Amicus Curiae Brief — Center for Regulatory Reasonableness, Petitioner v. Environmental Protection Agency

No. 17-334

In the Supreme Court of

the United States

CENTER FOR REGULATORY

REASONABLENESS, PETITIONER,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, RESPONDENT.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE WET WEATHER

PARTNERSHIP AS AMICUS CURIAE

SUPPORTING PETITIONER

F. PAUL CALAMITA III

Counsel of Record

PAUL T. NYFFELER

AQUALAW PLC

6 South 5th Street

Richmond, VA 23219

(804) 716-9021

paul@aqualaw.com

Counsel for Amicus Curiae

The Wet Water Partnership

ii

QUESTION PRESENTED

The Eighth Circuit vacated EPA rules

prohibiting mixing zones and blending

for

violating

the

Administrative

Procedure Act, and EPA subsequently

promulgated new rules—again without

notice and comment—that mirrored the

old rules’ prohibitions but introduced

geographical limitations. Did the D.C.

Circuit err when it treated these new

rules as non-acquiescence to the Eighth

Circuit’s vacation of EPA’s old rules and

declined the Center for Regulatory

Reasonableness’s petition on EPA’s new

rules for lack of jurisdiction under 33

U.S.C. § 1391(b)(1)(E)?

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... v

INTEREST OF AMICUS CURIAE ........................... 1

STATEMENT ............................................................. 2

SUMMARY OF ARGUMENT .................................... 6

ARGUMENT .............................................................. 8

I.

After the Eighth Circuit’s ruling,

EPA no longer had rules on mixing

zones and blending on which to nonacquiesce ............................................... 8

A.

The Eighth Circuit struck

down EPA’s unpromulgated

rules

prohibiting

mixing

zones and blending, not

merely

EPA’s

letters

announcing them........................ 8

B.

EPA cannot rely on existing

regulations to excuse its

failure to satisfy the APA by

rebranding

its

original,

vacated

rules

as

new,

geographically-limited rules .... 11

C.

Non-acquiescence applies to

administrative adjudications,

and EPA lacks a valid rule to

continue enforcing outside the

Eighth Circuit .......................... 14

iv

II.

D.C. Circuit had jurisdiction over

CRR’s petition not only for the

reasons given by the Eighth Circuit

in ILOC, but also based on EPA's

arguments in support of the

“Waters of the United States” Rule.... 17

III.

Section 402(q) of the CWA prohibits

EPA from denying a permittee with

a combined sewer system from

implementing

non-biological

secondary treatment as part of its

blending program ................................ 23

IV.

EPA’s unlawful prohibitions are

contributing tens of billions of

dollars to the utility-paying public's

detriment, while EPA denies that

public their legal right to comment

on these rules ...................................... 24

CONCLUSION ......................................................... 24

v

TABLE OF AUTHORITIES

PAGES:

CASES:

Action on Smoking & Health v.

Civil Aeronautics Bd.,

713 F.2d 795 (D.C. Cir. 1983) ............................ 10

AT&T v. FCC,

978 F.2d 727 (D.C. Cir. 1992) ............................. 15

Ctr. for Regulatory Reasonableness v. EPA,

849 F.3d 453 (D.C. Cir. 2017) ........................... 5, 6

Crown Simpson Pulp v. Costle,

445 U.S. 193 (1980) ............................................. 22

E.I. du Pont de Nemours & Co. v. Train,

430 U.S. 112 (1977) ................................. 20, 21, 22

Indep. Petroleum Ass’n of Am. v. Babbitt,

92 F.3d 1248 (D.C. Cir. 1996) ............................. 15

Iowa League of Cities v. EPA,

711 F.3d 844 (8th Cir. 2013) ........................ passim

Johnson v. U.S. R.R. Ret. Board,

969 F.2d 1082 (D.C. Cir. 1992) ........................... 10

NRDC Inc. v. US EPA,

822 F.2d 104 (D.C. Cir. 1987) ....................... 12, 13

Pub. Serv. Co. v. EPA,

949 F.2d 1063 (10th Cir. 1991) ........................... 13

vi

Sackett v. EPA,

566 U.S. 120 (2012) ............................................. 18

Tex. Mun. Power Agency v. EPA,

836 F.2d 1482 (5th Cir. 1988) ............................. 13

United States v. Mendoza,

464 U.S. 154 (1984) ............................................. 16

STATUTES:

5 U.S.C. § 702-04 ........................................................ 6

5 U.S.C. § 706(2)(D).................................................... 9

28 U.S.C. § 1331 ......................................................... 6

33 U.S.C. § 1311 ......................................17, 19, 20, 21

33 U.S.C. § 1311(b)(1)(B) ..................................... 2, 20

33 U.S.C. § 1312 ....................................................... 17

33 U.S.C. § 1314(d)(1) .............................................. 20

33 U.S.C. § 1316 ....................................................... 17

33 U.S.C. § 1342(q) ................................................. 4, 7

33 U.S.C. § 1342(q)(1) .............................................. 23

33 U.S.C. § 1345 ....................................................... 17

33 U.S.C. § 1369(b)(1) ........................................ 20, 22

33 U.S.C. § 1369(b)(1)(E) ........................17, 19, 20, 21

vii

33 U.S.C. § 1369(b)(1)(F).......................................... 21

33 U.S.C. § 1391(b)(1)(F)............................................ ii

REGULATIONS:

40 C.F.R. § 122.41 ................................................ 5, 11

40 C.F.R. § 122.41(m)(4) .......................................... 13

40 C.F.R. § 122.45(h) ................................................ 13

59 Fed. Reg. 18688 (Apr. 19, 1994)............................ 7

59 Fed. Reg. 18693–94 (Apr. 19, 1994) ...................... 7

68 Fed. Reg. 63042 (Nov. 7, 2003) ............................. 3

68 Fed. Reg. 63046 (Nov. 7, 2003) ............................. 3

70 Fed. Reg. 76013 (Dec. 22, 2005) ............................ 4

75 Fed. Reg. 30395 (June 1, 2010) ............................. 4

75 Fed. Reg. 30401 (June 1, 2010) ............................. 4

viii

MISCELLANEOUS:

Br. for the Fed. Resp’ts, Nat’l Assoc. of Mfrs.

v. Dep’t of Def., No. 16-299 (2017)

(EPA WOTUS Br.)...................................19, 20, 21, 22

Proof Resp. Br. for the Resp’t, Nat’l Envtl. Dev.

Ass’n’s Clean Air Project v. EPA,

Dkt. No. 16-1344, Doc. No. 1705333

(D.C. Cir. Nov. 20, 2017) .......................................... 11

Samuel Estreicher & Richard Revesz,

Nonacquiescence by Federal Administrative

Agencies, 98 Yale L. J. 679 (1989) ..................... 14, 15

1

INTEREST OF AMICUS CURIAE 1

The Wet Weather Partnership is a nationwide

association of dozens of local governments and their

agencies formed in 1989 to make a positive

contribution to federal laws and regulations

governing the design and operation of combined and

sanitary sewer systems, wastewater treatment

plants, and municipal separate storm sewer systems.

The Wet Weather Partnership has been dedicated to

securing funding for Combined Sewer Overflow

(“CSO”) control, ensuring that the CSO policy is

implemented as intended, and supporting CSO

control planning and implementation that is costeffective. Municipal members of the Wet Weather

Partnership operate historical CSO systems across

the country. Blending is a particularly important

practice for municipalities operating CSO systems,

and those members that blend must comply with

bacteria load and secondary treatment obligations.

Thus, the Wet Weather Partnership is uniquely

positioned to comment on the practical consequences

of an adverse decision in this action, which in turn is

relevant to explaining why the Supreme Court should

hear this case and reverse the decision by the Court

of Appeals for the District of Columbia.

Rule 37 statement: Petitioner and Respondent

separately consented to the filing of this amicus brief. No counsel

for any party authored any of this brief; amici alone funded its

preparation and submission.

1

2

STATEMENT

The Center for Regulatory Reasonableness

(“CRR”) provides the factual and statutory

background of this case in its Petition for Certiorari,

so only a limited statement is provided here.

This case involves EPA’s second attempt to

employ an underground regulation to curtail the use

of mixing zones and blending after the Eighth Circuit

vacated its first attempt. State water quality

standards include policies on whether or not to allow

National Pollutant Discharge Elimination System

(“NPDES”) permittees to use “mixing zones” when

determining compliance with discharge limits. See

Iowa League of Cities (“ILOC”) v. EPA, 711 F.3d 844,

857 (8th Cir. 2013) (“In effect, a mixing zone allows

the permit holder to create a higher concentration of

pollutants in navigable waters near the immediate

point of discharge, as long as the discharge is

sufficiently diffused as it moves through the larger

body of water. The requisite water quality criteria,

then, need not be met at the end of the pipe.”).

The Clean Water Act (“CWA”) requires publicly

owned treatment works (“POTWs”) to apply

secondary treatment prior to discharge. 33 U.S.C.

§ 1311(b)(1)(B). As explained by the Eighth Circuit,

Most secondary treatment processes are

biological-based, but the secondary

treatment regulations do not “specify the

type of treatment process to be used to

meet secondary treatment requirements

nor do they preclude the use of non-

3

biological facilities.” 2 At many POTWs,

primary treatment capacity exceeds

secondary

treatment

capacity.

Biological-based processes in particular

are sensitive to deviations in volume of

flow

and

pollutant

level.

Correspondingly, during periods of rain

and snow, large influxes of stormwater

can overwhelm a facility’s standard

biological

secondary

treatment

processes, potentially rendering them

inoperable. Blending can prevent this,

by channeling a portion of “peak wet

weather flows” around biological

secondary treatment units and through

nonbiological units, recombining that

flow with its counterpart that traveled

through the biological units, and then

discharging the combined stream.

ILOC, 711 F.3d at 858 (quoting 68 Fed. Reg. 63,042,

63,046 (Nov. 7, 2003)).

EPA’s difficulties began with its failure to

follow through and properly promulgate its new

policies prohibiting mixing zones and blending. EPA

recognized the need to promulgate its new rules on

blending because it first published a revised policy for

comment in the Federal Register in 2005. See ILOC,

2 “Biological-based systems use microorganisms to treat

incoming flows. A facility can be designed to use non-biological

treatment processes, such as chemical additives or physical

filtration equipment, instead of or in conjunction with biological

facilities.” ILOC, 711 F.3d at 858 n.8.

4

711 F.3d at 860 (citing 70 Fed. Reg. 76,013 (Dec. 22,

2005)). As of 2010, EPA was still requesting

comments on its new position. Id. at 860 (citing 75

Fed. Reg. 30,395, 30,401 (June 1, 2010)).

In 2011, EPA decided that “mixing zones

should not be permitted where they may endanger

critical areas, such as recreational areas.” Id. at 857–

58. This prohibition on bacteria mixing zones

required bacteria standards to be met at end-of pipe,

even for stormwater and CSO discharges. 3 Around

that time, EPA also decided that its new blending

policy was that secondary treatment must use

biological treatment, and non-biological secondary

treatment for treating peak wet weather flows

constituted an illegal bypass. Id. at 860. EPA neither

announced its final decisions prohibiting mixing

zones and blending, nor provided any notice for public

comment. Instead, it disclosed its newly adopted rules

in two letters (the “2011 Letters”) sent to Sen.

Grassley. Id. at 874–76.

In Iowa League of Cities v. EPA, the League

convinced the Eighth Circuit of the unlawfulness of

EPA’s new rules described in EPA’s 2011 Letters. Id.

at 878. The Eighth Circuit vacated EPA’s new rules

banning mixing zones and blending for failing to

3 Combined Sewer Overflows (“CSOs”) are the discharge

of wastewater and stormwater from a combined sewer system

directly into a river, stream, lake, or ocean. A combined sewer

system collects both sanitary waste and stormwater into a single

sewer pipe system. See, e.g., CWA § 402(q), 33 U.S.C. § 1342(q).

The municipal members of the Wet Weather Partnership all

operate historical CSO systems.

5

comply with the notice-and-comment requirements of

the Administrative Procedure Act (“APA”). Id. at 875–

76. The Eighth Circuit also vacated EPA’s new

blending rule for “exceeding the EPA’s statutory

authority” “insofar as [it] imposes secondary

treatment regulations on flows within facilities.” Id.

at 878. EPA concedes that it did not appeal this

decision to this Court. See Br. for Resp’t in Opp’n to

Pet. for Rev. of Letters dated April 2 and June 18,

2014 from the U.S. EPA (“EPA Br.”) at 13 n.5.

After ILOC, EPA made statements indicating

its intent to resurrect the vacated rules prohibiting

mixing zones and blending outside the Eighth Circuit.

See Ctr. for Regulatory Reasonableness (“CRR”) v.

EPA, 849 F.3d 453, 454 (D.C. Cir. 2017). On April 2,

2014, EPA responded to an inquiry from industry

leaders about its intentions to limit ILOC’s effect to

the Eighth Circuit. See Apr. 2014 Response [Pet’r

Appx. 2]. EPA described ILOC as being limited to “two

EPA letters regarding two subjects under the Clean

Water Act.” Id. at 1. EPA also explained that ILOC

“did not and could not have vacated the bypass

regulation at 40 C.F.R. § 122.41.” Id. EPA suggested

that ILOC “vacated only the letters at issue in the

case.” Id. at 2.

The D.C. Circuit rejected CRR’s petition to

review EPA’s 2014 Letter for lack of jurisdiction based

on EPA’s non-acquiescence argument. See CRR, 849

F.3d at 454. Specifically, that Court held

We need not determine whether EPA’s

non-acquiescence statement constitutes

a ‘promulgation’ because EPA’s nonacquiescence statement does not

announce an effluent or other limit on

6

discharge of pollutants. The nonacquiescence

statement

merely

articulates how EPA will interpret the

Eighth Circuit’s decision. Therefore, to

the extent the Center wants to directly

challenge

EPA’s

non-acquiescence

statement, it must follow the usual path

of suing in district court under the

Administrative

Procedure

Act,

assuming other reviewability criteria

are satisfied.

Id. (citing 5 U.S.C. § 702-04; 28 U.S.C. § 1331).

CRR filed its petition for certiorari on August

30, 2017. On November 2, 2017, the Supreme Court

called for EPA to provide a response by December 13,

2017, making this amicus curiae brief timely if filed

on or before December 4, 2017.

SUMMARY OF ARGUMENT

The D.C. Circuit erred in accepting EPA’s nonacquiescence argument because the Eighth Circuit

had vacated the rules EPA hoped to continue

asserting. In ILOC, the Eighth Circuit vacated EPA’s

nationwide prohibition on mixing zones and blending,

not merely the letters with which EPA had announced

them. EPA’s 2014 Letter, therefore, announced new

rules—again without following the notice-andcomment provisions of the APA—that mirrored the

vacated rules prohibiting mixing zones and blending

but added new geographic limitations, specifically

everywhere in the United States except within the

Eighth Circuit. The “doctrine of intercircuit

nonacquiescence” on which EPA relied is based on

articles and cases that are inapposite, discussing

7

agencies non-acquiescing to circuit court law in the

agencies’ administrative adjudications or wrongful

constructions of their respective statutes, not where,

as here, a court of appeals vacated an agency’s rules

as unlawful. The combination of the Eighth Circuit

vacating EPA’s old rules and EPA announcing new

rules with never before disclosed geographic limits

proves that EPA did not merely non-acquiesce to

ILOC but doubled-down with new prohibitive rules.

In its opposition to CRR’s appeal, EPA raised

many of the same arguments it tried unsuccessfully

to convince the Eighth Circuit, and this Court should

vacate EPA’s new rules for the same reasons provided

by that court. Yet EPA’s arguments before the D.C.

Circuit (as well as the Eighth Circuit) are

irreconcilable with arguments EPA raised in defense

of the “Waters of the United States” rule, where EPA

correctly pointed out that rules involving geographic

limitations and secondary treatment must be decided

by courts of appeals.

The D.C. Circuit also failed to consider that

§ 402(q) of the CWA forbids EPA from denying

permittees from employing non-biological secondary

treatment to prevent bypasses. See 33 U.S.C.

§ 1342(q); EPA’s CSO Control Policy, 59 Fed. Reg.

18,688, 18,693–94 (Apr. 19, 1994) (“CSO Control

Policy”). Thus, another reason for vacating the D.C.

Circuit’s ruling is that EPA’s unpromulgated rule

prohibiting bypasses clearly violates the CWA.

This Court should intervene because EPA’s

unlawfully promulgated rules prohibiting mixing

zones and blending drive up sewer fees and directly

impact many in the public who can least afford such

increases. Moreover, EPA’s unlawful promulgation

8

denies the public and other stakeholders the right to

challenge the legality and necessity of these rules,

further illustrating the need for this Court to

intervene.

ARGUMENT

I.

After the Eighth Circuit’s ruling, EPA no

longer had rules on mixing zones and

blending on which to non-acquiesce.

The combination of the Eighth Circuit vacating

EPA’s old rules and EPA announcing new rules with

specific geographic limitations establishes that EPA

did not non-acquiesce to ILOC but promulgated new

rules prohibiting mixing zones and blending in EPA’s

2014 Letter, all without complying with the noticeand-comment requirements of the APA.

A.

The Eighth Circuit struck down

EPA’s

unpromulgated

rules

prohibiting mixing zones and

blending, not merely EPA’s letters

announcing them.

In its briefing to the D.C. Circuit, EPA

fundamentally misconstrued the holding of Eighth

Circuit, which struck down the binding agency

policies described within the two EPA letters, not

merely the letters themselves. In 2014, EPA

confirmed industry concerns about EPA’s intentions

to marginalize the effect of ILOC outside the Eighth

Circuit by suggesting that it “vacated only the letters

at issue in the case.” Apr. 2014 Response [Pet’r

Appx. 2].

9

EPA’s 2014 Letter misconstrued the Eighth

Circuit’s holding, which vacated EPA’s policies

relating to mixing zones and blending, not merely the

letters alone. The Eighth Circuit stated the letters as

presenting or reflecting new, binding policies on

mixing zones and blending. See ILOC, 711 F.3d at

863, 865. EPA acknowledged that the Eighth Circuit

found these new policies “‘[e]xpand[ed] the footprint

of [existing] regulation[s] by imposing new

requirements[.]’” EPA Br. at 10 (quoting ILOC, 711

F.3d at 873). It then “vacate[d] the EPA’s new rule

banning bacteria mixing zones in all waters

designated for primary contact recreation as

promulgated ‘without observance of procedure

required by law.’” ILOC, 711 F.3d at 875 (quoting 5

U.S.C. § 706(2)(D)). Moreover, EPA’s letter “had the

effect of announcing a legislative rule with respect to

blending peak wet weather flows,” see ILOC, 711 F.3d

at 876, that was, as EPA acknowledged,

“‘irreconcilable with both the secondary treatment

rule and the bypass rule,’” EPA Br. at 11 (quoting

ILOC, 711 F.3d at 875). The Eighth Circuit vacated

“this new rule” banning such blending, not merely the

letter effecting its announcement. Se ILOC, 711 F.3d

at 876.

In vacating these two EPA policies, the manner

of announcement—whether in a letter, speech, or email—was irrelevant. EPA failed to satisfy the notice

and comment provisions of the APA regarding its new

rules banning mixing zones and blending. Thus, once

the Eighth Circuit vacated EPA’s new policies, EPA

no longer had nationwide rules forbidding (a)

biological mixing zones in all waters designated for

primary contact recreation or (b) blending peak wet

weather flows from biological and non-biological

secondary treatment units prior to discharging the

10

combined stream at a facility’s outfall. The D.C.

Circuit thus erred when it failed to recognize the

difference between vacating letters and vacating

rules disclosed in letters.

When EPA’s 2014 Letter announced the

rebranding of its original, vacated rules prohibiting

mixing zones and blending, the introduction of

geographic limits to the rules’ scope constituted

promulgation of new rules, again without the APA’s

requisite notice and comment period. When a court

vacates an agency’s rule, it remains vacated until the

agency promulgates a new rule. 4 See Action on

Smoking & Health v. Civil Aeronautics Bd., 713 F.2d

795, 797 (D.C. Cir. 1983) (“[B]y vacating or rescinding

the [proposed rescissions], the judgment of this court

had the effect of reinstating the rules previously in

force . . . , [which] cannot again be revoked without

new rulemaking in accordance with” § 4 of the APA.).

In a briefing in another appeal, EPA conceded this

4 Another option would be to appeal the original ruling

to have the vacation reversed, but EPA did not attempt to do so.

See EPA Br. at 13 n.5. This fact alone undermines EPA’s

argument, since there is a distinction between seeking Supreme

Court review and being denied, and avoiding an appeal for fear

that the Supreme Court could make the loss universal. See

Johnson v. U.S. R.R. Ret. Board, 969 F.2d 1082, 1092 (D.C. Cir.

1992) (“When an agency honestly believes a circuit court has

misinterpreted the law, there are two places it can go to correct

the error: Congress or the Supreme Court. The [agency] has done

neither. It has not asked Congress to clarify its intentions . . . .

More remarkably, it has failed to petition the Supreme Court for

certiorari, even in the decisions it claims to believe were wrongly

decided.”).

11

fact. See Proof Resp. Br. for the Resp’t, Nat’l Envtl.

Dev. Ass’n’s Clean Air Project v. EPA, Dkt. No. 161344, Doc. No. 1705333, at 21 (D.C. Cir. Nov. 20,

2017) (“[I]f this Court reviews challenges to a

‘nationally applicable regulation’ . . . and invalidates

any such regulation, EPA may not regard the vacated

regulation to be good law anywhere.”). From March

25, 2013, the day the Eighth Circuit vacated EPA’s

illegally promulgated rules, to April 2, 2014, the day

EPA resurrected the vacated rules, EPA lacked

policies prohibiting mixing zones and blending

outside the Eighth Circuit, including states like Ohio,

Missouri, and Washington, all of which contain major

cities that are members of the Wet Water

Partnership. Instead of promulgating these new,

geographically-limited policies for notice and

comment, EPA simply announced, via the 2014

Letter, its intention to ban mixing zones and blending

in some states but not others. The D.C. Circuit should

have recognized EPA’s 2014 Letter for what it was: a

new and distinct rule promulgation that failed to

satisfy § 4 of the APA.

B.

EPA cannot rely on existing

regulations to excuse its failure to

satisfy the APA by rebranding its

original, vacated rules as new,

geographically-limited rules.

EPA’s justification for announcing new,

geographically-limited rules banning mixing zones

and blending relies on an even more erroneous

interpretation of the ILOC holding. In its 2014 Letter,

EPA suggests that the ILOC decision can be ignored

outside the Eighth Circuit because it “did not and

could not have vacated the bypass regulation at 40

C.F.R. § 122.41.” Apr. 2014 Response [Pet’r Appx. 2].

12

Yet EPA acknowledged in its D.C. Circuit briefing

that the Eighth Circuit’s opinion vacated not the

bypass regulation, but the new rules illegally

promulgated on top of the bypass regulation.

Specifically, EPA quoted the Eighth Circuit’s

statement that “EPA’s new blending rule is . . .

irreconcilable with both the secondary treatment rule

and the bypass rule.” EPA Br. at 11 (quoting ILOC,

711 F.3d at 875; emphasis added).

EPA’s previous attempt to rely on the bypass

rule is further hindered by its reliance on inapposite

case law. In the 2014 Letter, EPA argued that the

Eighth Circuit’s decision could not escape that circuit

because the bypass rule supposedly “was reviewed

and upheld by the U.S. Court of Appeals or the D.C.

Circuit in NRDC Inc. v. US EPA, 822 F.2d 104, 126

(D.C. Cir. 1987). EPA made this point again in its D.C.

Circuit briefing by implying that the Eighth Circuit’s

holding that “the Act does not authorize EPA to apply

secondary treatment ‘effluent limitations to the

discharge of flows from one internal treatment unit to

another’” contradicts NRDC and other opinions from

the Fifth and Tenth Circuits. EPA Br. at 12 (quoting

ILOC, 711 F.3d at 877).

Yet the case law on which EPA relied is

inapposite to EPA’s argument. In ILOC, the Eighth

Circuit vacated EPA’s new rule prohibiting the

blending of waste flows treated with biological and

nonbiological secondary treatment prior to discharge

out of a facility’s outfall. ILOC, 711 F.3d at 858–60,

875–78. In NRDC, however, the D.C. Circuit

concluded that EPA had the authority to require a

minimum amount of treatment of bypasses, even if an

untreated bypass would not result in exceedance of a

facility’s NPDES permit. 822 F.2d at 124 (CWA’s

13

“goals are hardly fostered by allowing dischargers to

shut off their systems at will whenever they are in

compliance with the requirements represented by the

effluent limitations.”). In fact, the parties to NRDC

acknowledged that “the bypass regulation does not, in

fact, dictate that a specific treatment technology be

employed . . . .” 5 822 F.2d at 123. The other cases that

EPA cites in its D.C. Circuit brief are unavailing

because they involve interpretation of a regulation

inapplicable to POTWs. See Tex. Mun. Power Agency

v. EPA, 836 F.2d 1482, 1487 (5th Cir. 1988)

(interpreting 40 C.F.R. § 122.45(h), which allows

effluent limits within internal waste streams if

“effluent limitations or standards imposed at the

point

of

discharge

are

impractical

or

infeasible . . . .”) (emphasis added); Pub. Serv. Co. v.

EPA, 949 F.2d 1063, 1064 (10th Cir. 1991) (same).

Wholesale adoption of the holding in NRDC would

result in illogical and ill-advised actions by POTWs. For

example, the D.C. Circuit acknowledged that a bypass when

faced with “hydraulic flooding resulting from heavy rainfall”

would be permitted, even if it exceeds effluent limitations, “if it

was ‘unavoidable to prevent . . . severe property damage.’”

NRDC, 822 F.2d at 125 (quoting 40 C.F.R. § 122.41(m)(4)). If this

were the law, when it came to dealing with peak wet weather

flows, why would facilities pay to incorporate expensive

auxiliary, non-biological secondary treatment (like the

ACTIFLO technology discussed in ILOC) to keep from exceeding

effluent limitations, or even build larger biological secondary

treatment, if facilities could simply claim permitted bypasses

under 40 C.F.R. § 122.41(m)(4) for every big rain event?

5

14

C.

Non-acquiescence

applies

to

administrative adjudications, and

EPA lacks a valid rule to continue

enforcing outside the Eighth Circuit.

The D.C. Circuit’s central failure in dismissing

CRR’s case was a misapplication of what EPA

referred to as the “doctrine of intercircuit

nonacquiescence,” which is inapplicable to agencies

announcing new policies in violation of the APA.

According to the article on which EPA principally

relies, “an agency engages in intercircuit

nonacquiescence when it refuses to follow, in its

administrative proceedings, the case law of a court

of appeals other than the one that will review the

agency’s decision.” Samuel Estreicher & Richard

Revesz, Nonacquiescence by Federal Administrative

Agencies, 98 Yale L. J. 679, 687 (1989)

(“Nonacquiescence”) (emphasis added). The article

further warned that “a conclusion that the

nonacquiescence

standards

that

apply

in

adjudication” need not “necessarily apply in

rulemaking as well.” Id. at 747 n.317. Intercircuit

non-acquiescence is inapplicable to EPA’s 2014

Letter, since EPA invoked the doctrine to evade an

order by the judiciary vacating an illegal rule instead

of trying to convince other courts, for example, that

its interpretation of a statute or (properly

promulgated) regulation is correct. 6 See EPA Br. at 38

6 EPA’s cited article also indicates that EPA generally

does not engage in non-acquiescence and revises its regulations

after losing at the court of appeals. See Nonacquiescence at 717

(“EPA’s general policy is to eschew relitigation of an issue that

has been squarely decided against it in any circuit.”), n.201

15

(“Thus, ‘after one circuit has disagreed with its

position, an agency is entitled to maintain its

independent assessment of the dictates of the statutes

and regulations it is charged with administering, in

the hope that other circuits, the Supreme Court, or

Congress will ultimately uphold the agency’s

position.’”) (quoting Indep. Petroleum Ass’n of Am. v.

Babbitt, 92 F.3d 1248, 1261 (D.C. Cir. 1996) (Rogers,

J., dissenting)); see also id. at 37 (quoting AT&T v.

FCC, 978 F.2d 727, 737 (D.C. Cir. 1992), to describe

“an agency’s ‘right to refuse to acquiesce in one (or

more) court of appeals’ interpretation of its

statute.’”) (emphasis added); Nonacquiescence at 687

n.26 (“There is, of course, a considerable difference

between recognizing that the executive should be free

to ask the judiciary to change its mind and permitting

the executive to refuse to comply with settled

precedent.”) (citations omitted).

In this instance, United States’ immunity from

the doctrine of nonmutual collateral estoppel defines

the limits of what EPA could choose to ignore outside

the Eighth Circuit. “Under the judicially developed

doctrine of collateral estoppel, once a court has

decided an issue of fact or law necessary to its

judgment, that decision is conclusive in a subsequent

(“EPA amended a regulation to conform to an adverse circuit

decision even though this regulation had been upheld in other

circuits.”). Moreover, the article recommends that agencies

deciding to engage in non-acquiescence should “publi[sh] in the

Federal Register, or otherwise widely disseminate, a notice of its

decision to nonacquiesce including a brief statement of reasons

for that decision.” Id. at 761. In this case, EPA gave no public

notice of its change in position on non-acquiescence.

16

suit based on a different cause of action involving a

party to the prior litigation.” United States v.

Mendoza, 464 U.S. 154, 158 (1984). Nonmutual

collateral estoppel is when one party seeks to use

collateral estoppel against another where the

asserting party was not a party to the earlier

litigation. See id. In Mendoza, this Court held that

nonmutual collateral estoppel does not apply to the

United States, leaving it free to argue in one court a

position that proved unsuccessful in another court. Id.

at 162.

The United States may not ignore the Eighth

Circuit’s vacation of its rules unlawfully promulgated

in the 2011 Letters. In ILOC, the Eighth Circuit

decided two issues: (1) whether the prohibitions

against mixing zones and blending announced in the

2011 Letters were unlawfully promulgated rules, and

(2) whether the blending prohibition rule, if

promulgated, violated EPA’s statutory authority

under the CWA. ILOC, 711 F.3d 873–78. If resolving

these issues were all that the Eighth Circuit had

done, EPA would have been free to argue in other

circuits that nonmutual collateral estoppel cannot

bind the United States on these issues. However, the

Eighth Circuit, in addition to deciding those issues,

also vacated EPA’s nationwide rules prohibiting

mixing zones and blending as announced in the 2011

Letters. Id. at 875–76. Thus, while EPA could allege

outside the Eighth Circuit that it may promulgate

rules prohibiting mixing zones and blending, the APA

required EPA to promulgate new rules to replace

those the Eighth Circuit struck down. See id. at 873–

76. The legal effect of EPA’s 2014 Letter, therefore,

was to announce new rules that mirrored the vacated

rules regarding mixing zones and blending but

17

announced new geographic limitations on where the

prohibitions would be applied.

II.

D.C. Circuit had jurisdiction over CRR’s

petition not only for the reasons given by

the Eighth Circuit in ILOC, but also based

on EPA's arguments in support of the

“Waters of the United States” Rule.

EPA’s arguments against the D.C. Circuit’s

assertion of jurisdiction are largely repetitive of the

arguments rejected by the Eighth Circuit in ILOC and

should similarly be rejected by this Court. Yet EPA’s

assertion of jurisdiction in defense of its “Waters of

the United States” Rule are irreconcilable with EPA’s

arguments against jurisdictional in this case.

The D.C. Circuit erroneously concluded it

lacked subject matter jurisdiction to review EPA’s

geographically-constrained rules as announced in the

2014 Letter. Section 509(b)(1)(E) of the CWA vests

courts of appeals with exclusive jurisdiction to review

EPA’s “actions . . . in approving or promulgating any

effluent limitation under section 1311, 1312, 1316, or

1345 of this title . . . .” 33 U.S.C. § 1369(b)(1)(E).

Because the 2014 Letter adopts the previouslyvacated prohibitions on mixing zones and blending

announced in the 2011 Letters but with new

geographical limitations, the 2014 Letter constitutes

promulgation of new regulations prohibiting mixing

zones and blending for the same reasons they were in

ILOC. See 711 F.3d at 861–65. Specifically, “EPA’s

position that bacteria mixing zones in waters

‘designated for primary contact recreation should not

be permitted’ is a restriction that directly affects the

concentration of discharge from a point source and

therefore is an effluent limitation.” Id. at 866.

18

Moreover, EPA’s “rule regarding the use of blending

is an ‘other limitation’ because . . . it restricts the

discretion of municipal sewer treatment plants in

structuring their facilities.” Id.

The Eighth Circuit correctly resolved any

additional grounds against the D.C. Circuit’s

jurisdiction. EPA’s suggestion that the 2014 Letter is

not a “final agency action” is irrelevant for

jurisdictional purposes. See id. at 863 n.12. EPA's

arguments that it has not yet decided whether or not

to implement the policy bans or, if it does, whether to

apply them on a case-by-case basis, are virtually

identical to the purported discretion that remained

after EPA issued the 2011 Letters. See Sackett v.

EPA, 566 U.S. 120, 127 (2012) (“The mere possibility

that an agency might reconsider . . . does not suffice

to make an otherwise final agency action nonfinal.”);

compare, e.g., Br. for Resp’t in Opp’n to Pet. for Rev.

of Agency Letters to a Member of Congress, ILOC v.

EPA, No. 11-3412 (8th Cir. 2012) (“EPA ILOC Br.”) at

47 (“The League may prefer to have this Court

determine in the abstract whether EPA's letters to

the Senator set forth valid regulatory interpretations

rather than to wait to see if or how EPA or the

State ever applies those interpretations.”)

(emphasis added) with EPA Br. at 23 (“EPA did not

resolve or address whether and to what extent

Agency officials may, on a case-by-case basis,

outside the Eighth Circuit, follow Iowa League.”)

(emphasis added). Moreover, the Eighth Circuit

“struggle[d] to spot the surviving state discretion,”

and rejected EPA’s assurances as “Orwellian

Newspeak.” ILOC, 711 F.3d at 864–65. CRR's claims

are ripe for the reasons that ILOC’s claims were ripe.

Id. at 867–68. When EPA’s arguments in this case are

compared to those it raised in ILOC, it is clear that,

19

beyond defining new geographical limits, nothing has

changed.

Furthermore, the arguments made by EPA in

its appeal brief to this Court as to why circuit courts

should have jurisdiction over the WOTUS rule also

illustrate why the D.C. Circuit’s denial of CRR’s

petition should be reversed. In its appellate brief,

EPA argued for broad jurisdiction before circuit

courts under § 1369(b)(1)(E), especially when EPA’s

actions affect the geographic scope of a rule, alters the

regulatory authority of the agency, or “imposes

additional restrictions on the activities of some

property owners.” Br. for the Fed. Resp’ts, Nat’l Assoc.

of Mfrs. v. Dep’t of Def., No. 16-299 (2017) (“EPA

WOTUS Br.”) at 19 (citations omitted). For example,

EPA wrote:

A rule that delineates the geographic

scope of limitations promulgated under

[33 U.S.C. § 1311] is thus every bit as

integral to the CWA’s practical effect on

regulated parties as are the quantitative

or qualitative requirements. In order for

a regulated party to know what it is

prohibited from doing, the party must

know both those quantitative and

qualitative requirements and the

requirements’ geographic scope.

Id.; see also id. at 20 (“To determine the extent of the

‘limitations’ that a particular law imposes, one must

identify the geographic coverage of the law as well as

the range of conduct it forbids.”). EPA expressly

conceded that changes in rules governing secondary

treatment should be resolved in courts of appeal:

20

Section 1311, moreover, is clearly

designed so that critical aspects of its

limitations are imposed through EPA

regulations that define statutory terms.

Section 1311 requires the achievement

of . . . effluent limitations for certain

publicly owned treatment works “based

upon secondary treatment as defined by

the Administrator pursuant to section

1314(d)(1) of this title,” 33 U.S.C.

1311(b)(1)(B). [This provision reflects]

Congress’s intent that regulations

defining the [term] . . . “secondary

treatment” would be among the

mechanisms

through

which

the

Administrator

imposed

limitations

under Section 1311. 33 U.S.C.

1311(b)(1)(B).

Id. at 22. Continuing, EPA argued that “even if some

interpretive canon counseled in favor of reading

Section 1369(b)(1)(E) as reaching only effluent

limitations and limitations directly related to effluent

limitations, a rule setting the geographic scope of

effluent limitations falls squarely within the latter

category.” Id. at 27. And EPA acknowledged that this

Court has consistently shared this view:

In each of its decisions interpreting

Section 1369(b)(1), this Court has

construed the provision to afford this

form of expedited review to a coherent

class of EPA actions, so that intertwined

agency actions are routed through the

same channels. The petitioners in E.I.

du Pont argued that Section 1369(b)(1)

should be interpreted to permit direct

21

court of appeals review of grants and

denials of individual variance permits

under Section 1311, but not of “effluent

limitations for classes and categories of

existing point sources.” In rejecting that

approach, the Court explained that the

petitioners’ reading of the jurisdictional

provision “would produce the truly

perverse situation in which the court of

appeals

would

review

numerous

individual actions issuing or denying

permits pursuant to [Section] 402 but

would have no power of direct review of

the basic regulations governing those

individual actions.” . . . The Court stated

that “[t]he magnitude and highly

technical character of the administrative

record involved with these regulations

makes it almost inconceivable that

Congress would have required duplicate

review in the first instance by different

courts.”

Id. at 35–36 (quoting E.I. du Pont de Nemours & Co.

v. Train, 430 U.S. 112, 136 (1977)).

EPA argued before the D.C. Circuit that any

issues raised in its 2014 Letter should have been

resolved by a district court and not the D.C. Circuit.

See EPA Br. at 52. Yet EPA’s argument in favor of the

Sixth Circuit’s jurisdiction over the WOTUS rule

shows why a court of appeals should have jurisdiction

over the mixing zones and blending announced in

EPA’s 2014 Letter. Using EPA’s own words,

[EPA’s] reading of Section 1369(b)(1)(E)

and (F) would create the type of

22

irrational bifurcation that the Court in

E.I. du Pont and Crown Simpson sought

to avoid. [EPA] would construe Section

1369(b)(1) as vesting the courts of

appeals with jurisdiction to review EPA

regulations

setting

numerical

or

qualitative effluent limitations, while

authorizing district courts throughout

the country to review regulations

governing the same effluent limits’

geographic scope. That bifurcation

would hinder regulated parties’ efforts to

obtain prompt clarification of their

responsibilities under the CWA. See

[Crown Simpson Pulp v. Costle, 445 U.S.

193, 196 (1980)] (noting that Section

1369(b)(1) is designed to facilitate

speedy resolution of the meaning of

covered provisions) . . . .

EPA WOTUS Br. at 38.

EPA’s arguments before the D.C. Circuit

conflict not only existing law and the Eighth Circuit

but also the arguments presented in support of the

WOTUS Rule. EPA’s conflicting arguments should be

ignored, and EPA’s new, geographically-limited rules

prohibiting mixing zones and blending should be

remanded for review by the D.C. Circuit.

23

III.

Section 402(q) of the CWA prohibits EPA

from denying a permittee with a combined

sewer system from implementing nonbiological secondary treatment as part of

its blending program.

This Court should reverse the D.C. Circuit’s

ruling additionally because EPA’s prohibitions on

blending, as described in its 2014 Letter, are contrary

to a federal statute. Section 402(q) of the CWA

requires that “[e]ach permit . . . for a discharge from

a municipal combined storm and sanitary sewer shall

conform to the Combined Sewer Overflow [“CSO”]

Control Policy signed by the Administrator on April

11, 1994 . . . .” 33 U.S.C. § 1342(q)(1). EPA’s CSO

Control Policy “would allow a permit to authorize a

CSO-related bypass of the secondary treatment

portion of the POTW treatment plant for combined

sewer flows in certain identified circumstances.” CSO

Control Policy at 18,693. The CSO Control Policy

states that when alternatives to bypasses are

considered, “non-biological secondary treatment”

must be included in the analysis. CSO Control Policy

at 18,694 (emphasis added). Thus, § 402(q) of the

CWA prohibits EPA from promulgating a rule or

adopting a policy that declares CSO-related blending

with non-biological secondary treatment as an illegal

bypass. Although this argument has not previously

presented to the Eighth or D.C. Circuits, it is of

sufficient importance that the Wet Weather

Partnership requests that the D.C. Circuit be afforded

the opportunity to reconsider its ruling.

24

IV.

EPA’s

unlawful

prohibitions

are

contributing tens of billions of dollars to

the utility-paying public's detriment,

while EPA denies that public their legal

right to comment on these rules.

This Court should intervene because EPA is

using these unlawful prohibitions on mixing zones

and blending to coerce states and NPDES permittees

to abandon water pollution management plans,

thereby foisting tens of billions of dollars onto the

utility-paying public. If EPA is allowed to continue

enforcing these unlawfully promulgated rules, it will

(1) prevent communities from being able to evaluate

whether and how to construct certain wastewater and

stormwater designs without fear of objection or

penalty, (2) prevent communities from being able to

timely comply with current state or federal deadlines

under the CWA, and (3) force members to

immediately choose between constructing costeffective treatment designs that may be prohibited or

construct significantly more costly processes.

EPA’s unpromulgated policies exacerbate the

burdens placed on the public by municipalities’ sewer

rates. It is particularly unfair that EPA would force

such price increases onto the public, especially those

who struggle to afford existing sewer charges, when

EPA refuses to allow the public to comment on the

very policies driving up those rates. The D.C. Circuit

failed to recognize the true import of EPA’s unlawful

actions, and only this Court can correct their error.

CONCLUSION

EPA’s prohibitions on blending peak

stormwater flow exert a tremendous burden on the

25

public, yet EPA denies the public and other

stakeholders the opportunity to comment on these

unnecessary policies. It is patently unfair that EPA

continues to operate under policies it refuses to

expose to public scrutiny. Since EPA first proposed its

blending policy in 2005, EPA has had every

opportunity to promulgate a final rule, yet its failure

to do so can only mean it knows the rule will never

hold up to judicial scrutiny. The Eighth Circuit

recognized EPA’s practice for the unlawful

prohibitions that they were and promptly vacated

EPA’s rules prohibiting mixing zones and blending.

The D.C. Circuit failed to recognize that EPA’s 2014

Letter announced new, geographically-limited rules,

not merely a “non-acquiescence statement.” For this

reason, CRR’s appeal should be remanded to the D.C.

Circuit so that EPA’s prohibitions on mixing zones

and blending, as promulgated in the 2014 Letter, can

be vacated.

DECEMBER 1, 2017

Respectfully submitted,

/S/ F. PAUL CALAMITA III

F. PAUL CALAMITA III

Counsel of Record

PAUL T. NYFFELER

AQUALAW PLC

6 South 5th Street

Richmond, VA 23219

(804) 716-9021

paul@aqualaw.com

Counsel for Amicus Curiae

the Wet Weather Partnership