Clean Water Advocacy - Newsroom - AMSA in the News
Local governments seek legal clarity in 'blending' ruling
Marty Coyne, Greenwire senior reporter
Lawyers representing municipal governments are expected next week to ask a
federal court to stop U.S. EPA regional offices from barring wastewater
utilities from blending treated wastewater and dirtier flows into a single
discharge.
Attorneys for wastewater utilities in Pennsylvania, Tennessee and Arkansas,
along with the Association of Metropolitan Sewerage Agencies, are seeking the
injunction after the U.S. District Court for the District of Columbia ruled
Friday that wastewater blending is allowed under the Clean Water Act.
The practice occurs when sewage plants divert stormwater from rain events or
snowmelt so that the waste stream bypasses conventional treatment with
bacteria-eating microbes. Such bypasses are common during heavy rains, when
utilities are burdened with massive quantities of wastewater. The problem is
that stormwater runoff is often polluted with petroleum and human wastes
generated by septic tank and sewer system overflows, and that pollution often
finds its way to creeks, streams and other waterways.
Some regional EPA offices -- particularly those the mid-Atlantic and Southeast
-- have taken agressive steps to curb blending by wastewater utilities, charging
that the practice violates the federal clean water standards, and a number of
local utilities now face enforcement actions issued by regional regulators.
The utility groups filed a lawsuit in July 2002 to counter claims by EPA
regulators in Philadelphia and Atlanta that several utilities had violated the
Clean Water Act. But last week's ruling from District Court Judge Henry Kennedy
was only a partial victory for the plaintiffs.
While affirming the utilities' contention that blending does not violate the
Clean Water Act, Kennedy said the D.C. court lacks jurisdiction over the EPA's
regional offices and therefore could not rule on the specifics of the
enforcement actions. Rather, Kennedy ordered EPA headquarters in Washington to
articulate a blending policy for all regional offices to follow.
But even with the favorable ruling, lawyers for the local utilities are not done
fighting the case, said John Hall, one of the attorneys representing
Pennsylvania Municipal Authorities Association, the Tennessee Municipal League
and the City of Little Rock, Ark.
In particular, the plaintiffs will ask Kennedy to reconsider his assertion that
the court lacks authority over EPA's regional offices. Hall noted that in 1998,
the 4th Circuit Court of Appeals ruled that a district court could review a
federally approved clean water permit issued to Champion International Corp.
Lawyers will cite that case in their request for a reconsideration.
Other aspects of the decision for which the utilities seek a clarification is
whether an informal action by a regional office, such as a letter denying a
permit for blending, can be challenged in district court. Alexandra Dunn, an
attorney for AMSA, said that if informal decisions cannot be challenged, it
undermines the principle embodied in Kennedy's ruling that EPA regional actions
must follow policy from headquarters.
Dunn said the court clearly held that blending is allowed unless a national
policy barring the practice is enacted. "I think what the court did was right
legally," Dunn said.
But Nancy Stoner, an attorney with the Natural Resources Defense Council, said
the jurisdictional issue cited by Kennedy undermined the case of the local
governments.
The court noted in its decision that EPA has drafted a national policy allowing
blending, but Stoner cautioned against interpreting that policy too broadly.
EPA's so-called bypass regulations only allow blending to avoid severe property
damage, bodily harm or similar circumstances, Stoner said. "Don't fall into the
trap of believing EPA that blending will occur only in major storm events. The
policy sets no such limits," she said.