United States v. City of Fort Smith
| Decision Date | 14 September 2022 |
| Docket Number | 21-2127 |
| Citation | 48 F.4th 900 |
| Parties | UNITED STATES of America; State of Arkansas, Plaintiffs - Appellees v. CITY OF FORT SMITH, ARKANSAS, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the appellant was Frank Paul Calamita, III, of Richmond, VA. The following attorney(s) appeared on the appellant brief; Jerry L. Canfield, of Fort Smith, AR, and Colby T Roe, of Fort Smith, AR.
Counsel who presented argument on behalf of the appellee was John Emad Arbab, of Washington, DC. The following attorney(s) appeared on the appellee brief; Ellen J Durkee, of Washington, DC, Kenneth G. Long, of Washington, DC, Nicole Veilleux, of Washington, DC.
Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
On April 6, 2015, the district court1 entered a Consent Decree between the City of Fort Smith, Arkansas (the City), and the United States Environmental Protection Agency (EPA) along with the State of Arkansas.2 The Consent Decree imposed various sewer system improvement requirements on the City over an initial 12-year period. The Consent Decree sought to bring the City's sewer system into compliance with the Clean Water Act of 1972 (CWA), 33 U.S.C. § 1251 et seq., and to prevent untreated effluent from its sanitary sewers from overflowing into the waters of the United States and the State of Arkansas. The Consent Decree's requirements generally include (1) assessing the condition of the sewer system, (2) identifying control measures to address certain defects, and (3) developing a plan to ensure adequate capacity in the sewer system.
The parties eventually entered a dispute resolution process to clear up certain discrepancies in the respective parties’ interpretation of the Consent Decree's requirements. Unable to resolve the dispute by that process, the City filed a motion for judicial resolution. The district court granted the City's motion and issued two orders on March 19, 2021, and April 30, 2021. The City now appeals those two orders, challenging the court's ruling that certain severe structural defects had to be repaired by a date certain. We affirm.
The CWA seeks "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 301 of the CWA requires any discharge of pollutants to be in compliance with a National Pollutant Discharge Elimination System (NPDES) permit issued by the EPA or an authorized state. Id. §§ 1311(a), 1342. Such permits limit the amounts and types of pollutants that may be discharged and impose certain operating, monitoring, and reporting requirements. 33 U.S.C. § 1311 ("Effluent limitations"); 40 C.F.R. § 122.41 (); 40 C.F.R. § 122.25(a)(12) (). The State of Arkansas is authorized to issue NPDES permits within its borders. Approval of Arkansas’ NPDES Program, 51 Fed. Reg. 44,518 (Dec. 10, 1986). The United States may enforce NPDES permits issued by states through actions for injunctive relief and civil penalties. 33 U.S.C. § 1319(b), (d).
The Consent Decree states that it "shall have the objective of causing [the City] to achieve and maintain full compliance with the Decree, the CWA, the regulations promulgated under the CWA, and [the] City's NPDES Permits, including the goal of eliminating all [sanitary sewer overflows or] SSOs."3 R. Doc. 12, at 9. Pursuant to these objectives, the Consent Decree imposes several requirements on the City.
First, it requires the City to conduct Sewer System Assessments (SSAs), whereby the City inspects a portion of its sewer system every year and records any structural defects of the sewer lines and manholes in the inspected area. The SSA process is described in Appendix A to the Consent Decree. An SSA also rates the defects according to a system developed by the National Association of Sewer Service Companies (NASSCO). The NASSCO condition ratings system grades each sewer defect on a scale from 1 to 5 in ascending order of severity. A Grade 5 pipe segment "has failed or will likely fail within the next five years" and "requires immediate attention." Id. at 124. Similarly, a Grade 5 manhole is one where "[f]ailure has already occurred or is likely to occur." Id. at 126. A Grade 4 pipe segment "has severe defects with the risk of failure within the next five to ten years," id. at 124, and a Grade 4 manhole is one where "[c]racks, deterioration, [and] visible deformities [are] observed," id. at 126.
By comparison, pipe segments and manholes assigned Grades 1, 2, and 3 have less severe defects. A Grade 3 pipe segment is one with "moderate defects" and that "may continue [to deteriorate], but not for 10 to 20 years," while Grades 1 and 2 have "minor defects" and are "unlikely [to fail] in the foreseeable future" or "for at least 20 years," respectively. Id. at 124–25. With respect to both manhole and pipe defects, Appendix A further specifies a "[l]ikely [o]utcome" for each Grade: "[r]emedial [d]esign" for Grades 4 and 5 and "[a]dd into CMOM[4 ] program" for Grades 1 through 3. Id. at 124, 125, 126.
Second, the City is required to submit an annual Condition Assessment Report to the Arkansas Department of Energy and the Environment, Division of Environmental Quality (ADEQ), and to the EPA. This report includes the defects uncovered in conducting its SSA and their grades according to the NASSCO ratings system.
Third, the City is required to develop a Remedial Measures Plan (RMP) to address some of the sewer system defects that it identified in its SSA and graded in its Condition Assessment Report. The City must then submit each RMP to the EPA and to the ADEQ for review and approval.
Paragraph 18 of the Consent Decree is entitled "Condition Remedial Measures from SSA Activities Performed after Date of Lodging"5 and sets forth the RMP process. Id. at 26 (emphasis omitted). This paragraph reads in part:
After completing the SSA activities and following the process presented in Appendix D for the period from the Date of Lodging through December 31, 2015, and for every Calendar Year thereafter, [the] City shall develop a Remedial Measures Plan for all Pipe Segments and manholes discovered through that SSA to be rated 4 or 5 in accordance with the NASSCO condition rating systems (as set forth in Appendix A), and/or discovered to have other defects that have caused or significantly contributed to previous SSOs or that are likely to cause or significantly contribute to the future occurrence of SSOs.
Id. (emphasis omitted). Appendix D includes a decision tree titled "REMEDIATION DETERMINATION PROCESS." Id. at 133–34. The decision tree sets forth a process for evaluating the relationship between defects and SSOs and for determining how to address such defects. As relevant here, the decision tree divides sewer line and manhole defects into two groups: (1) defects connected to known or predicted SSOs and (2) defects connected with "[v]erified SSOs." Id. at 134. Of the former group, it then asks whether such defects will likely cause or contribute to a future SSO. If a future SSO is likely, then the decision tree routes the defect into a box titled "Remedial Measure Alternative Analysis" (RMAA). Id. If an SSO is unlikely, then the defect is assigned to the City's CMOM program. CMOM consists of a program of open-ended monitoring and maintenance and acts as an alternative to full rehabilitation by replacement or repair. The decision tree routes all defects connected with "[v]erified SSOs" into RMAA. Id .
As described in the Appendix D decision tree, the purpose of RMAA is to identify "the most practical solution and timeframe for eliminating [the] SSO" caused by the defect. Id. The RMAA box lists several alternatives to addressing the defects, including such "[s]olutions and techniques" as point repairs, rehabilitation, and replacement. Id . One such approach—listed twice in the RMAA box, once in relation to "Gravity Sewer Mains" and once in relation to "Manholes"—is "Monitoring or Maintenance Analysis: performed as part of CMOM." Id . The decision tree further instructs that after conducting RMAA, and on the basis thereof, the City should "[p]repare [the] Remedial Measures Plan." Id . The solutions and techniques selected by the City must then be documented in the RMP and submitted to the EPA and the ADEQ for review and approval.
Paragraph 18 of the Consent Decree further specifies that "[a]ll Remedial Measures enumerated in each Remedial Measures Plan shall be completed as soon as technically feasible, but no later than December 31st of the fourth Calendar Year following the Calendar Year in which the SSA that identified the need for those Remedial Measures was performed." Id. at 26. More generally, all remedial work required by the Consent Decree must be completed "no later than twelve (12) years after the Date of Lodging," i.e., no later than January 2, 2027. Id. at 20.
Another relevant provision of the Consent Decree instructs that "[a]ny conflict between the language in the body of the Consent Decree and the language in an appendix should be resolved in favor of the language in the body of the Decree." Id. at 114.
This case requires us to interpret the Consent Decree. Specifically, it concerns determining what solutions the City may employ under the RMP for Grades 4 and 5 defects. The City argues that some such defects may be addressed with CMOM in accordance with the available remediation options given in RMAA. The government disagrees, arguing that under Paragraph 18 all Grade 4 and 5 defects must be repaired by a date certain, which would foreclose the possibility of addressing any of them with CMOM.
The parties brought the dispute to the district court. Upon due consideration, the district court issued two orders resolving the case. The first order, issued March 19, 2021,...
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