Clean Water Advocacy - Newsroom - AMSA in the News
Municipalities Allege EPA Secret Policy
To Bar 'Blending,' Absent Regulatory Ban
Letters and internal memos between Environmental Protection Agency
headquarters and three regional offices show the agency has a "secret" policy
banning the practice of stormwater "blending" even though no such prohibition
exists in its regulations, municipal groups said in briefs filed in federal
court in Washington, D.C.
A brief by the Pennsylvania Municipal Authorities Association, the Tennessee
Municipal League, and the City of Little Rock Sanitary Sewer Committee was filed
March 14 challenging EPA's motion to dismiss a Clean Water Act case. A separate
brief supporting the cities' position was filed March 21 by the Association of
Metropolitan Sewerage Agencies.
Blending is the practice of routing excess stormwater around a publicly owned
treatment work's secondary treatment system and then blending it with the
treated effluent before discharging it.
The cities said the blending prohibition in EPA's Region III office in
Philadelphia, Region IV office in Atlanta, and Region VI office in Kansas City
represents an uneven application of a policy that is not even supported by the
agency's Clean Water Act regulations (Pennsylvania Municipal Authorities Ass'n
v. Whitman, D.D.C., 1:02CV01361, 7/8/02; 138 DEN A-8, 7/18/02 ).
Numerous correspondence and internal memos were submitted as part of the court
record showing that the regional offices have objected to National Pollutant
Discharge Elimination System permits that allow blending or other wet weather
practices not specifically prohibited in regulations, the brief said.
John Hall, a Washington, D.C., attorney who represents the municipalities, told
BNA March 25 that EPA issues guidance and policy documents that have the force
of law, but do not have the benefit of a public notice and comment period as a
formal rule would.
The Justice Department, representing EPA, sought to have the case dismissed in
briefs filed in October 2002. The government alleged, among other things, that
the case does not involve any final action that can be challenged.
The cities "point to an assortment of statements by subordinate agency officials
... and claim that these statements reflect the promulgation of 'rules' by
certain regional offices," the DOJ brief said, adding that the statements cannot
be viewed as final agency action.
DOJ further argued that the U.S. District Court for the District of Columbia was
not the proper place for the suit. Challenges to Clean Water Act rules should be
filed a the appeals court level, the brief said.
Hall said federal government lawyers tried to prevent the municipalities from
obtaining copies of the documents and memos they would use to bolster their
position that certain activities by the regional offices do constitute final
actions.
The court ordered the release of the documents, Hall said, including
correspondence and policy memoranda from Regions III and IV that state
specifically that "blending of secondary effluent and a primary effluent is not
permittable, since this would constitute a bypass of the required secondary
treatment units."
Meets Secondary Standards
Hall said that when the blending option is used, the wastewater that is routed
around the biological treatment facility is recombined with that which has been
treated and still meets secondary standards.
"Blending doesn't allow you to meet less restrictive limits," he told BNA.
However, the regions "using these policies as gospel" have indicated they will
not approve permits that allow blending.
Further, the regions mandated specific plant designs to process these wet
weather flows without regard to the cost, the brief said. The cost of adapting
POTWs to eliminate the need for blending is estimated to be about $300 billion,
the brief said citing EPA figures.
The DOJ brief said some of the correspondence referred to by the cities include
"settlement communications made in the context of enforcement proceedings" and
"do not mark the consummation of any agency decisionmaking process and have no
binding legal effect."
Hall said documents obtained since the DOJ brief was filed support the cities'
claim. In their brief, the cities said EPA agreed that the regions objected to
permits that include blending, the agency initiated enforcement actions against
facilities that blend, and informed facilities that blending was illegal.
"In short, EPA has done everything it claimed in its Mot. to Dismiss was
necessary in order for the Plaintiffs' claims to be ripe for judicial review,"
the brief said.
The brief said EPA's headquarters failed to "reign in" what one city official
said were "rogue regions" whose interpretation of guidance on wet weather flows
is contrary to EPA regulations.
"Half the regions are saying it's legal, and half are saying it's not," Alex
Dunn, the general counsel for AMSA, told BNA.
EPA headquarters has been trying to formulate a uniform policy on blending. At
first, the agency had considered addressing it as part of its rulemaking on
sanitary sewer overflows. Now, a separate guidance document is being
contemplated that would be issued sooner, G. Tracy Mehan, EPA assistant
administrator for water, has said (2 DEN A-7, 01/3/03 ).
An agency official told BNA March 25 the guidance is still under consideration.
By Susan Bruninga