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Draft guidance on the Environmental Protection Agency's policy on blending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.