In response to the 8th Circuit’s decision in Iowa League of Cities v. EPA, US EPA held an “Experts Forum on Public Health Impacts of Wet Weather Blending” on June 19 -20, 2014. The purpose was to enlist the expertise of public health officials to “ensure that EPA has appropriate health-based information associated with different engineering options available to address wet weather blending at POTWs served by separate sanitary sewers.”  Notably, however, US EPA stated that the forum was not meant to spark a debate of US EPA’s bypass regulation.

While panelists at the forum noted that potential health risks associated with blending partially and fully treated wastewater during wet weather events are less severe than those associated with complete bypasses of treatment, they suggested that additional studies should be undertaken to assess the potential health effects of blending.  One reason for the lack of data regarding the health effects of blending is that the regulated community is not obligated to test the pathogen content of wastewater discharges.  At least one attendee suggested that US EPA issue an information collection rule to request data from facilities that utilize blending to fill in the gaps in data.  US EPA, however, stated that the panel was not enlisted to provide US EPA with formal suggestions for Agency action or to address how blending should be regulated by US EPA. Accordingly, it remains to be seen whether US EPA will utilize the information gained at the forum in future rulemakings related to blending.

Relatedly, in May 2014, a complaint was filed in the US District Court for the District of Columbia against US EPA under the Freedom of Information Act (FOIA), seeking information supporting the Agency’s claim that it is not obligated to apply the ruling in Iowa League of Cities nationwide.  The suit stems from US EPA’s April 2, 2014 letter to the National Association of Clean Water Agencies (NACWA) and other similar statements by US EPA’s Office of Water and Enforcement, stating that the Iowa League of Cities decision is only binding in the 8th Circuit.  The FOIA complaint asserts that US EPA failed to provide a complete response to the FOIA request, improperly withheld responsive documents and charged an excessive fee for the work performed in response to the FOIA request.  US EPA has not yet filed its answer in response to the complaint.

As US EPA continues to grapple with the 8th Circuit’s decision in Iowa League of Cities, proponents of a nationwide application of the court’s ruling may find support in the recent D.C. Circuit decision in National Environmental Development Association’s Clean Air Project v. EPA in which the court held that US EPA was required to apply a 6th Circuit ruling on Clean Air Act permit rules nationwide, despite US EPA’s contention that the ruling was limited to the 6th Circuit.  If US EPA is challenged on the application of its blending policy outside of the 8th Circuit, the Agency is likely to try to distinguish the Clean Water Act from the Clean Air Act and assert the doctrine of intercircuit nonacquiescence, which allows an Agency to seek review of a position in other circuits if it believes another circuit’s decision was in error.

In the meantime, the ramifications of the Iowa League of Cities decision continue to be uncertain for those outside the 8th Circuit; however, these recent developments are helping to frame future Agency actions or challenges that might provide more clarity. We will continue to update the blog as they progress.