Eighth Circuit Vacates EPA’s Illegal Rules Prohibiting Blending and Bacteria Mixing Zones: Implications of the Decision and the Practical Consequences

At the beginning of 2013, the Eighth Circuit Court of Appeals thoroughly renounced the Environmental Protection Agency’s (EPA) attempts to revise, without rulemaking, National Pollutant Discharge Elimination System (NPDES) rules to limit wet weather treatment options (i.e., the use of blending) and prevent the use of bacteria mixing zones when permitting NPDES discharges. Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). The Court also concluded that a blending prohibition was beyond EPA’s statutory authority. At the time, the Iowa League decision represented a major victory for municipal interests across the country, as it saved communities an estimated $150 billion nationwide by renouncing the blending ban alone. However, since the decision was handed down, EPA has announced that it will only implement the decision in the 8th Circuit, leaving the rest of the country in disarray, guessing whether or not blending or bacteria mixing zone bans apply to them. This paper discusses the ramification of the Iowa League decision on collections, operations, and compliance of treatment plants, including the consequences of EPA’s announcement to apply the decision only in the 8th circuit. Moreover, the paper will discuss the subsequent legal challenge to EPA’s decision to apply the Iowa League decision in the 8th Circuit only, with the expectation that such legal challenge will be filed before WEFTEC.