The Ottumwa Courier

March 27, 2013

Ottumwa, others win suit against EPA

Court rules that EPA violated rule-making procedures, implementing regulations illegally

CHELSEA DAVIS
Courier Staff Writer

OTTUMWA — The Iowa League of Cities came out on top in a lawsuit filed against the EPA on behalf of a handful of municipalities, Ottumwa included.

The U.S. Eighth Circuit Court of Appeals sided with the ILC this week in its lawsuit against the U.S. Environmental Protection Agency, upholding its challenges to EPA’s “rules” on sewage bypass and bacteria mixing zones.

“Basically, the court held that the EPA’s letters and positions on bacterial mixing zones with sewer treatment were illegal legislative rules that were made without observance of procedure required by law,” said Ottumwa City Administrator Joe Helfenberger. “The court vacated the letters and the unlawful rules that were announced in the letters.”

The battle began in 2010, when the League sought out the appellate court to review two letters the EPA sent to Sen. Chuck Grassley (one in June 2011, the other in September 2011), which the League argued “effectively set forth new regulatory requirements with respect to water treatment processes at municipally owned sewer systems,” according to court documents.

The League alleged that the EPA violated the Administrative Procedures Act after it implemented regulations without first “proceeding through the notice and comment procedures for agency rule-making.”

“These individuals averred that they indeed have taken the June 2011 letter at face value, interpreting it as establishing a new prohibition on bacteria mixing zones, one by which they must abide in the permit application process. We agree that private parties have ‘reasonably [been] led to believe that failure to conform will bring adverse consequences,’ which tends to make the document binding as a practical matter,” according to the League in court documents.

“We’re pleased with the outcome,” Helfenberger said. “It’s been a long, two-year process, but we got a good result.”

The city, however, will continue to follow its consent decree agreement with the Iowa Department of Natural Resources to complete its sewer separation project.

“The way the [EPA was] going about making administrative rules was being challenged, not the consent decree or anything to do with sewer separation per se,” he said. “It has to do with how they go about making new rules. They need to follow due process when they create new rules. It’s the ability for communities and the public to comment on them before they take effect. We need to preserve that. That’s the essence of democracy. What we fought for was the ability to have input before laws were created.”

Winning this lawsuit is “huge,” he said, because “the public wins when they’re able to see legislation and rules before they are actually put into effect.”

Helfenberger said the EPA did not follow due process when it created the two rules.

“They can certainly create new rules, but they have to follow due process when they create them,” he said.

The Iowa municipalities banded together under the Iowa League of Cities, each committing $25,000 toward the fight.

Alan Kemp, executive director of the League, said “this impacts not only cities in Iowa, but actually, it really has a nationwide impact.”

In “direct payment,” Ottumwa won’t see anything from the lawsuit, Kemp said.

“But is it likely that they may save in terms of the cost of regulation they might not have to follow? Yes,” he said. “That’s the reason Ottumwa and these cities saw this as an investment, not only with the current issue but it sends a shot across the bow of the EPA on other areas they need to be more cautious in how to choose to go about regulating.”

The decision resulted in three successes, Kemp said.

Right off the bat in 2010, the EPA had argued that the court didn’t even have the jurisdiction to hear the case. The court dismissed that argument.

Second, the court considered the two letters sent to Grassley, “and basically said the positions taken on these bacteria mixing zones and others were illegal legislative rules that they had made up without going through those rule-making processes required by law.”

Finally, the court ruled that the EPA didn’t even have the authority to regulate bypass and secondary treatment under the Clean Water Act.

“They can’t even go back and make rules on that, because the Clean Water Act doesn’t give them that authority,” Kemp said.

Those cities that may be in the design process based upon these rules may be able to take a second look at if they have to do what the EPA told them to, which would in turn save them money.

The EPA has 45 days to ask for a rehearing.

“We don’t know what they’ll do,” Kemp said.



Court documents

The court documents from the final decision in Iowa League of Cities v. EPA can be viewed online at https://www.iowaleague.org/_layouts/media/8thCircOpinion.pdf