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Clean Water Advocacy - Newsroom - AMSA in the News

Draft Policy on Blending Wastewater Flows
With Treated Effluent Sent for OMB Review

Draft guidance on the Environmental Protection Agency's policy on blending partially treated stormwater with treated effluent has been sent to the White House for review and may be published soon, agency officials said Sept. 8.
The draft was sent to the White House Office of Management and Budget the week of Sept. 1 and could be published within two weeks, one official said, adding that the publication date was not certain and could depend upon deliberations between EPA and OMB.

The action comes two weeks after three municipalities asked a federal court to prevent EPA's regional offices from prohibiting the practice of blending (Pennsylvania Municipal Authorities Ass'n v. Whitman, D.D.C., 1:02-01361, filed 8/14/03).

Blending involves routing excess stormwater around a publicly owned treatment work's secondary treatment system and then recombining it with the treated effluent before discharging it.

The technique is a necessary process for treating wastewater during storms that otherwise could inundate and disrupt the treatment process and has been practiced for years, municipal officials have said. The resulting discharge still meets secondary treatment standards as required under the Clean Water Act, but some enforcement officials have expressed concern that blending could violate the agency's 1980 bypass regulations.

The Pennsylvania Municipal Authorities Association, the Tennessee Municipal League, and the Little Rock Sanitary Sewer Committee sued EPA in July 2002 in the U.S. District Court for the District of Columbia. They allege that the agency's Region III office in Philadelphia, Region IV office in Atlanta, and Region VI office in Dallas specifically ban blending and that the prohibition is an uneven application of a policy that is not supported by the agency's Clean Water Act bypass regulation (Pennsylvania Municipal Authorities Ass'n v. Whitman, D.D.C., 1:02-01361, 7/8/02; 138 DEN A-8, 7/18/02).

The EPA Office of Water and the Office of Enforcement and Compliance Assurance have been working for more than a year on a policy to clarify the agency's stance on blending. The bypass regulations generally prohibit allowing wastewater treatment plants to bypass any aspect of the treatment process except in extreme circumstances, such as to prevent a loss of life or if no feasible alternative was available.

In responding Aug. 28 to the cities' motion for injunctive relief, EPA said that since it does not have a national policy regarding whether and under what circumstances blending constitutes an illegal bypass, regional offices are allowed to make such a determination on a case-by-case basis.

The agency argued in its Aug. 28 response brief that the court should not issue an injunction because the case lacks merit. Namely, EPA has argued the cities cannot sue the agency because there has been no final action to challenge. In addition, the agency said challenges on final agency actions should be made in the U.S. Court of Appeals.

John Hall, the Washington, D.C., attorney representing the municipalities said the agency has issued guidance and policy that have the force of law. Moreover, the regional offices have said they would not approve National Pollutant Discharge Elimination System permits for POTWs that plan to blend as a way to accommodate excess flows during wet weather, Hall said in earlier briefs.

EPA officials would not comment on the draft guidance or its contents.

Meanwhile, municipal officials have said several wastewater treatment projects are on hold until the policy is clarified.

"Plaintiffs have suffered and will continue to suffer monetary losses and continued exposure to criminal prosecution on a daily basis because the Regions involved refuse to implement the applicable regulations and EPA headquarters refuses to reign in those regions," the municipalities' Aug. 14 motion said.

Alex Dunne, general counsel for the Association of Metropolitan Sewerage Agencies, told BNA the municipalities expect the guidance to contain a series of conditions that have to be met so that blending will not violate the bypass regulations. AMSA intervened in the July 2002 lawsuit but did not join in the request for preliminary injunction.