EPA will issue rule on POTW blending
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April 19, 2018
EPA will issue rule on POTW blending

The EPA announced that it will initiate rulemaking to resolve uncertainties regarding the Agency’s current position on blending at publicly owned treatment works (POTWs). The Agency says it will start the process by reaching out to states, local communities, and other stakeholders who are most affected by how POTWs manage wastewater (EPA news release.)

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Blending is an approach POTWs use to manage above-normal wastewater flows resulting from rainfall or snowmelt. If the POTW does not have the capacity to fully treat excess flows before discharge, it will deliver the flows to primary treatment (typically settling out of solids) and then route them around secondary treatment (typically biological treatment). The routed flows and the flows that have received secondary treatment are then blended before discharge.

Blending is bypass

POTWs, the municipalities that own them, and their supporting associations have long argued that blending is a necessary procedure to prevent secondary treatment from being overwhelmed and often rendered inoperable. In 2011, the EPA expressed a different view. In a letter to Senator Chuck Grassley (R-IA), the Agency said blending constituted bypass, or “intentional diversion of waste streams from any portion of a treatment facility”; bypass is explicitly prohibited by the Clean Water Act (CWA). The letter explained that blending was permitted only if there was no feasible alternative to secondary treatment.

Illegal rulemaking

Following Grassley’s receipt of EPA’s letter, the Iowa League of Cities petitioned the U.S. Court of Appeals for the 8th Circuit to invalidate the letter, arguing that the letter was effectively a final rule that the Agency intended to enforce. The plaintiffs pointed out that the EPA can issue a final rule only in compliance with the Administrative Procedures Act (APA), which requires that the Agency allow public comment on a proposed rule before promulgating a final rule. The plaintiffs contended that the letter violated the APA. The League’s legal assertion was that with the blending prohibition, the EPA was effectively regulating discharges within the POTW; under the CWA, the Agency may only regulate discharges exiting the facility.

In its defense, the EPA said the letter was merely an interpretation of a 2005 Agency rule on bypass. The 8th Circuit disagreed, said the 2011 letter had the effect of announcing a legislative rule with respect to blending peak wet weather flows, declared that the EPA violated APA’s procedural requirements by not using notice and comment procedures, and vacated this “new rule.”

Jurisdictional issues

Following the ruling, the EPA announced that the court’s vacatur was binding only in the jurisdiction of the 8th Circuit and that in all other areas of the country, the Agency would follow the blending policy as set forth in the 2011 letter. The Center for Regulatory Reasonableness petitioned the U.S. Court of Appeals for the D.C. Circuit to find that the 8th Circuit’s ruling must be applied nationwide, arguing—among other things—that the Agency’s nonbinding determination was yet another rulemaking that violated the APA. But in February 2017, the D.C. Circuit said it had no jurisdiction to rule on the petition.

The D.C. Circuit’s withdrawal from the case has plunged the blending policy into legal uncertainty, which the Agency will apparently seek to resolve with rulemaking that meets all the requirements of the APA.

The 8th Circuit’s opinion in Iowa League of Cities v. EPA is here.

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