REVIEW OF EPA BLENDING POLICY: LEGAL AND REGULATORY CONSIDERATIONS

Because some states and U.S. Environmental Protection Agency (EPA) Regions allow blending while others don't, EPA Headquarters drafted a blending policy in November 2003 to resolve the differences. Although a step in the right direction, the draft blending policy needed more clarification in order to be workable. Receiving almost 100,000 comments, the draft policy unfortunately left several significant issues unresolved and raised new questions (potentially leading to more Regional inconsistencies). On May 19, 2005, EPA declared it had no intention of finalizing the proposed blending policy and that they would continue to review policy and regulatory options.Meanwhile, potential legislative action regarding blending included a draft bill to prohibit blending, a House rider to EPA's appropriations addressing blending, and an oversight hearing by the House of Representatives Subcommittee on Water Resources and Environment. These activities resulted in position papers being disseminated asserting “fact and fiction” about blending – with the positions very divergent.While the significant policy and Congressional issues were being debated, the pending lawsuit brought by Pennsylvania, Tennessee and Arkansas municipal entities challenging the blending prohibitions of EPA Regions III, IV and VI continued. A federal District Court's opinion in Pennsylvania Municipal Auths. Ass'n. v. Horinko, 292 F. Supp.2d 95 (D.D.C. 2003) declaring that the EPA Region III, IV and VI policies were not final agency actions subject to judicial review was recently upheld by the federal Court of Appeals in Pennsylvania Municipal Auths. Ass'n. v. Johnson, Case No. 04-5073 (June 3, 2005). According to these Courts, until something more happened to these municipalities (e.g., permit denial or a national EPA guidance document issued") there was no final EPA action for the plaintiffs to challenge.While the EPA draft policy had taken a major step in the right direction, it raised some new concerns and left some issues unanswered. If blending is ultimately addressed by EPA in a policy or regulation, then it is incumbent upon the agency to address the issues raised by its November 2003 draft policy, as well as the issues that have arisen in the context of the legislative debate. This paper addresses many of those issues. Among the issues addressed are whether the final discharge should be required to meet all effluent limits as a precondition to blending; a permit writer's potential assertion of an acceptable treatment scenario; minimum treatment requirements and myths associated with the assertion of discharge of raw sewage; applicability to CSO facilities; operating a facility as designed; proper collection system operation and maintenance; appropriate I/I; discharge into sensitive waterbodies; myths associated with the assertion that blending provides for the discharge of inadequately treated sewage; and, whether any blending policy or regulatory standard should be discretionary.In addition, the paper addresses the potential next steps if EPA headquarters does not issue clarification. The regulated community needs clarification – whether it comes from EPA Headquarters, a legal challenge to Regional policies; a challenge to a State-issued NPDES permit; or a challenge to EPA Regional permitting action. This issue is not expected to disappear.