The Iowa League of Cities will get its day in court next week to argue the U.S. Environment Protection Agency (EPA) revised municipal sewage treatment regulations without proper rule-making and has sought to avoid judicial review of "illegally revised regulatory requirements."
Attorneys for the league and the EPA will make their oral arguments before the three-judge U.S. Court of Appeals for the 8th Circuit in St. Louis Tuesday, November 13, more than a year after filing suit to challenge the EPA's regulation of so-call "bypass" sewage.
The city of Bettendorf and 13 other cities in Iowa contributed $25,000 each to fund the litigation against the EPA. The initial lawsuit was thrown out after lawyers for the league missed a filing deadline, but the suit was refiled in October 2011 seeking review of the agency rules.
At issue is the treatment for sewage which is "bypassed" from normal full treatment during periods of peak flows to sewage treatment plants. Such peak flow conditions usually occur after heavy rains as storm water infiltrates into sewer lines. Some of the sewage is bypassed from full treatment and discharged into the river to prevent the plant from being inundated. Davenport discharged a total of 548 million gallons of partially treated wastewater into the Mississippi River over 74 days in 2010. When the treatment plant was unable to process all the sewage flow in 2010 and the sewage backed up, Bettendorf pumped more than 33 million gallons of untreated wastewater into the river.
To handle peak flows and prevent the bypassing of sewage at the Davenport treatment plant, construction of a huge "equalization basin" has been under consideration. More recently, the Iowa Department of Natural Resources and the treatment plant owners (Davenport and Bettendorf) have discussed a 20-year schedule of improvements including expansion of the plant treatment capacity and upgrading of sanitary sewers to reduce infiltration from storm water to lower peak flows to the plant. Under that plan, the equalization basin wouldn't be required for more than 12 years.
In its court brief, the league's law firm, Hall & Associates, claimed the EPA "artfully drafted" its brief in order to avoid "inconsistent statements" and hide the fact "it has been implementing new, nationwide mandates that impose more restrictive requirement on municipal entities -- all without formal rule-making."
The league attorneys argue the court should consider the case against the EPA because Iowa cities who are members of the organization are being "forced to immediately choose between constructing less costly facilities or far more costly processes to meet EPA's new mandates."
". . . EPA has effectuated a carefully orchestrated effort to radically revise its interpretation of three nationally appicable rules, improsing several hundred billion dollars in new costs," the league's lawsuit argues.
