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Treatment plants in all but seven states will still be barred from using a controversial technique for managing high volumes of wastewater that threaten to inundate their facilities during storms after an appeals court refused Feb. 28 to consider a lawsuit seeking to lift the ban nationwide.
A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit ruled that it lacked jurisdiction to consider an Environmental Protection Agency decision to limit its ban on the wastewater management practices to the seven states within the Eighth Circuit, which said in 2013 the prohibition was illegal ( Ctr. for Regulatory Reasonableness v. EPA , D.C. Cir., No. 14-1150, 2/28/17 ).
The EPA issued guidance in the mid-2000s banning a technique used by some utilities in which some wastewater is routed around the treatment process before being blended with treated flows and then discharged into areas in the receiving waters known as mixing zones. The practice is used to keep the high volumes of wastewater, such as those during storms, from overwhelming the treatment plant. The agency said blending and the use of mixing zones violate the Clean Water Act.
The U.S. Court of Appeals for the Eighth Circuit disagreed in 2013 saying that the agency could not ban those management techniques. Rather than pursue the case further, the EPA decided to continue its prohibition in the states outside the Eighth Circuit’s jurisdiction—Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
The question before the D.C. Circuit was whether the EPA could limit the Eighth Circuit’s ruling to those states.
John Hall, of D.C.-based Hall & Associates who petitioned the court on behalf of the Center for Regulatory Reasonableness, said the D.C. Circuit’s decision was “odd to say the least” because it was premised on a factual and legal position that was briefed by no one and failed to reflect the petition for review that was filed.
He told Bloomberg BNA the coalition would seek an en banc review of the D.C. Circuit’s ruling.
“We believe the decision is misplaced on a number of grounds” and goes against federal appellate and Supreme Court precedents, he said.
In their decision as well as during the October oral arguments, the D.C. Circuit judges—Stephen Williams, Brett Kavanaugh and Robert Wilkins—chose to focus not on the legality of the EPA’s decision, but on whether the EPA’s “non-acquiesence” of the Eighth Circuit’s ruling was a final agency action that required public notice and comment.
They said in their ruling that a federal district court was better suited to address the question rather than appeals court, which the Clean Water Act has authorized to review seven categories of EPA actions including wastewater effluent limits and discharge permits.
The Center for Regulatory Reasonableness, which represents a coalition of municipalities and industrial facilities, and supports the right of wastewater utilities to blend, wanted the court to overturn the EPA’s decision to limit the Eight Circuit’s decision to the states that fall within its legal jurisdiction.
The D.C. Circuit’s dismissal of the lawsuit on procedural grounds wasn’t seen as a loss among the publicly owned wastewater sector.
The National Association of Clean Water Agencies, which represents nearly 300 publicly owned wastewater and stormwater utilities, filed a friend-of-the-court brief. Amanda Waters, the association’s general counsel, said the merits of the Eighth Circuit’s ruling still stand. The EPA has no legal authority to dictate what happens inside a wastewater treatment plant.
“The court did not reach the merits of the case; thus, EPA’s authority to regulate blending remains an open judicial question,” Waters said.
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