Tuesday, March 26, 2013
Mar 25: In the U.S. Court of Appeals, Eighth Circuit, Case No. 11-3412. Petition for Review of an Order of U.S. EPA. The case involves a determination by the Appeals Court that two letters sent by the EPA to Senator Charles Grassley with respect to bacteria mixing zones and blending in wastewater treatment facilities constituted binding promulgations and effluent limitations under the Clean Water Act in violation of the Administrative Procedures Act.
The Appeals Court explains that the Iowa League of Cities (League) seeks direct appellate review of two letters sent by U.S. EPA to Senator Charles Grassley. The League argues that these letters effectively set forth new regulatory requirements with respect to water treatment processes at municipally owned sewer systems. According to the League, the EPA not only lacks the statutory authority to impose the regulations, but it violated the Administrative Procedures Act (APA), by implementing them without first proceeding through the notice and comment procedures for Agency rulemaking. The Appeals Court agreed and vacated the requirements of the letter under APA section 706(2)(C), (D).
According to EPA, the "guidance letters" sent to Senator Grassley were merely discussing existing regulatory requirements. The League disagreed, viewing the letters as contradicting both the Clean Water Act (CWA) and the EPA's lawfully promulgated regulations. The two areas of regulation addressed in the challenged EPA letters are "mixing zones" and "blending."
Much of the argument involves a treatment system known as ACTIFLO, a physical/chemical process that uses ballasted flocculation. The League argues that by prohibiting the use of ACTIFLO internally, as one element of a facility's secondary treatment procedures, EPA is effectively dictating treatment design, despite the Agency's acknowledgment that the bypass rule and secondary treatment regulations do not allow for such determinations at the Federal level. The League also claims that the EPA is effectively applying secondary treatment effluent limitations within a treatment facility; that is, it is applying effluent limitations to the individual streams exiting peak flow treatment units, instead of at the end of the pipe. The EPA responds that using ACTIFLO to process peak wet weather flows diverts water from biological secondary treatment units, and therefore subjecting its use to a no-feasible-alternatives analysis comports with the plain language of the bypass rule.
The Appeals Court determines that, ". . .the letters can be considered 'promulgations' for the purposes of establishing our jurisdiction under section 509(b)(1)(E) because they have a binding effect on regulated entities. 'If an agency acts as if a document issued at headquarters is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency's document is for all practical purposes "binding."'" [citing] Appalachian Power Co., 208 F.3d at 1021].
The Appeals Court concludes, ". . .we deny the EPA's motion to dismiss and grant the League's petition for review. We vacate both the mixing zone rule in the June 2011 letter and the blending rule in the September 2011 letter as procedurally invalid. Further, we vacate the blending rule as in excess of statutory authority insofar as it would impose the effluent limitations of the secondary treatment regulations internally, rather than at the point of discharge into navigable waters. We remand to the EPA for further consideration."
Access the complete opinion (click here). [#Water/CSO, #CA8]
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