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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 of blending.
“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 nationwide.”
In a Nov. 26 statement to Bloomberg BNA, EPA said, “We will review the letter and respond as appropriate.”
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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.
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