Document Ev9jpG5D24Z5XrrxMpqK5jGBN

To: Pruitt, Scott[Pruitt.Scott@epa.gov]; Rees,Sarah[rees.sarah@epa.gov] Cc: Greenwalt, Sarah[greenwalt.sarah@epa.gov]; Fotouhi, David[fotouhi.david@epa.gov]; Schwab, Justin[schwab.justin@epa.gov]; Jackson, RyanOackson.ryan@epa.gov]; Gary Cohen[gcohen@hall-associates.com]; Tonja Scott[tscott@hail-associates.com] From: John Haii Sent: Thur 7/6/2017 5:56:43 PM Subject: Request for National Implementation of the Iowa League of Cities Decision regarding Biending and Bacteria Mixing Zones CRR ILOC Letter to S. Pruitt - 7-6-17 -final.pdf CRR HOC Letter to S. Pruitt Benton and Schnare - 2-6-17.pdf Attachments to CRR ILOC Letter to r> Pruitt Benton and Schnan 1 ' >. ( hiqhliqhted.pdf 2003 Blending Q-A.pdf 2. nion - CRR v. EPA.pdf Dear Administrator Pruitt and Director Rees: This communication follows our earlier correspondence with your Offices, and discussions with staff, regarding the above referenced matter. As discussed in the attached letter, the Center for Regulatory Reasonableness respectfully requests that EPA take action to clarify its position regarding the ongoing validity of NPDES rule modifications vacated by the 8th Circuit Court of Appeals in the 2013 Iowa League of Cities v. EPA decision. Those unadopted rule modifications created well over $100 billion in new, additional pollution reduction costs nationwide, unnecessarily increasing municipal compliance costs under the Clean Water Act. Your Offices action is now necessary in light of the DC Circuit's recent ruling that it lacked jurisdiction to review EPA's decision that it would continue implementation of the vacated rules outside of the 8th Circuit (See, DC Cir. Decision at 2). The DC Circuit Court's decision suggested that further action to review EPA's announced position may be appropriate in either District Court or the 8th Circuit - however, this Administration's clarification that the Iowa League decision will be applied nationwide (as intended by Section 509 of the Act), would appropriately bring the matter to closure. We look forward to meeting with you to answer any questions that you may have with respect to this request. Thank you for your assistance in bringing this regulatory issue to a proper resolution. Respectfully yours, 17cv1906 Sierra Club v. EPA - 6/22 Production ED 001523 00002937-00001 John C. Hall Center for Regulatory Reasonableness Hall & Associates 1620 I Street, NW, Suite 701 Washington, DC 20006 Phone: 202-463-1166 Fax: 202-463-4207 E-Mail: jhall@hall-assoeiates.eom The information contained in this e-mail is confidential and intended only for use by the individual or entity named. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by replying to this e-mail and destroying the original e-mail and any attachments thereto. 17cv1906 Sierra Club v. EPA - 6/22 Production ED 001523 00002937-00002 3 #14-1150 Document #1683310 Filed: 02/28/2017 Page 1 of 4 Jifete (Ktfurt #f appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 21, 2016 Decided February 28, 2017 No. 14-1150 Center for Regulatory Reasonableness, Petitioner v. Environmental Protection Agency, Respondent On Petition for Review of Letters Dated April 2 and June 18, 2014 from the United States Environmental Protection Agency John C. Hall argued the cause for petitioner. With him on the briefs were Gary B. Cohen and Philip D. Rosenman. Jeffrey S. Longs worth was on the brief for amicus curiae The National Association of Clean Water Agencies in support of petitioner. Andrew J. Doyle , Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden , Assistant Attorney General, and Richard T. Witt, Attorney, U.S. Environmental Protection Agency. Michele L. Walter , Attorney, U.S. Department of Justice, entered an appearance. 17cv1906 Sierra Club v. EPA - 6/22 Production ED 001523 00002938-00001 3 #14-1150 Document #1683310 Filed: 02/28/2017 Page 2 of 4 2 Before: Kavanaugh and Wilkins, Circuit Judges, and Williams, Senior Circuit Judge. Opinion for the Court filed by Kavanaugh. Circuit Judge Kavanaugh, Circuit Judge : As a general matter, t he Clean Water Act prohibits discharge of pollutants into the Nation's waters except in accordance with a permit. The Environmental Protection Agency promulgates rules governing those permits. Some of the permitting rules apply to publicly owned water treatment facilities. In 2011, EPA issued policy letters that explained and arguably changed two EPA policies with respect to publicly owned water treatment facilities. A group representing the interests of municipalities then sued to challenge the new EPA policy letters in the Eighth Circuit. The group prevailed in the Eighth Circuit. See Iowa League of Cities v. EPA ,711 F.3d 844 (8th Cir. 2013). Beginning in 2013 , EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit's decision outside of that circuit. We will refer to those EPA statements collectively as "EPA's non -acquiescence statement." In this Court, an industry group - the Center for Regulatory Reasonableness - then sued EPA. The Center raised multiple challenges to the non -acquiescence statement's legality, including claims that the non - acquiescence statement was itself a rule promulgated without proper notice and comment an d in excess of the agency's statutory authority. The key threshold question here is whether this Court has jurisdiction to hear this kind of challenge at this time. We do not. In general, district courts have jurisdiction to review 17cv1906 Sierra Club v. EPA - 6/22 Production ED 001523 00002938-00002 3 #14-1150 Document #1683310 Filed: 02/28/2017 Page 3 of 4 3 final agency actions unless a statutory provision provides for direct review in a court of appeals. To be sure, t he Clean Water Act authorizes direct court of appeals review of EPA- promulgated effluent or other limits on discharge of pollutants. 33 U.S.C. 1369(b)(1)(E). We need not determine whether EPA's non -acquiescence statement constitutes a "promulgation" because EPA's non - acquiescence statement does not announce an effluent or other limit on discharge of pollutants. The non -acquiescence statement merely arti culates 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. See 5 U.S.C. 702-704; 28 U.S.C. 1331.1 To the extent the Center seeks to directly challenge the 2011 policy letters, direct review of those letters in a court of appeals had to be sought within 120 days (as another petitioner did in the Eighth Circuit) . See 33 U.S.C. 1369(b)(1). The Center is well outside the 120-day window to directly challenge the 2011 policy letters in this Court. To the extent the Center believes EPA is violating the Eighth Circuit's mandate, it may of course try to seek mandamus or other appropriate relief in the Eighth Circuit. See 28 U.S.C. 1651(a). 1 In determining jurisdiction, this Court generally will assume the merits as the plaintiff or petitioner pleads them, but that is not the approach we follow when, as here, "the merits of th[e] APA challenge are inextricably linked to our jurisdiction to he ar that challenge." Cement Kiln Recycling Coalition v. EPA , 493 F.3d 207, 226 (D.C. Cir. 2007). 17cv1906 Sierra Club v. EPA - 6/22 Production ED 001523 00002938-00003 3 #14-1150 Document #1683310 Filed: 02/28/2017 Page 4 of 4 4 In sum, this C ourt lacks jurisdiction to directly review EPA's non-acquiescence statement. The petition for review is dismissed. So ordered. 17cv1906 Sierra Club v. EPA 6/22 Production ED 001523 00002938-00004