By Amena H. Saiyid
Nov. 26 --Representatives of several groups urged the
Environmental Protection Agency to end regulatory confusion by applying
nationally an appeals court decision to invalidate the agency's policies
prohibiting bacteria mixing zones in receiving waters and the blending of
partially and fully treated wastewater during heavy rains.
In a Nov. 26
letter to EPA Administrator Gina McCarthy, the groups
said municipal wastewater utilities across the nation are facing confusion in
addressing wet weather compliance, resulting in increased local costs. The
groups represented municipal lawyers, publicly owned wastewater utilities,
mayors and city and county officials.
In a March 25 decision, the U.S.
Court of Appeals for the Eighth Circuit held that the EPA needs to go through a
formal rulemaking, with notice and comment, before it bars the use of mixing
zones to meet standards for bacteria at wastewater discharge points in
receiving waters designated for primary-contact recreation and to prohibit
blending of partially and fully treated wastewater inside treatment plants
(Iowa League of Cities v. EPA, 8th Cir.,
2013 BL 77650, No. 11-3412, 3/25/13).
The court also ruled that EPA
exceeded its Clean Water Act authority in attempting to prohibit the practice
“It is time to put that confusion and conflict to rest.
Accordingly, we respectfully request confirmation that EPA will apply the
Iowa League of Cities decision uniformly across the country and so
advise its Regions and delegated States,” the groups wrote.
The U.S. Conference of Mayors, the National League of
Cities, the National Association of Counties, the International Municipal
Lawyers Association, and the National Association of Clean Water Agencies
(NACWA), which represents publicly owned municipal wastewater treatment plants,
signed the letter.
The groups said it has been seven months since the
Eighth Circuit rendered its decision, but the EPA has yet to withdraw prior
objections to National Pollutant Discharge Elimination System (NPDES) permits
that allowed wastewater utilities to allow blending of partially and fully
treated wastewater during heavy rains.
According to Kansas state
officials, the EPA never removed its objection to a draft NPDES permit for
Lawrence, Kan., that included the use of a technology other than secondary
treatment to handle a blending of partially and fully treated wastewater.
Nancy Stoner, acting assistant administrator for the EPA Office of Water,
said at a recently concluded NACWA Clean Water Act law seminar that the EPA
would limit the appellate ruling to that court's jurisdiction and that the
agency will apply the decision on a case-by-case basis in other areas.
Stoner's remarks caused the Iowa League of Cities attorney at that same
seminar to question what criteria if any the EPA would apply in determining a
“case by case” application of the appellate ruling.
The groups reminded the EPA that “Congress expressly
granted the circuit courts original jurisdiction to review the NPDES
regulations at issue under Section 509 of the Clean Water Act to ensure
nationwide uniformity, and that EPA regulations provide for only one circuit to
render an opinion on a petition for review. Consequently, we believe there is
no legal basis to assert that the 8th Circuit decision does not apply
In a Nov. 26 statement to Bloomberg BNA, EPA said, “We will
review the letter and respond as appropriate.”
the reporter on this story: Amena H. Saiyid in Washington at firstname.lastname@example.org
To contact the editor responsible
for this story: Larry Pearl at email@example.com
The letter to the EPA
regarding application of the Iowa League of Cities v. EPA ruling is
available at http://op.bna.com/env.nsf/r?Open=rlen-9dtppq.