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Environmental Blog

  • 11
  • May
  • 2016

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EPA Accused of Deceiving District Court Regarding Blending and Mixing Zone Policies Under CWA

The most recent development in EPA’s struggle with challenges to its ‘blending’ and ‘mixing zones’ policies is interesting, to say the least. On May 2, 2016, in a Freedom of Information Act (“FOIA”) lawsuit in the District Court for the District of Columbia, EPA was accused by plaintiff Hall & Associates (H&A) of misleading the court when it submitted a declaration that the plaintiffs characterized as “a complete and utter fabrication.”

The FOIA suit is the latest in a series of lawsuits that began with Iowa League of Cities v. EPA (ILOC), an Eighth Circuit case. There, a group of municipalities sought review of the EPA’s ‘blending’ and “mixing zones’ policies under the Clean Water Act (CWA). As this blog explained previously, the Eighth Circuit vacated both policies in 2013 after finding that the agency had effectively promulgated the policies as rules without going through the required public notice and comment period. The court also held that the blending policy exceeded the agency’s statutory authority under the CWA.

Following the 2013 ILOC decision, a coalition of municipalities and industrial entities filed suit in the D.C. Circuit (Coalition for Responsible Regulation v. EPA), asserting that EPA had improperly decided to continue applying the blending and mixing zone policies outside of the Eighth Circuit. In its opening brief, the Coalition makes several arguments for vacating these policies on a national basis. First, the Coalition argues that both policies function as formal regulation but continue to suffer from the same procedural defect identified by the Eight Circuit (i.e., they have not been submitted to a public and notice comment period). Second, the Coalition argues that EPA’s decision to continue applying these policies outside of the Eighth Circuit, but not within the Eighth Circuit, violates the CWA’s objective of nationally uniform regulations. Essentially, this argument maintains that the CWA’s central framework requires that certain regulations, including the policies at issue, be applied in a nationally uniform manner. Under the Coalition’s view, the CWA’s framework mandates that EPA comply with the Eighth Circuit’s decision on a national basis.

In response, EPA argues that it has not made a formal decision regarding the implementation of the policies in light of the Eighth Circuit’s holding in ILOC. Because it has not made a decision on this issue, EPA asserts that there is no final agency action for the Coalition to challenge. According to the Coalition, the agency had distributed an internal directive to continue to implement the blending and mixing zone policies outside of the Eighth Circuit. The Coalition also asserts that the agency publically announced at a seminar (attended by the regulated community) its intentions to continue to apply the policies outside of the Eighth Circuit. The Coalition argues that these actions constitute a formal decision and final action. The agency, on the other hand, maintains that there was no internal directive and that EPA officials did not publically address how the EPA would apply the ILOC ruling.

It is this disagreement over what the agency has actually done in the wake of ILOC that led to the FOIA suit. The Coalition’s law firm, Hall & Associates (H&A), filed a FOIA request with the agency in order to obtain, among other things, the directive that the Coalition believes was internally distributed, as well as documents that would confirm trade press reports that the agency had publically announced its intentions to continue with the policies. In response, EPA declined to produce some materials on the grounds that they were exempt from FOIA requests because they were products of the agency’s deliberative process.

H&A subsequently brought a FOIA suit in the District Court for the District of Columbia seeking to enjoin the agency from improperly asserting privileges against the FOIA requests. In attempting to defend its use of these privileges, EPA filed a declaration with the court asserting that the “internal directives” sought by H&A were in fact draft memoranda that “were not finalized, nor widely disseminated to the EPA Regions . . . .” This is an important distinction because if the memoranda were “directives” that told regional offices how to implement agency policy or law (as opposed to “draft documents”), the agency would not be able to withhold the documents under the deliberative process exemption. The declaration also states that “there was no oral disclosure to the public by the EPA” regarding EPA’s implementation of the ILOC decision and that the agency simply “had not determined how it would apply the Iowa League of Cities decision outside of the Eighth Circuit . . . .”

This brings us back to the beginning of this post: H&A thinks EPA is not being truthful to the court and has said as much in a formal filing. According to H&A, EPA released records to H&A on April 25, 2016 that H&A believes refute the statements made in EPA’s declaration. H&A asserts that one of these records is an audio transcript from the seminar when EPA allegedly announced in public its intention to continue applying the blending and mixing zones policies outside of the Eighth Circuit. H&A believes that this transcript confirms that an EPA official announced that “it is EPA HQ’s current contention that the court’s ruling will only be binding in the 8th Circuit states.” Further, H&A asserts that it has received an internal agency email confirming the existence of the internal directive that directed EPA regional offices to continue applying the policies at issue outside of the Eighth Circuit.

H&A has asked the judge in the FOIA suit to issue a ‘show cause’ order that would require the agency to make a case for why it should not face immediate penalties. Further, if H&A is correct, EPA might be enjoined from withholding the documents at issue. This could in turn provide the Coalition (H&A’s client and the plaintiff in the Coalition for Responsible Regulation case) with evidence to support its assertion that the agency has formally decided to continue applying the blending and mixing zones policy outside of the Eighth Circuit.

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Author

Kristen P. Miller

Kristen Miller Associate