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November 21, 2003 AMSA Fax Alert

Member Pipeline - Fax Alerts - November 21, 2003

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November 21, 2003

Court Ruling in Blending/SSO Lawsuit Helps POTWs Facing Permit Objections
Yesterday, the United States District Court for the District of Columbia dismissed the ongoing blending and sanitary sewer overflow (SSO) case, Pennsylvania Municipal Authorities Ass’n v. Horinko, finding that the inconsistent EPA regional guidance documents challenged by the plaintiffs are not "final agency actions" subject to judicial review. AMSA intervened in the case last year, and has participated in the briefing to date. The court found that "because regional guidance documents are not binding, publicly owned treatment works (POTWs) may continue to operate under the authority of their current permits until they expire, or are challenged by state or federal permitting authorities" — a finding that bolsters the position of POTWs currently blending where their permit or application references the wet weather operational mode. Also of great value to POTWs, the court held that the Regions “do not have authority to establish rules prohibiting the disputed practices.” Along these lines, the court concluded that "municipalities denied permits by states or the EPA Regions, or issued permits banning blending, suffer enough tangible legal injury" to claim "final agency action." While this too is a helpful finding, the court notes that challenges to permit denials by states belong in state court, and challenges to EPA Regional permit vetoes belong in the Courts of Appeals. The court flags that a "jurisdictional Catch-22" and the "somewhat labyrinthine judicial review provisions" of the Clean Water Act and the Administrative Procedure Act "seem to have shielded the EPA from legal action over genuine conflicts" in this case. The decision will be posted on AMSA’s website at http://www.amsa-cleanwater.org/private/littrack/. The court's action was predicted in Regulatory Alert 03-14 earlier this week, as EPA had heralded its November 7 proposed blending policy to the court as evidence of the absent, prerequisite final EPA action for judicial review. Without question, the lawsuit’s compilation of EPA’s inconsistent blending practices contributed to Agency’s release of the proposed blending policy. AMSA urges public agency members to provide input to the Association on EPA’s draft blending guidance by December 15, 2003 (see http://www.amsa-cleanwater.org/private/regalerts/ra03-14.cfm).

Senate Passes Appropriations Bill, Allocates $1.35 Billion to EPA for Clean Water SRF
The Senate passed S. 1584, the Veterans Affairs, Housing and Urban Development and Independent Agencies (VA, HUD) appropriations bill, which provides $8.18 billion in funding for EPA. Of importance to POTWs, this bill provides $1.35 billion for the Clean Water State Revolving Fund (CWSRF), which is $500 million more than the administration’s budget request and the same level of funding as fiscal year 2003. The bill also maintains the FY 03 funding levels for the Drinking Water State Revolving Fund of $850 million. The House has already passed its version of the EPA funding bill, H.R. 2861, which contains the same funding level for the CWSRF. AMSA will continue to work with Congress to ensure full funding for the CWSRF as part of its effort to obtain long-term, dedicated funding to help overcome the wastewater infrastructure funding gap. AMSA will continue to update members on the progress of this legislation’s status through future Updates and Alerts. In related news, efforts to encourage Senate passage of the Wastewater Treatment Works Security Act of 2003 (S. 1039), by attaching it as an amendment to S. 1584, were unsuccessful. AMSA will reassess its strategy and focus its sights on passage of wastewater security legislation in 2004.

Please Note the Following Important Deadlines:

Keep an eye out for upcoming Alerts and Updates that will detail:

  • This week’s successful AMSA/EPA 2003 Pretreatment Coordinators Workshop
  • AMSA’s Meeting with Key EPA Officials on its Capacity Setting Matrix