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Iowa League of Cities v. Environmental Protection Agency

ELR Citation: 43 ELR 20069
Nos. 11-3412, (8th Cir., 03/25/2013)

The Eighth Circuit vacated two EPA letters announcing new legislative rules for water treatment processes at municipally owned sewer system. EPA admitted it did not engage in notice and comment procedures, but it insisted there has been no procedural impropriety because the letters should be considered general policy statements or, at most, interpretative rules. But both the mixing zone rule in the June 2011 letter and the blending rule in the September 2011 letter are procedurally invalid. The June 2011 letter creates a new legal norm for bacteria mixing zones based on EPA's authority to promulgate effluent limitations. EPA has not cited any preexisting effluent limitation or lawfully promulgated legislative rule that supplies the basis for the prohibition on bacteria mixing zones in primary contact recreation areas. This new legal norm is therefore a legislative rule, and EPA violated the APA when it bypassed notice and comment procedures. Likewise, because the September 2011 letter had the effect of announcing a legislative rule with respect to blending peak wet weather flows, EPA violated the APA by not using notice and comment procedures. Further, the court vacated the blending rule as in excess of statutory authority insofar as it would impose the effluent limitations of the secondary treatment regulations internally, rather than at the point of discharge into navigable waters.