Regulation. More regulation of alleged contaminants in water, and more regulation of water use, likely will be the agenda of EPA. It can be expected to be aggressive in stretching its regulatory and enforcement programs, particularly under its National Enforcement Initiative and its notion of "environmental justice." In turn, more court challenges to agency action will result.

7. Infrastructure. Everyone has been talking about the urgent need to replace aged water and wastewater plant and to upgrade facilities to maintain regulatory compliance, but the predicted cost is huge and utilities seem to be waiting for federal government financial assistance. The more utilities will wait, the higher the price tag and urgency will become.

8. Rates. So, who will pay? Customers of water utilities can expect to pay substantially higher rates in the future, due to regulatory requirements and infrastructure replacements and upgrades. In the near term, rates could be approaching $10 or more per 1,000 gallons--or, in other words, a monthly water bill will be almost as much as the cable or telephone bill!

THE POST-ELECTION FUTURE OF WATER - PART I

It is no secret, nor surprise, that we have just experienced a very contentious and close election. Indeed, the actual vote totals in the presidential race were sufficiently close to deny a mandate for one party or the other. Rather, the actual mandate is for all parties to come together to address and resolve serious issues confronting the country, including those pertaining to water.

As John Wesley wrote in his journal in 1774 about an election to be held in England: "I met those of our society who had votes in the ensuing election and advised them: 1. To vote, without fee or reward, for the person they judged most worthy; 2. To speak no evil of the person they voted against; And 3. To take care that their spirits were not sharpened against those that voted on the other side."

What are some of the concerns and issues for water that likely will beg for attention from the federal and state governments now that the election has become history? I think that they could include the following:

1. Will USEPA continue to promulgate more and more regulations for monitoring and removing constituents in water and wastewater? Or will Congress react to mitigate the rising costs for utilities to comply with such regulations, and the resulting rising rates charged users?

2. Will USEPA aggressively use its perceived enforcement powers or will Congress and the courts seek to restrain such powers?

3. How will utilities address so-called climate changes which are believed to reduce sources of water supply and to increase competition for supplies across regional boundaries?

4. How will utilities construct and pay for new water and wastewater infrastructure needed to replace facilities beyond their useful lives and to meet demand created by an eventual resurgence in the housing and manufacturing industries?

5. Will the federal government, already deeply in debt by trillions of dollars, continue to fund grants and loans to states and cities for water and wastewater capital improvements, and if so, from where will the federal government get the money?

6. How high will rates for water and wastewater services have go to meet regulatory compliance costs, increased operating costs and infrastructure capital costs?

Stay tuned!

GOING WITH THE FLOW

Recently, a Wall Street Journal editorial criticized the U.S.EPA policy dealing with overflows from wastewater treatment plants. ("The Obama Storm Tax", October 23, 2012, p. A16)

In wet weather conditions, some wastewater treatment facilities frequently may become burdened with excess influent water flows from tributary sewer mains. Such excess flows can arise either because the sewage collection system is a combined system--designed to receive both sanitary and storm water--or because the sanitary system is subject to inflow and infiltration in rain periods.

Under such excess flow conditions, wastewater treatment plants may be forced to bypass some of the influent to a receiving stream in order to protect the integrity of the treatment biological process for the design influent flow.

Not all bypasses, however, are due to heavy rain events. For example, the Record/Herald News (northjersey.com) reported that hurricane Sandy allegedly disabled one of the nation's largest wastewater treatment plants, forcing it to release about 300 million gallons of untreated sewage into Newark Bay. This action resulted from the wide power outage and the fact that standby generators could only power the outflow. It also was reported that other plants had to take similar action.

The Journal editorial was critical of EPA Clean Water Act enforcement measures against municipal wastewater facilities which bypass excess flows. The editorial alleged that cities are forced to enter into consent decrees with EPA to upgrade their plants, which cost local taxpayers billions of dollars. Further, such systems are subject to limits on the number of permitted bypasses. The editorial complained that such upgrades actually may not be cost effective.

The editorial may have overlooked some factors involved with bypasses. First, EPA can be both the hand that feeds as well as the hand that slaps. While enforcement actions may impose upgrade costs on utilities, EPA also spends untold millions of dollars in grants and low interest loans to cities and states for upgrades of infrastructure. This money comes from taxpayers nationwide, who in effect subsidize upgrades for the beneficiaries.

Second, not all bypasses necessarily are harmful to a receiving waterbody. Traditionally, a bypassed flow may be required to receive at least primary treatment-upwards of 85%- and chlorination. One would expect EPA to consider this to be an appropriate mitigation factor given the benefit of saving the overall treatment plant function.

Third, perhaps the real issue with the excess flow issue is not plant capacity but the cause of the excess flows in the first place. If the collection system is a combined system , them maybe a more cost-effective solution is to separate the sanitary from the storm systems, at least partially. If a collection system is sanitary only, the issue may become inflow and infiltration. Inflow results from illegal connections of downspouts, sump pumps, footing drains and the like to the sanitary system and from leaking manhole covers. Infiltration can result from broken mains and manholes. Reducing excess flows from inflow and infiltration not only can reduce the necessity for treatment plant bypasses, but also may reduce sewer surcharges and resulting backups into homes.