The Iowa League of Cities (“League”) successfully challenged the policies of the U. S. Environmental Protection Agency (EPA) regarding bacterial mixing zones and blending rules in the United States Court of Appeals for the Eighth Circuit. The Eighth Circuit exercises jurisdiction over appeals emanating from Arkansas, Iowa, Minnesota, Missouri, Nebraska North Dakota and South Dakota. While this decision is not binding on NJ state or federal courts, it may be persuasive authority for a court when deciding subsequent cases with similar issues and may guide the judge in making a decision.

In its decision of March 25, 2013, the Eighth Circuit reviewed the issue of whether EPA letters establishing EPA’s bacterial mixing zone policy and blending policy were procedurally invalid, meaning whether they were adopted without following the proper rulemaking procedure. With respect to mixing zones, defined as “a limited area or volume of water where initial dilution of a discharge takes place and where numeric water quality criteria can be exceeded,” the EPA advised in a June 2011 letter to the U. S. Senator from Iowa, Charles Grassley, that it was the EPA’s long-standing policy that all bacteria mixing zones in waters designated for “primary contact recreation” carry potential health risks and “should not be permitted.” Similar language is found in the EPA, Water Quality Handbook (1994).

The Court reviewed the June 2011 letter and other documentation and determined that with respect to bacterial mixing zones, these documents reflect a binding policy as it includes mandatory language. EPA argued that it was merely “one office director’s view of a regulatory requirement” and that states may in their discretion include mixing zone policies in their water quality standards. The Eighth Circuit did not agree. Summarizing the matter, the Eighth Circuit stated, “The EPA asks us to agree that when it couches an interdiction within a pro forma reference to state discretion, the prohibition is somehow transformed into something less than a prohibition.

We decline to accept such Orwellian Newspeak.” Accordingly the Eighth Circuit held that the June 2011 letter constituted a legislative rule, and as such was required to undergo rulemaking including notice and comment procedures. The Eighth Circuit vacated EPA’s rule prohibiting bacteria mixing zones in primary contact recreational areas, making this policy void and of no further force and effect in the Eighth Circuit territories. Should EPA wish to implement a rule prohibit- ing bacteria mixing zones in primary contact recreational areas, it is free to promulgate such a rule in accordance with the provisions of the Administrative Procedures Act.

The Court also reviewed the issue of blending and the use of the ACTIFLO method of treatment. The Court defined blending, consistent with the Federal Register (68 Fed. Reg. 63,042, 63,046 (Nov. 7, 2003) as the act of channeling a portion of “peak wet weather flows” around biological secondary treatment processes and through non-biological units recombining that flow with its counterpart that traveled through the biological units and then discharging the combined stream so as to avoid overwhelming a facilities standard bio- logical secondary treatment processes, potentially rendering them inoperable. The combined effluent must comply with all applicable effluent limitations.

The League argued that ACTIFLO is a permissible technology provided compliance is achieved at the point of discharge, and USEPA argued that ACTIFLO is an impermissible diversion from traditional biological secondary treatment facilities.

The League asked EPA if it could augment biological treatment and recombine the treatment streams prior to discharge, using the ACTIFLOW process, and in a September 2011 response, EPA replied that the practice of intentionally routing flows away from a facility’s secondary treatment units as a bypass would only be allowed if there were no feasible alternatives. The League charged EPA with unlawfully dictating treatment design and imposing secondary treatment standards within a treatment facility, as opposed to at the end-of-pipe, in violation of the limited authority granted EPA by the Clean Water Act. The Eighth Circuit also determined that the September 2011 letter represents a binding policy on blending and constituted legislative rulemaking and as such, was required to go through the regulatory rulemaking process. The Eighth Circuit also vacated the EPA’s blending rule.

What the Court did next is extraordinary. With respect to the USEPA’s blending policy, the Court went further and reviewed the merits of the policy and determined that what EPA had attempted was beyond the scope of its statutory authority. The Eighth Circuit held that even if the EPA had followed the proper procedures for adopting the blending policy, it did not have the legal authority to do so. The Court vacated the blending rule “insofar as it would impose the effluent limitations of the secondary treatment regulations internally, rather than at the point of discharge into navigable waters.” The wastewater dischargers in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota may now avail themselves of blending provided the final effluent is compli- ance at the end-of- pipe. Importantly for us, the Eighth Circuit’s decision is based upon a case from the United States Court of Appeals, District of Columbia Circuit, Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 996 (D.C.Cir. 1997), which may well affect an attempt to impose other than end-of- pipe effluent limitations in New Jersey. This case addressed an attempt by EPA to impose a pollutant minimization program requiring the reduction of regulated pollutants at their sources within the treatment facility. In this case the Court held that the Clean Water Act authorizes the EPA to impose limitations only at the point source, and that Congress clearly in- tended to allow the permittee to choose its own control strategy. The Court similarly concluded that, “although the EPA has the statutory authority to require the monitoring of discharges from sources within a facility, the agency exceeded its authority when it sought to impose effluent limitations upon nonpoint-source discharges.”

About the writer: Diane Alexander is a partner with the AEA member firm, Maraziti Falcon, LLP. She says, “I would be happy to provide copies of either of the cases discussed. Simply email me at dalexander@mfhenvlaw.com.” Diane recently discussed why she values AEA membership in a new video posted at www.aeanj.org.

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