EPA Loses Fight Over Sewage Treatment Rules

ST. LOUIS (CN) - Environmental regulators failed to go through the proper channels before adopting new rules on sewer water treatment, the 8th Circuit ruled.

Compliance with the rules would have reportedly cost cities across the nation $150 billion.

The Iowa League of Cities had led the charge against the Environmental Protection Agency after determining that the agency's official written policies did not correspond to the expectations it had of state entities that served as liaisons between the EPA and municipal wastewater treatment facilities.

Since 1994, the EPA has given states discretion as to whether their water quality standards can incorporate bacteria-mixing zones. These zones of navigable water contain a higher concentration of pollutants, with the expectation that the pollutants will diffuse as they move through the larger body of water.

The Iowa League of Cities had Sen. Charles Grassley, R-Iowa, seek clarification of this point, as well as its stance on a process in water treatment called blending. This process aims to keep water-treatment facilities operating through a storm through a system of channeling, combination and discharge.

After receiving the EPA's responses in June and September 2011, the league said that those letters effectively established new policy that skipped over the notice-and-comment procedures required under the Administrative Procedures Act.

Though the EPA insisted that its letters merely reflected general policy statements or, at most, interpretative rules, the 8th Circuit found them procedurally invalid last week.

"With respect to bacteria mixing zones in primary contact recreation areas, we struggle to spot the surviving state discretion," Judge Raymond Gruender wrote for a three-member panel. "The [June 2011] letter instructs state permitting authorities to reject certain permit applications, regardless of the state's water quality standards. The EPA's protestations to the contrary are particularly unavailing where, as here, Iowa's water permitting authority has received communications from the EPA indicating that it would object to any permits that were inconsistent with the policy outlined in the EPA letters. In effect, the EPA asks us to agree that when it couches an interdiction within a pro forma reference to state discretion, the prohibition is somehow transformed into something less than a prohibition. We decline to accept such Orwellian Newspeak."

Likewise the September 2011 presents a binding policy on blending, according to the 42-page ruling.

The ruling vacates the blending and mixing rules and sends the matter back to the EPA for further consideration. Judges Lavenski Smith and C. Arlen Beem concurred.

Grassley applauded the ruling for saving Iowa taxpayers from the multimillion cost of adhering to unnecessary regulations.

"The Environmental Protection Agency attempted to impose a new process for handling wastewater on several Iowa cities that would have cost Iowans hundreds of millions of dollars, but which the court has now confirmed were not necessary to meet the requirements of the Clean Water Act and current regulations," Grassley said in a statement. "The court rejected the Environmental Protection Agency's claim that its mandate to the Iowa cities was just an interpretation of existing rules, which is a way for agencies to make an end run around the rulemaking process, a process designed for stakeholder voices to be considered and for the federal bureaucracy to be held as accountable as possible. This decision should send a clear signal to the EPA and other federal agencies that they must act within the law established by Congress and cannot dictate willy-nilly."

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