Bloomberg News

EPA Clean Water Act Rules Invalidated by Appeals Court

March 25, 2013

U.S. Environmental Protection Agency wastewater treatment rules deemed to have been adopted in a pair of letters sent to a U.S. senator in 2011 were struck down by a federal appeals court.

The EPA sent the letters to Iowa Senator Charles Grassley while he was acting as an intermediary between the agency and the Iowa League of Cities, which the St. Louis-based court said had seen a gap between the regulator’s municipal sewer-water treatment rules and its expressed expectations.

The agency argued that the letters should be considered policy statements or interpretations of existing rules referred to in the correspondence. The court said today they contained new, improperly created regulations, one of which exceeded the EPA’s authority.

“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,” Circuit Judge Raymond W. Gruender wrote.

“We decline to accept such Orwellian Newspeak,” he said, referencing the fictional language author George Orwell created in his dystopian 1949 novel “1984.”

Public Notice

A unanimous three-judge panel declared both rules were created in violation of the federal Administrative Procedures Act, which requires public notice and comment.

Charles Miller, a spokesman for the U.S. Justice Department, didn’t immediately reply to a telephone message seeking comment on the court’s decision.

Based in the state capital of Des Moines, the Iowa League of Cities represents more than 870 municipalities, according to its website.

“We are still in the middle of reviewing the opinion,” Bruce Bergman, the league’s general counsel, said of the court’s 42-page ruling in a phone interview today. “We perceive it at this point as a victory for Iowa municipal interests.”

The EPA’s June 2011 letter to Grassley, a Republican, addressed bacterial mixing zones, areas immediately adjacent to sewage system outflow points where water quality may be measurably worse than permitted by regulations.

Water Overflows

While the letter acknowledged that EPA rules appear to tolerate those zones, it also said they shouldn’t be permitted in recreational waters.

The September letter addressed the routing and re-blending of storm water overflows through and around primary and secondary waste treatment processes, certain types of which the EPA said then could be employed only where there was no feasible alternative even though that rule had never been officially adopted, the court said.

That change, the court said, had the effect of relocating from outflow sites to secondary treatment sites the point at which the water must meet Clean Water Act requirements.

The case is Iowa League of Cities v. Environmental Protection Agency, 11-3412, U.S. Court of Appeals for the Eighth Circuit (St. Louis).

To contact the reporter on this story: Andrew Harris in the Chicago federal courthouse at aharris16@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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